In a hearing today, however, U.S. District Judge Susan Oki Mollway did indicate she was leaning toward letting the Office of Hawaiian Affairs continue to use state tax money for Hawaiian-only programs while Congress continues debating federal recognition for Native Hawaiians.

OHA is the remaining target of the so-called Arakaki case, named for Earl Arakaki, one of the plaintiffs, a roster now whittled to 11 names.

Mollway today dismissed three plaintiffs on the grounds that they are part Hawaiian and thus have no grounds to claim injury. They are Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess.

The original list of 16 plaintiffs was shortened by the death of Roger Grantham in March and by the withdrawal late last month of Brian Clarke, who cited "personal reasons," said his attorney, H. William Burgess.

In a courtroom filled with supporters of Hawaiian-only programs, wearing a now familiar uniform of red shirts, Burgess argued that Hawaiians do not enjoy the same political status Congress has accorded to Native American tribes already given federal recognition.

OHA attorney Sherry Broder argued that, even with the Akaka Bill for federal recognition stalled in the U.S. Senate, numerous congressional acts already have moved Hawaiians several steps along the pathway toward a separate political status. If Mollway agrees, this would derail the plaintiff’s suit that OHA’s programs unconstitutional discriminate on a racial basis.

Mollway allowed that Congress has not issued a clear "black and white" statement on the status of Hawaiians and that the slow progress of the Akaka Bill proves the issues aren’t "black and white." But she also acknowledged that the process is still proceeding.

"If they (Congress) are in the process of considering it actively, that makes it a political question," Mollway said.

Broder said after the hearing that Mollway’s statements leave her feeling "hopeful" that the case against OHA would be dismissed, although she declined to make a firm prediction.

Haunani Apoliona, who chairs the OHA board of trustees, said she’s encouraged that the judge observed "that there’s a political process in the works."

Burgess also admitted that "it was pretty clear that she (Mollway) was considering putting the case on hold." But he said this would fly in the face of more standard court proceeding, which he said is to rule on the basis of laws already passed.