Sherry Broder


DISMISSED! Arakaki Suit Thrown out of Federal Court

February 2004

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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