Lawyers to argue validity of Hawaiian programs

By David Waite
Advertiser Courts Writer

With many Hawaiians still smarting over a federal judge ordering Kamehameha Schools to admit a non-Hawaiian student, an unrelated court challenge could result in the loss of millions in federal and state money for so-called "Hawaiian entitlement" programs.

A group of Hawai'i residents filed a lawsuit in March 2002, claiming government social-assistance programs that provide money to people based on race are unconstitutional. Their lawyers say that if they prevail, government financial assistance to programs for people with Hawaiian blood will be invalid.

At stake could be more than $69 million a year in federal money for Hawaiian programs.

On Sept. 8, federal Judge Susan Mollway will hear arguments by lawyers for the Office of Hawaiian Affairs, the State Council of Hawaiian Homestead Associations and other organizations asking to dismiss all or portions of the lawsuit.

The challenge is aimed at OHA and Hawaiian Homelands programs, but other programs that provide financial assistance to Hawaiians "will fall" if the courts agree that the programs are unconstitutional, according to attorney H. William "Bill" Burgess, who with the late Patrick Hanifin, filed the lawsuit.

A report prepared by the Council for Native Hawaiian Advancement said federal spending for major Native Hawaiian programs runs in excess of $69 million a year for various education, healthcare, agriculture and arts programs.

Mollway's hearing will be heard while two other lawsuits are pending challenging the validity of Kamehameha Schools' admissions policy that gives preference to students of Hawaiian ancestry.

Two weeks ago, federal Judge David Ezra ordered the schools to admit a non-Hawaiian student, at least on a temporary basis, until the court can deal directly with the question later this year. Ezra's ruling angered some Hawaiians who viewed it as a continuing erosion of Hawaiian rights.

In addition, federal Judge Alan Kay will preside over a hearing on Nov. 17 involving another non-Hawaiian student challenging the admissions policy.

In the case before Mollway, Burgess contends that the entitlement programs provide money only for a single, racial group and are, therefore, unconstitutional.

But lawyers for some of the groups that receive entitlement money claim the programs are meant to help address historical problems that stem from the 1893 overthrow of the Hawaiian Kingdom. They say the programs are exempt from constitutional review because the programs resulted from a unique relationship between the U.S. government and an indigenous people.

In their court papers, Burgess and Hanifin have argued that benefits provided to Hawaiians by OHA, the Department of Hawaiian Homelands and other agencies are racially discriminatory and violate the Fifth Amendment and 14th Amendment, which provide for due process rights and equal protection for all U.S. citizens.

Yuklin Aluli, one of the lawyers arguing for dismissal of the lawsuit, said in her court filings that Congress enacted the Hawaiian Homes Commission Act in 1921, and in 1959, conditioned the admission of Hawai'i as a state by including the Hawaiian Homes Act into the state Constitution.

In effect, Congress gave Native Hawaiians "political" recognition, Aluli said.

The distinction is important in this case because it suggests that Congress was intending to deal with Hawaiians on a nation-to-nation basis, the way it interacts with Indian tribes. That would mean monies in the various entitlement programs are given by one nation to another, instead of from the U.S. government to a single racial group.

Former Hawai'i Supreme Court Justice Robert Klein, who represents the State Council of Hawaiian Homelands Associations in the case, said in his written argument that Burgess and Hanifin failed "to recognize the breadth of the power conferred upon Congress by the United States Constitution."

Those powers, Klein argued, include the power to decide political questions, to manage and dispose of federal property and to define the terms upon which a state may be admitted to the union.

In light of those expansive powers, the Hawaiian Homelands program is a "constitutionally valid congressional creation," Klein said.

But Burgess and Hanifin challenged Klein's statement that the Hawaiian Homes Commission Act has benefited Native Hawaiians who have relied on it for the past 80-plus years.

"It is irrelevant because unconstitutionally discriminatory payments may benefit the payees but are still unconstitutional," Hanifin wrote.

Lawyers who represent OHA in the lawsuit are urging Mollway to consider that the Hawaiian Homelands Commission Act, OHA and other programs resulted from "the complex process of settling the claims of native inhabitants whose sovereignty, land and resources were illegally taken from them."

The OHA attorneys also said the United States delegated its trust responsibility toward Native Hawaiians to Hawai'i and the state accepted.

But Hanifin and Burgess contended that the arguments of trust responsibility and indigenous people have no merit.

"Neither the state or the federal government can write itself an exemption from constitutional equal protection by agreeing to act as a trustee for a racially discriminatory trust," Hanifin wrote.

He said the overriding issue is whether there is a government-to-government relationship between the United States and the government of a federally recognized "Indian tribe."

Hanafin also contended that the question of whether Native Hawaiians should be considered "indigenous" has no legal significance.

"No Hawaiians today can trace their ancestry back to the first canoe or even the first waves and centuries of settlement," Hanifin said in his court filings.

But Aluli said some Hawaiians can "trace their genealogies over 117 generations."

Those who brought the lawsuit include Kenneth Conklin, a non-Hawaiian who ran unsuccessfully for OHA; Earl Arakaki, whose name is reflected in the lawsuit now known as Arakaki et al v. Lingle; Thurston Twigg-Smith, former Advertiser publisher; and Burgess' wife, Sandra Puanani Burgess.

Other plaintiffs are Evelyn Arakaki, Edward U. Bugarin, Patricia Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby Kravet, James Kuroiwa Jr., Fran Nichols, Donna Scaff, Jack Scaff and Allen Teshima.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.