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ARAKAKI v. LINGLE

No. 04-15306.

477 F.3d 1048 (2007)

Earl F. ARAKAKI; Evelyn C. Arakaki; Edward U. Bugarin; Sandra P. Burgess; Patricia A. Carroll; Robert M. Chapman; Michael Y. Garcia; Toby M. Kravet; James I. Kuroiwa; Frances M. Nichols; Donna Malia Scaff; Jack H. Scaff; Allen Teshima; Thurston Twigg-Smith, Plaintiffs-Appellants, Anthony Sang, Sr., State Council of Hawaiian Homestead Associations (SCHHA); State Council of Hawaiian Homestead Associations, Intervenors-Appellees, v. Linda C. LINGLE, in her official capacity as Governor of the State of Hawaii; Haunani Apoliona, Chairman, and in her official capacity as trustee of the Office of Hawaiian Affairs; Rowena Akana, in his official capacity as trustee of the Office of Hawaiian Affairs; Donald Cataluna, in his official capacity as trustee of the Office of Hawaiian Affairs; Linda Dela Cruz, in her official capacity as trustee of the Office of Hawaiian Affairs; Clayton Hee, in his official capacity as trustee of the Office of Hawaiian Affairs; Colette Y. Machado, in her official capacity as trustee of the Office of Hawaiian Affairs; Charles Ota, in his official capacity as trustee of the Office of Hawaiian Affairs; Oswald K. Stender, in his official capacity as trustee of the Office of Hawaiian Affairs; John D. Waihee, IV, in his official capacity as trustee of the Office of Hawaiian Affairs; United States of America; John Does, 1 through 10; Georgina Kawamura, in her official capacity as Director of the Department of Budget and Finance; Russ Saito, in her official capacity as Comptroller and Director of the Department of Accounting and General Services; Peter Young, in his official capacity as Chairman of the Board of Land and Natural Resources; Sandra Lee Kunimoto, in her official capacity as Director of the Department of Argiculture; Ted Liu, in his official capacity as Director of the Department of Business, Economic Development and Tourism; Rodney Haraga, in his official capacity as Director of the Department of Transportation; Quentin Kawananakoa, member of the Hawaiian Homes Commission, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

February 9, 2007.

Attorney(s) appearing for the Case

H. William Burgess, Honolulu, HI, for the plaintiffs-appellants.

Sherry P. Broder, Honolulu, HI; Girard D. Lau, Charleen M. Aina, Office of the Attorney General of Hawaii, Honolulu, HI; Jon M. Van Dyke, William S. Richardson School of Law, Honolulu, HI; Aaron P. Avila, U.S. Department of Justice, Washington, D.C.; Thomas A. Helper, Office of the U.S. Attorney, Honolulu, HI, for the defendants-appellees.

Walter R. Schoettle, Honolulu, HI; Robert Klein, Honolulu, HI; Philip W. Miyoshi, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI, for the intervenors-appellees.

Le'a Malia Kanehe, Native Hawaiian LegalCorp., Honolulu, HI, for the amici curiae.

Before MELVIN BRUNETTI, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

In this case we are called on, yet again, to hear a challenge to state programs restricting benefits to "native Hawaiians" or "Hawaiians." See, e.g., Carroll v. Nakatani, 342 F.3d 934 (9th Cir.2003); Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir.2002); Han v. U.S. Dep't of Justice, 45 F.3d 333 (9th Cir.1995) (per curiam);

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