Sherry Broder


Ruling Due on Motion to Reject Challenge to Hawaiian Benefits

Sunday, January 11, 2004

A federal judge is set to rule tomorrow on a motion to dismiss a controversial case challenging the constitutionality of programs benefiting only Hawaiians.

U.S. District Judge Susan Oki Mollway will preside over a 9 a.m. hearing at the federal courthouse, where a rally by those defending the programs has been called by the Office of Hawaiian Affairs.

The state agency is the remaining target of the so-called Arakaki case, named for Earl Arakaki, one of the plaintiffs. The original roster of 16 plaintiffs was shortened by the death of Roger Grantham in March and by the withdrawal late last month of Brian Clarke, who cited "personal reasons," said his attorney, H. William Burgess.

OHA attorney Sherry Broder said the basis of her argument is that the treatment of Hawaiians is "a political question, and Congress has made a determination that Native Hawaiians should be treated the same as Native Americans."

Mollway, who usually issues an "inclination" about how she is likely to rule, has not done so this time.

She also will hear arguments about whether to dismiss three more of the remaining 14 plaintiffs — Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess — because they are of Hawaiian ancestry and therefore can't claim they are excluded from Hawaiians-only programs.

Burgess said they have legal standing because they are less than 50 percent Hawaiian and thus are excluded from some programs requiring that blood quantum.

He also is arguing against OHA's requested dismissal of the suit as a political question.

"They say that courts don't adjudicate political questions," he said. "They made the same motion a year ago and it was denied, and nothing has changed in the case."

Broder said the motion this time is "more specific," citing more recent congressional acts that she said establish Hawaiians as a political entity, such as the Native Hawaiian Education Act and the Hawaiian Home Lands Home Ownership Act.

OHA's rally, expected to be distinguished by the uniform red protest shirts evident at several recent rallies on Hawaiian entitlements, will begin at 7 a.m. tomorrow at the courthouse.

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