Hawaiian entitlement cases heading to court this week

By Vicki Viotti
Advertiser Staff Writer

All the debates over Native Hawaiian entitlements in recent months will come to a head this week at federal court, where three separate hearings are set over two days to air challenges to key Hawaiian institutions.

Whatever federal Judge Susan Oki Mollway decides following the Arakaki v. Lingle hearing tomorrow, it won't be the final word on that suit.

The 9 a.m. hearing will weigh some important side issues but not the merits of the complaint that the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, as state programs benefiting only Hawaiians, are unconstitutional. The more substantive hearings aren't scheduled until Jan. 12.

But the hearings on two challenges to Kamehameha Schools' policy favoring Hawaiians in admissions — one at 9:30 a.m. tomorrow before Judge Alan Kay and one at 9 a.m. Tuesday before Judge David Ezra — will examine the central issue of whether that policy is legal.

Both challenges, filed on behalf of non-Hawaiian students seeking admission, assert that the policy violates a federal civil rights law that bans racial discrimination in contracts, the contract in the case of school admissions being between the school and parents. The plaintiff in tomorrow's case is unnamed.

The second Kamehameha case concerns Brayden Mohica-Cummings of Kaua'i; in August, Ezra ruled that Mohica-Cummings must be admitted, at least temporarily, until the final decision is made.

Principal motions being heard in the Arakaki lawsuit include a request by the state to dismiss the case. The state argues that the Hawaiian programs are authorized by the federal Admissions Act, and that the plaintiffs' issue is with federal lawmakers, not the state.

Additionally, the federal government is seeking to be excused from the case. And the 15 plaintiffs want to challenge the use of all public money, including financing with bonds, for programs that benefit only Hawaiians. Mollway has ruled that only the use of tax dollars is under fire.

"We want to challenge any misuse of public funds that increases our taxes," said William Burgess, plaintiffs' attorney.

In a separate development, Burgess' co-counsel in the lawsuit, David Rosen, has filed a petition to withdraw from the case. Neither Rosen nor Burgess would comment on the reasons for his request, although Burgess said the plaintiffs have no objection and doesn't expect it to delay the case. That petition isn't slated for a hearing until Dec. 19.

A large number of people in the Hawaiian community see these cases as critical to their mission defending indigenous rights, and one political-action group has planned a series of demonstrations.

'Ilio'ulaokalani Coalition has planned a 3 p.m. ceremony today at the Royal Mausoleum, followed by a march to 'Iolani Palace, where a vigil will be kept through the night.

A 5 a.m. prayer will launch tomorrow's candlelight march to the federal court. The coalition has planned a 9 a.m. gathering at the court Tuesday.

Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.