Author Legal Matters

Robert Klein

Sunday, October 31, 2004

Loss of OHA,
Hawaiian Homes
would devastate Hawaii

Tomorrow a three-judge panel of the United States Court of Appeals for the Ninth Circuit will hear oral arguments in a case entitled Arakaki v. Lingle that could lead to the demise of the Hawaiian Homes Commission and the state Office of Hawaiian Affairs. The fallout from the loss of these agencies and their programs would be devastating to every one of our citizens, especially those of Hawaiian ancestry. Besides once again losing property rights and assets held in trust for the Hawaiian people, the 1993 commitment of the federal government to reconcile with the Hawaiian people would be abrogated. Until passage of the Akaka Bill that permits the establishment of a political relationship with the United States, there would be no means by which Hawaiians could obtain either state or federal assistance in any form. The need for health, education and welfare programs would continue to exist but unabated by government aid. The impacts on our state cannot be underestimated if the missions of OHA and the HHC were terminated.

The plaintiffs' complaint sought rulings from the trial court declaring all laws establishing OHA and HHC invalid as "race based" discrimination under the 14th Amendment to the U.S. Constitution. In addition, plaintiffs wanted all monies, investments, lands and property of any kind held by the government converted to the general funds of the state of Hawaii. Homestead lands would be withdrawn and no further grants, loans, guarantees, contracts or expenditures could be made by OHA or the HHC. All funding for Hawaiians would be permanently enjoined. Plaintiffs' ill-conceived challenges to these programs foundered when U.S. District Judge Susan O. Mollway dismissed their action. Now Judge Mollway's decision is before the federal appeals court for review.

It would be well to review a few of the reasons why the state of Hawaii, the Office of Hawaiian Affairs, the State Council of Hawaiian Homestead Associations, and Hui Kako'o all agree that the plaintiffs' claims lack merit.

Historically, Hawaiians have had a unique relationship with both the state and federal governments based upon pre-existing sovereignty. From 1826 through 1893, the United States and the native Hawaiian government signed numerous treaties and conventions. Congress recently acknowledged that the overthrow of the Kingdom of Hawaii in 1893 resulted in the suppression of the inherent sovereignty of the Hawaiians.

In 1921, the United States enacted the Hawaiian Homes Commission Act to set aside approximately 203, 500 acres of land for native Hawaiians in the territory that eventually became the state of Hawaii. Through the compact admitting Hawaii into the union, the state of Hawaii accepted the federally delegated responsibility of administering the Hawaiian Home Lands Trust for the benefit of the native Hawaiians. Since statehood, Congress repeatedly has exerted authority over native Hawaiian issues, having from time to time enacted approximately 150 pieces of legislation for the benefit of Hawaiians.

Under the Admissions Act, the Ceded Lands Trust was established in part for the "betterment of the conditions of native Hawaiians". A small portion of the proceeds from this federally mandated trust have been used by the Office of Hawaiian Affairs for its native beneficiaries. There is no doubt that these foundational laws are constitutional given the plenary and exclusive authority granted to Congress under provisions of the Indian Commerce Clause and the Property Clause. See United States v. Lara, 124 S. Ct. 1628, 1633 (2004).

Indeed, native Hawaiian programs have never been determined by any court to constitute "race based" discrimination in violation of the 14th Amendment. This is because programs that assist Hawaiians, like those that govern Indian affairs, are based on the pre-existing sovereignty of the Hawaiian people as reflected in United States treaties and conventions with their government, rather than on race. See Morton v. Mancari, 417 U.S. 535, 553 (1974). ("If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized") .

The history of Hawaiian relations with both the state and federal governments belies the plaintiffs' misguided assertions that vital OHA and HHC programs are unconstitutional. Tomorrow, our federal appeals court should sustain Judge Mollway's decision.

Robert Klein is a former associate justice of the Hawaii Supreme Court. He represents the State Council of Hawaiian Homestead Association, one of the defendants in the Arakaki litigation.



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