Posted on: Tuesday, March 5, 2002

Suit challenges Hawaiian agencies

By David Waite and Curtis Lum
Advertiser Staff Writers

A group of Hawai'i residents yesterday filed a federal lawsuit asking that the state Office of Hawaiian Affairs, the Hawaiian Homes Commission Act and the Department of Hawaiian Home Lands be declared unconstitutional and the two state agencies shut down.

In the latest legal challenge to Hawaiian-only programs, attorneys H. William Burgess and Patrick Hanifin, who represent the 16 plaintiffs named in yesterday's lawsuit, contend that programs administered by the two agencies violate the U.S. Constitution because participation in the programs is restricted to people of Hawaiian ancestry.

Federal Judge Susan Mollway set a hearing for 9:45 a.m. Monday to consider a request for a temporary restraining order that would prevent the Department of Hawaiian Home Lands and the Office of Hawaiian Affairs from issuing any more homestead leases, grants or loans until the constitutionality issue is addressed in court.

OHA attorney Sherry Broder said she didn't see any merit in the lawsuit because none of the plaintiffs has applied for benefits with OHA or DHHL.

Broder said the lawsuit is similar to one filed by Republican gubernatorial candidate John Carroll. He alleged that OHA violated his right to equal protection by using revenue from ceded lands for Hawaiians-only programs.

U.S. District Judge David Ezra threw out Carroll's lawsuit last month. Ezra ruled that Carroll had no standing to file the lawsuit because he had never attempted to obtain benefits from OHA.

Burgess and Hanifin said the plaintiffs also want the court to make all of the public assets of OHA and DHHL available to the state to be used for public, "non-discriminatory" purposes.

Those who brought the lawsuit are asking the federal court to allow the state to convert existing Hawaiian homestead leases to fee ownership for existing homesteaders to acquire at no cost or at a reduced cost, their lawyers said.

"We want to sink those two ships of government racial discrimination, but we also want to rescue the passengers," Burgess said.

The lawsuit challenging the constitutionality of the two agencies comes in the wake of a U.S. Supreme Court ruling two years ago in which the court ruled that allowing only people of Hawaiian ancestry to participate in the election of OHA trustees was unconstitutional.

Since then, OHA trustee elections have been open to people of all races and people of any race can run for a seat on the OHA board.