Judge OKs continuing Hawaiian programs

By David Waite
Advertiser Courts Writer

Federal Judge Susan Oki Mollway yesterday denied a request to temporarily suspend programs offered by the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

Attorneys H. William Burgess and Patrick Hanifin represent 16 Hawai'i residents in a taxpayer lawsuit contending that programs administered by the two agencies violate the U.S. Constitution because participation is restricted to people of Hawaiian ancestry.

Burgess and Hanifin had sought a temporary restraining order to prevent the two agencies from issuing any more homestead leases, grants or loans for 20 days.

But Mollway said the two attorneys could not show that their clients would be irreparably harmed if she allowed the programs to continue. Nor could they say how much of taxpayers' money the two agencies are planning to spend in the next 20 days.

Burgess and Hanifin contend that the Republic of Hawai'i turned over former government lands to the United States in 1898, creating a public trust whose goal was to use revenues derived from the lands for the benefit of the inhabitants of Hawai'i, not just native Hawaiians.

When Hawai'i became a state in 1959, the federal government required the state to take over administration of the so-called "ceded lands" and wrongly forced the state to use proceeds from a portion of the ceded lands solely for the benefit of Hawaiians, Hanifin and Burgess said.

But Deputy Attorney General Girard Lau argued that the two agencies are not financed by tax dollars. The "vast majority" of the money used to pay the operating costs of the two agencies is from ceded land revenues, not the state general fund, he said.

What's more, 80 percent of the money earned from ceded lands goes to benefit the overall population of Hawai'i, not only native Hawaiians, Lau said.

The terms of the 1898 trust were modified, Lau said, and by providing homesteads to native Hawaiians, the Department of Hawaiian Home Lands today is "exactly in compliance with the modified trust."

Lau said the 16 plaintiffs should be denied standing in the case because their pro rata share of taxpayer money used to pay for the two agencies is almost too small to calculate.

Mollway, however, granted the group's request for standing in the case based on their status as taxpayers.

The lawsuit is similar to one filed by Republican gubernatorial candidate John Carroll. He said 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.

The lawsuit challenging the constitutionality of the two agencies comes in the aftermath of a U.S. Supreme Court ruling two years ago in which the court found it unconstitutional to allow only people of Hawaiian ancestry to participate in the election of OHA trustees.

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.