Judge denies
bid to end native
Hawaiian funding

16 plaintiffs argue it is wrong
for state to pay for racial programs

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By Pat Omandam
pomandam@starbulletin.com

U.S. District Judge Susan Oki Mollway has denied a temporary restraining order requested by a group of Hawaii residents who want to stop programs offered by the Office of Hawaiian Affairs and the Hawaiian Homes Commission.

But the judge indicated the 16 plaintiffs likely have standing to go forward with their lawsuit.

The lack-of-standing issue resulted in the dismissal of two previous cases brought against the agencies by Patrick Barrett and John Carroll. They could not prove they suffered legal injury to bring forth their lawsuits.

Although the plaintiffs don't have standing in all of their claims, Mollway said yesterday they have established standing as taxpayers to challenge using state money to fund programs by OHA and the state Department of Hawaiian Home Lands.

Ealier this month, a group of 16 Hawaii residents filed a lawsuit that challenges the constitutionality of both agencies because of allegations their race-based programs discriminate against non-Hawaiians. They want to end both programs.

The plaintiffs are Earl F. Arakaki, Evelyn C. Arakaki, Edward U. Bugarin, Sandra P. Burgess, Patricia Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby M. Kravet, James I. Kuroiwa Jr., Fran Nichols, Donna M. Scaff, Jack H. Scaff, Allen Teshima and Thurston Twigg-Smith.

During yesterday's hearing, plaintiff attorney Patrick Hanafin responded that every citizen of Hawaii is a beneficiary of the public land trust and should benefit from it. The Statehood Act of 1959 requires 20 percent of the revenue from these public trust or ceded lands be used for the betterment of conditions for native Hawaiians.

Co-counsel H. William Burgess argued the trust should not be segregated to allow one group of people to benefit from it.

But attorney Robert Klein, who represented the State Council of Hawaiian Homestead Associations in the case, told Mollway approval of a restraining order against OHA and Hawaiian Homes would be a horrendous decision that would threaten the very existence of homesteaders.

State Deputy Attorney Girard Lau added there would be a massive ripple effect if the work of these agencies were stopped.

Lau said OHA has been in existence for 21 years, while the Hawaiian Homes program has been in place for 80 years. There is no emergency situation that warrants the restraining order, he said.

OHA board attorney Sherry Broder said the plaintiffs' use of the U.S. Supreme Court's decision in the Rice vs. Cayetano case does not mean they will prevail.

Broder added that the Rice decision, which opened OHA elections to all voters, not just those of Hawaiian ancestry, did not address any other issue.

The next action in the case comes April 29, when Mollway is expected to hear arguments from Broder and other defendants to dismiss the case.

A request for a preliminary injunction by the plaintiffs is scheduled for July 24.