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Sunday, November 16, 2003



Court cases
rile Hawaiians

A series of marches begins
today to protest three lawsuits
aimed at native programs


Native Hawaiians and their supporters plan to march on Iolani Palace this afternoon and then to U.S. District Court tomorrow, where the future of hundreds of millions of dollars in educational programs, loans, leases and other benefits for native Hawaiians is being put on trial in three separate courtrooms.

In the most significant challenge to native Hawaiian entitlements since the landmark Rice v. Cayetano case, attorneys for the state and 16 local plaintiffs will give arguments before U.S. District Judge Susan Oki Mollway on the Arakaki v. Lingle suit, which seeks to abolish the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

In a nearby courtroom, U.S. District Judge Alan Kay will hear a complaint by an unidentified student challenging the Kamehameha Schools' century-old policy of giving preference to children of native Hawaiian ancestry for admissions.

On Tuesday, U.S. District Judge David Ezra will conduct a hearing on similar lawsuit by a Kauai seventh-grader who also seeks to overturn Kamehameha's admissions policy.

"It's all coming to a head all at once," said Oswald Stender, OHA trustee and a former Kamehameha Schools trustee. "There's no end to the benefits that could be lost."

For native Hawaiians, the potential fallout from adverse rulings is "extremely far-reaching and unthinkable," said Micah Kane, DHHL's chairman.

DHHL, with assets of about $480 million, administers about 7,300 leases to native Hawaiians covering 200,000 acres. OHA, with about $300 million in assets, has an annual budget of more than $20 million and provides more than $15 million in loans to native Hawaiian businesses and individuals.

The Kamehameha Schools, a $6 billion private, tax-exempt charity established by the 1884 will of Princess Bernice Pauahi Bishop, spends more than $220 million each year to educate nearly 5,000 children of native Hawaiian ancestry at its Kapalama Heights campus and its two neighbor-island campuses.

"Losing is not an option because the alternative is incomprehensible for Hawaii," said DHHL's Kane.

Lilikala Kame'eleihiwa, professor and director of the University of Hawaii's Center for Hawaiian Studies, added: "Hawaiian people everywhere are feeling bitter about this."

The center and the Hawaiian group Ilioulakalani are among the organizers of demonstrations today, tomorrow and Tuesday to support of the native Hawaiian programs.

Today, marchers will gather at Mauna 'Ala, the Royal Mausoleum, to honor alii buried there, then march to Iolani Palace, where there will be speeches, chants, music and hula through the night. Tomorrow at dawn, the demonstrators will walk to the federal courthouse with torches, candles and signs. Another demonstration is planned for Tuesday morning when the second Kamehameha lawsuit is being heard.

Attorney William Burgess, who represents the 16 local residents seeking to have OHA and DHHL declared unconstitutional, estimated that the state has spent more than $90 million on the two departments since 1993. He said the money spent on the departments belongs to everybody in the state, not just one group of people. Eliminating public funding to those organizations will also free native Hawaiians from "the shackles of government handouts," Burgess added.

"That money should be used to the benefit of everybody, meaning the education of everybody ... and should not be diverted to one small group, especially if that group is selected by race," he said.

In the Arakaki hearing, OHA attorney Sherry Broder is asking Mollway to dismiss the lawsuit on the grounds that the people suing don't have standing to do so.

Broder argued in court papers that Congress and the state recognized that they have a trust relationship with native Hawaiians when they passed the Hawaiian Homes Commission Act of 1920 and the 1959 Admissions Act. Any lawsuit challenging the constitutionality of OHA and DHHL is in essence a lawsuit challenging the 1959 statehood act, she argued.

In the Kamehameha Schools cases, attorneys for Kauai seventh-grader Brayden Mohica-Cummings and the second plaintiff are asking the judges to overturn the school's admission policy.

In August, Judge Ezra issued a temporary restraining order forcing Kamehameha to admit Mohica-Cummings, who was initially accepted, but was turned down after school administrators were unable to confirm his Hawaiian ancestry.

Ezra made no ruling on whether the estate's Hawaiian preference admission system was illegal or unconstitutional, but he said the estate waited too long to reject Mohica-Cummings' application.

Mohica-Cummings' attorneys -- Eric Grant of Sacramento, Calif., and Big Island lawyer John Goemans -- argued that the federal Civil Rights Act of 1866 prohibits private schools from discriminating by race.

Goemans successfully represented Big Island rancher Harold "Freddy" Rice in the Rice v. Cayetano case, in which the U.S. Supreme Court struck down the state's practice of letting only people with Hawaiian blood vote for OHA trustees.

Goemans says that in the February 2000 Rice decision, the Supreme Court designated "Hawaiian" as a race and not as a tribe or political group, making Kamehameha's admissions policy "race-based" and therefore discriminatory.

Kamehameha supporters say that view ignores a history of injustice suffered by Hawaiian people as a result of the overthrow of the monarchy more than 100 years ago.

Crystal Rose, a Kamehameha Schools attorney, argued in court papers that federal civil rights law allows race-conscious policies to exist as long as they seek to remedy past injustices or social imbalances. The policy also helps produce racially diverse leadership in Hawaiian society while preserving Hawaiian culture, she said.

"These lawsuits force us to look, once again, at some uncomfortable realities: that a disproportionate percentage of Hawaiians still face educational and social challenges and that despite the size of Princess Pauahi's bequest, Kamehameha alone cannot meet the needs of all Hawaiian children," the estate's five-member board of trustees wrote in a letter to the Star-Bulletin.

"Our admissions policy is critical to fulfilling our mission to improve the capability and well-being of Hawaiians through education," the trustees wrote. "Without that policy, we will cease to exist as we are today."

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