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The Honolulu Advertiser

Posted on: Tuesday, November 2, 2004

Hawaiian advocates cite ruling

By Vicki Viotti
Advertiser Staff Writer

Government agencies and groups defending programs for Native Hawaiians before the 9th Circuit Court of Appeals yesterday said another ruling by the same court supports their central argument: that Congress should be allowed to decide whether Hawaiians have special political status.

It's a new weapon being added to the arsenal in the so-called Arakaki lawsuit, a complex case challenging the constitutionality of Hawaiian-only benefits offered through the state Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands.

The challengers, a group of taxpayers, say according special benefits to Hawaiians constitutes racial discrimination. Defenders say Hawaiians are in the midst of a congressional push to be recognized as a political entity rather than a racial group, a process that, they said, should be allowed to run its course.

Attorneys for both sides yesterday presented their arguments before a three-judge panel of the San Francisco-based court, making one of its twice-yearly visits to Hawai'i. The panel is not expected to rule for several months.

The original case was dismissed a year ago by the U.S. District Court in Hawai'i because, the judge said, the proposal for federal recognition was still working its way through Congress. The taxpayer group (named after one member, Earl Arakaki) maintains that the court can rule using existing law, without waiting for Congress to act.

Both sides in the legal battle claim to draw support from the case the appeals court decided Wednesday: Kahawaiolaa vs. Norton. This case involved a group of Hawaiians who argued that the U.S. Department of the Interior discriminates against Hawaiians by excluding them from certain benefits accorded to Native Americans.

"Kahawaiolaa shows the court recognizes that Hawaiians are entirely different from Native Americans," said William Burgess, the attorney for the Arakaki group of taxpayers. The special consideration given Native Americans does not apply to Hawaiians, whom the law sees as an ancestral or racial group rather than a "tribe" or political class, he said.

The ruling came from a separate panel of judges from the one appointed to Arakaki, and these judges ultimately found Interior had "rational basis" for drawing a distinction between Hawaiians and other native groups. However, OHA attorney Sherry Broder said the ruling "clarifies the position that it's a political question."

The arguments were made before judges Melvin Brunetti, Susan Graber and Jay Bybee. Among the issues they must decide is whether the taxpayers group can challenge the federal law that established the Hawaiian Home Lands program. The lower court had ruled that the group had no claims against the federal government and dismissed Hawaiian homesteading as one of the programs being challenged.

But the issue generating the most interest in the courtroom was the political status of Hawaiians. There were a few hints of possible sympathies of the judges but none that clearly signaled which way the panel would rule.

For example, Brunetti observed that "the issue before us is whether we should go into the question of Hawaiian sovereignty" — which some took as a sign he recognized that the matter was in flux politically.

On the other hand, Bybee pointed out that Congress already knows how to go about giving political recognition to a class of people and hasn't done so, suggesting that the basis for the benefits is racial ancestry.

"If they haven't recognized them, doesn't that only leave us with the racial classification?" he asked.

After the hearing, observers evaluated the legal discussion. Haunani Apoliona, who chairs the OHA board of trustees, expressed "cautious optimism."

University of Hawai'i Hawaiian studies professor Lilikala Kame'eleihiwa said she thought the court showed an understanding of the sovereignty issue. But she added that Hawaiians should demonstrate their political solidarity during a second Hawaiian-rights case to be heard Thursday — Doe vs. Kamehameha, concerning the Hawaiian-preference admission policy of Kamehameha Schools.

"I think we need to be there in force," she said.

Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.