Arakaki v. Lingle - Phase 2

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August 31, 2005 Decision by 9th Circuit Court of Appeals

THE DECISION BY THE 9TH CIRCUIT COURT OF APPEALS WAS FINALLY HANDED DOWN ON AUGUST 31, 2005. IT WAS A UNANIMOUS DECISION BY THE 3-JUDGE PANEL. This is NOT the end of the process. The decision found in favor of plaintiffs on certain issues, and remanded this lawsuit back to the Honolulu District Court for further proceedings. ON OCTOBER 3, 2005 PLAINTIFF-APPELLANTS FILED WITH THE 9TH CIRCUIT COURT A PETITION FOR PANEL OR EN BANC REHEARING REGARDING THOSE PORTIONS OF THE AUGUST 31 DECISION WHICH RULED AGAINST THEM. THAT PETITION FOR REGEARING WAS DENIED ON NOVEMBER 8, 2005. THE NEXT PHASE OF THE LAWSUIT WILL TAKE PLACE AT THE U.S. DISTRICT COURT IN HONOLULU.

The complete August 31 decision in pdf format can be downloaded by clicking here.

The decision can also be downloaded directly from the 9th Circuit Court website: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C0D7650F8637C4878825706E004FBD4A/$file/0415306.pdf?openelement

The summary and conclusion of the decision, taken directly from the official document; and related news reports and commentaries, can be found below in chronological order. The petition for rehearing is provided after that, followed by news reports that the petition for rehearing was denied on November 8, 2005.

NOW BEGINS THE HISTORY OF THE LAWSUIT DURING THE 9TH CIRCUIT COURT APPEALS PROCESS, INCLUDING ALL BRIEFS FILED BY PLAINTIFFS-APPELLANTS AND ALL BRIEFS FILED BY ALL 5 DEFENDANTS; PLUS RELATED NEWS REPORTS AND COMMENTARY, ALL IN CHRONOLOGICAL ORDER.

In March 2002 a multiethnic group of 16 Hawai'i citizens filed suit challenging the constitutionality of the State of Hawai'i Office of Hawaiian Affairs and the State of Hawai'i Department of Hawaiian Homelands, which was created to carry out the duties of the Hawaiian Homes Commission Act of 1921 imposed upon the State of Hawai'i under the Admissions Act of 1959.

The first phase of that lawsuit took place at the U.S. District Court in Honolulu, beginning in March 2002. There were numerous legal documents, news reports, editorials, and protest demonstrations during the following 22 months. After a tortuous process filled with unnecessary delays and questionable rulings, the case was finally dismissed in January 2004. All website items related to that first phase of the lawsuit can be found at: http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2honoluludistct.html

February 12, 2004 Notice of Appeal

On Feb 12, 2004 a NOTICE OF APPEAL was filed in the U.S. District Court in Honolulu.

That NOTICE OF APPEAL can be downloaded in pdf format by clicking here.

April 2004 - Plaintiffs file appeal documents in the 9th Circuit Court of Appeals

In April 2004 plaintiffs filed appeal documents in the 9th Circuit Court of Appeals in San Francisco. Below are legal documents, news reports, and editorials covering the period from April 2004 until the 9th Circuit appeal produces a final result. (Both sides have stated, from the beginning in March 2002, that the decisions of the Honolulu District Court and of the 9th Circuit Court of Appeals are likely to be further appealed to the U.S. Supreme Court.)

PLAINTIFFS' OBJECTIONS TO MAGISTRATE JUDGE'S REPORT FILED APRIL 14, 2004 RE: BILLS OF COSTS

Following the dismissal of the lawsuit in the Honolulu District Court the defendants, who had won, demanded that the plaintiffs, who had lost, should pay the legal costs of the defendants. Such a demand is very unusual in civil rights cases, where the plaintiffs are generally private individuals of limited means seeking court action to nullify unjust laws or to force government agencies to respect the civil rights of the plaintiffs. A demand that civil rights plaintiffs pay legal costs to government agencies is warranted only in cases where the lawsuit is frivolous. Such a demand by government against private individuals seeking redress of grievances is a clear effort to intimidate citizens; and, if granted, would have a chilling effect on future efforts to correct government wrongdoing that violates the civil rights of the citizenry. The parties and costs sought by each were: Defendants-Intervenors State Council of Hawaiian Homestead Associations and Anthony Sang, Jr. ("SCHHA") seeking $1,316.03; Office of Hawaiian Affairs Defendants ("OHA") seeking $2,620.24; and State Defendants and HHCA/DHHL Defendants ("State") seeking $1,633.85. The total taxation of costs sought by the three bills was $5,570.12. Although the costs being sought on this occasion might be considered small, the principle is very important. That is why plaintiffs filed a 36-page document objecting to the report of Magistrate Judge Kevin Chang. See:

Plantiffs' Objections

Should the court impose an injunction?

The following three documents are a typical sequence in which one party (in this case, the plaintiffs) files a motion about some particular issue; the other party (in this case, defendant OHA) files an answer, or reply; and the first party (in this case, the plaintiffs) files a response, or rebuttal, to that reply. After that, a decision might be handed down regarding that issue, or the parties to the lawsuit might continue filing additional motions on other topics.

In this case, the issue being debated in this sequence of three documents is whether the court should impose an injunction to prohibit OHA and DHHL from spending money for certain new purposes, or encumbering state property by granting new leases, during the period of time this case is being heard by the 9th circuit court. The general theory is that an injunction should be issued if OHA or DHHL might cause irreparable harm to plaintiffs by spending money or granting leases during the time the case is being litigated, and/or there is a strong likelihood that the plaintiffs will eventually win their case.

PLAINTIFFS-APPELLANTS' MOTION FOR INJUNCTION TO PRESERVE STATUS QUO PENDING APPEAL April 12, 2004

On April 12, 2004 the following document (among others) was filed with the 9th Circuit, and was received on April 14. This document asks for an injunction to prohibit various expenditures and activities by OHA and DHHL during the period that this case is being heard by the 9th Circuit Court.

Motion for injunction 4/12/2004

DEFENDANTS-APPELLEES OFFICE OF HAWAIIAN AFFAIRS' MEMORANDUM IN RESPONSE TO PLAINTIFFS-APPELLANTS' MOTION FOR INJUNCTION TO PRESERVE STATUS QUO PENDING APPEAL April 23, 2004

A memorandum in response to the motion for injunction was filed by the Office of Hawaiian Affairs, dated April 23, 2004. [Technical note regarding page numbers: An electronic copy in its original wordprocessing format as created by OHA was later converted to a pdf file. As a result of that conversion to pdf, the Table of Authorities in this pdf version appears to have one blank page and one nearly-blank page, even though the original document content was continuous. Thus, the Roman-numeral page numbers of the last few pages of the Table of Authorities might be one or two numbers higher than in the original. But all page numbers in the body of the memorandum remain unchanged, and therefore the citations to page numbers in the memo, as contained in the Table of Authorities, also remain correct.]

OHA Response 4/23/2004

PLAINTIFFS'-APPELLANTS' REPLY IN SUPPORT OF INJUNCTION TO PRESERVE STATUS QUO PENDING APPEAL May 4, 2004

On May 4, 2004 plaintiffs filed a reply to OHA's response of April 23 to the plaintiffs' motion of April 12 to preserve the status quo pending appeal. Despite the document's convoluted title, there are some very important substantive issues which will be of interest to the general public. Non-lawyers might prefer to skim or skip the first ten pages which deal with technical matters concerning precedents regarding standing, and standards for judging claims of irreparable harm.

State Defendants – Appellees, HAUNANI APOLIONA, et al., PLAINTIFFS'-APPELLANTS' REPLY IN SUPPORT OF INJUNCTION TO PRESERVE STATUS QUO PENDING APPEAL;

Reply in support of Injunction 5/4/2004

APPELLANTS OPENING BRIEF June 4, 2004

On June 4, 2004 plaintiffs (appellants) filed APPELLANTS OPENING BRIEF. This is a major document laying out all the important issues of the appeal. The pdf document occupies 82 pages including table of authorities, table of contents, and certification of service. Later the defendants will file a lengthy and detailed answering brief, and then the plaintiff/appellants will file a reply brief (rebuttal).

Some of the major issues on appeal are: Taxpayers should have standing to complain about racial diversion of ceded land revenues even though such revenues are not technically taxes (but revenue diversion has a direct impact on taxes). Taxpayers should have standing to complain about prior "settlements" to be fulfilled by $30 Million per year for many years to come. The "political question" doctrine should not prevent taxpayers from seeking to invalidate portions of the Admissions Act, and portions of the state constitutional amendments of 1978, that are unconstitutional under the 14th Amendment equal protection clause and that violate the fiduciary duty of the trustees of the public land trust to treat all beneficiaries fairly. The fact that Congress is considering legislation (the Akaka bill) related to this case should not prevent the court from ruling on the issues, especially since Congress has been considering these matters for 4 years without resolving them. OHA and DHHL are agencies of the State of Hawai'i, not comparable to the federal Bureau of Indian Affairs; and the Mancari decision cannot apply to OHA and DHHL, especially in light of the Supreme Court's ruling in Rice v. Cayetano that "Hawaiian" and "Native Hawaiian" are racial groups and not political entities or recognized tribes. Judge Mollway needlessly and improperly delayed the case at the Honolulu District Court, and made a final ruling for (incorrect) reasons she could have used shortly after the case began 22 months earlier; and she should not be the judge to whom this case will be remanded for further hearings if plaintiffs are successful in their 9th Circuit appeal.

To download APPELLANTS OPENING BRIEF in pdf form, click here. The download might require several minutes for internet customers using dialup service.

Article summarizing Arakaki v. Lingle June 8,2004

On June 8, 2004 plaintiffs' attorney H. William Burgess' published an article summarizing the major issues in Arakaki v. Lingle (Arakaki2) on appeal in the 9th Circuit Court of Appeals. The article was published in the on-line newspaper "Hawaii Reporter." See: http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki29burgesshawrept060804.html

Note

THIS WEBPAGE WILL MAINTAIN DOCUMENTS IN CHRONOLOGICAl ORDER

Answer briefs from OHA, SCHHA, etc. in reply to appellants' opening brief were filed beginning July 30, but only after a series of other documents were filed. Those other documents included motions for an extension of time to reply (and responses to those motions), and a motion to request an expedited hearing (and oppositions to that morion). Those other documents are provided next, in chronological order. Scroll below them to find the important answer briefs beginning July 30.

Delay to file answering brief requested - June 8/9, 2004

The State of Hawai'i on June 8, 2004, and OHA on June 9, 2004 asked for a delay to file their answering brief. The reasons why the State and OHA asked for a delay might best be described as frivolous, and the request for a delay is a continuation of a strategy of delay demonstrated in the previous 22 months of unnecessary delays at the District Court level. On June 12 the appellants responded in opposition to any extension of time. "With all due respect to counsels' personal, vacation and travel plans, their motions do not show, under the particular circumstances of this case, the good cause, diligence or substantial need required for extensions by Circuit Rule 31-2.2. Appellants oppose those motions, as well as any other motions by any other Defendants/Appellees for any extensions of briefing." Ordinarily, motions seeking and opposing an extension of time are highly technical and make boring reading for non-lawyers. But this pair of requests, and the opposition to them, are quite interesting.

On June 10, June 14, and June 18, 2004 three other defendants/appellees filed motions for an extension until August 3, 2004 to file their answering briefs. These three were: the HUI Defendants/Intervenors-Appellees, SCHHA (State Council of Hawaiian Homestead Associations), and the United States.

On June 23, 2004 attorney H. William Burgess filed his appellants' opposition to these motions for extension of time.

The reasons for opposing the time extension are similar to the previously-stated reasons for opposing the time extension requested by OHA and the State.

Those reasons are summarized as follows:

Delay has characterized this case at every turn. They have known for almost four months that their answering briefs were due on July 6, 2004. Further delays would be particularly unfair to Appellants who have already endured 22 month of delays in the trial court. All Appellees, except perhaps for HUI Appellees, have deep resources and access to major legal talent fully capable, even if they only started drafting today, to file timely briefs on July 6 th .

Appellants, and others similarly situated, are harmed by delays.

To date HHC/DHHL and OHA have cost the State treasury about a Billion Dollars. About $80 million per year more continues to pour out of or never reach the State treasury because of these two programs. (See Exhibits 6 and 7 filed herein June 12, 2004.) Every day that goes by is a day without the better schools, parks, roads, police protection and quality of life those public moneys would have provided if they were not diverted to illegal purposes. In Summer 2002 research was done for plaintiffs in the Arakaki2 lawsuit showing astonishing amounts of state government money spent for OHA and DHHL. Spreadsheets containing that research were submitted again at this time to the 9th Circuit as part of appellants' opposition to state's and OHA's motions for extension of time. See: OHA and DHHL Cost to State of Hawai'i Treasury: $1 Billion to Date. Estimate for Next Ten Years: $2 Billion More at the Current Expenditure Rate. See Spreadsheets On This Webpage for Details. http://www.angelfire.com/hi5/bigfiles/ohadhhlburdenstatetreasury.html

This Court has not yet acted on Appellants' motion dated April 12, 2004 for injunction to preserve status quo pending appeal. If the Court does not intend to issue an injunction to preserve the status quo, it is critical to require timely filing of the answering briefs so that Appellants can promptly reply and this appeal can be decided expeditiously. Otherwise, the ongoing irreparable losses to Plaintiffs and others similarly situated will continue unabated and, the final judgment, if Appellants prevail, cannot accord full and effective redress.

APPELLANTS' MOTION TO EXPEDITE HEARING July 17,2004

On July 17, 2004 plaintiffs' attorney H. William Burgess filed a motion "to expedite the hearing of this appeal. Specifically Appellants request that oral argument be heard during this Court's next scheduled session in Honolulu, Hawaii November 1 - 5, 2004 or as soon thereafter as possible, consistent with the Court's due consideration of the briefs." (This motion to expedite was later granted, and oral hearings are scheduled for Honolulu for the week of November 1, 2004.) Mr. Burgess noted that "This Court has not yet acted on Appellants' Motion For Injunction To Preserve Status Quo Pending Appeal filed April 12, 2004." He once again reminded the court that irreparable harm is caused to plaintiffs because millions of dollars per month are being diverted from the state treasury to be spent on unlawful purposes; and he cited a newspaper article about the granting of additional leases on Maui by DHHL."

Motion to expedite hearing 7/17/2004

DEFENDANTS-INTERVENORS-APPELLEES STATE COUNCIL OF HAWAIIAN HOMESTEAD ASSOCIATIONS AND ANTHONY SANG, SR. MEMORANDUM IN OPPOSITION TO APPELLANTS' MOTION TO EXPEDITE HEARING July 23, 2004

On July 23, 2004 Defendants-Intervenors-Appellees State Council of Hawaiian Homestead Associations and Anthony Sang, Sr. (collectively, "SCHHA") filed a memorandum in opposition to the motion to expedite hearing. Here is the SCHHA memorandum in opposition:

Memorandum in opposition 7/23/2004

APPELLANTS' REPLY IN SUPPORT OF MOTION TO EXPEDITE HEARING July 28, 2004

On July 28, 2004 attorney H. William Burgess filed appellants' reply to the SCHHA memorandum. Here is:

Appellants' Reply 7/28/2004

July 30, 2004 - August 3, 2004

From July 30, 2004 through August 3, 2004, lengthy answer briefs were filed by the five defendants. These are the most important, substantive briefs to be filed by defendants the 9th Circuit appeal of the Arakaki2 lawsuit. These five briefs are in answer to the major plaintiffs' (appellants) opening brief previously filed on June 4, 2004. Here are the five defendants' answer briefs.


Reply to briefs August 17, 2004

On August 17, 2004 attorney H. William Burgess filed the (plaintiffs') appellants' reply to all five of those answering briefs whose links are immediately above. This major document is extremely important, not only because it gives strong arguments against the answering briefs and in support of the plaintiffs' opening brief; but also because this document includes two addenda that contain historically valuable information. Mr. Burgess also explains in a cover letter that his brief, at 15,300 words, exceeds the usual word limit because he is replying to five answering briefs that total 55,000 words!

Here are a few comments on the historically significant addenda included in the appellants' reply:

Addendum #1 includes material taken from the debates during a Hawai'i constitutional convention in 1950 (9 years before Hawai'i became a state). There was a proposal that, when Hawaii becomes a state, it must adopt the Hawaiian Homes Commission Act. Marguerite Ashford (at page 670) made her astute observation that lands held in trust "granted by the Republic of Hawaii and accepted by the United States, being ceded in trust cannot have trust strings tied to them when they are returned." (Marguerite Ashford was the delegate from Molokai, long-time first deputy attorney general of Hawaii, first woman admitted to practice law in Hawaii, first woman to be awarded the Order of the Coif from the University of Michigan law school, delegate to the Republican National Convention, and the aunt of the late Clinton R. Ashford, who was grandson of Clarence Wilder, an attorney general of the Kingdom of Hawai'i appointed by King Kalakaua. Wilder and his brother, Volney V. Ashford, were exiled from Hawaii for complicity in the failed Wilcox counter-revolution of 1895. They did not return to Hawaii until after passage of the Organic Act, which established the Territorial government.)

Addendum #2 includes material taken from the March 19, 1947 debates in Congress ( House of Representatives, Committee on Public Lands) about Statehood for Hawaii. The Delegate from Hawaii, Joe Farrington, was there with J. Garner Anthony, former attorney general of Hawaii and author of the Statehood bill (Anthony was famous also for having ended martial law in Hawaii following World War II). At page 294, Congressman Engle commented that "They [the ceded lands] are lands which belong to the United States but are held in trust for the people of Hawaii." Later at 299, Congressman Carroll asks J. Garner Anthony about the provision which revests the title in Hawaii. Anthony says, "We already have the beneficiary title, Mr. Carroll." Mr. Carroll: Where is there a legal opinion ever saying that this is held in trust? Mr. Anthony: "There is no such legal opinion, but the act of Congress, and also the treaty of annexation, says specifically that it shall be held in perpetuity for the benefits of the inhabitants of the Hawaii[an Is]lands. Then, also, in the act of Congress, our own organic act, there is a provision that if any of these public lands which are set apart for the United States are later given up, Congress has already said, those lands then go back for the use and benefit of the people of Hawaii, showing clearly from the very beginning the intention expressed in every enactment that the people of Hawaii were the beneficiaries of the public lands of Hawaii."

One of the key arguments by plaintiffs in Arakaki2 is that the adoption of the HHCA violated the trust that established Hawaii's public lands as being for the benefit of all Hawaii's people, not just for one group defined by race. OHA, SCHHA, the State/DHHL and even the United States amazingly all question that the ceded lands were even held by the United States, and later the State, in trust for all the people of Hawaii.

August 21, 2004

As of August 21, it appears that all parties to this lawsuit have filed all the briefs they will file before oral arguments are heard. To this date there have been no rulings by the 9th Circuit Court on most of the documents filed with that court. There has also been nothing published about the case in any of the daily-circulation newspapers in Hawai'i, and no reports on television or radio. News reports will be posted below in the order they are published, along with announcements of oral hearings, and the actual text of any rulings that are made available in electronic form.

THE PLAINTIFFS'/APPELLANTS' MOTION TO EXPEDITE HEARING, FILED ON JULY 17, 2004, WAS GRANTED. ARAKAKI V. LINGLE (ORIGINALLY ARAKAKI V. CAYETANO) HAS BEEN PLACED ON THE CALENDAR FOR THE 9TH CIRCUIT COURT'S SEMI-ANNUAL WEEK OF HEARINGS IN HONOLULU. THE CASE WILL BE HEARD ON NOVEMBER 1, 2004. IT WILL BE THE 4TH CASE IN THE SESSION, WHICH BEGINS AT 9 AM AT 1132 Bishop Street, Honolulu, 6TH FLOOR COURTROOM. (This is the building Mauka of Hotel Street, between Bishop and Fort Street Mall, sometimes called First Hawaiian Tower.) The Ninth Circuit 3-judge panel hearing this case consists of Judges Brunetti, Graber and Bybee.

Red-shirt protest September 6, 2004

On September 6, 2004 (Labor Day) a large red-shirt protest march traveled through the heart of Waikiki, ending with a rally including speeches and music at the Waikiki Shell. For newspaper articles, photos, and analysis see: http://www.angelfire.com/hi2/hawaiiansovereignty/redshirtsept2004.html

Land transfer from State of Hawai'i to DHHL reports

On Thursday September 16, 2004 both Honolulu newspapers reported that 1800 acres are being transferred from the State of Hawai'i to the Department of Hawaiian Homelands. DHHL will then use a large portion of that land for residential leases to be awarded for rent of $1 per year to ethnic Hawaiians who have at least 50% blood quantum.

This land transfer continues a 2-year-long policy of the Lingle administration to greatly accelerate the process of developing land and giving leases to "put Hawaiians back on the land." It seems clear that this accelerated granting of leases is an effort to pre-empt the anticipated success of the Arakaki2 lawsuit, which would abolish DHHL. In any case, regardless of the motive for the accelerated leasing, it is clear that time is of the essence and that delays in resolving this lawsuit allow an acceleration of losses of land and money that rightfully belong to all Hawai'i's people. Everyone acknowledges that If the Akaka bill passes, the land and money controlled by DHHL will become the core of the ethnic Hawaiian "tribal" lands and will be forever lost to the State of Hawai'i. As Lloyd Yonenaka, DHHL spokesman, was quoted saying: "Now we are not afraid of being creative and looking outside our own inventory. This is like our first round. We are looking at other properties and a plan for Kaua'i. This is just the beginning."

Honolulu Advertiser, Thursday, September 16, 2004, Excerpts relevant to the Arakaki2 lawsuit

http://the.honoluluadvertiser.com/article/2004/Sep/16/ln/ln03a.html

Hawaiian Home Lands plans 3,500 new homes

By James Gonser

In its biggest single push ever to put Native Hawaiians into homes of their own, the state Department of Hawaiian Home Lands yesterday announced a transfer of lands from other state departments that will offer about 3,500 families a chance at ownership within several years.

A total of 1,800 acres on O'ahu, Maui and the Big Island have been moved from the control of the Department of Land and Natural Resources and the Housing Community Development Corp. of Hawai'i to DHHL, with more exchanges expected to follow soon.

If those other deals happen, DHHL hopes to provide a total of 6,000 Native Hawaiians with residential leases in the next five years, nearly equaling the 7,200 leases the agency has awarded since it was created 83 years ago, according to Micah Kane, DHHL chairman.

"This will go down in the history of Hawai'i as one of the most important land transfers to us," Kane said of yesterday's action.

"We are moving forward on lands that have been stagnant for years," Kane said. "We will create economic opportunity with construction, have a tremendous impact on affordable housing, provide homes for people who normally would not have that opportunity, fulfill our commitment to Native Hawaiians and build communities that will impact the lives of generations to come."

Kane said the new communities would be developed with plans for living, working, playing and the educational needs of residents. "The department has really shifted its philosophy in approaching its developments," he said, "from being a pocket in-fill type developer to one that needs to move toward master-planned communities."

The 1921 Hawaiian Homes Act set aside 200,000 acres of ceded lands for the use of those with 50 percent or more Hawaiian blood. The near-extinction of Native Hawaiians and the need for rehabilitation programs to sustain their culture and lifestyle led to the act becoming part of the Hawai'i Constitution.

Because of a 1994 settlement with the state over misused homelands properties, DHHL receives $30 million a year to finance housing developments. It also earns about $7 million a year from leasing commercial properties.

Residents pay just $1 a year to lease their home sites. But much of that land is in remote locations without roads or other infrastructure, which has been the main obstacle to providing homes more quickly. The exchanged properties, except Waiahole, are considered ready to be developed, and the first leases will be awarded with groundbreaking on some homes expected in January.

Cecelia Hopkins, 74, has been on the waiting list for a lease since 1955. She attended a meeting Tuesday on the transfer plan and said the new proposal could lead to others being given a lease without waiting so long. "I think they are trying to find homes for homesteaders," Hopkins said. "Everybody has been waiting such a long time. I would like to see other people get into homes." She still would like a property where she can live out her life and pass the land on to her son.

Most of the 3,500 homes will be affordable for Hawaiians who make 80 percent or less of the state's median income.

The transfer required the approval of the Office of Hawaiian Affairs, because the Maui and Big Island properties are involved in a lawsuit brought by OHA against the state to stop ceded lands from being turned over to private developers.

That case is before the Hawai'i Supreme Court and will continue, said OHA chairwoman Haunani Apoliona, but the transfer of those properties will not be contested.

Once a lease is awarded, the lessee either builds a home on the property, works through a self-help group such as Habitat for Humanity, or takes out a mortgage on a home built by a contractor for DHHL.

Lloyd Yonenaka, DHHL spokesman, said the real change is a new political will to move forward with new ideas to get homes built. "That drives everything," he said. "Now we are not afraid of being creative and looking outside our own inventory. This is like our first round. We are looking at other properties and a plan for Kaua'i. This is just the beginning."

Honolulu Advertiser, Thursday, October 14, 2004

On Thursday, October 14, 2004 Earl Arakaki, lead plaintiff in the lawsuit, published an important op-ed in the Honolulu Advertiser. The main point of his letter was to oppose the Hawaiian recognition bill (Akaka bill), pointing out that the bill is an attempt to circumvent the Constitution and an attempt to prevent lawsuits like Arakaki2 from succeeding in overturning race-based programs.

http://the.honoluluadvertiser.com/article/2004/Oct/14/op/op10pletters.html

Letters to the Editor

Preferential laws are wrong

Aloha is for everyone, not just those of one ancestry.

by Earl Arakaki

Thanks to Bruce Fein for his powerful commentary of Oct. 10 opposing the Native Hawaiian Government Reorganization Act of 2004, the so-called Akaka bill. His most important point: While this bill is bad for Hawai'i, it would be disastrous for America.

Fein writes, "Like Adolf Hitler's blood tests for Jews, a minuscule percentage of Native Hawaiian ancestry would establish an entitlement to participate in the new, racially exclusive domain."

In Hawai'i, we have Hawaiian immersion schools paid for with public funds, with all subjects taught exclusively in the Hawaiian language and concentrating on Hawaiian culture, and private schools exclusively for Native Hawaiians.

Goebbels used motion pictures to further propaganda. In Hawai'i, propaganda is spread via the state's Office of Hawaiian Affairs newsletter, broadcast via public television, and more recently in prime time on Hawai'i's NBC television affiliate.

Under Hitler and Goebbels, the Nazis created an official registry, excluding Jews, gypsies, handicapped and those not meeting special requirements of Aryan ancestry. In Hawai'i, proponents of the Akaka bill are now signing up those with Native Hawaiian ancestry to establish the citizenry to create a new Hawaiian nation.

Aug. 21 is Hawai'i statehood admission day, a state holiday. In 1959, over 94 percent voted yes for statehood. In recent years, public officials of both major political parties have done little to acknowledge, proclaim or celebrate Statehood Day. It appears they are embarrassed to be American or fear "offending" Native Hawaiians, seen as the "swing vote."

However, there are citizens presently fighting in the courts for equal rights for all of Hawai'i's citizens. Fourteen plaintiffs of various ancestries reflecting a broad cross-section of Hawai'i's residents will be before the Ninth Circuit Court on Nov. 1 (Arakaki v. Lingle) demanding the abolishment of government-run race-based preferential laws that now give those possessing Hawaiian blood homesteads and revenues from public lands, special schools, loans, elderly care and other benefits denied to those not of the favored ancestry.

Because these 14 citizens are demanding equal rights for all, some Native Hawaiians and Hawai'i's congressional delegation are spearheading the Akaka bill, hoping to circumvent not only the U.S. Constitution, but also established Bureau of Indian Affairs procedures and criteria for American Indian tribal recognition. This new "tribe" would have a potential membership of over 400,000, far larger than any existing tribe.

The Akaka bill would be unfair to real Indian tribes, be a recipe for permanent racial conflict in Hawai'i, diminish the territory and sovereignty of the state of Hawai'i, and, as Bruce Fein says, be the beginning of the end for the "indivisible Union composed of indestructible states" envisioned by the U.S. Constitution and secured by so much sacrifice in the Civil War.

Earl Arakaki
'Ewa Beach

(Earl Arakaki is one of the plaintiffs in Arakaki v. Lingle, No. 04-15306 in the Ninth Circuit Court of Appeals, scheduled for oral argument Nov. 1, 2004.)

Honolulu Star-Bulletin, Sunday, October 31, 2004

The following commentary was published on Sunday, October 31, 2004, just as the judges of the 9th Circuit Court were arriving in Honolulu for their week-long series of oral hearings on Hawai'i cases. The author, Robert Klein, is a former justice of the Hawai'i Supreme Court and is the attorney representing SCHHA, one of the defendants in the Arakaki2 lawsuit.

http://starbulletin.com/2004/10/31/editorial/commentary2.html

Loss of OHA, Hawaiian Homes would devastate Hawaii

by Robert Klein

Tomorrow a three-judge panel of the United States Court of Appeals for the Ninth Circuit will hear oral arguments in a case entitled Arakaki v. Lingle that could lead to the demise of the Hawaiian Homes Commission and the state Office of Hawaiian Affairs. The fallout from the loss of these agencies and their programs would be devastating to every one of our citizens, especially those of Hawaiian ancestry. Besides once again losing property rights and assets held in trust for the Hawaiian people, the 1993 commitment of the federal government to reconcile with the Hawaiian people would be abrogated. Until passage of the Akaka Bill that permits the establishment of a political relationship with the United States, there would be no means by which Hawaiians could obtain either state or federal assistance in any form. The need for health, education and welfare programs would continue to exist but unabated by government aid. The impacts on our state cannot be underestimated if the missions of OHA and the HHC were terminated.

The plaintiffs' complaint sought rulings from the trial court declaring all laws establishing OHA and HHC invalid as "race based" discrimination under the 14th Amendment to the U.S. Constitution. In addition, plaintiffs wanted all monies, investments, lands and property of any kind held by the government converted to the general funds of the state of Hawaii. Homestead lands would be withdrawn and no further grants, loans, guarantees, contracts or expenditures could be made by OHA or the HHC. All funding for Hawaiians would be permanently enjoined. Plaintiffs' ill-conceived challenges to these programs foundered when U.S. District Judge Susan O. Mollway dismissed their action. Now Judge Mollway's decision is before the federal appeals court for review.

It would be well to review a few of the reasons why the state of Hawaii, the Office of Hawaiian Affairs, the State Council of Hawaiian Homestead Associations, and Hui Kako'o all agree that the plaintiffs' claims lack merit.

Historically, Hawaiians have had a unique relationship with both the state and federal governments based upon pre-existing sovereignty. From 1826 through 1893, the United States and the native Hawaiian government signed numerous treaties and conventions. Congress recently acknowledged that the overthrow of the Kingdom of Hawaii in 1893 resulted in the suppression of the inherent sovereignty of the Hawaiians.

In 1921, the United States enacted the Hawaiian Homes Commission Act to set aside approximately 203, 500 acres of land for native Hawaiians in the territory that eventually became the state of Hawaii. Through the compact admitting Hawaii into the union, the state of Hawaii accepted the federally delegated responsibility of administering the Hawaiian Home Lands Trust for the benefit of the native Hawaiians. Since statehood, Congress repeatedly has exerted authority over native Hawaiian issues, having from time to time enacted approximately 150 pieces of legislation for the benefit of Hawaiians.

Under the Admissions Act, the Ceded Lands Trust was established in part for the "betterment of the conditions of native Hawaiians". A small portion of the proceeds from this federally mandated trust have been used by the Office of Hawaiian Affairs for its native beneficiaries. There is no doubt that these foundational laws are constitutional given the plenary and exclusive authority granted to Congress under provisions of the Indian Commerce Clause and the Property Clause. See United States v. Lara, 124 S. Ct. 1628, 1633 (2004).

Indeed, native Hawaiian programs have never been determined by any court to constitute "race based" discrimination in violation of the 14th Amendment. This is because programs that assist Hawaiians, like those that govern Indian affairs, are based on the pre-existing sovereignty of the Hawaiian people as reflected in United States treaties and conventions with their government, rather than on race. See Morton v. Mancari, 417 U.S. 535, 553 (1974). ("If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized").

The history of Hawaiian relations with both the state and federal governments belies the plaintiffs' misguided assertions that vital OHA and HHC programs are unconstitutional. Tomorrow, our federal appeals court should sustain Judge Mollway's decision.

Robert Klein is a former associate justice of the Hawaii Supreme Court. He represents the State Council of Hawaiian Homestead Association, one of the defendants in the Arakaki litigation.


ORAL ARGUMENTS BEFORE THE THREE-JUDGE PANEL WERE HELD ON MONDAY, NOVEMBER 1, 2004

THE ORAL ARGUMENTS WERE TAPED, AND THE AUDIO FILE WAS LATER MADE AVAILABLE ON THE WEBSITE OF THE 9TH CIRCUIT COURT.

Audio tapes of 9th Circuit oral arguments are generally available for cases since they started saving audio files. Click here to reach the 9th Circuit web site

http://www.ca9.uscourts.gov/

Select the "Audio Files" button at the top left, and then enter the case number when the search box appears.

For Arakaki#2

The case # is 04-15306 and download is 9.76MB. Dialup internet users should think twice before trying to download such a large file.

It appears the following is the URL for downloading this file directly by clicking here (but it still requires a lengthy download time)

http://www.ca9.uscourts.gov/ca9/media.nsf/572BF9134FA80F9188256F3F0079D94C/$file/04-15306.wma?openelement


Honolulu Advertiser, Tuesday, November 2, 2004

http://the.honoluluadvertiser.com/article/2004/Nov/02/ln/ln40p.html

Hawaiian advocates cite ruling

By Vicki Viotti

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.

Honolulu Star-Bulletin, Tuesday, November 2, 2004

http://starbulletin.com/2004/11/02/news/story8.html

Court hears arguments in Hawaiian agency case
Three judges will rule later on the matter of constitutionality

By Ron Staton
Associated Press

A federal appeals court will rule at a later date on a case challenging the constitutionality of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands program.

The three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments yesterday that centered on the plaintiffs' standing to sue in federal court and the political status of native Hawaiians.

U.S. District Judge Susan Oki Mollway dismissed on Jan. 15 a lawsuit filed by about a dozen non-Hawaiian plaintiffs who challenged the constitutionality of the two Hawaiian programs. Mollway noted Congress is currently considering the so-called Akaka bill, which would grant federal recognition to native Hawaiians similar to political recognition given to American Indians and Alaska natives. She said she would not intrude into that political process.

After the hour-long hearing in federal court in Honolulu, attorneys in the Arakaki v. Lingle case said the three San Francisco-based appeals judges were well prepared. "They asked a lot of good questions," said H. William Burgess, attorney for the plaintiffs. Sherry Broder, attorney for OHA, agreed and said she did not want to predict what the court will do.

Burgess argued that funds for OHA and Hawaiian Homes are used exclusively for people of Hawaiian ancestry. "The distribution of funds on the basis of ancestry is odious to a free people," he said.

Judge Melvin Brunetti noted that funds for a $135 million ceded-lands settlement with OHA in 1993 came from a bond issue and not directly from tax revenues. But Burgess said the bond must be repaid, and the funds to do so come from the state general funds, most of which come from tax revenues. Deputy Attorney General Girard Lau said the bond money goes toward settlement of a legal claim, and there is only an indirect link to taxpayers and no direct injury to them.

Burgess noted there is a federal question because the United States got lands in trust under annexation in 1898. But he said the United States added a "racial component" in setting aside public lands for the benefit of native Hawaiians in the 1921 Hawaiian Homes Act.

Lau said Robert Klein, attorney for the State Council of Hawaiian Homesteaders, also noted that funds used to support Hawaiian programs come from bond issues. He said the plaintiffs have no standing to bring the case in federal court.

Judge Jay Bybee noted that Hawaiians cannot change the Hawaiian Homes program without permission from Congress.

Attorneys on both sides cited a ruling by the 9th Circuit on Wednesday that noted that native Hawaiians are not an Indian tribe and are treated differently by the federal government.

The ruling in the case known as Kahawaiolaa v. Norton said the Department of Interior's exclusion of native Hawaiians from its regulations acknowledging the federally recognized status of Indian tribes is not unconstitutional. But the court said that "in many ways, the result is less than satisfactory," and sharply criticized the Department of Interior.

Pacific Business News, December 13, 2004

Articles continue to be published describing massive expenditures underway for racially exclusionary housing projects on state-owned land and funded by state government money

http://www.bizjournals.com/pacific/stories/2004/12/13/daily26.html

Largest development in DHHL history breaks ground

West Oahu is home to a 53.3 acre development for the Department of Hawaiian Home Lands, the biggest in its history with 326 separate lots.

Kaupea, aka Village 8 of the Villages of Kapolei, is the first of three properties involved in an historic land transfer three months ago from the Department of Land and Natural Resources and the state's Housing and Community Development Corp. to DHHL.

"This is a great project," Gov. Linda Lingle said. "It involved many agencies working together and it was done for the right reason -- putting native Hawaiians on the land." DHHL Chairman Micah Kane says the project represents a shift to larger master-planned developments instead of the smaller pocket developments the department favored before.

Groundbreaking was this week. DHHL is finalizing a contract with Dick Pacific Construction to build the infrastructure for all 326 lots for $19.3 million. Site improvements are scheduled to take 18 months, but construction of actual houses can begin as soon as next fall, with the first residents moving in as early as spring 2006.

August 31, 2005 9th Circuit Court of Appeals Decision

THE DECISION BY THE 9TH CIRCUIT COURT OF APPEALS WAS FINALLY HANDED DOWN ON AUGUST 31, 2005. IT WAS A UNANIMOUS DECISION BY THE 3-JUDGE PANEL. This is NOT the end of the process. The decision remanded this lawsuit back to the Honolulu District Court for further proceedings; and it is possible that part or all of the 9th Circuit decision (and the results of the further proceedings) could be appealed by the plaintiffs-appellants or by one or more of the five defendants.

The complete decision in pdf format can be downloaded by clicking here.

The decision can also be downloaded directly from the 9th Circuit Court website: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C0D7650F8637C4878825706E004FBD4A/$file/0415306.pdf?openelement

Summary and conclusion -- language taken directly from the decision

We affirm in part and reverse in part. We hold that Plaintiffs lack standing to sue the federal government and that the district court therefore correctly dismissed all claims to which the United States is a named party or an indispensable party. We affirm the district court in finding that Plaintiffs have demonstrated standing as state taxpayers to challenge those state programs that are funded by state tax revenue and for which the United States is not an indispensable party. Plaintiffs therefore have standing to bring a suit claiming that the OHA programs that are funded by state tax revenue violate the Equal Protection Clause of the Fourteenth Amendment. However, we reverse the district court's dismissal of that claim on political question grounds and hold that a challenge to the appropriation of tax revenue to the OHA does not raise a nonjusticiable political question. We therefore affirm in part, reverse in part, and remand.

VII. CONCLUSION

The district court's orders are variously affirmed or reversed as follows.

Arakaki I, 198 F. Supp. 2d 1165 (D. Haw. 2002), is affirmed in part and reversed in part. We affirm the court's holding that Plaintiffs have standing to challenge the appro-priation of state tax revenue to OHA. We reverse the holding that Plantiffs have standing as taxpayers to challenge the appropriation of tax revenue to DHHL/HHC.

We affirm the denial of standing to challenge the settlement of past claims against OHA. We affirm the denial of standing to challenge the issuance of bonds and the denial of standing to challenge all other spending that does not originate in tax revenue.

The remaining issues addressed in that order are not on appeal.

Arakaki II, 299 F. Supp. 2d 1090 (D. Haw. 2002), is affirmed in part and reversed in part. We affirm Plaintiffs' standing to challenge the appropriation of state tax revenue to the OHA. We reverse the grant of standing to challenge the appropriation of tax revenue to DHHL/HHC. We affirm the denial of standing to sue as trust beneficiaries. We affirm the denial of the motion to dismiss the tax revenue claim against OHA under the political question doctrine. We reverse the denial of the motion to dismiss the tax revenue claim against DHHL/HHC. The remaining issues in that order are not on appeal.

Arakaki III, 299 F. Supp. 2d 1107 (D. Haw. 2002), is affirmed on different grounds. Arakaki IV, 299 F. Supp. 2d 1114 (D. Haw. 2003), and Arakaki V, 299 F. Supp. 2d 1129 (D. Haw. 2003), are affirmed. Arakaki VI, 305 F. Supp. 2d 1161 (D. Haw. 2004), is reversed. All remaining orders in this case are affirmed.

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

11892 ARAKAKI v. LINGLE

Note 2

PLAINTIFF-APPELLANTS' PETITION FOR PANEL OR EN BANC REHEARING ON PORTIONS OF THE DECISION, FILED OCTOBER 3, 2005, CAN BE FOUND AFTER NEWS REPORTS THAT COVERED THE DECISION.

News coverage and commentary about the 9th Circuit Decision

Honolulu Star-Bulletin, Wednesday, August 31, 2005

http://starbulletin.com/breaking/breaking.php?id=3743

Breaking News at 10:29 AM HST

Appeals court lets group challenge state funding of OHA

Sally Apgar

In a major reversal of an earlier opinion, a federal appeals court ruled this morning that a group of Hawaii taxpayers has standing to challenge state funding through taxes of the Office of Hawaiian Affairs, but does not have standing to challenge funding of the Department of Hawaiian Home Lands.

In a unanimous vote, a three judge panel of the 9th U.S. Circuit Court of Appeals overturned a lower court's dismissal of the case on political grounds. But the court affirmed the taxpayer groups' standing to challenge the "Hawaiians-only" OHA program. The case will be handed back to the U.S. District Court in Hawaii for trial.

The case, known as Arakaki v. Lingle, is one of several lawsuits brought by similar plaintiffs in recent years challenging programs aimed at benefiting native Hawaiians.

H. William Burgess, the attorney representing Earl Arakaki and the other plaintiffs, said this morning "we are disappointed that the court narrowed the scope of our suit as much as it did."

Burgess said he was pleased with the court's decision allowing the taxpayers to sue OHA but did not want to be denied standing to sue the federal government or DHHL/Hawaiian Homes Commission.

State Attorney General Mark Bennett could not be reached for comment.

The Arakaki suit and the other lawsuits were filed in the wake of the U.S. Supreme Court's decision in Rice v. Cayetano. On Feb. 23, 2000, the high court ruled the "Hawaiians-only" vote in elections for OHA trustees violated federal anti-discrimination laws.

This morning's appeals court decision was the second time this month that the 9th Circuit has ruled against an "Hawaiians-only" programs. On Aug. 2, the court ruled 2-1 that Kamehameha Schools' "Hawaiians-only" admission policy violates federal anti-discrimination laws because it creates an "absolute bar" to non-Hawaiians.

In March 2002, the Arakaki suit was filed arguing that OHA and the Hawaiian Homes Commission are race-based and therefore illegal under the equal protection clause of the U.S. Constitution. It claims OHA's programs discriminate against non-Hawaiians, so the state agency should not receive state funding.

As a remedy, the plaintiffs want the state to cease operation of OHA, DHHL and HHC and to have all assets handed back to the state for the benefit of all Hawaii residents.

The plaintiffs also argued that native Hawaiians are a racial group with no special trust status like that accorded other indigenous people such as American Indians and Alaska natives.

The defendants, which include the state agencies OHA and DHHL and the state government, argued that Congress has established many remedial programs such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act to better the lives of native Hawaiians and therefore they are an indigenous people with a special relationship to the U.S. government.

The defendants say native Hawaiians are a political group, not a race, as the plaintiffs argue. As a political group, the programs are not race-based and therefore not discriminatory, they say.

In January 2004, U.S. District Judge Susan Oki Mollway dismissed the case, noting that Congress was considering the Akaka Bill, which would grant federal recognition to native Hawaiians as an indigenous people.

Honolulu Advertiser, Wednesday, August 31, 2005

http://the.honoluluadvertiser.com/article/2005/Aug/31/br/br05p.html

Breaking News, Posted at 9:24 a.m.

Court: Taxpayers may file OHA suit

By Ron Staton
Associated Press

A federal appeals court ruled today that Hawai'i taxpayers may sue to stop state funding of the Office of Hawaiian Affairs for allegedly discriminating against non-Hawaiians.

The three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court's dismissal and affirmed the standing of a multiethnic group of taxpayers to challenge the Hawaiians-only programs.

It was the second time this month that the court has ruled against Hawaiian programs. On Aug. 2, a three-judge panel ruled 2-1 that the exclusive Kamehameha Schools' policy of giving preference to Native Hawaiians violates federal anti-discrimination laws.

The lawsuit in the latest opinion, filed in March 2002, argues that OHA's programs should not received state funding on the grounds that they are discriminatory.

The suit argued that revenue from ceded lands — government land under the Hawaiian monarchy that became public land under statehood in 1959 — should benefit Hawai'i's entire population, not just native Hawaiians.

U.S. District Judge Susan Oki Mollway had dismissed the case on Jan. 15, 2004, noting at the time that Congress was considering a bill sponsored by Sen. Daniel Akaka, D-Hawai'i, that would grant federal recognition to native Hawaiians similar to the recognition afforded to American Indians and Alaska Natives.

OHA attorney Sherry Broder argued that a number of congressional acts — such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act — have already established Hawaiians as a political entity.

The lawsuit stemmed from a landmark ruling by the U.S. Supreme Court on Feb. 23, 2000, that struck down the Hawaiians-only restriction for voting in OHA elections as unconstitutional racial discrimination.

The lawsuit originally named the Department of Hawaiian Home Lands and the federal government as defendants.

Mollway removed them from the lawsuit in November 2003, saying taxpayers lacked standing to challenge federal laws. The department was established by the 1959 Statehood Admissions Act.

The 9th Circuit upheld that ruling. The panel heard arguments in Hawai'i but issued its opinion in San Francisco.

The Akaka bill is scheduled for a cloture vote in the U.S. Senate next Tuesday; if it wins at least 60 votes, that would force debate and a vote on the bill.

KPUA Hilo Thursday, September 1st, 2005

http://www.kpua.net/news.php?id=6136

Hawaiian leaders rally in support of Akaka bill

Hawaiian leaders rally in support of Akaka bill

HONOLULU (AP) _ A court ruling affecting Hawaiian programs brought strong expressions of support from Hawaiian and community leaders for the Native Hawaiian recognition bill.

The Office of Hawaiian Affairs called a news conference today ostensibly to comment on the ruling by the Ninth U-S Circuit Court of Appeals.

However, the meeting was more of a pep rally for the so-called Akaka bill.

The appeals court ruled that a group of Hawaii residents has legal standing to challenge state funding of OHA's Hawaiians-only programs.

Backing OHA and its support for the Akaka bill at the news conference were U-S Senator Daniel Akaka, Governor Lingle, Department of Hawaiian Home Lands chairman Micah Kane, Kamehameha Schools C-E-O Dee Jay Mailer and University of Hawaii interim President David McClain.

Honolulu Star-Bulletin, Thursday, September 1, 2005

http://starbulletin.com/2005/09/01/news/story2.html

Supporters of OHA decry latest court ruling

By Sally Apgar

Programs that help native Hawaiians will face more attacks, advocates said after yesterday's federal appeals court ruling that allows a group of Hawaii taxpayers to challenge state funding of the Office of Hawaiian Affairs as discriminatory.

At a crowded news conference yesterday afternoon, OHA Chairwoman Haunani Apoliona said the 9th Circuit Court of Appeals decision "represents another serious blow to the rights of native Hawaiians and consequently to our whole Hawaii community."

She said that the ruling comes "on the heels" of the same court's Aug. 2 decision to strike down Kamehameha Schools' "Hawaiians-only" admission policy as violating federal anti-discrimination laws. "This clearly demonstrates that the courts and their doctrines do not favor Hawaii's native people," said Apoliona. "We can also expect further efforts to erode Hawaiian rights."

It is unclear what other health, educational or housing programs aimed at native Hawaiians could be challenged because of the state taxpayer money they receive.

The 9th Circuit ruled on the Arakaki v. Lingle lawsuit, one of several recent suits that challenge programs for native Hawaiians. The suits were spurred by the 2002 U.S. Supreme Court decision in Rice v. Cayetano, which found that the "Hawaiians-only" vote in elections for OHA trustees violated anti-discrimination laws and the U.S. Constitution.

The Arakaki suit, filed in March 2002, argued that OHA, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands are race-based and therefore illegal under the equal protection clause of the 14th Amendment in the U.S. Constitution. It claimed OHA discriminates against non-Hawaiians and should not receive state tax money.

Apoliona spoke in OHA's fifth-floor boardroom, which was crowded with supporters, including Gov. Linda Lingle, U.S. Sen. Daniel Akaka, the chief executive and trustees of Kamehameha Schools, a leader of Hawaiian homesteaders and the acting president of the University of Hawaii.

The theme of all the speakers was that the strongest shield against further court challenges is the passage of the Native Hawaiian Government Reorganization Act -- the Akaka Bill.

The bill, expected to be debated on the floor of the U.S. Senate next week, sets up a process for the federal government to recognize native Hawaiians as an indigenous people like American Indians or Alaskan natives. As such, they would be recognized as a political group, rather than a race-based group, which could immunize native Hawaiian programs from legal attacks based on violating anti-discrimination laws.

The Akaka Bill creates a means for native Hawaiians to create a "governing entity" that, if recognized by the federal government, will allow it to relate on a government-to-government basis to the United States.

Akaka has repeatedly said that his bill will protect more than 130 federal programs aimed at benefiting native Hawaiians and will protect institutions such as OHA and DHHL.

Basing its ruling on a legal technicality, the 9th Circuit recognized a legal distinction between the creation of OHA and the DHHL. The court found that DHHL was the creation of the federal government's Admissions Act that made Hawaii a state in 1959 and that OHA was the creation of the state's 1978 Constitutional Convention. The court said that because DHHL was created under the direction of the federal government, the plaintiffs have no standing to challenge it as state taxpayers.

The Hawaiian Homes Commission Act of 1921 set aside about 200,000 acres for homesteads staked by Hawaiians with at least 50 percent aboriginal blood. The intent of the act was to establish "a permanent land base for the beneficial use of native Hawaiians."

When Hawaii became a state in 1959, Congress required it to incorporate the HHCA into its state Constitution. Because of the federal role in the creation of HHCA, the court ruled that the plaintiffs could not sue the federal government as taxpayers under existing law.

The case of OHA is different.

The 9th Circuit found that the state tax money going to OHA could be challenged by a group of state taxpayers. OHA receives the bulk of its revenues from rents on leased lands. Last year, the state gave OHA about $2.8 million from state collections, which represents about 10 percent of its $25 million budget.

William Burgess, an attorney representing Earl Arakaki and the other plaintiffs, said he was disappointed by yesterday's ruling because it narrowed what he could challenge.

The court ruled his clients had no standing to challenge the federal government and DHHL.

"We are disappointed that the court narrowed the scope of our suit as much as it did," he said.

The defendants in Arakaki, which include OHA, DHHL and the state government, argued that Congress has established many remedial programs such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act to better the lives of native Hawaiians and that therefore they are an indigenous people and "a political group" with a special relationship to the U.S. government. They argue that as a political group, their programs are not race-based and cannot be challenged as discriminatory under federal laws or the Constitution.

In the several lawsuits brought to date, no court has ruled on whether native Hawaiians are a race or political group. In fact, they have left that decision to the U.S. Congress and the fate of the Akaka Bill.

Lingle agreed with Apoliona yesterday saying that with the Arakaki decision, "we dodged a legal bullet, and this bullet is aimed at the heart of the programs that benefit the Hawaiian people and thereby bring benefits to the state of Hawaii."

"These bullets will not stop, and this decision was made in such a narrow sense and on such a technical (legal) basis that it does not preclude the next group from coming forward on another (legal) basis and challenging the Department of Hawaiian Home Lands again."

Honolulu Star-Bulletin, Thursday, September 1, 2005 EDITORIAL

http://starbulletin.com/2005/09/01/editorial/editorials.html

Appeals court ruling gives boost to Hawaiians

THE ISSUE

A federal appeals court has rejected challenges to federal and state programs targeted to help native Hawaiians.

HAWAIIANS appear to have won a major court ruling that protects federal assistance programs and the Office of Hawaiian Affairs' prime source of revenue. The decision by a federal appeals panel should be a relief for Hawaiians still reeling from an appellate court ruling against Kamehameha Schools' admission policy.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously upheld District Judge Susan Mollway's dismissal last year of a challenge to federal programs that assist native Hawaiians. The panel ruled that Earl Arakaki and other plaintiffs can challenge the expenditure of state tax revenue on OHA, but few if any tax dollars are funneled to the agency.

The ruling comes as the Senate prepares to vote on the Akaka Bill, which would give Hawaiians federal recognition similar to that afforded American Indian tribes and native Alaskans. If the 9th Circuit ruling stands -- it could be appealed further -- state and federal Hawaiian programs may not desperately need the bill's protection.

Arakaki attorneys argued that the expenditure of public money on Hawaiian programs infringes on constitutional protection against racial discrimination. The appeals panel rejected the standing of the plaintiffs to bring a racial-bias claim against federal programs on the basis that "any effect on federal spending may only remotely affect" the plaintiffs, invoking a long-held U.S. Supreme Court stance.

The appellate judges ruled that the plaintiffs can challenge the expenditure of state tax dollars on OHA, but they cannot contest OHA's revenue from the Hawaiian home lands trust or a settlement with the state over past claims. OHA's revenue comes largely from the land trust.

By state law, OHA receives 20 percent of the revenue from crown or public lands ceded to the state at statehood. The judges ruled that the plaintiffs, "as taxpayers, may not challenge the expenditure of such non-tax revenues."

The ruling also protects state funding of the Department of Hawaiian Home Lands. The panel pointed out that the 200,000 acres of land set aside for the use of Hawaiians was incorporated into the Admission Act, requiring the state to include the program in the state Constitution.

Unlike the Arakaki lawsuit, which involves constitutional issues, the lawsuit against Kamehameha Schools' Hawaiians-only admission policy is based on precise Supreme Court interpretations of the Civil Rights Act of 1866, which prohibits racial discrimination in contracts. The high court ruled in 1976 that the law prohibits discrimination in private schools and protects all races.

While government programs aiding Hawaiians may be safer from legal challenges, Kamehameha and other charitable organizations benefiting Hawaiians remain in need of the Akaka Bill's protection from court challenges.

Honolulu Advertiser, Thursday, September 1, 2005

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050901/NEWS23/509010342/1001

Court OKs challenge to taxpayer funding of OHA

By Ken Kobayashi and Gordon Y.K. Pang

DECISION'S HIGHLIGHTS

The 9th U.S. Circuit Court of Appeals ruling involves a 2002 lawsuit filed by a group of Hawaiçi taxpayers challenging the constitutionality of the funding for the Department of Hawaiian Home Lands, the Hawaiian Homes Commission and the Office of Hawaiian Affairs, all of which provide benefits and programs to Native Hawaiians.

Highlights of yesterday's unanimous decision by appeals court judges Jay Bybee, Melvin Brunetti and Susan Graber:

• The panel reinstated a portion of a lawsuit challenging taxpayer money going to OHA, about $2.8 million a year, or roughly 10 percent of its budget. • The panel affirmed the dismissal of other parts of the lawsuit challenging money to the Department of Hawaiian Home Lands and the Hawaiian Homes Commission. • The panel affirmed dismissal of another part of the suit challenging nontaxpayer money going to OHA. That money includes revenue from ceded lands that once belonged to the Hawaiian monarchy and currently provides the bulk of funding for OHA.

— Ken Kobayashi

A group of Hawai'i taxpayers can challenge the expenditure of about $2.8 million a year in state tax money for the Office of Hawaiian Affairs, a federal appeals court ruled yesterday in yet another appellate decision jeopardizing programs that benefit Native Hawaiians.

But because the 9th U.S. Circuit Court of Appeals ruling limited the lawsuit to that money, the decision isn't expected to have the far-reaching impact of the U.S. Supreme Court's 2000 decision that struck down the Hawaiians-only voting for OHA trustees or the 9th Circuit's recent decision that declared Kamehameha Schools' admissions policy a violation of federal civil rights law.

In a 40-page decision, a three-member panel of the appeals court unanimously overturned a 2002 decision by U.S. District Judge Susan Oki Mollway and ruled that the taxpayers can contest the constitutionality of taxpayer funding equal to about 10 percent of OHA's budget.

The court, however, affirmed Mollway's dismissal of the rest of the suit and said taxpayers cannot challenge other revenues for OHA and cannot contest the constitutionality of government funding for the Department of Hawaiian Home Lands and Hawaiian Homes Commission.

"It's like being kissed by your sister," said H. William Burgess, the lawyer for the taxpayers who wanted the appeals court to reinstate the entire lawsuit.

Supporters of programs for Native Hawaiians also underscored the limited decision and repeated the call for the passage of the so-called Akaka bill, which they said will make it easier to defend taxpayer funding for OHA.

"We dodged a legal bullet, and this bullet is aimed at the heart of the programs that benefit the Hawaiian people, and thereby benefits the state of Hawai'i," Gov. Linda Lingle said. Lingle said the state will continue to defend the programs.

Clyde Namu'o, OHA administrator, said OHA gets about $2.8 million from the state general fund and it could be lost "under a worst-case scenario" if the lawsuit is successful in District Court. The amount represents about 10 percent of the agency's $28.5 million annual operating budget and is used for a limited number of programs that seek funding from OHA, he said.

The lion's share of the $2.8 million goes to three nonprofit organizations that benefit Native Hawaiians — Na Pua No'eau, the Native Hawaiian Legal Corp. and Alu Like.

David Sing, director of Na Pua No'eau, said about $700,000 of its $1.5 million budget comes from OHA. The program provides educational enrichment for about 1,500 Native Hawaiian students annually. "The ruling doesn't change the conditions that will continue to exist but it will impact the efforts that are being made," Sing said.

Alan Murakami, litigation director for the Native Hawaiian Legal Corp., said the roughly $600,000 his organization receives from OHA represents "more than half" of its operating budget. About $300,000 of the OHA money is from the state general fund, and could be lost if the lawsuit prevails.

The taxpayers' suit was filed by former Honolulu police officer Earl F. Arakaki and about a dozen others in 2002 challenging the constitutionality of government funding for the Hawaiian Home Lands program and OHA because their programs benefit only residents of Hawaiian ancestry.

In 2004, Mollway ruled the taxpayers did not have legal standing to challenge the Hawaiian Home Lands program established by Congress in 1920 that provided 200,000 acres to Hawaiians to build homes on property leased for 99 years at $1 a year.

She ruled they could sue OHA, but also ruled that the court should not interfere with the ongoing congressional debate over the Akaka bill that would recognize Native Hawaiians as a political group.

The appeals court yesterday essentially affirmed all aspects of Mollway's ruling except its finding that the court should refrain from making a decision because of the pending Akaka bill.

The court ruled that the Akaka bill would only go to the issue of what kind of standard a judge would use to evaluate the constitutionality of the tax money to OHA. That the bill is still pending does not bar the court from hearing the lawsuit, the appeals court said.

The court also made clear it would be a limited challenge only to tax money, not revenues from ceded lands that once belonged to the Hawaiian monarchy. "We agree with the district court that plaintiffs, as taxpayers, may not challenge the expenditure of such nontax revenues, the court said.

Arakaki, 58, an 'Ewa Beach resident who retired from the Police Department in 1994, said he had not had a chance to review the decision with Burgess, but said his reaction is mixed. He's pleased the suit is "still alive," but "it sounds to me there are still race-based programs that the government is providing."

Deputy Attorney General Girard Lau, also had mixed feelings about the decision. He's pleased the appeals court affirmed the dismissal of most of the lawsuit, but he's disappointed the tax money to OHA can be challenged. He said the office is considering asking for a rehearing or an appeal to the U.S. Supreme Court. He said other states may also have concerns about taxpayer challenges to state programs.

In some ways, the decision is part of a legal continuum that began five years ago with the U.S. Supreme Court's Rice v. Cayetano decision that OHA's Hawaiian-only ballots for its trustees violated constitutional voting rights protections. In the wake of the decision, OHA no longer restricts voting or the trusteeships to people with Hawaiian blood.

That high-court decision also prompted U. S. Sen. Daniel Akaka, D-Hawai'i, to introduce a bill seeking to clarify the status of Native Hawaiians as a political rather than racial group to help defend Native Hawaiian entitlements.

Lau said passage of the bill would make it clear that a federal judge should evaluate the constitutionality of tax money under a "rational basis" standard that is much easier for OHA to meet than the higher standard of "strict scrutiny." That tougher standard is used to determine whether the government has a compelling interest in interfering with fundamental rights, such as equal protection under the law. "That is why the passage of the Akaka bill is really, really important," Lau said.

Yesterday, Lingle also stressed the need for the passage of the Akaka bill. Senators are slated to decide Tuesday whether the Akaka bill should come to a vote on the Senate floor. Lingle said she and Micah Kane, DHHL director, will fly to Washington over the weekend to "solidify support" for the bill.

Akaka said yesterday the future of Hawaiian programs could hinge on whether the bill is successful. "When that happens, the courts I think will view these cases differently," Akaka told The Advertiser's editorial board. "But it will be in the hands of the courts."

Supporters of OHA, and advocates of Native Hawaiian programs in general, used yesterday's decision as a rallying point for gathering support for the Akaka bill.

There was disappointment when word of the court's decision first broke at the annual Native Hawaiian Conference, which officially opened at the Sheraton Waikiki yesterday. But as the day wore on and Hawaiian advocates began to realize the immediate impact of the decision was not monumental, those in support of the Akaka bill began to use the news as a rallying cry.

Haunani Apoliona, chairwoman of the OHA board of trustees, said the decision "represents another serious blow to the rights of Native Hawaiians and, consequently, to our entire Hawai'i community."

Apoliona said the ruling, as well as a ruling last month against Kamehameha Schools' Hawaiians-first admissions policy, are only the latest attacks against programs that aid Native Hawaiians. "The courts and their doctrines clearly do not favor Hawai'i's native people," she said. "You can expect possible further lawsuits. You can also expect further efforts to erode Hawaiian rights."

However, Hui Pu, an umbrella group of Native Hawaiians opposing the Akaka bill, said in a statement yesterday that it's wrong to use the court's decision to support the Akaka bill because "it actually hurts the group which this ruling protects — Hawaiian Homeland lessees. With ... new amendments, the bill takes away their right to file legitimate claims against the government. From 1959 to 1995 alone, more than 4,000 claims have been filed. The state Office of Hawaiian Affairs betrays the Hawaiian people by spending millions on Washington, D.C., lobbyists to pass a bad bill, instead of addressing the socio-economic conditions of the Hawaiian people."

Honolulu Advertiser, Thursday, September 1, 2005

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050901/NEWS23/509010368/1001

OHA set up to help meet obligations to Hawaiians

The Office of Hawaiian Affairs was established by the Constitutional Convention of 1978 as part of what was known as the Native Hawaiian Legislative Package.

OHA's purpose was to become the principal vehicle for the state to meet its trust responsibilities to Native Hawaiians, defined as those with at least 50 percent Hawaiian blood, and Hawaiians, which is further defined as descendants of the aboriginal peoples inhabiting the Hawaiian Islands in 1778, the year British Capt. James Cook arrived here.

Much of OHA's $28.5 million in annual operating revenues comes from its share of what's known as the public lands trust. When Hawai'i became a state in 1959, a condition of statehood was that 1.8 million acres formerly ceded to the federal government be returned to the state with the stipulation that these lands benefit two beneficiary classes — Native Hawaiians and the public.

How much of the revenue from these lands that OHA and Native Hawaiians should receive has been a source of debate and litigation for years.

A second major source of revenues is dividend and interest income that is derived from OHA's $365 million in assets.

Expenditures go largely to nonprofit agencies that provide educational, legal, health, vocational and other services to the Native Hawaiian community. Monies also go to loan programs to help Hawaiians start businesses and toward advocacy of protection of natural and cultural resources.

The Maui News, Thursday, September 01, 2005

http://www.mauinews.com/story.aspx?id=11990

Decision seen as example of why Akaka Bill is needed

An appeals court decision on an effort to block state funding for the Office of Hawaiian Affairs is another reason that Hawaiians need the federal government to recognize their right to a government of their own, Maui Hawaiian leaders said Wednesday.

Cultural specialist Charles Kauluwehi Maxwell Sr. said there were good and bad points to the appeals panel decision, but he said it was basically bad in setting the stage for more challenges to benefits for Native Hawaiians. "It's an insult to the Hawaiians who opened their homes and hearts to people and now are being oppressed again," Maxwell said.

He is a supporter of the federal recognition bill, commonly known as the Akaka Bill, that he says will help to protect programs set up specifically to provide benefits to Native Hawaiians. "There's nothing in the horizon to save our entitlements. It's more pressing now to get the Akaka Bill passed," he said.

Retired judge and OHA Trustee Boyd Mossman said Hawaiians have "dodged a bullet" in that the appeals court panel narrowly focused on a single issue of state general tax revenues. "But until we have the Akaka Bill passed, we're going to be suffering the effects of more bullets that are chipping away at Hawaiian benefits. That's why Akaka is so important to us, to make available a law that will help us to defend ourselves," he said.

Maxwell and Mossman were reacting to the ruling issued by a three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday that allows a group of Hawaii taxpayers to sue to block the state from funding OHA for Hawaiians-only programs.

The appeals panel ruling reversed a U.S. District Court decision on only the issue of state funding from general tax revenues. The appeals panel allowed to stand the lower court decision that dismissed the federal government and the Department of Hawaiian Home Lands (DHHL) from claims in the lawsuit, as well as a decision that allows continued funding for OHA from ceded-lands revenues.

In Honolulu, OHA called a news conference to respond to the ruling, with Sen. Daniel Akaka – who had introduced the bill in the Senate – among several participants urging support for the legislation.

Others included Gov. Linda Lingle, DHHL Chairman Micah Kane, Kamehameha Schools Chief Executive Officer Dee Jay Mailer, University of Hawaii interim President David McClain and Robbie Alm, a vice president at Hawaiian Electric Co.

Akaka made a strong pitch for his bill and said he is confident that he and Sen. Daniel Inouye have the 60 votes necessary for approval of a cloture motion Tuesday that would force a Senate vote on the bill.

Lingle said the state will "fight vigorously any attempt to take anything from Hawaiian people."

The governor said she and Kane will leave Sunday for Washington "to try to reach as many people as we can" to get support for the cloture vote and the bill. "We have addressed challenges to the constitutionality of the Akaka Bill and feel we have put that to rest," Lingle said.

OHA Chairwoman Haunani Apoliona said the court ruling "underscores the need to pass the Akaka Bill." She and other trustees, including Mossman, also will travel to Washington to lobby for the measure.

OHA's chances of prevailing in the funding case would be much stronger with the Akaka Bill, said acting Attorney General Lisa Ginoza.

Deputy Attorney General Charlene Aina, who helped argue the case before the appeals court, said Congress already has recognized Native Hawaiians in various federal programs but said it has been in "a less-than-direct way. The Akaka Bill would give Native Hawaiians direct recognition we haven't had."

Alm said the ruling is bad not only for Native Hawaiians but for the entire community. "The fight doesn't belong just to the Hawaiian community; it belongs to all of us," he said. Alm said the non-Hawaiian plaintiffs in the case speak for only a small minority. "This is a mixed ruling . . . but it allows groups to continue to attack benefits for Native Hawaiians. The court did not accept our argument that this is a political question and it can be resolved with passage of the Akaka Bill," Mossman said. "They did say that Akaka would not be a guarantee of benefits. But certainly it would be better than none at all."

Maxwell today will participate in a public forum on the bill, sponsored by Ho'okahua and by Po'okela, both Native Hawaiian programs at Maui Community College. Kalei Ka'eo, a spokesperson for Hui Pu and NOA (Not of America) will speak in opposition to the bill.

The Maui News, Tuesday, September 6, 2005

http://www.mauinews.com/story.aspx?id=12156

LETTERS TO EDITOR

OHA trustee says latest ruling just another challenge

While those opposed to Native Hawaiian programs may see the recent 9th U.S. Circuit Court of Appeals’ decision regarding the Arakaki lawsuit as a victory, we at the Office of Hawaiian Affairs were actually pleased that the 9th Circuit denied the plaintiffs any standing regarding the Department of Hawaiian Home Lands or ceded-land revenues.

I believe that the Arakaki lawsuit is just another one of a long history of challenges that Hawaiians have had to overcome since 1893. Like all of those challenges in the past, the Hawaiian community will meet them head-on and work diligently to overcome it.

I truly appreciate the non-Hawaiians who have had the courage to step forward and speak out in support of their Hawaiian friends and neighbors. People like Robbie Alms, who spoke at the Kamehameha Schools’ Unity Rally Aug. 6 at ’Iolani Palace. Alms said that he has never felt deprived because he could not attend the Kamehameha Schools. He sincerely felt that his friends who were able to attend were blessed, but their blessing involved no loss on his part.

Alms also showed great insight when he said that it should disturb all of us greatly, both Hawaiian and non-Hawaiian, that laws designed to “lift the yoke of slavery from black Americans are used as weapons to harm native people.”

As for the Arakaki lawsuit, none of the programs currently working to assist disadvantaged Native Hawaiians will ever fall victim to its terrorization.

Rowena Akana Trustee-at-Large Office of Hawaiian Affairs

PLAINTIFF-APPELLANTS' PETITION OF OCTOBER 3, 2005 FOR PANEL OR EN BANC REHEARING ON ISSUES WHERE THE DECISION OF AUGUST 31 RULED AGAINST THEM

Honolulu Advertiser, Tuesday, October 4, 2005

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051004/NEWS20/510040320/1170/NEWS

Group wants suit over OHA reheard

By Ken Kobayashi
Advertiser Courts Writer

A group of Hawai'i taxpayers yesterday asked the 9th U. S. Circuit Court of Appeals to reconsider a ruling that threw out most of the taxpayers' lawsuit challenging the constitutionality of government funding for the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

The group is asking for a rehearing by the three-member panel that issued the ruling or for a rehearing by a larger panel of 11 appeals judges.

The appeals court panel on Sept. 30 unanimously affirmed most of the 2002 decision by U.S. District Judge Susan Oki Mollway dismissing the lawsuit, but reinstated part of the suit challenging a portion — about 10 percent — of OHA's annual funding that comes from state tax payers.

The group's lawsuit alleges that public money is misused by government funding the programs benefitting residents of Hawaiian blood, but the appeals court ruled the taxpayers do not have standing or legal authority to press their suit, except for the portion challenging state taxpayer money to OHA.

In its legal brief, the group contended that the panel's decision conflicts with other 9th Circuit Court and U. S. Supreme Court decisions.

The group argued the taxpayers should be able to pursue their claims rather than getting thrown out of court at such an early stage of the proceedings.

The ruling set "unprecedented restrictions" on taxpayer challenges, the group said.

"The restrictions would immunize the misuse of state tax dollars accomplished through the issuance of general obligation bonds or through lease of public lands at below market rental or through other indirect ways no matter how illegal and how painful to taxpayers' pocketbooks," the group said.

OHA officials estimated that OHA gets about $2.8 million annually from the state general fund, which amounts to about 10 percent of its budget.

Honolulu Advertiser, Friday, October 21, 2005

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051021/NEWS23/510210375/1173/NEWS

Input sought on Hawaiian cases

The Hawaiian Affairs committees of the House and Senate will hold a series of public hearings across the state beginning tomorrow to get people's opinions on two court cases involving Native Hawaiian programs.

One of the cases is John Doe v. Kamehameha Schools, which challenges Kamehameha's Hawaiians-first admissions policy. The other case is Arakaki v. Lingle, which challenges the authority of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands to provide programs that are designed primarily to help Native Hawaiians.

Petitions for appeals in both cases are before the 9th U.S. Circuit Court of Appeals.

The hearings will be held:

  1. Tomorrow, 10 a.m. to noon, Kulana Oiwi, on Moloka'i.
  1. Monday, 7 to 9 p.m., Nanakuli High School cafeteria.
  1. Tuesday, 5:30 to 7:30 p.m., Kaua'i Community College Performing Arts Center.
  1. Wednesday, 6 to 8 p.m., Hawai'i State Capitol auditorium.
  1. Thursday, 5:30 to 7:30 p.m., Baldwin High School cafeteria, on Maui.
  1. Oct. 28, 7 to 9 p.m., Key Project, on O'ahu.
  1. Oct. 29, 10 a.m. to noon, Konawaena High School cafeteria.
  1. Oct. 30, 3 to 5 p.m., Hilo High School cafeteria.

"We especially encourage the Native Hawaiian community to attend the hearings and provide input to help us develop legislation, if appropriate," said Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee.

"As a result of the 9th Circuit decisions, Hawaiians face some of the most significant challenges in recent history," said Rep. Scott Saiki, D-22nd (McCully, Pawa'a).

Hawaii State Legislature Hearings on How to Circumvent Court Decisions October 30, 2005

October 30, 2005: Hawaii State Legislature Hearings on How to Circumvent Court Decisions Unfavorable to OHA and Kamehameha Schools, October 2005 -- webpage published October 30, 2005 includes news reports, analysis, and some of the testimony presented during 8 hearings on 5 islands during a period of 9 days as Hawai'i Senate and House committees on Hawaiian affairs held community meetings to discuss what laws the Legislature might pass to negate or circumvent decisions by the U.S. 9th Circuit Court in the Arakaki and Kamehameha lawsuits; hoping to prevent damage until the Akaka bill passes (they hope!). See: http://www.angelfire.com/hi5/bigfiles3/HawnAffrsLegislHrngOct2005.html

Honolulu Advertiser, Tuesday, November 8, 2005

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051108/NEWS23/511080342/1173/NEWS

Court won't reconsider Hawaiians-only issues

By Gordon Y.K. Pang

A U.S. appeals court yesterday denied a rehearing request for a group of Hawai'i taxpayers seeking to challenge the revenues received by the Office of Hawaiian Affairs, Department of Hawaiian Home Lands and the Hawaiian Homes Commission.

That leaves alive only a small section of the lawsuit filed three years ago by 'Ewa Beach resident Earl Arakaki and about a dozen other taxpayers who challenged the constitutionality of government funding for the three entities on the basis that they benefit only residents of Hawaiian ancestry.

A three-member panel of the 9th U.S. Circuit Court of Appeals in August overturned a 2002 decision by U.S. District Judge Susan Oki Mollway and ruled that taxpayers can contest the constitutionality of taxpayer funding for OHA, which amounts to about 10 percent of its annual budget. That portion of the lawsuit was remanded back to U.S. District Court in Honolulu.

In doing so, however, the panel also affirmed Mollway's dismissal of the rest of the lawsuit pertaining to other funding for OHA and all funding for DHHL and Hawaiian Homes Commission. It was that portion of the decision for which the taxpayers sought a rehearing.

William Burgess, an attorney for the taxpayers, said he was not surprised by the rejection of his rehearing petition, noting that such requests are seldom successful.

Burgess said he will not decide whether to appeal to the U.S. Supreme Court until the portion of the lawsuit still before the District Court is decided.

"If we lose, we'll be going for a petition. But that will deal with the entire case, not just one part of it," Burgess said.

OHA has not petitioned for a rehearing on the portion of the case that went against the agency, Burgess said.

Honolulu Star-Bulletin, November 8, 2005

http://starbulletin.com/2005/11/08/news/story11.html

OHA case appeal rejected
A group challenging Hawaiian programs has limited legal status

Associated Press

A federal appeals court has refused to reconsider its ruling that limited the standing of a group of Hawaii taxpayers to challenge the funding of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

However, the decision Friday by the 9th U.S. Circuit Court of Appeals doesn't affect an earlier decision that kept alive a portion of the group's lawsuit seeking to stop state funding of OHA for allegedly discriminating against non-Hawaiians.

"It's not fatal, because the main part of our case is still intact. That is the claim that OHA violates the 14th Amendment," the group's attorney, H. William Burgess, said yesterday.

A call seeking comment from OHA officials wasn't immediately returned.

The San Francisco-based appeals court ruled in August that the multiethnic group of taxpayers challenging Hawaiians-only programs had standing to pursue its claim that funding native Hawaiian programs with state tax dollars violates the Equal Protection Clause of the 14th Amendment.

In the same ruling, however, the appeals court upheld the Hawaii federal court's dismissal from the lawsuit of a challenge to the state Department of Hawaiian Home Lands, which was created by an act of Congress in 1921.

The suit had contended that revenue from ceded lands -- crown land under the Hawaiian monarchy that became public land and eventually was handed over to the state with statehood in 1959 -- should benefit Hawaii's entire population, not just Native Hawaiians through Hawaiians-only programs.

But the appeals court refused to reconsider that issue last Friday.

The remaining portion of the lawsuit will now be sent back to the federal court in Hawaii, Burgess said.