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February 2004
By Derek Ferrar
Office of Hawaiian Affairs supporters and members of the
Hawaiian community at large
breathed a cautious sigh of relief Jan.
14, when Federal District Judge Susan
Oki Mollway issued an order dismissing
the Arakaki v. Lingle lawsuit, which
had sought to have government
programs benefiting Native Hawaiians
declared unconstitutional. OHA had
been the sole remaining defendant in
the suit, after Mollway earlier exempted
the Department of Hawaiian Home
Lands as a defendant, ruling that the
plaintiffs did not have standing to
challenge the federally mandated program.
In her order dismissing the case,
Mollway wrote that “the political status
of Hawaiians is currently being debated
in Congress, and this court will not
intrude into that political process.”
OHA attorney Sherry Broder had
argued for dismissal of the suit on
the grounds that it was based on an
essentially political question. “I think
(Judge Mollway) recognizes that it’s
for Congress, not the courts, to
determine the question of whether
native people are going to be accorded
special benefits, and to what extent,”
Broder told the press after the ruling.
Plaintiffs in the Arakaki suit had
sought to have OHA and DHHL abolished,
claiming that their use of state
tax revenues discriminates against
non-Hawaiians. The basis of their
contention was that Hawaiians, lacking
federally recognized status as an
indigenous people, constitute a racial
category, and therefore any government
program specifically benefiting
Hawaiians is illegally based on race.
Mollway ruled, however, that the
status of Hawaiians is still under
consideration by Congress, and therefore
inappropriate for her court to
decide. “Congress is not silent here,”
Mollway wrote. “It is speaking. But
what it will conclude is unclear. It is in
recognition of the continuing debate
in Congress that this court defers
to Congress.”
Mollway also ruled that, having
claimed injury as state taxpayers only,
the plaintiffs did not have standing to
challenge OHA’s use of tax revenues
for programs that involve matching
funds from the federal government.
“Any such challenge necessarily
challenges federal laws, and plaintiffs’
state taxpayer standing does
not include standing to challenge
any federal law,” she wrote.
Plaintiffs’ attorney H. William
Burgess said he plans to appeal the
Arakaki case to the 9th U.S. Circuit
Court of appeals in San Francisco.
In September, that court dismissed
two similar lawsuits filed by
Patrick Barrett and John Carroll.
The Arakaki suit, filed in March
2002 on behalf of state taxpayer
Earl Arakaki and 17 other plaintiffs,
was one of a series of recent
lawsuits that have targeted
Hawaiian programs and assets. In
2000, the U.S. Supreme Court
ruled in the Rice v. Cayetano case
that Office of Hawaiian Affairs
elections could not be limited only
to voters of Hawaiian ancestry, and
a subsequent case allowed non-
Hawaiian candidates to run for the
office of OHA trustee. More recent
suits have also included challenges
to the Hawaiian-preference admissions
policy of Kamehameha
Schools.
“The dismissal of the Arakaki
lawsuit removes an immediate
threat to Native Hawaiian programs
and initiatives to perpetuate our
culture and history,” said OHA
Chairperson Haunani Apoliona at a
press conference following
Mollway’s ruling. “But this decision,
while a truly significant milestone,
does not remove Native
Hawaiian programs from ‘harm’s
way.’ It is only with the creation of
a Hawaiian governing body that we
can solidify Native Hawaiian
rights.”
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