Judge dismisses
last OHA challengeThe ruling rejects a claim
that using taxes for Hawaiian
benefits is unconstitutional
Hawaiians lauded a federal judge's dismissal yesterday of the last remaining claim challenging the constitutionality of the Office of Hawaiian Affairs, calling it a milestone.
But trustees of the state agency created to better the condition of Hawaiians caution that they are still not out of harm's way.
"We must continue to pursue self-governance over Hawaiian assets," said OHA Chairwoman Haunani Apoliona. "It's self-determination for Hawaiian people."
U.S. District Judge Susan Mollway ruled yesterday that the lawsuit filed by plaintiffs Earl Arakaki and others raises a political question that should be up to Congress to decide.
She dismissed the plaintiffs' remaining claim challenging OHA's use of state tax revenues for programs not subject to federal matching funds.
Earl Arakaki and 15 other Hawaii residents filed suit in March 2002 alleging that OHA and the state Department of Hawaiian Home Lands programs are race-based and discriminate against non-Hawaiians.
They argued that OHA's use of state taxpayer funds to benefit only Hawaiians is unconstitutional.
OHA had asked the court to dismiss the case, arguing that Congress, not the courts, should decide how to best provide benefits to Hawaiians.
H. William Burgess, attorney for the plaintiffs, who disputed that their case raised a political question, said they intend to appeal to the 9th U.S. Circuit Court of Appeals.
"In a way it's a big relief. We've been wanting to take this case to the next level for a long time because we disagree strongly with the earlier standing ruling," he said.
Mollway had dismissed the Department of Hawaiian Home Lands as a defendant in November, saying that the program was mandated by federal law and that the plaintiffs as state taxpayers had no standing to challenge federal law.
Burgess said they are confident they will succeed on appeal because the court's final decision was based on the political question doctrine, which was not raised by the plaintiffs.
The ruling means OHA, as well as the Department of Hawaiian Home Lands, "can continue to provide benefits to native Hawaiians and doing the good work they do," said Sherry Broder, attorney for OHA, "and that hopefully, the Akaka bill will continue to progress in Congress and be enacted into law."
The Arakaki case is the last remaining case that challenges the constitutionality of native Hawaiian entitlements.
In September the 9th Circuit Court of Appeals dismissed two similar lawsuits filed by Patrick Barrett and John Carroll, ruling that they had no standing to challenge the constitutionality of Hawaiian entitlements.
Apoliona said Mollway's recognition that a political process is under way reinforces the importance of pursuing passage of the Akaka bill before Congress.
The proposed Akaka bill would affirm a political relationship with native Hawaiians and the United States.