Office of Hawaiian Affairs officials and state Attorney General Mark Bennett yesterday said they are confident they can prevail against a lawsuit filed this week which seeks to stop state funding of OHA and, in effect, dismantle the agency.

Bennett, at a news conference yesterday, said the lawsuit is no different from prior unsuccessful legal challenges to OHA's mission of establishing programs to aid Hawaiians.

But H. William Burgess, the attorney for the six "non-ethnic Hawaiians" bringing the lawsuit, including former Advertiser publisher Thurston Twigg-Smith, said legal history backs his side of the argument.

The lawsuit filed in U.S. District Court late Thursday claims OHA exists to carry out a "racially discriminatory purpose to better the conditions of native Hawaiians and Hawaiians (at the expense of other Hawaii citizens not of the favored face). ..."

The money that's been going to fund OHA and its programs through ceded land revenues should instead be going to benefit all Hawai'i's people, the lawsuit said.

The six plaintiffs are James Kuroiwa Jr., Patricia A. Carroll, Toby M. Kravet, Garry P. Smith, Earl F. Arakaki and Twigg-Smith. Most of the plaintiffs have been involved in previous lawsuits against OHA.

The 2002 Arakaki v. Lingle lawsuit, filed by Burgess on behalf of 16 taxpayers seeking to stop the state's funding of OHA on constitutional grounds, was stopped in March 2007 when U.S. District Judge Susan Oki Mollway declared the plaintiffs did not have standing to bring their claims. The case had also been reviewed by the U.S. Supreme Court and the 9th Circuit Court of Appeals, which remanded the matter back to Mollway.

Burgess said Mollway declined to dismiss the case and suggested that he could file a new suit.

The latest lawsuit charges that "absent from the settlement agreement is any provision for the pro rate portion of the ceded lands trust for these Six Non-ethnic Hawaiians and the million or so other Hawaii citizens similarly situated."

Those people, the lawsuit says, "are adversely affected by the past and ongoing breaches and misapplications of the ceded lands trust income and corpus; and they are threatened with disenfranchisement and deprivation of their other civil rights to life, liberty and the pursuit of happiness in the state that is their home."

Bennett said he fails to see a difference in the lawsuits and believes the outcome will be the same as in the Arakaki lawsuit.

The Arakaki case centered around the constitutionality of the state Admissions Act, which allows the state to use ceded lands income and proceeds to better the condition of Native Hawaiians.

"The court said that in order to challenge the constitutionality of the Admissions Act, plaintiffs have to be able to state a claim against the United States who is a necessary party to any such claim, that plaintiffs were unable to state a claim against the United States, and thus they could not bring that lawsuit," Bennett said.

ADMISSIONS ACT CITED

While the plaintiffs have attempted to change the charges in the latest lawsuit, the heart of the opposition's argument remains that the Admissions Act provision that allows funding to go toward Native Hawaiians is unconstitutional, Bennett said.

Burgess, however, said Mollway was wrong not to grant his clients standing because they are equitable owners of the ceded lands trust. Once granted standing, he said, he believes he will prevail on the merits of the case.

OHA Chairwoman Haunani Apoliona said "we will defend OHA's constitutional and statutory rights for those we serve now and for the benefit of future generations of beneficiaries."

She said this latest lawsuit against OHA means the agency "must divert previous resources to defend ourselves in federal court, once again."

OHA officials said the agency spent $409,491 in defense of the Arakaki case.

SECOND LAWSUIT

Meanwhile, OHA is also in the midst of a separate legal challenge, Day v. Apoliona, filed by five men who are all at least 50 percent Hawaiian, which seeks to have OHA spend its money only on those with 50 percent or more Hawaiian blood.

The lawsuit filed yesterday lists Gov. Linda Lingle, key members of her cabinet, Apoliona and the other OHA trustees as defendants, claiming that they took part in a "civil conspiracy to deprive them of equal protection of the laws and equal privileges and immunities under the law."

At issue is OHA's share of revenues derived from ceded lands, state-owned lands that once belonged to the Hawaiian government.

The lawsuit comes amid much debate over OHA's share of ceded land revenues at the state Capitol. Through a decadeslong series of judicial, legislative and administrative actions, the last being a February 2003 executive order issued by Lingle, OHA receives 20 percent of proceeds from ceded lands. Exactly how that is calculated has long been a subject of disagreement between OHA and the state.

A $200 million settlement agreement was reached by the state and OHA in January, which includes three parcels assessed at $187 million and $13 million cash, as well as a minimum of $15 million annually in future years. In exchange, OHA gives up the right to sue for future revenue claims. The House approved a version of the settlement but three Senate committees shelved the deal on March 17.