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The Honolulu Advertiser
Posted on: Tuesday, November 18, 2003

Judge lends hope to Hawaiians

 •  Kamehameha Schools wins admissions case
 •  Ruling brings tears of joy, exultation

By Vicki Viotti
Advertiser Staff Writer

Leaders in the Hawaiian community are cautiously optimistic after learning yesterday that a federal judge is likely to scale back the landmark Arakaki v. Lingle lawsuit challenging Hawaiian entitlements.

Earl Arakaki leaves Federal Court after yesterday's hearing. Arakaki is a plaintiff in a federal lawsuit challenging the legality of OHA and other Hawaiians-only programs.

Richard Ambo • The Honolulu Advertiser

U.S. District Judge Susan Oki Mollway is expected to rule in two weeks on a portion of the case. But before convening a hearing yesterday, she sent signals that she's likely to excuse every party in the lawsuit but the state and the Office of Hawaiian Affairs.

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, she's unlikely to dismantle either the state Department of Hawaiian Home Lands, which awards homesteads to those of at least 50 percent Hawaiian blood, or OHA, which administers programs benefiting anyone of Hawaiian ancestry.

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 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.

William Burgess, attorney for the 15 plaintiffs, agreed that it's likely that the case will become a "shadow" of the original, broad challenge to Hawaiian entitlements.

Richard Ambo • The Honolulu Advertiser

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.

Mark Bennett, state attorney general, said he's hopeful that Mollway will excuse the Hawaiian homes department.

"That still leaves significant issues in the Arakaki case but we are confident that if the case progresses we will ultimately prevail in that suit in its entirety," Bennett said.

Haunani Apoliona, chairwoman of 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, adding that the best defense lies in the Akaka bill, now in Congress, which would recognize Hawaiians as a political entity.

"Native Hawaiian rights and benefits are still in jeopardy," she said. "As a people, these race-based allegations would continue until federal recognition for Native Hawaiians becomes a reality and the Hawaiian governing entity is formed."

Micah Kane, director of the Hawaiian homes department, echoed Apoliona's view.

"The game plan is to move the Akaka bill forward," he said. "Should we be successful there, many of these lawsuits would fall by the wayside."

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. Later, Burgess agreed that it's likely that the case will become a "shadow" of the original, broad challenge to Hawaiian entitlements.

It also may involve fewer people: Mollway said she may dismiss three of the 15 plaintiffs who are of part-Hawaiian ancestry and thus could benefit from Hawaiian programs. They are: Sandra Puanani Burgess, Evelyn Arakaki and Donna Scaff.

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.

After the January hearing, the court still must rule on what legal standards to apply to the case before deciding finally whether the programs are legal.

Advertiser staff writer Lynda Arakawa contributed to this report. Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.