OHA position on status of Hawaiians may be swaying judge
By Vicki Viotti
Advertiser Staff Writer
Attorneys on both sides of the controversial Arakaki federal lawsuit said they saw indications yesterday that the judge was attentive to arguments that Hawaiians have moved steps closer toward achieving status as a political class, even though a bill to clearly grant them that status is stalled in the U.S. Senate.
Associated Press
If U.S. District Judge Susan Oki Mollway does favor those arguments in her written ruling due later this week, it could shut down the lawsuit's remaining challenge against programs that benefit only Hawaiians.
OHA chairwoman Haunani Apoliona, left, and attorney Sherry Broder are hopeful the Arakaki suit may be dismissed.
Those programs are the work of the state Office of Hawaiian Affairs, the last target of the case named for Earl Arakaki, one of the plaintiffs on a roster now whittled to 11 names.
OHA attorney Sherry Broder said after yesterday's hearing that Mollway "asked interesting questions" about laws already on the books that assert a special trust relationship between Hawaiians and the U.S. government, akin to the nation-within-a-nation status of Native American tribes .
The exchange left her feeling "hopeful" that the case against OHA could be dismissed, although Broder declined to predict how Mollway would rule.
Haunani Apoliona, who chairs the OHA board of trustees, said she's also encouraged that the judge observed "that there's a political process in the works."
Plaintiffs' attorney H. William 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.
In the nearly two years since the suit was filed, Mollway has continually restricted its scope. The plaintiffs were found to have standing to challenge only the use of state tax money for programs. In November Mollway eliminated Hawaiian homesteads as a target program, saying that the benefit was mandated by federal law that could not be challenged on the basis of injury to state taxpayers.
Yesterday, the courtroom was filled with those who support Hawaiian benefits, many 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 that already won federal recognition.
Broder maintained 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 could derail the plaintiff's suit that OHA's programs unconstitutionally discriminate on a racial basis.
The OHA motion to dismiss the case cited laws such as the Native Hawaiian Education Act and the Hawaiian Home Lands Home Ownership Act.
Mollway allowed that Congress has not issued a clear statement on the status of Hawaiians, evidenced by the slow progress of the Akaka bill. 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.
Mollway yesterday 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 previously had been shortened by the death of Roger Grantham in March and by the withdrawal late last month of Brian Clarke.
Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.
