MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION





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TABLE OF CONTENTS

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION

PARTIES

Plaintiffs

Defendants

STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

ARGUMENT

I. Both HHCA and OHA rest on racial classifications

II. All racial classifications by any government are presumptively invalid.

The burden of justification is on the State.

III. The State has not shown, because it cannot show, it has a compelling interest in adopting or continuing the two programs which favor one race over others.

IV. Nor does the Indian analogy apply. (A) Under the Constitution, only members of federally recognized Indian tribes may be singled out. There is no tribe in Hawai`i to be regulated by Congress’ power over Indian tribes. (B) OHA and DHHL are agencies of the State, not separate quasi sovereigns. Hawaiians are not a federally recognized tribe.

V. Plaintiffs will likely succeed on the merits

VI. Plaintiffs will suffer irreparable harm if their motion is denied

VII. The balance of hardships tips in favor of plaintiffs

VIII. Conclusion


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H. WILLIAM BURGESS #833

2299C Round Top Drive

Honolulu, Hawai`i 96822

Fax: (808) 947-5822



PATRICK W. HANIFIN #2716

IM HANIFIN PARSONS, LLLC

1001 Bishop Street

Pacific Tower, Suite 2475

Honolulu, Hawai`i 96813

Telephone: (808) 585-0335

Fax: (808) 585-0336

Attorneys for Plaintiffs



UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII



MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

INTRODUCTION

In Rice v. Cayetano, 528 U.S. 495 (2000), the U.S. Supreme Court held that the definitions of ”Hawaiian” and “native Hawaiian” are racial classifications. The use of those classifications to restrict eligibility to vote in Office of Hawaiian Affairs (“OHA”) elections violated the 15th Amendment. (Exhibit A attached to the Declaration of Plaintiff Sandra Puanani Burgess, hereinafter “Dec. SPB”)

In Arakaki v. State, CV. NO. 514 HG-BMK Order Granting Plaintiffs' Cross Motion for Summary Judgment and Denying Defendants' Motion for Summary Judgment, September 19, 2000, the Honorable Helen Gillmor held that the use of those racial classifications to restrict eligibility for election or appointment to the board of trustees of OHA violated the 14th and 15th Amendments. (Ex. B Dec. SPB)

In this case, Plaintiffs seek a declaration that the Hawaiian Homes program and the OHA program, each of whose sole purpose is to provide benefits exclusively to persons defined by those same racial classifications, are invalid because they violate the 14th Amendment and other federal laws. Plaintiffs also seek a permanent injunction against further enforcement of both those programs.

This memorandum will show that Plaintiffs are entitled to a temporary restraining order and preliminary injunction against further implementation of or spending for those two programs pending final judgment, because either:

(1) Plaintiffs will likely prevail on the merits and if preliminary relief is not granted may suffer irreparable harm; or

(2) Serious questions are raised and the balance of hardships tips sharply in Plaintiffs' favor.

PARTIES

Plaintiffs each have a material financial interest in the subject matter of this action as taxpaying citizens of the State of Hawai`i and the United States and as beneficiaries of the public land trust created in 1898 when the public lands of the government of Hawai`i were ceded to the United States with the requirement that all revenues or proceeds, with certain exceptions, ”shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes”. (Dec. Pltfs)

Defendants

The 'HHC/DHHL Defendants' are the chairman, Raynard C. Soon, and members of the Hawaiian Homes Commission ('HHC'). The Department of Hawaiian Home Lands ('DHHL') is a state agency headed by an executive board known as the Hawaiian Homes Commission composed of nine members appointed by the Governor. Island residency requirements apply to eight of the members. At least four of the members 'shall be descendants of not less than one-fourth part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.' The chairperson serves in a full time capacity. The other members serve without pay but receive actual expenses incurred. §202 Hawaiian Homes Commission Act, 1920 ('HHCA'); §26-17 H.R.S.

The purpose of the HHCA laws is to benefit 'native Hawaiians' (§101) defined as 'any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.' §201(7).

The DHHL administers the HHCA (§26-17 H.R.S.) and controls (§204) the 'available lands', now referred to, with certain exceptions, as 'Hawaiian home lands', (about 200,000 acres set aside out of the ceded lands in and after 1921). DHHL is authorized to lease to native Hawaiians the right to the use and occupancy of tracts in the Hawaiian home lands at a rental of $1 a year for a term of 99 years, which may be extended on the condition that the aggregate term shall not be more than 199 years. §207. These leases are referred to as 'Homestead' leases. DHHL is authorized to make loans, §§213 Ð 217, assist lessees, §219.1, and develop projects §220.5. As of June 30, 2000, there were 6,927 Homestead leases outstanding covering 42,034 acres; and 116 General leases covering 51,906 acres. DHHL Overview rev. 6/30/00 (Ex. C Dec. SPB.). As of January 31, 2002, there were 7,281 Homestead leases outstanding. (Paragraph 11, Dec. SPB).

The “OHA Defendants” are the chairperson, Haunani Apoliona, and members of the Office of Hawaiian Affairs. The Office of Hawaiian Affairs (”OHA”) is a state agency. '10-3(3) H.R.S. The OHA board of trustees is composed of nine members elected at large by qualified voters in the state. Prior to the Rice v. Cayetano, 528 U.S. 495 decision issued February 23, 2000, only 'Hawaiians' were allowed to vote in elections for the OHA board. Island residency requirements apply to five of the members. '13D-1 H.R.S. OHA administers programs designed for the benefit of ”native Hawaiians” defined as

'any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined in the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal people which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawai`i'

and ”Hawaiians” defined as

'any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawai`i.' '§ 10-2 & 10-3 H.R.S.

Throughout this memorandum, Plaintiffs will use the terms 'Native Hawaiian', 'native Hawaiian' and 'Hawaiian' as they are defined and used in

§10-2 H.R.S. As the Supreme Court noted in Rice, 'peoples' in the latter definition is synonymous with 'races' in the definition of 'Native Hawaiian.' Rice, 528 U.S. at 516, citing Hawaii Senate Journal, Conf. Comm. Rep. No. 77, at 999. Thus 'Native Hawaiian' and 'native Hawaiian' are substantively identical under the OHA laws and the HHCA laws and each is a subset of 'Hawaiian' that is



distinguished by having at least 50% 'Hawaiian' blood.1

The 'State Defendants' are the Governor, Benjamin J. Cayetano, and other officials of the State of Hawai`i whose official duties charge them with the responsibility of allocating, remitting and/or transferring revenue or other public funds to the Trustees of OHA to be used by OHA in carrying out its racially discriminatory purposes; and allocating, remitting and/or transferring revenues or other public funds to the Defendant Hawaiian Homes Commissioners to be used by DHHL in carrying out its racially discriminatory purposes.

STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF

This court in Arakaki v. State, Civ. No. 514 HG-BMK, Order Granting Plaintiffs' Motion for Preliminary Injunctive Relief August 21, 2000 (Ex. J Dec. SPB) said,

The standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). The propriety of preliminary injunctive relief requires consideration of three factors: (1) the likelihood of the Plaintiff's success on the merits; (2) the threat of irreparable harm to the Plaintiff if the injunction is not imposed; and (3) the relative balance of potential hardships to the Plaintiff, Defendant, and the public. State of Alaska v. Native Village of Venitie, 856 F.2d 1384, 1388 (9th Cir. 1988). These three factors have been incorporated into a test under which the moving party may meet its burden by demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. American Tunaboat Assoc. v. Brown, 67 F.3d 1404, (9th Cir. 1995), Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).

ARGUMENT

I. Both HHCA and OHA rest on racial classifications.

In Rice v. Cayetano, 528 U.S. 495, 514-15, the U.S. Supreme Court found the OHA definitions of “Hawaiian” and “native Hawaiian” to be racial classifications. ”Ancestry can be a proxy for race. It is that proxy here.” Rice, 528 U.S. at 514. ”The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.” Rice, 528 U.S. at 515. ”The State’s electoral restriction enacts a race-based voting qualification.” Rice, 528 U.S. at 517.

The OHA definition of 'native Hawaiian' incorporates and is substantively the same as the HHCA definition.

DHHL and OHA were created and are intended to promote the interests of the racial classes 'native Hawaiians' and 'Hawaiians,' only. Each agency is set up as a trust. If Defendant OHA Trustees or Defendant Hawaiian Homes Commissioners were to divert trust assets to the use of the public, they would breach the trusts. Ahuna v. DHHL, 64 Haw. 327, 342-43, 640 P.2d 1161 (1982). DHHL's purpose is expressly and exclusively racial: 'the rehabilitation of the Hawaiian race.' Haw. Const. Art XII §2. OHA's purpose is equally racial: to manage trusts for the benefit of racial classes of 'native Hawaiians' and 'Hawaiians.' Art. XII §§5, 6.

All racial classifications by any governmental actor are presumptively invalid and may be approved only if they pass strict scrutiny. Shaw v. Reno, 509 U.S. 630, 641 et. seq., 113 S.Ct. 2816, 2823-24, et. seq., (1993); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995); City of Richmond v. J.A. Croson, 488 U.S. 469, (1989).

”A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Personal Admr of Massachusetts et. al. v. Feeney, 442 U.S. 256 , 272, 99 S.Ct. 2282, 2292 (1979).

'Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.' Alexander v. Louisiana, 405 U.S. 625, 632 (1972). See also Miller v. Johnson, 515 U.S. 900, 920, 115 S. Ct. 2475, 2490 (1995) (to satisfy strict scrutiny, State must demonstrate that its legislation is narrowly tailored to achieve a compelling interest); University of California Regents v. Bakke, 438 U.S. 265, 305, 98 S.Ct. 2733, 2756 (1978) (”In order to justify the use of a suspect classification, a state must show its purpose and interest is both constitutionally permissible...and its use... necessary...”). State laws which draw racial classifications must be measured by a strict equal protection test: they are presumed unconstitutional until the state can demonstrate that such laws are narrowly tailored to promote a demonstrated compelling interest. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331 (1969).

A state interest is 'compelling' only when it rests on a 'strong basis in evidence' that government action favoring one race over another is 'necessary.' Croson, 488 U.S. at 493, 500; Adarand , 515 U.S. at 226, 228, 236.

'Racial preference can never constitute a compelling state interest.' Fullilove v. Klutznick, 448 U.S. 448, 497 (1980) (Powell, J. concurring). The goal of promoting the benefit of favored racial groups is not only not compelling, it is not even legitimate. To survive strict scrutiny, a race-based program 'must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.' Loving v. Virginia, 388 U.S. 1 (1967). In Loving, the state tried to justify its laws against interracial marriage as advancing the goals of 'racial integrity' and 'racial pride.' The Supreme Court rejected these purposes as 'repugnant to the Fourteenth Amendment,' id. at 11, n.11, and drove the point home in Rice: 'Distinctions between citizens solely because of their ancestry,' such as the distinction between Hawaiians and their fellow citizens, 'are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.' Rice, at 528 U.S. at 517, quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

A governmental program is 'narrowly tailored' only when the government can meet the burden of showing it has no other choice. Notably, a program that takes race into account must be 'limited such that it Ôwill not last longer than the discriminatory effects it is designed to eliminate.' Id., quoting Fullilove v. Klutznick, 448 U.S. 448, 513 (1980). A program that is designed to be perpetual cannot be narrowly tailored. A program that is grounded on a claim that one racial group is owed something special because of its ancestry is not narrowly tailored. '[U]nder the Constitution, there can be no such thing as either a creditor or a debtor race.' Adarand, 515 U.S. at 239 (Scalia, J., concurring). A state may impose racial classifications only as a 'last resort'. Croson, 488 U.S. at 507 (Kennedy, J.) It must show that it has attempted or considered alternative, race-neutral means but has determined that those means cannot succeed. Croson, 488 U.S. at 519. The chosen racial classification must minimize any encroachment on the constitutional rights of other citizens. Croson, 488 U.S. at 510-11. The government must maintain 'the most exact connection between the justification and classification.' Adarand, 515 U.S. at 236.

  1. The State has not shown, because it cannot show, it has a compelling interest in adopting or continuing the two programs which favor one race over others.


The only compelling interest the U.S. Supreme Court has found sufficient to justify race-based laws is the need to remedy present discrimination or the present effects of past discrimination. Adarand, 515 U.S. at 227; Richmond v. J.A. Croson Co., 488 U.S. 469, 496-97, 109 S.Ct. 706, 722-24 (1989).

Nothing in the record in Rice v. Cayetano or in the record in Arakaki v. State demonstrates the existence of past or present discrimination so as to justify race-conscious remedies here. Nor did this court in its opinion at 963 F.Supp. 1547 or the Ninth Circuit Court, 146 F.3d 1075, in Rice v. Cayetano purport to rest their decisions on that ground. This absence is sufficient in itself to demonstrate that these two programs cannot survive strict scrutiny.

The political and economic power of Hawaiians increased dramatically once Hawaii became a Territory. University of Hawaii Political Science Professor Robert Stauffer writes:

It was a marvelous time to be Hawaiian. They flexed their muscle in the first territorial elections in 1900, electing their own third-party candidates over the haole Democrats and Republicans...The governor-controlled bureaucracy also opened up to Hawaiians once they began to vote Republican.

By the '20s and '30s, Hawaiians had gained a position of political power, office and influence never before - nor since - held by a native people in the United States. Hawaiians were local judges, attorneys, board and commission members, and nearly all of the civil service. With 70 percent of the electorate--but denied the vote under federal law--the Japanese found themselves utterly shut out. Even by the late 1930s, they comprised only just over 1 percent of the civil service.

This was "democracy" in a classic sense: the spoils going to the electoral victors.

***

Higher-paying professions were often barred to the disenfranchised Asian Americans. Haoles or Hawaiians got these. The lower ethnic classes (Chinese, Japanese and later the Filipinos) dominated the lower-paying professions. But even here an ethnic-wage system prevailed. Doing the same work, a Hawaiian got paid more per hour than a Portuguese, a Chinese, a Japanese or a Filipino--and each of them, in turn, got paid more than the ethnic group below them.

Robert Stauffer, "Real Politics", Honolulu Weekly, October 19, 1994 at page 4.

Plaintiffs anticipate that Defendants will rely on Morton v. Mancari, 417 U.S. 535 (1974) to argue that native Hawaiians are the legal equivalent of Indians or an Indian tribe and that the Mancari case, therefore, 'saves' these programs. They made and lost similar arguments in Rice v. Cayetano and Arakaki v. State.

In Rice v. Cayetano, supra, the State, OHA and the then Solicitor General each made what the Supreme Court called the 'Mancari argument', i.e., that under

Morton v. Mancari, legislation may single out any 'indigenous people' including Indians and Hawaiians, for special treatment, whether or not they are members of organized tribes. The State's brief, for example, argued at page 31,

'That unique legal or political status - not recognition of Ôtribal' status, under the latest executive transmutation of what that means - is the touchstone for application of Mancari when, as here, Congress is constitutionally empowered to treat an indigenous group as such.'

(Ex. K Dec. SPB)

OHA's amicus curiae brief likewise said at page 23,

The Applicability of Mancari Does Not Turn On Whether Native Hawaiians Are Organized Into Tribes. (Ex. L Dec. SPB)

The then Solicitor General's amicus curiae brief joined in at page 22,

This Court's decisions subsequent to Mancari confirm that a federally recognized tribal government is not a predicate for legislation on behalf of indigenous people. (Ex. M Dec. SPB)

(The District Court in Rice had said, 'the fact that Native Hawaiians are not at this time recognized tribes is not controlling for purposes of determining the proper standard of review.' Rice v. Cayetano 963 F. Supp. 1547, 1553 (D. Haw. 1997) rev'd. 528 U.S. 495.

The U.S. Supreme Court rejected these arguments saying, at Rice,

528 U.S. at 518,

If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting [in the Hawaii Admission Act] the purposes for the transfer of lands to the State--and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993--has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the state a broad authority to preserve that status. (Emphasis added.)

Thus, the State, OHA, the then Solicitor General and the trial court in Rice argued that, under Mancari, it does not matter that native Hawaiians are not a tribe. The Supreme Court said yes it does. If Hawaii's restriction were to be sustained under Mancari we would be required É to conclude that Congress É has determined that native Hawaiians have a status like that of Indians in organized tribes. Rice, 528 U.S. at 518.

As the State of Hawai`i acknowledged before the U.S. Supreme Court, the tribal concept has no place in the context of Hawaiian history. Rice v. Cayetano, Respondent's Brief in Opposition to Petition for Writ of Certiorari (Dec. 29, 1998), p. 18 (Ex. N Dec. SPB). Jon Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale Law & Policy Review 95 (1998) ('Native Hawaiians have never organized themselves into tribal units'). (Ex. O Dec. SPB)

Concurring in Rice, Justice Breyer noted that the State's definition of 'Hawaiian' in §10-2 H.R.S. is 'not analogous to the membership in an Indian tribe' and to define 'membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members . . . goes well beyond any reasonable limit.' Rice, 528 U.S. at 526, 527.

The nineteenth century Kingdom of Hawai`i was not a tribe. Membership in tribes is determined by descent from a historically existing tribe. See 25 C.F.R. §§83.7(b)(1) and 83(e). By contrast, the Kingdom of Hawai`i followed the Anglo-American common law rule of 'jus soli': everyone born in the country and subject to its jurisdiction was a subject. Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure, §92.04[3] (1999); Wong Foong v. United States, 69 F.2d 681

(9th Cir. 1934); I Statute Laws of Kamehameha III, §III, p.76, (1846). Immigrants could become naturalized subjects or 'denizens' with political rights. E.g. I Statute Laws of Kamehameha III, §10 at 78, §XIV; 1859 Civil Code §432; Aliens and Denizens,

5 Haw. 167 (1884). When Hawai`i was an independent nation in the international system it was, like the United States, a multi-racial nation defined by a common citizenship. No ethnic group had any special legal status placing its members above their fellow citizens. See, 1864 Constitution of the Kingdom Art. 62 reprinted in

R. Lydecker, Roster: Legislatures of Hawai`i 1841-1918 (1918) at 95 (qualifications for voting included gender, property and literacy, but not race or ancestry).

The annexation of Hawai`i did not incorporate into the United States a tribe with a pre-existing membership restriction based on ancestry. Under the terms of the Annexation Treaty, and Annexation Resolution, the independent multi-racial country of Hawai`i merged into the United States, transferring all its sovereignty and property to the federal government. Treaty of Annexation (1897), reprinted in L. Thurston, Fundamental Laws of Hawai`i 243 (1904); Annexation Resolution, (also known as the Newlands Resolution) Resolution No. 55 of July 7, 1898, 30 Stat. 750, (Ex. P Dec. SPB). This process left no 'quasi-sovereign' behind. The Organic Act made all citizens of Hawai`i American citizens. Act of April 30, 1900, c 339, 31 Stat. 141 (2 Supp. R.S. 1141), §4. As American citizens, their right of sovereign self-government is exercised by participating in the sovereign federal and state governments.

In Rice, the Supreme Court explained how Indian tribes differ from state agencies such as OHA and DHHL: They are separate quasi-sovereigns, not federal or state instrumentalities. 528 U.S. at 518 et seq. Indian tribes pre-existed the United States and 'retained some elements of quasi-sovereign authority even after cession of their lands to the United States.' Id. Their lingering remnants of original sovereignty Ð 'quasi-sovereignty' as the Supreme Court described it Ð are not created by or derived from the United States or any State. Id. United States v. Wheeler, 435 U.S. 313, 322-323 (1978).

This has two constitutional consequences. First, Indian tribes, unlike state and federal agencies, are not subject to the Fourteenth or Fifteenth Amendments. See, Talton v. Mayes, 163 U.S. 376 (1896) (tribe not limited by Fifth Amendment to U.S. Constitution when dealing with its members). Second, because Indian tribes have lingering remnants of sovereignty not derived from the United States or any State, the United States enters into political relations with them, government to government. As part of that political relationship, the federal Bureau of Indian Affairs ('BIA') exercises a guardian's power over Indian tribes, as if Indian tribes were minors incapable of managing their own affairs. See Mancari, 417 U.S. at 541-42, 551 (plenary power of Congress exercised through BIA as guardian of tribal wards). Such a government-to-government relationship is impossible for a group that has no separate group government.

Expanding the definition of an 'Indian tribe' to a group of individuals having a certain racial ancestry, as the State suggests, would destroy the crucial constitutional distinction between an Indian tribe and a racial group. This would be inconsistent with Mancari itself. There, the Supreme Court noted that the BIA hiring preference excluded many individuals who are racially Indians but did not belong to a tribe. 417 U.S. at 553 n.24. 'To allow any group of persons to Ôbootstrap' themselves into formal Ôtribal' status Ð simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of Ôtribe' as a distinct sovereignty set apart by historical and ethnological boundaries.' Price v. State of Hawai`i, 764 F.2d 623, 627 (9th Cir. 1985) (group of Hawaiians are not a tribe). '[R]acial or ancestral commonality isn't enough without a continuously existing political entity to constitute a tribe.' Miami Nation of Indians of Indiana, Inc. v. Babbitt, 112 F. Supp. 2d 742, 746 (N.D. Ind. 2000), affirmed sub nom. Miami Nation of Indians of Indiana, Inc. v. U.S. Dept. of Interior, 255 F.3d 342, 350 (7th Cir. 2001) (when political organization ceased to effectively govern, Indian group 'united only by common descent' ceased to be tribe). 'Miscellaneous Indians do not make a tribe.' United Houma Nation v. Babbitt, 1997 U.S. Dist. Lexis 10095

(D. D.C. 1997). Moreover, reading 'Indian tribe' as if it meant 'members of an ethnic group that lived in America before the white men arrived' ignores the rule of Indian law that a member of a tribe can voluntarily quit the tribe. See Montoya v. United States, 180 U.S. 261 (members of tribes quit and joined another tribe; their original tribes not responsible for their subsequent crimes); Nagle v. United States, 181 F. 141 (9th Cir. 1911). One can quit a political organization but one cannot quit an ethnic group.

B. OHA and DHHL are agencies of the State, not separate quasi sovereigns. Hawaiians are not a federally recognized tribe.

Because there is no Hawaiian Indian tribe, no such tribe can be recognized and Congress has not attempted to do so. This Court need not address hypothetical 'questions of considerable moment and difficulty' about whether Congress could invent a 'Hawaiian tribe' analogous to an Indian tribe with a race-based government. Rice, 528 U.S. at 518. Arakaki Order at 28 n. 9. (Ex. B Dec. SPB) See United States v. Sandoval, 231 U.S. 28 (1913) (Congress may not 'bring a community or body of people within the range of' its Indian commerce power 'by arbitrarily calling them an Indian tribe'). Like the Supreme Court, this Court 'can stay far off that difficult terrain,' id. at 519-522, because OHA and DHHL are agencies of the State, not agencies of a separate quasi sovereign.

Congress has delegated to the Interior Department the power to recognize Indian tribes. 25 U.S.C. §§2, 9; Miami Nation, 255 F.3d at 345. The racial class of native Hawaiians does not qualify for recognition as a tribe under these regulations, 25 C.F.R. §83.1, 25 C.F.R. §83.7(b)(1) and 83.7(e). There is no group that has 'maintained political influence or authority over its members [the racial class of native Hawaiians] as an autonomous entity from historical times until the present,' 25 C.F.R. §83.7(c), where 'historical times' means 'dating from first sustained contact with non-Indians,' 25 C.F.R. §83.1. Congress has not recognized the racial class of Hawaiians or native Hawaiians as an Indian Tribe. Price v. Hawai`i, 764 F.2d 623, 628 n.1 (9th Cir. 1985). 'If there is no tribe, for whatever reason, there is nothing to recognize.' Miami Nation, 255 F.3d at 351. In Rice, the State and OHA cited passages from the so-called 'Apology Resolution,' Pub. L. 103-150, 107 Stat. 1510 (1993), as well as preambles to assorted statutes to argue that Congress had somehow implicitly recognized Hawaiians as an Indian tribe. Brief of Respondent in Rice at 6-9, 11,36-38 (Ex. K Dec. SPB); Amicus Brief of OHA at 9, 13, 27 (Ex. L Dec. SPB). This string of citations failed to persuade the Supreme Court that Congress has granted the State the power to operate a racially exclusionary program. 528 U.S. at 518-19. This Court was similarly unpersuaded by the same litany of citations in Arakaki. Arakaki Order granting summary judgment, pgs. 29 & 30, Ex. B Dec. SPB. An alleged 'longstanding policy of Congress' does not affect federal recognition of an Indian tribe absent explicit recognition by statute. United Houma Nation v. Babbitt,1997 U.S. Dist.

Lexis 10095 *24 (D. D.C. 1997).

Since there is no federally recognized native Hawaiian Indian tribe, there can be no congressional delegation of federal power over a native Hawaiian Indian Tribe to the State. As this Court held in Arakaki, this is not a case in which Congress has granted to the State 'the Ôexplicit authority' to legislate with regard to Indian tribes.' Arakaki Order at 30 (Ex. B Dec. SPB) quoting Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501 (1979), and holding such explicit Congressional delegation is prerequisite to exercise of state authority.

OHA and DHHL are state agencies, and like all state agencies are fully subject to the Equal Protection Clause. See Arakaki v. State (applying Fourteenth and Fifteenth Amendments to OHA statute barring non-Hawaiians from running for or serving as trustees). Therefore, Mancari is inapplicable and the proper standard of constitutional review is strict scrutiny.

V. Plaintiffs will likely succeed on the merits.

Thus, since the racial classification supporting HHC and OHA is presumed, under the highest law of the land, to be invalid and the State has not and cannot show it will pass strict scrutiny, there is a strong likelihood Plaintiffs will succeed on the merits.

VI. Plaintiffs will suffer irreparable harm if their motion is denied.

Central to Plaintiffs’ complaint is the violation of their rights under the Fourteenth Amendment. "When the alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, §2948.1 at 161 and n.21 (1995) (collecting cases). Cf., Public Service Co. v. Town of West Newbury, 835 F.2d 380, 382 (1st Cir. 1987) where the First Circuit acknowledged that some constitutional violations have "such qualitative importance as to be irremediable by any subsequent relief." The constitutional violation asserted by Plaintiffs fits squarely within that definition.

Here, the State, HHC/DHHL and OHA Defendants control vast areas of public lands and hundreds of millions of dollars of taxpayer-derived public funds. The HHCA requires the HHC to manage the Hawaiian Homes program solely for the benefit of the racial group of 'native Hawaiians' as defined in HHCA §201(a)(7). Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 340-42 (1982). The OHA laws require OHA to manage the public resources entrusted to its care solely for the benefit of the members of the racial classes of 'Hawaiians' and 'native Hawaiians' and its trustees would be subject to suit if they were to give equal consideration to all members of the public. §§10-2, 10-3, 10-5, 10-6, 10-16 H.R.S. The track record of both agencies shows they have managed, and will continue to manage, those public resources in a way that violates the constitutional rights of Plaintiffs and over a million other Hawai`i citizens similarly situated.

For example, in 1995, based on a memorandum of understanding signed by the previous governor and enacted in the Special Session of 1995, Governor Cayetano signed Act 14 which established the 'Hawaiian home lands trust fund' (now HHCA §213.6) to be used for capital improvements and other purposes undertaken in furtherance of the HHCA and provided for the State to make twenty annual deposits of $30 million each into that fund. As of June 30, 2000, the State had paid DHHL $158 million and had appropriated another $15 million for those deposits. DHHL Annual Report FY 1999-00. (Ex. Q Dec. SPB) Although Plaintiffs' past and future tax burden has been increased by those deposits and will be further increased by additional such deposits, Plaintiffs are denied the benefits solely because they are not of the favored race. To protect Plaintiffs and others similarly situated from further constitutional violations pending final judgment, it is necessary to enjoin further deposits to and expenditures from the Hawaiian home lands trust fund.

Another example is the Homestead leases. Although Plaintiffs are beneficiaries of the public land trust which includes all of the ceded lands, including the 200,000 acres which were wrongfully set aside as Hawaiian home lands, the issuance of Homestead leases denies to Plaintiffs, solely because they are not of the favored race, the use or benefits of the lands covered by those leases and the equal protection of the laws. As of June 30, 2000, there were 6,927 Homestead leases outstanding. (DHHL Overview, Ex. C Dec. SPB) Nineteen months later, on January 31, 2002 there were 7,281 (per telephone conversation with DHHL Executive Assistant, paragraph 11, Dec. SPB), an increase of 354, or about 18 new Homestead leases issued every month. The Homestead leases require the HHC/DHHL Defendants to continue to enforce and administer racially discriminatory provisions for over 100 more years. (See paragraph 58 b. of the Complaint and Ex. R Dec. SPB, sample form of Homestead lease.) Every one of the existing leases inflicts ongoing and continuing harm on Plaintiffs. Every new Homestead lease turns the thumbnail another click, exacerbates the inequality and deprives each Plaintiff of any benefit from another parcel of public land. To protect Plaintiffs and others similarly situated from further trust and constitutional breaches pending final judgment, it is necessary to enjoin issuance of any more Homestead leases.

Another example is the Fund Equity (which amounted to $337 million as of November 30, 2001 per the OHA financial report, Ex. S Dec. SPB) held by OHA. That fund is derived from moneys collected from taxpayers, including Plaintiffs, or from revenues generated by the ceded lands, which are held in trust for the inhabitants of Hawai`i, including Plaintiffs, yet Plaintiffs and others similarly situated are denied the benefits solely because they are not of the favored race. Again, to protect Plaintiffs and others similarly situated from further trust and constitutional breaches pending final judgment, it is necessary to enjoin the OHA Defendants from further expending or encumbering any of the assets or accounts presently held in that Fund Equity, pending final judgment.

Still another example is the claim of OHA for even further amounts relating to the ceded lands. On September 12, 2001, the Hawai`i Supreme Court invalidated Act 304 SLH 1990 which required that OHA be paid 20% of revenues from ceded lands saying, 'it is incumbent on the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust.' OHA v. State, 96 Haw. 388, 31 P.3d 901 (2001). Shortly thereafter Defendant OHA Trustee Clayton Hee revealed that the State in April 1999 had offered OHA $251 million and 360,000 acres of ceded land. (Ex. T, Dec. SPB) (Previously such negotiations had been kept confidential.) He said his immediate concern is to meet with Governor Cayetano and other Hawai`i leaders to determine the State's current position with OHA. (Ex U. Dec. SPB). According to the January 2002 issue of its monthly newsmagazine, OHA is now proposing a 'new Act 304' that reinstates OHA funding according to the 1990 law. (Ex. V, Dec. SPB). The current Legislature opened Wednesday January 16, 2002. To protect Plaintiffs and others similarly situated from further constitutional violations pending final judgment, it is necessary to enjoin the State Defendants from committing the State to pay any further public funds or transfer any further public lands to OHA.

Other major violations of the constitutional rights of Plaintiffs have occurred, and might well reoccur pending final judgment, from the issuance of bonds. In 1993, the legislature, by Act 35, appropriated $136 million in general obligation bond funds to settle OHA's claims for back ceded lands revenues. In June 1993, approximately $130 million of those bond proceeds was paid to OHA. Plaintiffs' past, present and future tax burdens were increased to repay the principal and interest on those bonds but, solely because they are not of the favored race, Plaintiffs were and continue to be denied the benefit of those payments. To protect Plaintiffs and others similarly situated from further constitutional violations pending final judgment, it is necessary to enjoin the State Defendants, the HHC/DHHL Defendants and the OHA Defendants from issuing any further bonds or otherwise borrowing for HHC, DHHL or OHA.

Since there may be other methods of making transfers, it is also necessary that the court enjoin the State Defendants, pending final judgment, from making any further payments or transferring any further property to or for HHC, DHHL or OHA. For the same reason, the court should enjoin the HHC/DHHL Defendants and the OHA Defendants, pending final judgment, from making any further expenditures, grants, loans, guarantees or incurring any further liabilities.

Finally, OHA's and DHHL's expenditures of public funds for lobbying and advertising to advocate and defend their race-based programs have denied and continue to deny Plaintiffs the equal protection of the laws. The public policy of the State of Hawai`i disfavors racial discrimination. Haw. Const. Art. I, §5; Hyatt Corp. v. Honolulu Liquor Commission 69 Haw. 238, 244, 738 P.2d 1205. Yet OHA and HHCA use public money (part of which is provided by Plaintiffs' tax dollars) to finance racial advocacy. OHA's statutory purposes explicitly 'include: . . . conducting advocacy efforts for native Hawaiians and Hawaiians,' disregarding the interests of their fellow citizens. HRS §10-3(4). The State makes no public money available to finance advocacy which opposes this invidious discrimination.

Racial distinctions are especially 'odious to a free people,' Rice, 528 U.S. at 517 where they undermine the democratic institutions by instigating racial partisanship. This was the fundamental evil that the Rice Court detected in Hawai`i's law: 'using racial classifications' that are 'corruptive of the whole legal order' of democracy because they make 'the law itself . . . the instrument for generating' racial 'prejudice and hostility.' Rice, 528 U.S. at 517. Eliminating OHA's racial restrictions on voting and holding office did not entirely root out this evil. It will remain as long as the OHA Trustees and the DHHL Commissioners are required to be racial advocates. It 'is altogether antithetical to our system of representative democracy' to create a governmental structure 'solely to effectuate the perceived common interests of one racial group' and to assign officials the 'primary obligation . . . to represent only members of that group.' Shaw v. Reno, 509 U.S. 630, 648 (1983). Shaw quoted Justice Douglas:

Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, dissenting). In Shaw, the racial partisanship was fostered indirectly by gerrymandering legislative districts. By contrast, as in Rice, the 'structure in this case is neither subtle nor indirect;' Hawai`i law specifically directs OHA and DHHL officials to devote their efforts to the betterment of 'persons of the defined ancestry and to no others.' Rice, 528 U.S. at 514.

To advance 'the perceived common interests of one racial group,' Shaw,

509 U.S. at 648, the OHA Trustees and DHHL Commissioners spend public funds and hold public lands. This cannot stand: 'Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.' Lau v. Nichols, 414 U.S. 563, 569 (1974) (quoting Senator Humphrey during the floor debate on Title VI of the Civil Rights Act of 1964, a provision that is coextensive with the Equal Protection Clause, Alexander v. Sandoval, 532 U.S. 275, 280-81 (2001)). The government is even forbidden to give money to private parties 'if that aid has a significant tendency to facilitate, reinforce and support private discrimination.' Norwood v. Harrison, 413 U.S. 455, 466 (1973). Norwood instructed the District Court to enjoin state subsidies for private schools that advocated the 'private belief that segregation is desirable' and that 'communicated' racial discrimination as 'an essential part of the educational message.' Id. at 469. A fortiori, a state agency cannot spend money to itself advocate racial classifications that are 'odious to a free people' and 'corruptive' of democracy. Rice, 528 U.S. at 517.

Accordingly, pending final decision of this case, it is proper to restrain OHA and DHHL from spending public trust assets for advertising, lobbying, and other advocacy of the racially discriminatory goals of OHA and DHHL classifications. (Of course, Plaintiffs do not challenge the rights of individual Defendants in their individual capacities to express their personal opinions at their personal expense.)

The harm which the Defendants would suffer from granting the preliminary injunction is difficult to describe as anything but minimal relative to the loss the public and Plaintiffs would suffer. HHC, DHHL and OHA could continue the current level of their operations (i.e., they would still be able to pay operational expenses such as rent, telephone bills, office supplies, salaries to employees and trustees but not make expenditures for grants, loans, programs or capital expenditures). They would be restrained from invading the corpus of the public funds they now hold but they would not lose them. Those funds would stay intact and hopefully growing pending the court's final decision. The State would not be allowed to issue bonds, borrow money or make any more major payments to HHC, DHHL or OHA. That would help, not hurt, the State in this time of belt-tightening.

But if Plaintiffs’ application is not granted, the State government's racial discrimination operations at HHC/DHHL and OHA would continue as usual. The State, HHC/DHHL and OHA Defendants would still be in full unrestrained control of vast areas of public lands and hundreds of millions of public dollars and they would still be required by the OHA laws and the HHCA laws to continue to use those public lands and public moneys to pursue their racially discriminatory objectives. There is no reason to hope Defendants will be overcome by the concept of equality and suddenly cease their racially discriminatory conduct. There is every reason to expect they will continue it. Indeed, knowing the handwriting is on the wall, they may feel obliged to increase their discriminatory expenditures and transfers. Thus, there is a high likelihood that, without preliminary injunctive relief pending final judgment, public moneys will continue to be expended and public lands will continue to be transferred, leased or encumbered to accomplish racially discriminatory objectives, and the benefits of those payments and transfers will be irrevocably lost to Plaintiffs.

VIII. Conclusion.

For the above reasons, Plaintiffs respectfully request that this Court issue a temporary restraining order and preliminary injunction as requested.

Dated: Honolulu, Hawai`i March _____, 2002.







1 Rice , 428 U.S. at 499. It should be noted that 'Hawaiian' has other meanings. See e.g. Rice, 528 U.S. at 499 (describing the Petitioner Rice as 'a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term'). 'Native Hawaiian' is used in some federal statutes in the one-drop of blood sense in which Hawaiian is defined in §10-2 H.R.S., e.g. Pub. L. 103-150, 107 Stat. 1510 (1993) (the so-called 'Apology Resolution').



2 The 'express racial classification' Presidents Reagan and Bush referred to was in the Hawaiian Homes Commission Act, §201(7), 'The term ‘native Hawaiian' means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778'.





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