Native Hawaiian group
barred from OHA lawsuit

An appeals court says that the state defense
will adequately represent the group

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By Ron Staton
Associated Press

A federal appeals court upheld on Monday a lower-court ruling denying a group of native Hawaiians the right to intervene in a lawsuit challenging the constitutionality of the Office of Hawaiian Affairs and Hawaiian Homes programs.

The 9th U.S. Circuit Court of Appeals said Josiah Hoohuli and others will be adequately represented by the state in defense of the Hawaiian programs.

The San Francisco-based court also noted that Hawaiian homestead lessees already have been granted intervention in the case and that Hoohuli and the others failed to show they would provide evidence the other defendants in the lawsuit would neglect.

The Hoohuli group failed to "overcome its compelling burden" to show that the state does not represent their interests, a three-judge panel of the court said.

Attorneys for the state, Hawaiian Homes and OHA have told the court they will "make all arguments necessary to defend the benefits to native Hawaiians," the appeals court said.

The March 2002 lawsuit known as Arakaki vs. Lingle challenges the constitutionality of race-based OHA and Hawaiian Homes programs. The lawsuit followed the U.S. Supreme Court's Rice vs. Cayetano ruling, which held that allowing only Hawaiians to vote in OHA elections is unconstitutional.

The appeals court noted that the Supreme Court did not address the constitutionality of OHA and Hawaiian Homes programs, limiting its decision only to the voting restriction.

But it said it and the U.S. District Court eventually may be required to "venture into this challenging terrain to resolve this difficult issue."

The District Court may be required to make a decision, as a trial in the Arakaki suit is scheduled for June 2004 before Judge Susan Oki Mollway.

However, Deputy Attorney General Charlene Aina said a series of pretrial motions could end the case before then.

The court has set a June 16 hearing on the first set of motions, and a Sept. 8 hearing on the second set if the case has not been resolved. A hearing on a third set of motions will be scheduled after the second hearing if the case is still alive, she said.

The state will file motions to have the case dismissed, Aina said.

"We believe the issues can be dealt with by matter of law in pretrial motions," she said.

Attorneys for Hoohuli and his group were not immediately available for comment.

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Office of Hawaiian Affairs