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Tuesday, January 13, 2004



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CRAIG T. KOJIMA / CKOJIMA@STARBULLETIN.COM
Hawaiians protested on Punchbowl Street at federal court yesterday over a suit that challenges the constitutionality of entitlements for native Hawaiians. Raymond Low, left, who lives on Waimanalo homestead land, was among the demonstrators.



3 plaintiffs dismissed
from OHA suit

The lawsuit questions the legality
of benefits for native Hawaiians


A federal judge dismissed three plaintiffs yesterday from a lawsuit challenging the constitutionality of entitlement programs for native Hawaiians.

U.S. District Judge Susan Mollway ruled that plaintiffs Sandra P. Burgess, Donna M. Scaff and Evelyn Arakaki had not shown they had the basis to sue and dismissed them from the case.

OHA logo In their written filings, the three plaintiffs argued that they are required by the state to pay taxes, but because they have less than 50 percent Hawaiian ancestry, they are not eligible to benefit from Office of Hawaiian Affairs funds.

OHA argued that the three failed to cite any programs they were not eligible for or had been prevented from applying for. Because they have suffered no injury, they should be dismissed from the suit, OHA argued.

Eleven non-Hawaiian plaintiffs remain in the suit after the death of plaintiff Roger Grantham in March.

Mollway reserved ruling until later this week whether to dismiss the lawsuit on the grounds that the case is a political question for Congress to decide.

Congress is debating the Akaka bill, which would give native Hawaiians federal recognition comparable to other native groups.

"It seems to me if Congress is in the process of considering it ... makes it a political question," Mollway said.

Mollway said she was not thoroughly convinced Congress has declared that native Hawaiians should be treated as other federally recognized tribes such as American Indians.

OHA is the remaining defendant in a lawsuit filed in November 2002 by Earl Arakaki and 15 others alleging that OHA and Department of Hawaiian Home Lands programs are race-based and discriminate against non-Hawaiians.

Sherry Broder, attorney for OHA, argued that decisions regarding native Hawaiians should be made by the political branch of government, not the courts, and the case should be dismissed.

Broder argued that Congress has made it "crystal clear" in legislation after the Rice vs. Cayetano decision that native Hawaiians have a unique political relationship with the United States, comparable with American Indians and Alaska Natives, and that the federal government has a trust responsibility to address the needs of native Hawaiians, delegating some of that responsibility to the state of Hawaii.

In the February 2000 Rice decision, the U.S. Supreme Court ruled OHA must open board elections to all Hawaii voters, not just Hawaiians.

More than 150 statutes enacted by Congress for the benefit of native Hawaiians, such as the Hawaiian Homelands Home Ownership Act and the Native Hawaiian Education Act, both passed since the Rice decision, recognize native Hawaiians as an indigenous people, she said.

H. William Burgess, attorney for the plaintiffs, said the complaint does not present a political question.

Regardless of whether the federal law is constitutional, the state use of taxpayer funds for one particular group is unconstitutional, he said.

"We challenged, based on the Constitution, the state laws that give special treatment to one group and exclude all others simply because they don't have the favored racial ancestry, and that doesn't require any political question to be decided by the court," Burgess said.

He does not believe in waiting for Congress to act on the Akaka bill, saying the case should have been decided sooner.



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