Appeal from the United States District Courtfor the District of HawaiiDavid A. Ezra, District Judge, PresidingArgued and SubmittedMay 5, 1998--Honolulu, HawaiiFiled June 22, 1998Before: James R. Browning, Melvin Brunetti, andPamela Ann Rymer, Circuit Judges.Opinion By Judge Rymer
_____________________________COUNSEL John W. Goemans, Kamuela, Hawaii, for the plaintiff-appellant.Dorothy D. Sellers, Deputy Attorney General, Honolulu,Hawaii, for the defendants-appellees.
_____________________________OPINION RYMER, Circuit Judge:Hawaii holds special elections for trustees of the Office ofHawaiian Affairs (OHA), who must be Hawaiian and whoadminister public trust funds set aside for the betterment of"native Hawaiians" and "Hawaiians," in which only peoplewho meet the blood quantum requirement for "nativeHawaiian" or "Hawaiian" may vote.1 There is a long historybehind the use and structure of the public lands trust for thebenefit of descendants of the original races inhabiting theHawaiian Islands, none of which is challenged in this appeal.Rather, we must decide only whether Hawaii may limit thosewho vote in special trustee elections to those for whose bene-fit the trust was established.Harold F. Rice, who is caucasian and not a beneficiary ofthe trusts administered by OHA's trustees, appeals the districtcourt's summary judgment in favor of Benjamin J. Cayetano,Governor of Hawaii, upholding the voter qualification in apublished opinion.2 Rice v. Cayetano, 963 F.Supp. 1547 (D.Haw. 1997). We agree that the franchise for choosing trusteesin special elections may be limited to Hawaiians, becauseHawaiians are the only group with a stake in the trust and thefunds that OHA trustees administer. They have the right tovote as such, not just because they are Hawaiian. For this rea-son, neither the Fifteenth Amendment nor the Equal Protec-tion Clause precludes Hawaii from restricting the voting fortrustees to Hawaiians and excluding all others. Therefore, aswe have jurisdiction under 28 U.S.C. S 1291, we affirm.3IASome history is helpful by way of background.4Hawaii was an independent kingdom from 1810 until 1893when it was overthrown and replaced by a provisional gov-ernment (the Republic of Hawaii) that sought annexation tothe United States. The United States accepted the cession ofsovereignty of Hawaii in the Annexation Act of 1898. 30 Stat.750 (1898). As a result, roughly 1,800,000 acres of crown,government, and public lands were ceded to the United States.The Annexation Act provided, however, that all revenuesfrom the public lands were to "be used solely for the benefitof the inhabitants of the Hawaiian Islands for educational andother public purposes." Id. The Organic Act, passed in 1900,established the Territory of Hawaii and confirmed that thepublic lands ceded to the United States would remain in thepossession of the government of the Territory for publicworks and other public purposes. Organic Act S 91, 31 Stat.141 (1900), reprinted in, 1 Haw. Rev. Stat. at 84 (1993).In 1920, the Hawaiian Homes Commission Act (HHCA),42 Stat. 108 (1921), reprinted in, 1 Haw. Rev. Stat. at 191(1993), set aside some 200,000 acres of public lands as"available lands" for nominal price leases to "nativeHawaiians." HHCA S 203. The term "native Hawaiian" wasdefined to mean "any descendent of not less than one-half partof the blood of the races inhabiting the Hawaiian Islands pre-vious to 1778." HHCA S 201(7). HHCA responded to the factthat the number of full-blooded Hawaiians was decreasingand that the Hawaiian race required rehabilitation by beingreturned to the land. H.R. Rep. No. 839, 66th Cong., 2nd Sess.at 4 (1920). Accordingly, it specified that the trust was to beadministered on behalf of the native Hawaiian beneficiaries ofthe Act. HHCA S 101(c).Hawaii was admitted to the union as a state in 1959.Admission Act of March 18, 1959, Pub. L. No. 86-3, 73 Stat.4, reprinted in, 1 Haw. Rev. Stat. at 90 (1993). In connectionwith admission, Hawaii agreed as a compact with the UnitedStates to adopt the HHCA, including its definition of nativeHawaiians, as part of the state Constitution. Admission ActS 4. Article XII, S 1 of the Hawaii Constitution accomplishedthis. Further, the Admission Act provided that public landsheld by the United States that were granted or conveyed toHawaii pursuant to S 5(b) were to be held by Hawaii as a pub-lic trust for five purposes, one of which is "the betterment ofthe conditions of native Hawaiians."5 Admission Act S 5(f).The other four purposes pertain to the public generally.6As it happens, no benefits actually went to native Hawai-ians until the state constitution was amended in 1978 to estab-lish the Office of Hawaiian Affairs. OHA was created to holdtitle to S 5(b) property (except for HHCA "available lands,"which are separately administered by the Department ofHawaiian Home Lands) in trust and manage it for nativeHawaiians and Hawaiians.7 Haw. Const. art. XII, S 5. OHAadministers for native Hawaiians a pro rata share (now twentyper cent) of the public lands trust that was created under S 5(f)of the Admission Act.8 See Haw. Con. art. XII, SS 4, 6; Haw.Rev. Stat. SS 10-3(1), 10-13.5. It also administers appropri-ated funds for Hawaiians. Haw. Rev. Stat. S 10-3(2). Pursuantto the constitution and statutes enacted to implement it, OHAis governed by a board of trustees whose members must beHawaiian and who are elected in special elections by qualifiedvoters who are Hawaiian. Haw. Rev. Stat. SS 13D-1, 13D-2,13D-3(b)(1), 13D-4.BRice was born and has always lived in Hawaii. While hetraces his ancestry to two members of the legislature of theKingdom of Hawaii, prior to the Revolution of 1893, Rice iscaucasian and is not within the statutory definition of Hawai-ian or native Hawaiian. See Haw. Rev. Stat.S 10-2.In March 1996, Rice applied to vote in the August 1996election for trustees of OHA. The registration form containedthe following declaration: "I am also Hawaiian and desire toregister to vote in OHA elections." Rice crossed off thephrase "am also Hawaiian and" and marked "yes" on theapplication. He is otherwise a qualified voter, but his applica-tion was denied since he is not Hawaiian.Rice brought this action pursuant to 42 U.S.C. S 1983 chal-lenging his exclusion from voting for OHA trustees on thegrounds that conditioning eligibility on being Hawaiian vio-lates the Voting Rights Act of 1965 as amended (42 U.S.C.SS 1971 et seq.),9 42 U.S.C. S 1981, and the Fourteenth andFifteenth Amendments of the United States Constitution. Thedistrict court concluded that the method of electing OHAtrustees meets constitutional standards for the essential reasonthat the restriction on the right to vote is not based upon race,but upon a recognition of the unique status of native Hawai-ians that bears a rational connection to Hawaii's trust obliga-tions. In any event, the court noted, OHA performs no trulygovernmental functions and "is carefully constrained by itsoverall purpose to work for the betterment of Hawaiians." 963F. Supp. at 1558. Having already disposed of other claims, thecourt entered summary judgment. Rice timely appealed.IIRice complains about the "extraordinary" authority and dis-cretion that OHA, which is a state agency, is given to providegovernment services to a segment of the population definedexclusively by race, funded by a twenty percent share of reve-nues from the public lands trust which may lawfully beapplied for the benefit of all people of the state without regardto race, and run by trustees who are voted into office by anelectorate apportioned on a purely racial basis. He submitsthat the racial restriction on the right to vote violates the Fif-teenth Amendment because it conditions the right to vote instatewide elections for trustees on membership in the Hawai-ian race. It violates the Fourteenth Amendment, according toRice, because this classification by race, and the correspond-ing racial restriction on the franchise, fails the test of strictscrutiny which must be applied to all distinctions based onrace under Adarand Constructors, Inc. v. Pena,
505 U.S. 200
(1995). And, he contends for the first time on appeal, it alsoviolates the anti-nobility prohibitions of the United StatesConstitution because it establishes immutable classes amongcitizens, giving some greater entitlement to political powerthan others, based solely on birth and ancestry.Hawaii, on the other hand, emphasizes that neither the defi-nition of native Hawaiians or Hawaiians, nor the designationof specific public lands for their benefit, nor OHA, nor itspurposes, is at issue. That being so, it contends, the limitationof the right to vote for OHA trustees to Hawaiians and nativeHawaiians is not a racial classification, but a legal one basedon who are beneficiaries of the trusts in a special purpose, dis-proportionate impact election of the sort described in SalyerLand Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S.719 (1973). In any event, Hawaii points out, it did not inten-tionally discriminate on the basis of race because the genesisof the whole structure was Congress's requirement that thenew state of Hawaii accept the definition of native Hawaiianin the HHCA and accede to the purposes of the S 5(f) trustwhich include, in part, betterment of the conditions of nativeHawaiians. Finally, the state submits, its classification sur-vives rational basis review (which is the appropriate standard)under Morton v. Mancari,
417 U.S. 535
(1974), because thefederal government and the state of Hawaii have the samespecial relationship with and owe the same unique obligationto native Hawaiians as the federal government does to Indiantribes.[1] Rice counters Hawaii's argument that the right to votemerely reflects the legal status of native Hawaiians andHawaiians by pointing out that the legal status of being a ben-eficiary of the OHA trusts is based only on race. That may beso, but the constitutionality of the racial classification thatunderlies the trusts and OHA is not challenged in this case.10This means that we must accept the trusts and their adminis-trative structure as we find them, and assume that both arelawful.11[2] If, as we must, we take it as given that lands were prop-erly set aside in trust for native Hawaiians; that the Stateproperly established an Office of Hawaiian Affairs to holdtitle to, and manage, property set aside in trust or appropriatedexclusively for native Hawaiians and Hawaiians; and thatOHA is properly governed by a board of trustees whose mem-bers are Hawaiian, it follows that the state may rationally con-clude that Hawaiians, being the group to whom trustobligations run and to whom OHA trustees owe a duty ofloyalty,12 should be the group to decide who the trustees oughtto be. Put another way, the voting restriction is not primarilyracial, but legal or political. Thus, we conclude that Rice'sargument fails under both the Fourteenth and FifteenthAmendments for essentially the same reasons.ASpecifically with respect to the Fifteenth Amendment,13Rice maintains that Hawaii has created a racially pure votingbloc which states cannot do for any reason under Gomillionv. Lightfoot,
364 U.S. 339
(1960). Moreover, he points out,the Fifteenth Amendment is self-executing and absolute on itsface. Since the voter qualification is expressly racial, andabsolutely denies the right to vote to all races except theHawaiian race, Rice contends that it violates the plain mean-ing of the Fifteenth Amendment without need for furtherinquiry. Shaw v. Reno,
509 U.S. 630
(1993).Rice is, of course, quite right that the Hawaii Constitutionand Haw. Rev. Stat. S 13D-3 contain a racial classification ontheir face. The Hawaii Constitution provides in Article XII,section 5: "There shall be a board of trustees for the Office ofHawaiian Affairs elected by qualified voters who are Hawai-ians, as provided by law." And S 13D-3, implementing it, pro-vides that: "No person shall be eligible to register as a voterfor the election of board members unless the person meets thefollowing qualifications: (1) The person is Hawaiian." Haw.Rev. Stat. S 13D-3(b).[3] Yet restricting voter eligibility to Hawaiians cannot beunderstood without reference to what the vote is for. As thedistrict court explained in detail, 963 F.Supp. at 1556-57, thevote is for the limited purpose of electing trustees who haveno general governmental powers and perform no general gov-ernmental purposes.14 The voting restriction itself applies onlyat a special election to elect members of the OHA board;15 ingeneral elections, all persons generally qualified to vote mayvote. In these respects the trustee elections are like the specialpurpose elections upheld in Salyer Land Co. v. Tulare WaterDist.,
410 U.S. 719
(1973) and Ball v. James,
451 U.S. 355
(1981). In both cases, the system for electing directors of spe-cial purpose water districts limited voting eligibility to land-owners on a proportional basis, excluding others in thedistrict. The Court concluded that by virtue of their limitedpurpose, including the districts' lack of normal governmentalauthority, and the disproportionate effect of their activities onlandowners as a group, the districts' electoral scheme com-ported with the Fourteenth Amendment and did not run afoulof the popular election requirements set out in Reynolds v.Sims,
377 U.S. 533
(1964). Thus, elections may be held forspecial purposes and voter qualifications that might otherwisebe invalid may survive when they limit eligible voters to thosewho are disproportionately affected and the governmentagency does not perform fundamentally governmental func-tions.[4] Rice nevertheless asks us to dismiss the Salyer rationaleentirely on account of OHA's authority over funds thatinclude a twenty percent share of revenues from the cededlands trust; the similarity between what OHA does for its ben-eficiaries and what the state otherwise does generally for allcitizens without regard to race; and the fact that OHA activi-ties are of vital concern to all citizens of Hawaii. But we can-not set Salyer aside altogether, for Rice's points reflectfrustration with OHA -- which is something we can do noth-ing about in this case. Whether or not the frustration -- orOHA -- is justified, the fact remains that public lands andfunds have long since been committed in trust, and continueto be allocated in part, for the purpose of benefiting theHawaiian peoples; they are the only peoples legally interestedin how those funds are handled; and for them to decide whoshould administer the trust does not seem exceptionable underSalyer except for the fact, which we recognize, that the quali-fication has to do with race instead of ownership of land, asin Salyer. For this reason we do not regard Salyer as disposi-tive, but we cannot say that it has no applicability whatever.[5] Nor may we ignore the reality that the voting restrictionfor trustees is rooted in historical concern for the Hawaiianrace, going back at least to the Hawaiian Homes CommissionAct of 1920, carried through statehood when Hawaiiacknowledged a trust obligation toward native Hawaiians asa condition of admission to the union, and on to 1993, whenCongress passed a Joint Resolution "apologiz[ing] to NativeHawaiians on behalf of the people of the United States for theoverthrow of the Kingdom of Hawaii on January 17, 1893with the participation of agents and citizens of the UnitedStates, and the deprivation of the rights of Native Hawaiiansto self-determination." Pub. L. 103-150, 107 Stat. 1510(1993). In this sense, the special treatment of Hawaiians andnative Hawaiians reflected in establishment of trusts for theirbenefit, and the creation of OHA to administer them, is simi-lar to the special treatment of Indians that the Supreme Courtapproved in Morton v. Mancari,
417 U.S. 535, 554
(1974). Aswe said of Mancari in Alaska Chapter, Associated Gen. Con-tractors v. Pierce, 694 F.2d 1162 (9th Cir. 1982), preferentialtreatment that is grounded in the government's unique obliga-tion toward Indians is a political rather than a racial classifica-tion, even though racial criteria may be used in definingeligibility. Id. at 1168 n.10. While we recognize that Mancariis distinguishable because Hawaiians are not exactly like Indi-ans (for example, they aren't organized in tribes and thereisn't an Hawaiian Commerce Clause in the Constitution),16and we do not regard either Mancari or Pierce as controlling,17both indicate that we are not compelled to invalidate the vot-ing restriction simply because it appears to be race-basedwithout also considering the unique trust relationship thatgave rise to it.[6] Accordingly, even though there is little authority toguide application of the Fifteenth Amendment in a case suchas this, we are persuaded that no violation exists. The Fif-teenth Amendment "squarely prohibits racially-based denialsof the right to vote," Laurence H. Tribe, American Constitu-tional Law, at 335 n.2 (2d ed. 1988), and renders inoperativeany provision of a state constitution that restricts the right tosuffrage to members of a particular race, see Neal v. Dela-ware,
103 U.S. 370
, 389 (1881), but this isn't a general elec-tion for government officials performing governmentfunctions of the sort that has previously triggered FifteenthAmendment analysis. Further, the voter qualification at issuehere -- albeit clearly racial on its face -- does not excludethose who ever had, now have, or ever can have any interestin the outcome of the special election for trustees (at least notunless and until the whole trust scheme and administrativestructure is invalidated). Under these circumstances, to permitonly Hawaiians to vote in special elections for trustees of atrust that we must presume was lawfully established for theirbenefit does not deny non-Hawaiians the right to vote in anymeaningful sense. The special election for trustees is notequivalent to a general election, and the vote is not for offi-cials who will perform general governmental functions ineither a representative or executive capacity. Cf., e.g., Lane v.Wilson,
307 U.S. 268
(1939) (striking down, under the Fif-teenth Amendment, procedural hurdles to registering to votein general elections); Smith v. Allwright,
321 U.S. 649
(1944)(state cannot set racial qualifications for primary because theright to vote in a primary is like the right to vote in a generalelection). Nor does the limitation in these circumstances sug-gest that voting eligibility was designed to exclude personswho would otherwise be interested in OHA's affairs. Cf., e.g.,Gomillion v. Lightfoot,
364 U.S. 339
(gerrymandering cityboundary to deny a vote to African-Americans who lived inthe city and otherwise would have had the right to vote inmunicipal elections, without any countervailing municipalfunction the scheme was designed to further). Rather, itreflects the fact that the trustees' fiduciary responsibilities runonly to native Hawaiians and Hawaiians and "a board of trust-ees chosen from among those who are interested partieswould be the best way to insure proper management andadherence to the needed fiduciary principles." 18 The chal-lenged part of Hawaii law was not contrived to keep non-Hawaiians from voting in general, or in any respect pertinentto their legal interests. Therefore, we cannot say that Rice'sright to vote has been denied or abridged in violation of theFifteenth Amendment.BRegardless, Rice argues, the racial restriction on the rightto vote for OHA trustees violates the Fourteenth Amendment19even if the Fifteenth Amendment isn't applicable. Shawindicates that racial classifications on the face of a statute areimmediately suspect, he emphasizes, and the classificationhere cannot survive for lack of any compelling justificationunder Adarand.[7] We obviously agree that there is a racial classificationon the face of S 13D-3, and that it is suspect as such; but wedisagree for the reasons we have already explained that it isprimarily racial in context. Nor is the eligibility requirement,strictly speaking, a preference of the sort that concerned theCourt in Adarand. Instead, it is more like the limitation ofvoting to landowners in Salyer. We have no trouble under-standing why Hawaii would want the people who have aninterest in the trust to vote for trustees, and it is rational forthe state to make this decision in light of its trust responsibili-ties for Hawaiians and native Hawaiians. See Mancari, 417U.S. 535; Pierce, 694 F.2d 1162. However, even if the votingrestriction must be subjected to strict judicial scrutiny becausethe classification is based explicitly on race, it survivesbecause the restriction is rooted in the special trust relation-ship between Hawaii and descendants of aboriginal peopleswho subsisted in the Islands in 1778 and still live there --which is not challenged in this appeal. Thus, the scheme forelecting trustees ultimately responds to the state's compellingresponsibility to honor the trust, and the restriction on votereligibility is precisely tailored to the perceived value that aboard "chosen from among those who are interested partieswould be the best way to insure proper management andadherence to the needed fiduciary principles." 1 Proceedingsof the Constitutional Convention of Hawaii of 1978, StandingComm. Rep. No. 59 at 644.[8] Given the fact that only Hawaiians and native Hawai-ians are trust beneficiaries, there is no race-neutral way toaccord only those who have a legal interest in management oftrust assets a say in electing trustees except to do so accordingto the statutory definition by blood quantum which makes thebeneficiaries the same as the voters. We therefore concludethat because Hawaiians and native Hawaiians have the rightto vote as such, not just because they are Hawaiian, that theEqual Protection Clause does not preclude Hawaii fromrestricting the voting for trustees to Hawaiians and excludingall others.IIIWe decline to consider Rice's argument that the restrictionon voting to descendants of pre-1778 inhabitants violates theAnti-Nobility Clauses of the United States Constitutionbecause the issue is raised for the first time on appeal. UnitedStates v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978).AFFIRMED. the end
___________________________FOOTNOTES 1 "Hawaiian" means "any descendant of the aboriginal peoples inhabit-ing the Hawaiian Islands which exercised sovereignty and subsisted in theHawaiian Islands in 1778, and which peoples thereafter have continued toreside in Hawaii," and "native Hawaiian" means "any descendant of notless than one-half part of the races inhabiting the Hawaiian Islands previ-ous to 1778, as defined by the Hawaiian Homes Commission Act, 1920,as amended; provided that the term identically refers to the descendantsof such blood quantum of such aboriginal peoples which exercised sover-eignty and subsisted in the Hawaiian Islands in 1778 and which peoplesthereafter continued to reside in Hawaii." Haw. Rev. Stat. S 10-2.2 A brief in support of the state's position was submitted by amici curiaeOffice of Hawaiian Affairs, State Council of Hawaiian Homestead Associ-ations, Kamehameha Schools/Bishop Estate, Na Pua A Ke Alii Pauahi,Inc., Association of Hawaiian Civic Clubs, Council of Hawaiian Organiza-tions, Native Hawaiian Bar Association, Native Hawaiian Legal Corpora-tion, Native Hawaiian Advisory Council, Ha Hawaii, Hui Kalai'aina, andAlu Like, Inc.3 Although neither party addresses standing, it is a threshold questionthat we must consider even if not raised in the district court or on appeal.FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 230
-31 (1990); McMichaelv. County of Napa, 709 F.2d 1268, 1269 (9th Cir. 1983). While Rice mayhave only a generalized interest in the affairs of OHA and its trustees, heappears to be an adequately injured party as a caucasian resident of Hawaiiwho allegedly is denied the right to vote on racial grounds in a statewideelection. See, e.g., Baker v. Carr,
369 U.S. 186, 206
-08 (1962) (assertedinjury to fundamental right to vote deemed a sufficient personal stake tosupport standing).4 We realize that the historical facts are not without controversy or com-plexity. We can't begin to set them all out, nor can we even be sure thatevery fact we recite is not misleading without further explanation. How-ever, this appeal does not turn on any single historical fact, and our inten-tion is simply to recite enough history to give context to the dispute thatwe do have to decide.5 Section 5(f) provides that the lands granted to the State of Hawaii bythe Admission Act, together with proceeds and income, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use.Admission Act, S 5(f).6 In accordance with the Admission Act, the Hawaii Constitutiondeclared that "[t]he lands granted to the State of Hawaii by Section 5(b)of the Admission Act . . . excluding therefrom lands defined as `availablelands' by . . . the [HHCA] . . . shall be held by the State as a public trustfor native Hawaiians and the general public." Haw. Const. art. XII, S 4.7 The purposes of OHA are the betterment of conditions of nativeHawaiians and Hawaiians, serving as the principal agency responsible forthe performance, development, and coordination of programs for nativeHawaiians and Hawaiians, assessing policies of other agencies impactingon native Hawaiians and Hawaiians, and applying for, receiving, and dis-bursing grants for native Hawaiian and Hawaiian programs and services.Haw. Rev. Stat. S 10-3.8 The other four purposes for theS 5(f) trust have no allocated pro ratapercentage, nor is the remaining revenue administered by OHA.9 Rice has abandoned his claims under the Voting Rights Act andS 1981.10 In this connection, we note that the scholarly work upon which Ricerelies -- and others that we have read -- focuses on the underlyingarrangement and its constitutionality, not on the voting rights provision atissue here. See Stuart M. Benjamin, Equal Protection and the SpecialRelationship, 106 Yale L.J. 537 (1996); see also Jon Van Dyke, The Con-stitutionality of the Office of Hawaiian Affairs, 7 U. Haw. L. Rev. 63(1985).11 We express no opinion on the constitutionality of the underlying truststructure, or of OHA's purposes, because we are not called upon to deter-mine the constitutionality of any of the racial classifications in the HHCAor the Admission Act or the Hawaii Constitution or the statutes establish-ing OHA -- except for the one provision in Article XII, Section 5 of theConstitution and Haw. Rev. Stat. S 13D-3, limiting the right to vote forOHA trustees, that are directly challenged here.12 Haw. Rev. Stat. S 10-16(c), for example, provides that "[i]n matters ofmisapplication of funds and resources in breach of fiduciary duty, boardmembers shall be subject to suit brought by any beneficiary of the publictrust entrusted upon the office."13 The Fifteenth Amendment provides: "The right of citizens of theUnited States to vote shall not be denied or abridged by the United Statesor by any State on account of race, color, or previous condition ofservitude." U.S. Const. amend. XV, S 1.14 OHA trustees have power to manage proceeds and income from what-ever source for native Hawaiians and Hawaiians, including S 5(f) revenue;to exercise control over property set aside to OHA for native Hawaiiansand Hawaiians; to handle money and property on behalf of OHA; to for-mulate policy relating to the affairs of native Hawaiians and Hawaiians;to provide grants for pilot projects; and to make available technical andfinancial assistance and advisory services for native Hawaiian and Hawai-ian programs. Haw. Rev. Stat. S 10-5. The duties of the board are similarlychanneled. They are to develop a master plan for native Hawaiians andHawaiians; to assist in development of other agencies' plans for nativeHawaiian and Hawaiian programs and services; to maintain an inventoryof, and act as clearinghouse for, programs for native Hawaiians andHawaiians; to keep other agencies informed about native Hawaiian andHawaiian programs; and to conduct research, develop models for pro-grams, apply for and administer federal funds and promote the establish-ment of agencies to serve native Hawaiians and Hawaiians. Haw. Rev.Stat. S 10-6.15 Section 13D-4 provides that"[m]embers of the board of trustees shallbe elected at a special election held in conjunction with the general elec-tion in every even-numbered year." Haw. Rev. Stat. S 13D-4.16 Rice makes the additional point that whatever the historic obligationmay have been, it ran to "native Hawaiians" and not to persons of anyHawaiian ancestry as the OHA statute prescribes. Again, this may be sosince the definition of beneficiaries was changed in the 1978 constitutionalamendments to include "Hawaiians" as well as "native Hawaiians," but itis immaterial to this appeal because the underlying classification is not atissue.17 Although we questioned Mancari's continuing vitality in light ofAdarand in Williams v. Babbitt, 115 F.3d 657, 663 (9th Cir. 1997), andRice believes Adarand trumps both, we are bound by Supreme Courtauthority and our own precedent until overruled, which neither Mancarinor Pierce has been.18 1 Proceedings of the Constitutional Convention of Hawaii of 1978,Standing Comm. Rep. No. 59 at 644. The Committee reporting on Section5, establishing OHA, further noted that trustees should be so electedbecause "people to whom assets belong should have control over them.. . . The election of the board will enhance representative governance anddecision-making accountability and, as a result, strengthen the fiduciaryrelationship between the board member, as trustee, and the native Hawai-ian, as beneficiary." Id.19 Section 1 of the Fourteenth Amendment provides: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.