OHA suit disputes
Hawaiians’ very status

Judge agrees that plaintiffs can
question if they are indigenous

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By Pat Omandam
pomandam@starbulletin.com

Native Hawaiians are the indigenous people of the Hawaiian Islands.

Or are they?

That was among the facts disputed by attorneys yesterday in a federal court lawsuit that could determine the future of the Office of Hawaiian Affairs and the Hawaiian Homes Commission.

"The fact that the plaintiffs say that native Hawaiians are not indigenous people suggests to me that we're going to have some difficulty in finding areas that we can agree upon," said Sherry Broder, OHA board attorney.

"I would say that generally speaking, it is the generally accepted fact in our community that native Hawaiians are indigenous people of these lands," Broder said.

But plaintiffs' attorney Patrick Hanafin countered: "A lot of what OHA asks the court to accept are really in the nature of conclusions of law, things like the legality of the overthrow of the monarchy.

"We regard those as not really factual issues at all," he said.

The case involves a group of Hawaii residents who sued to stop OHA and the Hawaiian Homes Commission programs because they consider them race-based programs that discriminate against non-Hawaiians.

U.S. District Judge Susan Oki Mollway sided yesterday with the 16 plaintiffs represented by Hanafin when she denied a motion by OHA to have the court readily accept certain facts regarding native Hawaiians.

Those facts include whether native Hawaiians are the indigenous people of these islands and whether Congress provides benefits to them not because of their race, but because of their unique political status.

OHA requested the motion so it would not have the burden of producing evidence to prove these facts as the case moves toward a key July 24 preliminary injunction hearing.

In her ruling, Mollway said she does not know what facts will become necessary in the case and did not want to make those decisions now.

One reason is that some facts may be unnecessary or immaterial to the issue at hand, she said.

"We need to see how the case will develop," she said.

The plaintiffs are Earl F. Arakaki, Evelyn C. Arakaki, Edward U. Bugarin, Sandra P. Burgess, Patricia Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby M. Kravet, James I. Kuroiwa Jr., Fran Nichols, Donna M. Scaff, Jack H. Scaff, Allen Teshima and Thurston Twigg-Smith.

Mollway ordered both sides yesterday to meet to see if they can find common ground on a list of stipulated facts for the trial. The attorneys admit it will not be easy but said they will try.