Court hears arguments
in Hawaiian agency case
Three judges will rule later on
the matter of constitutionality
A federal appeals court will rule at a later date on a case challenging the constitutionality of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands program.
The three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments yesterday that centered on the plaintiffs' standing to sue in federal court and the political status of native Hawaiians.
U.S. District Judge Susan Oki Mollway dismissed on Jan. 15 a lawsuit filed by about a dozen non-Hawaiian plaintiffs who challenged the constitutionality of the two Hawaiian programs.
Mollway noted Congress is currently considering the so-called Akaka bill, which would grant federal recognition to native Hawaiians similar to political recognition given to American Indians and Alaska natives. She said she would not intrude into that political process.
After the hour-long hearing in federal court in Honolulu, attorneys in the Arakaki v. Lingle case said the three San Francisco-based appeals judges were well prepared.
"They asked a lot of good questions," said H. William Burgess, attorney for the plaintiffs. Sherry Broder, attorney for OHA, agreed and said she did not want to predict what the court will do.
Burgess argued that funds for OHA and Hawaiian Homes are used exclusively for people of Hawaiian ancestry. "The distribution of funds on the basis of ancestry is odious to a free people," he said.
Judge Melvin Brunetti noted that funds for a $135 million ceded-lands settlement with OHA in 1993 came from a bond issue and not directly from tax revenues.
But Burgess said the bond must be repaid, and the funds to do so come from the state general funds, most of which come from tax revenues.
Deputy Attorney General Girard Lau said the bond money goes toward settlement of a legal claim, and there is only an indirect link to taxpayers and no direct injury to them.
Burgess noted there is a federal question because the United States got lands in trust under annexation in 1898. But he said the United States added a "racial component" in setting aside public lands for the benefit of native Hawaiians in the 1921 Hawaiian Homes Act.
Lau said Robert Klein, attorney for the State Council of Hawaiian Homesteaders, also noted that funds used to support Hawaiian programs come from bond issues. He said the plaintiffs have no standing to bring the case in federal court.
Judge Jay Bybee noted that Hawaiians cannot change the Hawaiian Homes program without permission from Congress.
Attorneys on both sides cited a ruling by the 9th Circuit on Wednesday that noted that native Hawaiians are not an Indian tribe and are treated differently by the federal government.
The ruling in the case known as Kahawaiolaa v. Norton said the Department of Interior's exclusion of native Hawaiians from its regulations acknowledging the federally recognized status of Indian tribes is not unconstitutional. But the court said that "in many ways, the result is less than satisfactory," and sharply criticized the Department of Interior.
