Supporters of
OHA decry latest
court ruling

Programs that help native Hawaiians will face more attacks, advocates said after yesterday's federal appeals court ruling that allows a group of Hawaii taxpayers to challenge state funding of the Office of Hawaiian Affairs as discriminatory.

At a crowded news conference yesterday afternoon, OHA Chairwoman Haunani Apoliona said the 9th Circuit Court of Appeals decision "represents another serious blow to the rights of native Hawaiians and consequently to our whole Hawaii community."

She said that the ruling comes "on the heels" of the same court's Aug. 2 decision to strike down Kamehameha Schools' "Hawaiians-only" admission policy as violating federal anti-discrimination laws.

"This clearly demonstrates that the courts and their doctrines do not favor Hawaii's native people," said Apoliona. "We can also expect further efforts to erode Hawaiian rights."

It is unclear what other health, educational or housing programs aimed at native Hawaiians could be challenged because of the state taxpayer money they receive.

The 9th Circuit ruled on the Arakaki v. Lingle lawsuit, one of several recent suits that challenge programs for native Hawaiians. The suits were spurred by the 2002 U.S. Supreme Court decision in Rice v. Cayetano, which found that the "Hawaiians-only" vote in elections for OHA trustees violated anti-discrimination laws and the U.S. Constitution.

The Arakaki suit, filed in March 2002, argued that OHA, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands are race-based and therefore illegal under the equal protection clause of the 14th Amendment in the U.S. Constitution. It claimed OHA discriminates against non-Hawaiians and should not receive state tax money.

Apoliona spoke in OHA's fifth-floor boardroom, which was crowded with supporters, including Gov. Linda Lingle, U.S. Sen. Daniel Akaka, the chief executive and trustees of Kamehameha Schools, a leader of Hawaiian homesteaders and the acting president of the University of Hawaii.

The theme of all the speakers was that the strongest shield against further court challenges is the passage of the Native Hawaiian Government Reorganization Act -- the Akaka Bill.

The bill, expected to be debated on the floor of the U.S. Senate next week, sets up a process for the federal government to recognize native Hawaiians as an indigenous people like American Indians or Alaskan natives. As such, they would be recognized as a political group, rather than a race-based group, which could immunize native Hawaiian programs from legal attacks based on violating anti-discrimination laws.

The Akaka Bill creates a means for native Hawaiians to create a "governing entity" that, if recognized by the federal government, will allow it to relate on a government-to-government basis to the United States.

Akaka has repeatedly said that his bill will protect more than 130 federal programs aimed at benefiting native Hawaiians and will protect institutions such as OHA and DHHL.

Basing its ruling on a legal technicality, the 9th Circuit recognized a legal distinction between the creation of OHA and the DHHL.

The court found that DHHL was the creation of the federal government's Admissions Act that made Hawaii a state in 1959 and that OHA was the creation of the state's 1978 Constitutional Convention. The court said that because DHHL was created under the direction of the federal government, the plaintiffs have no standing to challenge it as state taxpayers.

The Hawaiian Homes Commission Act of 1921 set aside about 200,000 acres for homesteads staked by Hawaiians with at least 50 percent aboriginal blood. The intent of the act was to establish "a permanent land base for the beneficial use of native Hawaiians."

When Hawaii became a state in 1959, Congress required it to incorporate the HHCA into its state Constitution. Because of the federal role in the creation of HHCA, the court ruled that the plaintiffs could not sue the federal government as taxpayers under existing law.

The case of OHA is different.

The 9th Circuit found that the state tax money going to OHA could be challenged by a group of state taxpayers. OHA receives the bulk of its revenues from rents on leased lands. Last year, the state gave OHA about $2.8 million from state collections, which represents about 10 percent of its $25 million budget.

William Burgess, an attorney representing Earl Arakaki and the other plaintiffs, said he was disappointed by yesterday's ruling because it narrowed what he could challenge.

The court ruled his clients had no standing to challenge the federal government and DHHL.

"We are disappointed that the court narrowed the scope of our suit as much as it did," he said.

The defendants in Arakaki, which include OHA, DHHL and the state government, argued that Congress has established many remedial programs such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act to better the lives of native Hawaiians and that therefore they are an indigenous people and "a political group" with a special relationship to the U.S. government. They argue that as a political group, their programs are not race-based and cannot be challenged as discriminatory under federal laws or the Constitution.

In the several lawsuits brought to date, no court has ruled on whether native Hawaiians are a race or political group. In fact, they have left that decision to the U.S. Congress and the fate of the Akaka Bill.

Lingle agreed with Apoliona yesterday saying that with the Arakaki decision, "we dodged a legal bullet, and this bullet is aimed at the heart of the programs that benefit the Hawaiian people and thereby bring benefits to the state of Hawaii."

"These bullets will not stop, and this decision was made in such a narrow sense and on such a technical (legal) basis that it does not preclude the next group from coming forward on another (legal) basis and challenging the Department of Hawaiian Home Lands again."