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Appeals court ruling
gives boost to Hawaiians

THE ISSUE A federal appeals court has rejected challenges to federal and state programs targeted to help native Hawaiians.

HAWAIIANS appear to have won a major court ruling that protects federal assistance programs and the Office of Hawaiian Affairs' prime source of revenue. The decision by a federal appeals panel should be a relief for Hawaiians still reeling from an appellate court ruling against Kamehameha Schools' admission policy.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously upheld District Judge Susan Mollway's dismissal last year of a challenge to federal programs that assist native Hawaiians. The panel ruled that Earl Arakaki and other plaintiffs can challenge the expenditure of state tax revenue on OHA, but few if any tax dollars are funneled to the agency.

The ruling comes as the Senate prepares to vote on the Akaka Bill, which would give Hawaiians federal recognition similar to that afforded American Indian tribes and native Alaskans. If the 9th Circuit ruling stands -- it could be appealed further -- state and federal Hawaiian programs may not desperately need the bill's protection.

Arakaki attorneys argued that the expenditure of public money on Hawaiian programs infringes on constitutional protection against racial discrimination. The appeals panel rejected the standing of the plaintiffs to bring a racial-bias claim against federal programs on the basis that "any effect on federal spending may only remotely affect" the plaintiffs, invoking a long-held U.S. Supreme Court stance.

The appellate judges ruled that the plaintiffs can challenge the expenditure of state tax dollars on OHA, but they cannot contest OHA's revenue from the Hawaiian home lands trust or a settlement with the state over past claims. OHA's revenue comes largely from the land trust.

By state law, OHA receives 20 percent of the revenue from crown or public lands ceded to the state at statehood. The judges ruled that the plaintiffs, "as taxpayers, may not challenge the expenditure of such non-tax revenues."

The ruling also protects state funding of the Department of Hawaiian Home Lands. The panel pointed out that the 200,000 acres of land set aside for the use of Hawaiians was incorporated into the Admission Act, requiring the state to include the program in the state Constitution.

Unlike the Arakaki lawsuit, which involves constitutional issues, the lawsuit against Kamehameha Schools' Hawaiians-only admission policy is based on precise Supreme Court interpretations of the Civil Rights Act of 1866, which prohibits racial discrimination in contracts. The high court ruled in 1976 that the law prohibits discrimination in private schools and protects all races.

While government programs aiding Hawaiians may be safer from legal challenges, Kamehameha and other charitable organizations benefiting Hawaiians remain in need of the Akaka Bill's protection from court challenges.

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