Group’s lawsuit targeting OHA would erode gains made for all Hawaiians
Once again Hawaiians are back in court, defending themselves from a group of self-described "non-ethnic Hawaiians," whatever that means, who claim their lawsuit will take nothing away from Hawaiians. If you believe that, you also believe in the Tooth Fairy.
The lawsuit, Kuroiwa v. Lingle and accompanying documents filed April 3 in U.S. District Court against the state of Hawaii and the Office of Hawaiian Affairs, feature the same faces and legal strategy that has failed before, but at great expense to Hawaiians who watch as the attorney fees gobble up funds that would have otherwise gone to worthy programs.
Attorney H. William Burgess is to Hawaiians the agent of doom and gloom, who wields a sword of destruction, not justice, for the plaintiffs. The former ConCon delegate who voted to approve OHA in the 1978 convention has now devoted his practice to eliminating Hawaiian rights and benefits through repeated lawsuits and his group called "Aloha For All."
Among his clients is Thurston Twigg-Smith, the well-heeled former Honolulu Advertiser publisher, who at 87 continues to defend the role that his grandfather, Lorrin A. Thurston, so prominently played in the 1893 overthrow of the Hawaiian monarchy. The media-savvy Twigg-Smith has found a receptive voice in the Grassroot Institute of Hawaii, a local group with national ties to well-funded conservative think tanks. Grassroot Institute has listed Burgess as its attorney and the group's co- founder, Malia Zimmerman, runs a right-wing blog whose writers regularly attack OHA.
Burgess and one of his clients, James Kuroiwa, along with several other Grassroot supporters were recent appointees to the Hawaii State Advisory Committee to the U.S. Commission on Civil Rights. They led an unsuccessful effort to reverse a prior HSAC vote in favor of the Akaka Bill. It was a transparent attempt to roll back previous gains in civil rights.
Joining Kuroiwa and Twigg-Smith in the latest lawsuit, are Earl Arakaki, Patricia Carroll, Tobey Kravet and Garry Smith. All six sued in a previous case, Arakaki v. Lingle, with Burgess as their attorney. The Arakaki v. Lingle lawsuit sought to dismantle OHA and all of its programs and also remove Hawaiians from their homestead lots.
None of the plaintiffs can claim to be aboriginal, native and indigenous to Hawaii; nevertheless, all six plaintiffs have applied to sign up for the Hawaiian voting initiative, Kau Inoa, and though acknowledging they are "not Hawaiian" now claim to be "non-ethnic Hawaiians," thus paralleling mainland media copy which often lumps all Hawaii residents, regardless of ancestry, as "Hawaiians." In the court filings, Smith and Kravet further describe themselves, respectively, as an "American of native American ancestry" and "American of Ukranian Jewish, and Belorussian Jewish ancestry."
Kravet included in the court papers an e-mail exchange with Gov. Linda Lingle in which he told Lingle he would not contribute to her campaign if she backed recognition of Hawaiians.
And that's not the only mention of money. Burgess' wife claims in the court papers that her husband is doing the case "pro bono." But don't think that means no money. The attorneys who sued Kamehameha Schools in an admissions case are in a legal spat divvying up a $7 million settlement, and other attorneys are out trolling for more non-Hawaiian clients to sue the Hawaiian preference school.
Burgess includes in his lawsuit letters he wrote to Lingle complaining about OHA lobbying expenses for the Akaka Bill. In one letter, Burgess demanded that his clients receive "at least 4 times the amount to or for my clients and all others similarly situated, to lobby against the Akaka bill, travel to and from D.C. and staff and maintain an office in D.C. to oppose passage of the Akaka bill."
This group has asked for an injunction to shut down OHA and stop all efforts to help better Hawaiians. Unfortunately, there are native Hawaiians doing the same thing in court; nevertheless OHA, in the middle, will continue to fulfill its mission, opposition notwithstanding.
While OHA and state Attorney General Mark Bennett remain confident they will prevail, it should be noted that the courts have not always been friendly to Hawaiians; therefore, the urgent need for the Akaka Bill. It alone will thwart these legal challenges because it will conclusively reaffirm that providing Hawaiian programs and protecting Hawaiian culture is not racial but rather political; that Hawaiians' rights are not based upon their racial but their indigenous heritage. And that's the reason Burgess and his clients are so fervent in attacking federal recognition.
Without it, false racist allegations continue along with the lawsuit gravy train. Hawaiians will have to again devote resources and energies to the courts rather than to the host culture and its lawfully designated organizations, which these lawsuits aim to eliminate.
As the saying goes, 'nuff already.
Boyd P. Mossman, an attorney and retired Circuit Court judge, is Maui trustee of the Office of Hawaiian Affairs.