Ruling might be break for sovereignty backers

THE ISSUE An appeals court must reconsider its decision allowing taxpayers to challenge state expenditures on Hawaiian programs.

ANOTHER round of legal maneuvering is beginning with the U.S. Supreme Court's predictable order that an appeals court reconsider its decision allowing a taxpayer challenge to state programs benefiting Hawaiians. The programs remain vulnerable because of the Senate's rejection last week of Hawaiian sovereignty.

President Bush indicated he was prepared to veto the Akaka Bill granting Hawaiians sovereignty if approved by Congress. The impending death of the taxpayers' lawsuit against the state gives proponents of sovereignty time to garner support in Washington.

The Supreme Court ordered the 9th U.S. Circuit Court of Appeals this week to reconsider its ruling that allowed taxpayers to sue the state over funds going through the Office of Hawaiian Affairs. The order is consistent with a ruling by the high court last month that local and state governments, like the federal government, cannot be sued successfully by taxpayers over how they spend tax dollars.

William Burgess, a lawyer for the Hawaii taxpayers challenging OHA, insisted that their lawsuit is still alive because the state has been "denying them benefits." He is mistaken; the suit does not contend that the taxpayers have sought benefits. Burgess can be expected next to bring suit by residents without Hawaiian lineage who will have applied for and been denied benefits.

Such programs needed enactment of the Akaka Bill to protect them from that very kind of lawsuit. Burgess will contend that benefits are racially discriminatory in their distribution; programs that benefit Indians and native Alaskans are protected by the level of sovereignty that the Akaka Bill had sought.

The state and OHA will maintain that the programs are constitutional. However, recent court challenges to Hawaiian programs have succeeded. The Supreme Court ruled in 2000 that allowing only native Hawaiians to vote for OHA trustees was unconstitutionally discriminatory. Likewise, the 9th Circuit ruled last August that Kamehameha Schools illegally discriminates against non-Hawaiians by denying them admission.