Hawaiian programs may be left intact
By Vicki Viotti
Advertiser Staff Writer
A federal appeals court yesterday upheld a two-year-old decision that forced Office of Hawaiian Affairs elections open to candidates of non-Hawaiian ancestry.
But attorneys for OHA and the state are hopeful because a part of the ruling was struck down and may deprive opponents of ammunition in pending battles over Hawaiian claims.
That portion — the contention that the elections violated the equal-protection clause of the U.S. Constitution's 14th Amendment — is at the center of lawsuits challenging the legality of OHA programs benefiting Hawaiians and of the Department of Hawaiian Home Lands leases for applicants who are of at least half Hawaiian ancestry.
The U.S. 9th Circuit Court of Appeals upheld the preliminary injunction, issued Aug. 15, 2000, by U.S. District Judge Helen Gillmor, that cleared the way for non-Hawaiians to run for OHA.
The ruling emerged from a lawsuit by Earl Arakaki, Kenneth Conklin and several other non-Hawaiians challenging the Hawaiian-only candidate qualification set by OHA. Gilmor ruled that the restriction violated equal-protection clauses of both the 14th and 15th amendments. The 15th Amendment clause bars discrimination in the context of voting; in the 14th Amendment, the ban on discrimination is more general.
The appellate court yesterday eliminated the 14th Amendment as the basis for the decision, so the plaintiffs in the pending cases challenging OHA and homelands programs can't claim yesterday's ruling as precedent, said Charlene Aina, state deputy attorney general.
Sherry Broder, the attorney representing OHA, agreed.
"I think it clears the way for OHA's arguments in the other cases," she said.
Patrick Hanifin and H. William Burgess, attorneys for Arakaki and the other plaintiffs, expressed confidence that the courts will find Hawaiian-only programs violate the constitution's broader discrimination ban when the pending cases are decided. The 14th Amendment simply wasn't needed in the election case, Hanifin said.
"We're hopeful that the court will see it this way," he added. "Frankly we hope the state will see it this way and stop devoting resources to dividing people along racial lines."
Reach Vicki Viotti at vviotti@honoluluadvertiser.com or call 525-8053.
