Monday, June 2, 2003

OHA set to
answer legal threat

The agency has asked a
U.S. judge to dismiss a lawsuit
challenging Hawaiian programs

Office of Hawaiian Affairs, Hawaiian homestead and state attorneys are asking a federal judge to throw out a lawsuit that could end state programs for native Hawaiians.

A hearing will be at 9 a.m. June 16 before U.S. District Judge Susan Oki Mollway.

The lawsuit filed last year by attorneys Patrick Hanifin and retired attorney H. William Burgess, on behalf of 16 plaintiffs, challenges the constitutionality of OHA and the state Department of Hawaiian Home Lands.

OHA logo The group alleges OHA and DHHL's programs are race-based and discriminate against non-Hawaiians, and wants Mollway to end both programs.

The judge will hear pretrial motions to dismiss the case from the state Council of Hawaiian Homestead Associations and OHA. The homestead associations contend the constitutional challenge to DHHL is more a political than judicial issue, and one better left to Congress, which has the authority to use federal land to assist indigenous peoples, as it did in 1921 when it set aside 200,000 acres for native Hawaiians in the Hawaiian Home Lands Act.

They also contend Congress used its authority again in the 1959 Admissions Act when it required the state to use a portion of its revenue from public lands for the betterment of native Hawaiians.

Attorney Sherry Broder, who represents OHA, is expected to argue annual state general-fund payments to OHA show Congress and the state have recognized the legitimate claims of Hawaiians and that these claims form part of the ongoing reconciliation and settlement process.

"The consistent recognition by the Legislature of the claims of all persons of Hawaiian ancestry provides strong evidence that the state's general-fund appropriations for OHA result from its ongoing efforts to honorably and fairly deal with and settle the claims of the Hawaiian people," Broder said in court filings last month.

Burgess, however, said the plaintiffs will argue challenges to the constitutionality of laws is a question regularly presented to courts. He said he believes Mollway has jurisdiction to hear this case.

He added Congress, in exercising its power, must ensure all states are treated equally. That may not have happened when Congress created the Hawaiian Home Lands Act of 1921, he said.

"All states, old and new, stand on an equal footing. That is, they have equality of constitutional right and power," Burgess said this week.

As for OHA's motion, Burgess said, the general-fund appropriations to OHA are not made under any binding agreement. He said they are choices made by the Legislature each year as part of its duty to manage the state's finances.

Taxpayers can challenge any unconstitutional appropriation from the general fund, even if it is described as a "settlement," he said.

The June 16 hearing addresses the first in a series of pretrial motions in this case, which is scheduled for a trial in June 2004, said Charlene Aina, state deputy attorney general, who expects arguments to last all morning.

"It shouldn't be one of these 15-minutes-and-you're-out jobs," she said.

The 16 plaintiffs are Earl Arakaki, Evelyn Arakaki, Edward Bugarin, Sandra Burgess, Patricia Carroll, Robert Chapman, Brian Clarke, Michael Garcia, Roger Grantham, Toby Kravet, James Kuroiwa Jr., Fran Nichols, Donna Scaff, Jack Scaff, Allen Teshima and Thurston Twigg-Smith.

Office of Hawaiian Affairs


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