U.S. District Court Judge Susan Oki Mollway heard arguments today about whether the federal government should be involved as a defendant and other side issues in the Arakaki v. Lingle case. The case specifically challenges the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands.

The lawsuit — a focal point of Native Hawaiian protests, including those held yesterday and today — claims that the use of state taxpayer money for programs benefiting only Native Hawaiians is unconstitutional.

Mollway, unlike most federal judges, releases advance written "inclinations" about how she’s likely to rule, allowing attorneys to prepare their arguments for the hearing. According to those inclinations, it appears unlikely that she favors a total dismantling of the programs.

Mollway stated in her inclination that only the use of state tax money for the programs can be challenged. This would exclude income that OHA and the home lands department receives from rent or other sources.

She also wrote that she is likely to rule that as state taxpayers, the plaintiffs don’t have standing to challenge the federal law making Hawai'i a state. This could be crucial, because the state is arguing that the federal law is what authorizes the creation of the land trust for Hawaiian homesteading.

Mollway wrote that if she holds to these inclinations, she’s likely to dismiss the federal government, the Hawaiian home lands department, the homesteaders association and other intervening parties from the case.

OHA, which was created by a state constitutional amendment in 1978, and the state government would remain as parties to defend their use of state taxes for Hawaiians-only programs.

Haunani Apoliona, who chairs the OHA board of trustees, said such a ruling would count as a victory for the homesteaders, but possibly only a temporary reprieve. Apoliona said Mollway also indicated ways that plaintiffs could have standing to challenge the admission act: by applying for a homestead and then being turned down. This could spark a future lawsuit, she said.

"Native Hawaiian rights and benefits are still in jeopardy," she said.

William Burgess, attorney for the 15 plaintiffs, argued in the hearing that there are cases in which state taxpayers were allowed to sue over a federal law, but Mollway said that in these cases, the plaintiffs had additional grounds for a federal challenge. Burgess was not available for further comment after the hearing.

Other, more substantive rulings are scheduled after Jan. 12. That’s when Mollway is set to consider an argument that the case should be dismissed because Congress has given Hawaiians political recognition with the establishment of the Hawaiian Homes Commission, and that this special status defeats the allegation of racial discrimination.