Sherry Broder


Federal Judge Dismisses Lawsuit Against OHA

Thursday, January 15, 2004

A federal judge yesterday dismissed a case challenging the constitutionality of government programs for Native Hawaiians, ruling that the court should not interfere with the ongoing congressional debate over Hawaiians' political status.

U.S. District Judge Susan Oki Mollway found that Congress had in recent years recognized a "special trust relationship" with Hawaiians of varying blood quantum levels, drawing them closer to becoming a political class akin to Native Americans for whom separate benefits are allowed.

H. William Burgess, attorney for Earl Arakaki and 10 others who filed the challenge, said he would appeal the case to the 9th U.S. Circuit Court of Appeals in San Francisco.

But the judge's action in the Arakaki v. Lingle case ends, at least for now, the latest attack on the state Office of Hawaiian Affairs, the last remaining target named in the lawsuit. OHA was established by a 1978 state constitutional amendment for the benefit of Native Hawaiians.

Mollway earlier dismissed the state Department of Hawaiian Home Lands and other defendants from the case.

OHA supporters were enthralled yesterday. "I think she (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," said attorney Sherry Broder.

Broder's motion to dismiss the case contended that recent acts of Congress shepherding Hawaiian programs have fueled a political process that the courts should not interrupt.

Burgess maintained last night that his clients' claims were made merely against state agencies such as OHA and DHHL, and that the issue of whether Hawaiians are comparable to a Native American tribe is irrelevant to the case. "But I've read the decision, and it's specific and clear," he said. "It's done and we can move on, and that's what courts are supposed to do."

The original lawsuit, filed almost two years ago, continued a series of challenges against Hawaiian-only benefits. They began five years ago with the U.S. Supreme Court's landmark Rice v. Cayetano decision. In that case, the court found that restriction of OHA elections to Hawaiian voters as a racial group was unconstitutional.

Another case opened candidacy for OHA trustees to all voters. The Arakaki lawsuit sought to extend the equal-protection claim to OHA programs as well as its elections.

The suit was dealt a serious blow when Mollway decided the plaintiffs did not have standing to challenge the constitutionality of federally mandated programs, which meant the plaintiffs had no claim against Hawaiian homesteaders.

But OHA contended Native Hawaiians are recognized as a political entity rather than a racial group with the Akaka bill pending in Congress and federal laws providing educational and health benefits for Native Hawaiians.

"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."

OHA Chairwoman Haunani Apoliona offered thanks in Hawaiian to the spiritual realm: "Mahalo i ke Akua, mahalo i na 'aumakua."

But she also acknowledged that Hawaiians will continue to face legal threats — including the appeal of a case challenging Kamehameha Schools' admission policy.

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