Plaintiffs' Attorney H. William Burgess' Article Summarizing The Major Issues in Arakaki v. Lingle (Arakaki2) on Appeal in the 9th Circuit Court of Appeals. Published June 8, 2004 in Hawaii Reporter On-line Newspaper

On June 8, 2004 plaintiffs' attorney H. William Burgess published an article in the on-line newspaper "Hawaii Reporter" summarizing the issues under appeal in the Arakaki2 lawsuit at the 9th Circuit Court of Appeals. The article is based on plaintiffs'/appellants' opening brief dated June 4, 2004. Following is the text of that article.

Arakaki v Lingle in U.S. Court of Appeals

By H. William Burgess, 6/8/2004


Appellants (sometimes also referred to as “Plaintiffs” or “Plaintiffs/Appellants”) are fourteen individual citizens of the United States of America, five women and nine men, all born and raised in, or long-time residents of, Hawaii. All are taxpayers of the State of Hawaii and beneficiaries of Hawaii’s public land trust. Included among Appellants are persons of Japanese, English, Filipino, Hawaiian, Irish, Chinese, Scottish, Polish, Jewish, German, Spanish, Okinawan, Dutch, French and other ancestries.


The District Court had subject matter jurisdiction under 28 U.S.C. '' 1331 (federal question), 1343(3) and 1343(4) (civil rights) and 2202 (declaratory judgment). Appellants allege violations of their constitutional and other rights under color of state law contrary to 42 U.S.C. §1983. This Court has jurisdiction under 28 U.S.C. ' 1291, as the District Court entered final judgment dismissing all Plaintiffs’ claims on January 15, 2004. Excerpts of Record (“ ER”) 29 . Appellants filed their notice of appeal on February 12, 2004. (ER 31.) The appeal is timely under FRAP 4(a)(1)(A).


* 1. Political Question. Whether Appellants’ challenge to the State’s and the United States’ use of the racial classifications, “Hawaiian” and “native Hawaiian” , to determine the recipients of public land and other benefits presents a nonjusticiable political question?

* 2. Standing as Trust Beneficiaries. Whether Appellants, as trust beneficiaries, have standing to challenge the Trustees’ (i.e., the State officials’ and the United States’) breach of their duty under the public land trust, including breach of the duty of impartiality and the duty not to enforce illegal terms of the trust.

* 3. Restrictions on Taxpayer Standing. Whether Appellants, as State taxpayers, have standing to:

3a. Challenge the misuse of public lands and public moneys (for example by giving homestead leases at $1 per year for 99 years, renewable for another 100 years, or allocating revenues, or issuing bonds or making “settlements” as well as spending general funds, all for the exclusive benefit of persons selected by race), where the misuses increase the tax burden of, but deny the benefits to, Appellants because they are not of the favored race.

3b. Seek declaratory and injunctive relief against the United States because of federal laws which require the State to violate the Fourteenth Amendment, resulting in the increase in each Appellant’s tax burden to pay for benefits from which each Appellant is excluded because he or she is not of the favored race.

3c. Challenge the validity, under the U.S. Constitution, of the Hawaiian Homes Commission Act (“HHCA”), and related laws, whether or not the United States is a party where, as a result of the HHCA laws, imposed on the State by the United States, each Appellant’s tax burden is increased to pay for benefits from which each Appellant is excluded because he or she is not of the favored race.

3d. Whether the three Appellants who are Hawaiians have standing to challenge the Office of Hawaiian Affairs (“OHA”) laws and HHCA/DHHL (Department of Hawaiian Home Lands) laws to the extent that those laws provide benefits exclusively to native Hawaiians, where, as a result of those laws, each of those Appellant’s tax burden in increased to pay for benefits from which each of those Appellants is excluded because she is not of the favored race.

* 4. Partial Summary Judgment. Whether Appellants are entitled to partial summary judgment as to the issues already adjudicated and as to issues not genuinely disputed, as sought in their Counter Motion for Partial Summary Judgment which was stricken by the trial court.

* 5. Twenty Two Months of Delays, Reassignment. Whether the trial court’s procedural and scheduling delays for 22 months, together with its orders preventing Plaintiffs from moving for summary judgment on the merits, deprived Plaintiffs/Appellants of a just, speedy and inexpensive determination of this action and whether on remand the case should be assigned to another judge.

* 6. Chilling Effect of Costs. Whether the trial court’s award of costs to two State agencies and intervening Defendants would chill the vigorous enforcement of the civil rights laws by individuals acting as private attorneys general?


Hawaii is justly admired as an integrated, intermarried, racially blended society. Its people share qualities of open friendliness and respect for others, without regard to race or origin or station in life, which fit perfectly with the American ideal of equality under the law without regard to race or ancestry.

But Hawaii's leadership in integration and equality has unfortunately been offset by state constitutional and statutory provisions granting special privileges to some or all persons of Hawaiian ancestry. It began when Congress passed the HHCA, Act of July 9, 1921, c. 42, 42 Stat. 108. Then, in 1959 Congress required Hawaii to adopt the HHCA as a condition of statehood and Hawaii became the only state in the nation to give 99 year homestead leases of its public lands at $1 per year exclusively to persons defined by race. In the 1978 Constitutional Convention OHA was established to manage the “income and proceeds from that pro rata portion of the” public land trust “for native Hawaiians.” (Haw. Const. Art. XII-§6.). This led to the State of Hawaii making annual cash distributions of revenues from the public land trust exclusively for native Hawaiians.

The racial preference movement burgeoned during the years 1986 - 1994, when John Waihee was Governor: Act 304 SLH 1990 became law and money poured from the State treasury into OHA, $135 million in June 1993 for prior years (1980 – 1991) as well as sharply increased current years’ payments. (ER 9) Similarly, through a December 1994 Memorandum of Understanding (Exh. 2 filed 4/13/04 in this Court) a task force of State officials and the “independent representative” of the beneficiaries of the Hawaiian home lands trust, agreed to seek payment for DHHL of $30 million per year from state funds for 20 years, total $600 million. That resulted in Act 14 SLH 1995 which began appropriating the $30 million per year. That $30 million per year depletion of the State treasury has continued.

The moneys from the public lands, instead of going for public education (as they did for the first 20 years after statehood. Hawaii Atty.Gen. Op. 80-8, Hoohuli v. Ariyoshi, 631 F.Supp 1153, 1155 (D.Hawaii, 1990)) were being diverted to cash distributions for the exclusive benefit of one comparatively small racial group. OHA, after receiving the $135 million in 1993, sued the State for hundreds of millions more for the same period. (See The Ceded Lands Case: Money intended for education goes to OHA, Hawaii Bar Journal, H. William Burgess and Sandra Burgess, July 2001.)

Some Hawaii residents became concerned. In 1996, one of those residents, Harold “Freddy” Rice, sued then-Governor Ben Cayetano challenging the Hawaiians-only restriction on voting for trustees of the Office of Hawaiian Affairs (“OHA”). On February 23, 2000 the United States Supreme Court in Rice v. Cayetano, 528 U.S. 495, 514-516 (2000) held that the definitions of “Hawaiian” and “native Hawaiian” are racial classifications. Because these classifications were the basis for state restrictions on voting in statewide elections for OHA trustees, the court held that those restrictions violated the Fifteenth Amendment.

The message of Rice was clear: Hawaii's laws defining "Hawaiian" and "native Hawaiian" are racial classifications. These definitions are the foundation and only reason for the existence of OHA and HHC/DHHL. Other messages from the Supreme Court were equally clear. “Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). "A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.” Shaw v. Reno, 509 U.S. 630, 643-44 (1993).

The response of the state to Rice, like the response of many states in analogous circumstances after the decision in Brown v. Board of Education, 347 U.S. 483 (1954), ranged from denial to evasion. The state, for example, still refused to allow non-Hawaiians to run for OHA trustee. In July 2000 a multi racial group of Hawaii residents (many of whom are also Plaintiffs/Appellants in this case) filed suit to protect the right to run for OHA trustee and to vote in OHA elections without the choice of candidates being abridged by race. In September 2000, the district court granted summary judgment in favor of plaintiffs and required the State to permit otherwise qualified non-Hawaiians to run for office and to serve, if elected, as trustees of OHA. The Ninth Circuit affirmed this judgment. Arakaki v. State of Hawaii, 314 F.3d 1091 (9th Cir. 2002) (“Arakaki I”).

But the state and its officials still refused to dismantle the state's racially discriminatory programs. The state's two bastions of racial allocation of public resources are OHA and DHHL. Through these two programs, unjustified by any compelling interest and in no sense narrowly tailored to any legitimate purpose, the state (and to an extent, the federal government) engages in invidious racial discrimination and also breaches its fiduciary duty as trustee.

Plaintiffs/Appellants filed this suit March 4, 2002 to protect their pocketbooks as state taxpayers and the value of their benefits and equitable ownership of the lands in the public land trust from further erosion. In a series of “standing” orders under F.R.Civ.P. Rule 12(b)(1) lack of jurisdiction over the subject matter, and/or 12(b)(6) failure to state a claim upon which relief can be granted, beginning May 8, 2002 and continuing until the final judgment January 15, 2004, the trial court dismissed part after part of Plaintiffs’ claims by rulings on the law, without finding any facts or deciding any issue on the merits and without affording to Plaintiffs the benefit of the well-established presumption that all well-pleaded allegations of fact in the complaint are true and to be construed in the light most favorable to the plaintiffs.


Political question. Appellants do not raise any nonjusticiable political questions. They present their Equal Protection and federal trust law claims for adjudication under the federal courts’ well developed and familiar judicial standards. Possible passage of legislation in Congress is not a reason for judicial inaction.

Trust beneficiary claims. When a government acts as trustee it is bound by the same standards as private trustees. Hawaii ceded its public lands and the United States accepted them in trust solely for the benefit of the inhabitants of the Hawaiian Islands. Later, by adopting the HHCA and still later, by requiring the State to adopt and implement the HHCA and by still today prohibiting repeal or amendment of the HHCA or changing lessee qualifications without its consent and reserving a restriction on the land and the authority to enforce the HHCA, the United States violated and continues to violate its fiduciary duty as Trustee of the public land trust. State officials, by accepting the public lands in trust and adopting and implementing the HHCA and, later, the OHA laws, violated and continue to violate their and the State’s fiduciary duty as Trustee. The fiduciary duties being violated by the United States and by State officials include the duty to treat beneficiaries impartially and the duty not to implement illegal trust terms; and the violation is in giving Homestead leases (99 years at $1 per year) and making cash distributions of trust revenues exclusively for “native Hawaiian” beneficiaries and not for other beneficiaries.

Appellants, as trust beneficiaries, shortchanged by the Trustees’ favoritism and racial discrimination, have standing to seek declaratory and injunctive redress.

State taxpayer standing. The District Court correctly held Plaintiffs have taxpayer standing but erroneously limited the activities they could challenge and the remedies available to them. In the Ninth Circuit, “Legislative enactments are not the only government activity which the taxpayer may have standing to challenge”; “municipal taxpayer standing simply requires the ‘injury’ of an allegedly improper expenditure of municipal funds, and in this way mirrors our threshold for state taxpayer standing”; and state taxpayers may sue to prevent “a misuse of public funds”, “loss of revenue”, activities such as leases that “could have a detrimental impact on the public fisc.” and an unconstitutional policy that permeates an entire state agency.

Partial Summary Judgment. Some of the key issues, including the “Mancari” defense, the major issue raised as a defense by Defendants-Appellees in this case, have already been adjudicated. For example: The definitions of “native Hawaiian” and “Hawaiian” are racial classifications and the scope of the rule announced in Mancari (allowing differential treatment of certain members of Indian tribes) is limited to members of federally recognized Indian tribes, applies only to the BIA, which is sui generis, and does not apply to state agencies.

Also, key facts relating to the Mancari defense have been conceded by Defendants-Appellees or are not genuinely disputed. For example: There is no Hawaiian tribe; neither Congress nor the Executive branch has recognized native Hawaiians or Hawaiians as an Indian tribe; in 1920, there was no government or tribe of Hawaiians to deal with; Hawaiians are no longer a community under one leadership, or indeed any leadership at all outside of state created entities such as OHA.

The trial court struck Plaintiffs’ counter motion for partial summary judgment but should have heard and granted it.

Twenty two months of delays. Reassignment. This case is a straightforward challenge to two state agencies, both based on the same explicitly racial classifications and therefore presumptively unconstitutional. They must be stricken down unless the court finds they pass strict scrutiny. Both agencies give native Hawaiians special benefits in the lands and revenues of the public land trust denied to other beneficiaries, thereby openly breaching the trustees’ fiduciary duty of impartiality under black letter trust law. This important but uncomplicated legal challenge was entitled to a just, speedy and inexpensive determination.

The District Court provided the opposite. It forbade motions for summary judgment on the merits while it considered and reconsidered standing and bifurcation motions, then parsed possible defenses into multiple pieces and scheduled separate briefings and hearings, then postponed the scheduled hearings, then deemed briefings already filed as withdrawn, struck Plaintiffs’ counter motion for partial summary judgment and finally, 22 months after the case was filed, granted the motion to dismiss on political question grounds that it had originally denied only two months after the case was filed. Unless the case is reassigned to another judge, it is likely that the delays, expense and injustice will continue.


The judgments of the district court dismissing Plaintiffs’ claims on “political question” grounds, dismissing Plaintiffs’ claims as trust beneficiaries, restricting Plaintiffs’ claims as state taxpayers, striking Plaintiffs’ counter motion for partial summary judgment, denying discovery and awarding costs against Plaintiffs should be reversed. The district court should be directed to adjudicate Plaintiffs’ Equal Protection claims under the strict scrutiny standard before another judge. Defendants should be ordered to reimburse their costs paid by Plaintiffs. Appellants should be awarded their costs, reasonable attorneys fees and such other relief as the Court deems just.


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