Phase 1: Honolulu District Court
March 2002 to January 2004

THEORY OF THE ARAKAKI#2 LAWSUIT: The Office of Hawaiian Affairs (OHA) and the Department of Hawaiian Homelands (DHHL) are agencies of the State of Hawai'i whose beneficiaries according to the state constitution are restricted by race. DHHL can give benefits only to ethnic Hawaiians with at least 50% native blood quantum (although people with 25% can inherit a lease), while OHA can give benefits only to people with any amount of native ancestry. It is contrary to the equal protection clause of the 14th Amendment of the U.S. Constitution for a government agency to provide benefits to a racially exclusionary set of beneficiaries. Taxpayers of the State of Hawai'i have standing to complain that their tax dollars are being spent for purposes that are unconstitutional. Revenues earned from government operations on state lands are part of the money available for running the government; so if land revenues are diverted to a racially restricted set of beneficiaries, then either taxpayers will be forced to pay higher taxes or else their general government services must be cut.

HANDLING OF THE LAWSUIT IN THE U.S. DISTRICT COURT IN HONOLULU: The case was filled with lengthy delays punctuated by motions, hearings, and rulings that resulted in the scope of the lawsuit and the number of plaintiffs being constantly whittled down. One lengthy delay occurred when one of plaintiffs' attorneys suddenly died unexpectedly a few days before a long-awaited hearing, and the judge insisted on imposing another lengthy delay despite vigorous protest from the remaining attorney that he was ready to proceed and objected to the delay. The case was finally dismissed for a reason that the judge could have used (under her viewpoint) to dismiss it at the beginning, nearly two years previously. The reason given for the final coup de grace was that the basic issue in the case is a political question because Congress has been making progress toward recognizing a political status for ethnic Hawaiians (much of that "progress" was made during the two years the lawsuit was in progress) and therefore the court should not interfere in a political issue.


The two most important rulings are (a) taxpayers do not have standing to complain about how land revenues are spent because land revenues are not tax dollars [a cascade of other rulings were derived from (a)]; and (b) when a bill has been introduced in Congress that might affect the outcome of a lawsuit, the mere existence of that bill makes the lawsuit inappropriate because the issue is a political question [even though the original bill died in the 106th Congress in 2000, a revised version died in the 107th Congress at the end of 2002, and the 108th Congress has seen three more serial versions of the bill with no floor action].

Here are the rulings (and appeal concepts) more clearly identified:

(1) The plaintiffs have standing as state taxpayers only to complain about how tax dollars are being spent, and do not have standing to complain about how the state spends revenue it receives from its lands. (But this is absurd, because tax dollars and land revenues together determine how much money the state has available to spend on government programs, so that the diversion of land revenues to a racially exclusionary set of beneficiaries forces the government either to raise taxes or to reduce benefits for the citizens of other races. Also, hundreds of millions of tax dollars have been appropriated over the years and continue to be appropriated to make up for land revenues not sent to OHA or DHHL in the past. For example, $600 Million in tax dollars are being sent to DHHL at the rate of $30 Million per year for 20 years under a settlement reached a few years ago. Also, the state legislature has been sending 20% of ceded land money to OHA based on gross revenue rather than net income after expenses; this places a burden on taxpayers who bear all the expenses because net income after expenses would be zero or even negative)

(2) The plaintiffs do not have standing as state taxpayers to complain about any federal laws, including the Hawaiian Homes Commission Act of 1921, Section 5(f) of the Statehood Admissions Act, the Native Hawaiian Education Act, etc. Therefore DHHL, and the U.S. government, were dismissed from the lawsuit. (But HHCA and the Admissions Act taken together impose requirements on the State of Hawai'i for the expenditure of funds for racially restricted beneficiaries, and such expenditures impact state taxpayers even if the money comes entirely from land revenues -- see item (1))

(3) The three ethnic Hawaiian plaintiffs were dismissed based on the rulings in items (1) and (2). The three ethnic Hawaiian plaintiffs do have Hawaiian blood and are therefore eligible to receive benefits from OHA and therefore have no standing to complain about OHA being racially exclusionary. Also, they previously did have standing to complain about DHHL because they do not have the 50% blood quantum; but DHHL was dismissed as a defendant. (But since the rulings on items (1) and (2) were incorrect, therefore these three plaintiffs should be reinstated on appeal)

(4) The lawsuit was finally dismissed on the grounds that it deals with a political question. What makes it a political question is that several acts of Congress contain language in their preambles asserting that there is a federal trust relationship with Native Hawaiians and that Congress has delegated part of the responsibility for implementing that relationship to the State of Hawai'i; and furthermore the Hawaiian Recognition Bill, also known as the Akaka bill, has been introduced in Congress and is the subject of ongoing political lobbying. (But legislative preambles are statements of opinion and not proven fact, and they do not have the force of law. Also, in Rice v. Cayetano, the 7-2 majority said that it is a matter of considerable doubt and would be difficult for the court to decide whether the federal government can delegate its trust duties to states [and it did not need to decide that issue in that case]. Although the Akaka bill is under consideration in Congress, a court should rely only on laws that have actually been passed, not laws that might perhaps be passed. And even if the Akaka bill does pass and Native Hawaiians are recognized as comparable to an Indian tribe, that will not make either OHA or DHHL into tribal entities because they remain agencies of the state government and are still funded by state government money which taxpayers have a right to complain about)





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MEMORANDUM IN SUPPORT OF MOTION (including table of authorities); and
(all in a single PDF document)


PLAINTIFFS' TRO REPLY MEMO, filed March 8, 2002 (This is a reply to defendants' response to items (1) and (2), above. Unfortunately, defendants' response was not made available for this website)

On March 12, 2002 Judge Mollway (U.S. District Court in Honolulu) denied the motion for a Temporary Restraining Order, because plaintiffs had not proved that irreparable harm would occur to them within the next ten or 20 days if a TRO were not granted. However, Judge Mollway agreed that the plaintiffs do have standing as taxpayers to bring this lawsuit, which now moves forward. See Honolulu Advertiser summary of court action in

Defendants filed a motion to dismiss for lack of standing. Oral arguments on the motion to dismiss were held on April 29, 2002. On May 8, 2002 Judge Mollway issued her ruling on the motion, granting standing on certain issues. The case moves forward. Click here to read a newspaper report about the oral arguments, a public statement by plaintiffs' attorney H. William Burgess describing Judge Mollway's decision, and a newspaper report about that decision.

On June 10, 2002 a hearing was held on OHA's motion asking the court to take judicial notice of various alleged "facts" set forth in the preambles of various statutes and resolutions (including the "Apology resolution"). That afternoon a written order was entered denying the motion. In that order the court pointed out that a judicially noticed fact must be one not subject to reasonable dispute. U.S. District Court Judge Susan Oki Mollway agreed that the court must take judicial notice of the existence of a statute; "However, that does not mean that this court must take as true all congressional findings of fact set forth in its resolutions and statutes." She said it is often appropriate for the court to defer to congressional findings of fact. But, quoting a 9th Circuit decision, she said, "However, courts should not blindly defer to congressional findings of fact bearing on an issue of constitutional law ... it is our task in the end to decide whether Congress has violated the Constitution." Judge Mollway's order also said the court cannot tell at this time whether any of those alleged facts are necessary to determine the issues in this case. Judge Mollway therefore denied OHA's motion for judicial notice "without prejudice to any party's renewing a request for judicial notice on a particular matter as the case develops." The hearing was covered by both Honolulu daily newspapers:

On August 19, 2002 Judge Mollway denied defendants' motion to bifurcate, which plaintiffs said had been an attempt to delay. If bifurcation were granted, the court would first consider whether Morton v. Mancari applies to OHA. If so, then racial entitlement programs could be justified by an easier "rational basis" test; if not, then such programs would need to pass a "strict scrutiny" test and defendants might then proceed with a lengthy fact-intensive trial. Plaintiffs argued that Mancari only applies to the federal Bureau of Indian Affairs and only regarding members of federally recognized tribes; and that the Rice v. Cayetano decision had already decided that it is unnecessary to decide whether Congress or Hawai'i can treat Hawaiians as though they were an Indian tribe because in fact OHA is merely an agency of the State of Hawai'i. For a newspaper report of the August 19 hearing on the motion to bifurcate, see:

In Summer 2002 research was done for plaintiffs in the Arakaki2 lawsuit showing astonishing amounts of state government money spent for OHA and DHHL. For details, 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.

On September 3, 2002 Judge Mollway granted a motion by the United States to have itself dismissed as a defendant in the lawsuit. Judge Mollway had previously ruled that the plaintiffs have standing only as state taxpayers, to complain only about how state tax dollars are spent. Therefore no federal laws are at risk, and the U.S. should no longer be a defendant. For newspaper reports on the ruling, see:

*** Editorial comment by Ken Conklin: Judge Mollway previously ruled that State taxpayers only have standing to complain about how tax dollars are spent, and cannot complain about how State revenues from ceded lands are spent. But that was an error. The State funds its budget from all the dollars it receives, whether from taxes or land revenues. If land revenues are diverted from general-fund purposes to special agencies, then taxpayers will need to pay more taxes to cover the general-fund purposes. Therefore, taxpayers should have standing to complain about ceded land revenues being spent on unconstitutional purposes. Mollway seems to be saying that nobody could possibly have standing to complain about racial restrictions on ceded land revenues. Part of her reasoning is that section 5(f) of the Admissions Act allows the State of Hawai'i to spend ceded land revenues on any one or more of five purposes, one of which is "the betterment of Native Hawaiians." Thus, she reasons, it is a political issue and not a legal issue how the Legislature chooses to allocate ceded land revenues among the five purposes. But clearly the problem lies with the 5(f) provision of the Admissions Act, which allows the State to make a political decision to allocate ceded land revenues to racially restricted programs. Section 5(f) of the Admissions Act is unconstitutional under the 14th Amendment to the extent it authorizes the State to spend ceded land revenues on racially restricted beneficiaries. And taxpayers should have standing to challenge section 5(f) because it allows money to be taken from constitutionally permissible general purposes and diverted to unconstitutional racially-restricted agencies, thereby forcing taxpayers to pay more taxes. Hawai'i taxpayers should have standing to demand the court to invalidate the unconstitutional aspects of section 5(f) of the Admissions Act and thereby to restore and enforce the taxpayers' rights as beneficiaries of the ceded lands trust established under the Annexation of 1898, which makes the ceded lands a public trust whose revenues "shall be used solely for the benefit of [ALL] the inhabitants of the Hawaiian Islands for educational and other public purposes." Since the constitutionality of section 5(f) of the federal Admissions Act is at issue, therefore the U.S. must be a defendant in this lawsuit. I believe the restriction of plaintiffs' standing to tax dollars and not to ceded land revenues is a reversible error on appeal. One of the "fruits of that poisonous tree" is the ruling that no federal laws are under challenge and therefore the U.S. should be dismissed from the lawsuit -- this also is a reversible error.

On Monday, March 31, 2003 a three-judge panel at the 9th Circuit Court of Appeals upheld a previous ruling by Judge Mollway denying a motion to intervene by a group of native Hawaiians led by Joseph Hoohuli. Both courts ruled that the Ho'ohuli movants are adequately represented by other defendnts including the state, Hawaiian Homes and OHA. The decision was reported in the Honolulu Star-Bulletin at:

The Star-Bulletin article also noted that a set of pre-trial motions by defendants will be heard on June 16, 2003; and if defendants lose, a second set of pretrial motions by defendants will be heard on September 8. If the case has still not been dismissed after that, then a date will be set for a third set of defendants' pretrial motions. The trial is tentatively set for June, 2004. Thus, the defendants seem to be succeeding in their strategy of delay, obfuscation, and running up the expense of litigation where wealthy institutional defendants with virtually unlimited resources can hope to bury the plaintiffs under mountains of paperwork.

A hearing had been scheduled for Monday June 16, 2003, as noted above. However, on the morning of Friday June 13 plaintiffs' attorney Patrick W. Hanifin suffered a heart attack. Judge Mollway held a telephone conference with plaintiffs' co-counsel attorney H. William Burgess and defendants' attorneys, to reschedule the hearing. Despite strong objections from Mr. Burgess, Judge Mollaway postponed the hearing to September 8. Here are excerpts from the Honolulu Star-Bulletin article of June 14 reporting the delay and explaining why the delay is significant in view of the Akaka bill:

H. William Burgess, co-counsel on the case alleging racial discrimination, strongly objected to the decision to delay the proceeding. Burgess said he is ready to argue the case alone and said the plaintiffs he has spoken with want to continue now. He added there have been enough delays in this lawsuit. "It's very unsatisfactory," Burgess said. ... Hanifin, 48, was at work early yesterday morning when he suffered a heart attack ... Burgess said Hanifin drove himself to Queen's Hospital, where he underwent successful open heart surgery. He was told Hanifin is expected to make a full recovery. The three-month delay means the case could be affected by the outcome of a federal recognition bill for native Hawaiians. The so-called Akaka bill is pending before the U.S. Senate, and action could be taken on it before the Sept. 8 hearing. Attorney Sherry Broder, who is defending the Office of Hawaiian Affairs, said passage of the Akaka bill would bolster defense arguments against the case. ... Their March 2002 lawsuit is the latest since the Rice vs. Cayetano ruling by the U.S. Supreme Court. The February 2000 high court ruling opened up OHA's Hawaiians-only elections to voters of all ethnicities. A subsequent case in U.S. District Court opened OHA board elections to non-Hawaiian candidates. On Monday, OHA, Hawaiian homestead and state attorneys were expected to ask Mollway to throw out the Arakaki lawsuit because the challenge to DHHL is more a political than judicial issue. They also contend Congress and state government have recognized the claims of native Hawaiians by providing general funds to OHA as part of the ongoing reconciliation. Meanwhile, the Arakaki lawsuit and the Akaka bill continue to draw interest from the Hawaiian community. More than 500 people attended workshops in Waianae, Waimanalo and Papakolea last week to learn about these issues.

On Saturday June 14, a day after Judge Mollway postponed the hearing until September 8 over the objections of co-counsel H. William Burgess, Patrick Hanifin died. Mr. Burgess was still fully prepared to go forward with the Monday hearing, but the judge refused. For a tribute to Patrick Hanifin, including a list of his scholarly essays, TV and radio appearances, Congressional testimony, information about his education and career, and his obituaries, see:

On September 7, 2003 a pro-apartheid "red shirt" march by 5,000 to 10,000 ethnic Hawaiians and supporters took place in Waikiki. The purpose of the march was to protest the Arakaki2 lawsuit as well as the two Kamehameha School desegregation lawsuits. Over a period of several weeks, the red-shirt march generated important published statements by the Arakaki2 plaintiffs and by the OHA trustees, as well as letters to editor debating the legitimacy of the overthrow and annexation and bemoaning the allegedly downtrodden status of ethnic Hawaiians. To see extensive material about all that, visit:

On September 8, 2003 Judge Mollway once again delayed the Arakaki2 lawsuit by an additional 4 months. This time the reason given was that a decision handed down by the 9th Circuit Court of Appeals on September 2, in a different case, might have an impact on the Arakaki case. The September 2 decision was handed down by the 9th Circuit Court of Appeals, upholding a decision previously made by Honolulu District Court Judge Ezra to dismiss the consolidated cases Barrett and Carroll, on grounds that Patrick Barrett and John Carroll lacked standing. Part of the reasoning for the dismissal at both the District Court and 9th Circuit was that the United States should have been named as a defendant, since a law of the United States was being challenged (the Hawaiian Homes Commission Act of 1921, and a portion of the Hawai'i Admissions Act of 1959). The 9th Circuit decision in Barrett/Carroll can be downloaded from:
In Arakaki2, the plaintiffs had very correctly named the U.S. as a defendant. But on September 3, 2002, the U.S. had been dismissed as a defendant by Judge Mollway based on a request from the U.S. (see above). Now a year later, Judge Mollway is wondering whether the U.S. must be re-joined as a defendant. However, the September 8 hearing on Arakaki was for the purpose of hearing oral arguments on technical motions not related to whether the U.S. should be dismissed as a defendant. The hearing on those motions could have gone forward without waiting for a decision whether to re-join the U.S. Plaintiffs strenuously informed Judge Mollway of that fact, and of their objections to further delay. Nevertheless, Judge Mollaway used the long-awaited September 8 motions-hearing date to hold a status conference on scheduling instead of actually hearing the motions, and postponed the motions hearing until January 12, 2004. In the meantime, plaintiffs and defendants, and the U.S., must file legal briefs regarding whether the U.S. must be a defendant, and a hearing will be held on November 17 regarding that issue. Plaintiffs are understandably upset that delay after delay has been imposed upon them, and in the meantime tens of millions of dollars have been (and will continue to be) taken from the people of Hawai'i and handed over to racially exclusionary programs, while the delays are also adding to the legal fees and expenses being paid by all Hawai'i's people and especially by the plaintiffs. The last time any substantive hearings were held by this court was June 10, 2002. This series of delays of 19 months (6/10/02 to 1/12/04) plays directly into the hands of the State, OHA, DHHL, and others seeking to preserve racially exclusionary programs -- those programs continue until the court finally reaches the right decision and shuts them down. One of the attorneys for the plaintiffs (Patrick W. Hanifin) and one of the plaintiffs (Roger Grantham) have already died waiting for justice. Here are two newspaper articles covering the September 8 "status hearing":

On September 28, 2003 the 15 plaintiffs in Arakaki 2 published a statement in the Honolulu Advertiser explaining why the lawsuit is necessary, fair, and just; and why it should move forward expeditiously without further delay. The following Sunday, October 5, the OHA trustees published a response reasserting the usual claims about illegal overthrow, illegal annexation, victimhood statistics, etc. Both statements are copied in full at:

On October 14, 2003 the Arakaki2 plaintiffs filed a motion, and memo in support, to vacate restrictions on their standing as taxpayers or, in the alternative, to certify the standing order as final. Previously Judge Mollway had ruled that the Arakaki plaintiffs have standing only as taxpayers. The judge’s theory was that revenue from ceded lands is not tax money. Therefore the plaintiffs in their status as taxpayers cannot attack either the diversion of ceded land revenues to racially exclusionary purposes or the foregoing of ceded land revenue through the leasing of ceded lands to a preferred racial group at negligible lease rent. The order limiting the plaintiffs’ standing was part of the order dismissing the U.S. government as a defendant on the grounds that no federal laws were being challenged. Later, the 9th Circuit Court made a decision in two other cases (Barrett and Carroll) that upheld the District Court’s dismissal of those cases on the grounds that plaintiffs Barrett and Carroll lacked standing partly because they had failed to name the United States as a defendant. Within a few days of the 9th Circuit decision, Judge Mollway vacated her previous order to dismiss the U.S. in the Arakaki case, and ordered all parties to present arguments on whether the U.S. should be reinstated as a plaintiff. Since the order limiting plaintiffs’ standing to tax dollars was a part of the order dismissing the U.S., and since that entire order has now been vacated, plaintiffs argue in this motion that the limitation on their standing is no longer in effect. They further argue that the U.S. should be named as a defendant because portions of the Admissions Act of 1959 and the Hawaiian Homes Commission Act of 1921 should be nullified because they are unconstitutional violations of the 14th Amendment. Plaintiffs further argue that the tens of millions of dollars in ceded land revenues annually diverted to racially exclusionary OHA and DHHL force state taxpayers to make up for the lost revenue by raising taxes. Plaintiffs argue that if Judge Mollway nevertheless decides to maintain the limitation on plaintiffs’ standing, then that ruling should be issued as a final order and not remain open for reassessment until the case-in-chief is decided. Only by having a final order regarding limitation on standing can that issue be appealed while other aspects of the case can move forward. Otherwise, a later ruling on appeal of the standing limitation, even if favorable to plaintiffs, would then necessitate starting the entire process over again and no forward progress would have been made despite several years of delays and obfuscation, during which time huge amounts of both tax dollars and ceded land revenues would have been lost to unconstitutional programs. Four items are provided: (1) a short table of contents so readers can see the topics of discussion (even though the page numbers are not useful); (2) a short table of authorities so readers can see the legal precedents being cited; (3) excerpts from the motion to either vacate limitations on standing or else make the order final; and (4) excerpts from the memorandum in support of the motion. The text provided is the complete text of each item, except for captions and formatting in items 3 and 4.

A series of red-shirt marches and rallies was held Sunday November 16 through Tuesday November 18, 2003, to protest the Arakaki 2 lawsuit and the two Kamehameha School lawsuits. It was a clear attempt to intimidate federal judges and the general public. See:


On Monday November 17 Judge Mollway held a hearing on several important motions in the Arakaki 2 lawsuit. A few days before the hearing she sent attorneys from all parties a written document containing her "inclinations" regarding these motions, so the attorneys could prepare their responses for the oral hearing. A 4-page pdf containing her inclinations was posted on the U.S. District Court Hawai'i website, from which it was copied; and it can be downloaded from
Judge Mollway's final ruling on these topics will be issued a week or two following the hearing.

Here are articles from the two Honolulu newspapers on Tuesday November 18, 2003 reporting on the hearing.

The Honolulu Advertiser, Tuesday, November 18, 2003
Judge lends hope to Hawaiians
By Vicki Viotti

Leaders in the Hawaiian community are cautiously optimistic after learning yesterday that a federal judge is likely to scale back the landmark Arakaki v. Lingle lawsuit challenging Hawaiian entitlements. U.S. District Judge Susan Oki Mollway is expected to rule in two weeks on a portion of the case. But before convening a hearing yesterday, she sent signals that she's likely to excuse every party in the lawsuit but the state and the Office of Hawaiian Affairs. Mollway, unlike most federal judges, releases advance written "inclinations" about how she's likely to rule, allowing attorneys to prepare their arguments for the hearing. According to those inclinations, she's unlikely to dismantle either the state Department of Hawaiian Home Lands, which awards homesteads to those of at least 50 percent Hawaiian blood, or OHA, which administers programs benefiting anyone of Hawaiian ancestry. Mollway stated in her inclination that only the use of state tax money for the programs can be challenged. This would exclude income that OHA receives from rent or other sources. She also wrote that she is likely to rule that as state taxpayers, the plaintiffs don't have standing to challenge the federal law making Hawai'i a state. This could be crucial, because the state is arguing that the federal law is what authorizes the creation of the land trust for Hawaiian homesteading. Mollway wrote that if she holds to these inclinations, she's likely to dismiss the federal government, the Hawaiian Home Lands Department, the homesteaders association and other intervening parties from the case. OHA, which was created by a state constitutional amendment in 1978, and the state government would remain as parties to defend their use of state taxes for Hawaiians-only programs. Mark Bennett, state attorney general, said he's hopeful that Mollway will excuse the Hawaiian homes department. "That still leaves significant issues in the Arakaki case but we are confident that if the case progresses we will ultimately prevail in that suit in its entirety," Bennett said. Haunani Apoliona, chairwoman of the OHA board of trustees, said such a ruling would count as a victory for the homesteaders, but possibly only a temporary reprieve. Apoliona said Mollway also indicated ways that plaintiffs could have standing to challenge the admission act: by applying for a homestead and then being turned down. This could spark a future lawsuit, she said, adding that the best defense lies in the Akaka bill, now in Congress, which would recognize Hawaiians as a political entity. "Native Hawaiian rights and benefits are still in jeopardy," she said. "As a people, these race-based allegations would continue until federal recognition for Native Hawaiians becomes a reality and the Hawaiian governing entity is formed." Micah Kane, director of the Hawaiian homes department, echoed Apoliona's view. "The game plan is to move the Akaka bill forward," he said. "Should we be successful there, many of these lawsuits would fall by the wayside." William Burgess, attorney for the 15 plaintiffs, argued in the hearing that there are cases in which state taxpayers were allowed to sue over a federal law, but Mollway said that in these cases, the plaintiffs had additional grounds for a federal challenge. Later, Burgess agreed that it's likely that the case will become a "shadow" of the original, broad challenge to Hawaiian entitlements. It also may involve fewer people: Mollway said she may dismiss three of the 15 plaintiffs who are of part-Hawaiian ancestry and thus could benefit from Hawaiian programs. They are: Sandra Puanani Burgess, Evelyn Arakaki and Donna Scaff. Other, more substantive rulings are scheduled after Jan. 12. That's when Mollway is set to consider an argument that the case should be dismissed because Congress has given Hawaiians political recognition with the establishment of the Hawaiian Homes Commission, and that this special status defeats the allegation of racial discrimination. After the January hearing, the court still must rule on what legal standards to apply to the case before deciding finally whether the programs are legal.

Honolulu Star-Bulletin, Tuesday, November 18, 2003
Judge in lawsuit challenging entitlements will likely drop all defendants except OHA
By Debra Barayuga

A federal judge indicated yesterday that she will probably remove the Department of Hawaiian Home Lands and the federal government as defendants in a lawsuit challenging the constitutionality of entitlement programs for native Hawaiians. Such a ruling would leave the state Office of Hawaiian Affairs as the only defendant in the Arakaki vs. Lingle lawsuit. While U.S. District Judge Susan Mollway did not dismiss the two defendants yesterday, she issued a written note to attorneys that indicated she was inclined to do so when she issues a final ruling in about two weeks. Her indication was seen as a victory for native Hawaiians, who already were celebrating federal Judge Alan Kay's ruling earlier in the day that struck down a challenge to Kamehameha Schools' Hawaiian-preference admission policy. "We would celebrate the victory for Hawaiian Home Lands, but it is a victory we will take one step at a time," said Haunani Apoliona, board chairwoman for OHA. "It's important to underscore to all native Hawaiian beneficiaries this still does not take the native Hawaiian community out of harm's way," Apoliona said. Earl Arakaki and 15 other Hawaii residents sued the state, DHHL and the Office of Hawaiian Affairs in March 2002, challenging the agencies' constitutionality, contending race-based programs discriminate against non-Hawaiians. The federal government was later added as a defendant. In court yesterday, Mollway questioned the plaintiffs' standing to file suit against the federal government and DHHL, which was set up under the federal 1959 Statehood Admissions Act. The hearing addressed motions stemming from a September ruling by the 9th U.S. Circuit Court of Appeals that upheld two lower court dismissals of separate lawsuits that also challenged programs offered by the Office of Hawaiian Affairs and Department of Hawaiian Home Lands. The appeals court upheld rulings that said plaintiffs John Carroll and Patrick Barrett lacked the standing to challenge the programs. The 9th Circuit ruled that to challenge the Hawaiian Homes Commission Act, the plaintiffs had to address the Admissions Act and argue its constitutionality. Under Mollway's reasoning, if the plaintiffs do not have standing to challenge the Admissions Act, they do not have standing to challenge the Hawaiian Home Lands program, said state Attorney General Mark Bennett, who represents DHHL in the suit. "We remain very optimistic that as this case goes on, we will be able to obtain judgment with regard to the claims against OHA as well, but we're taking this case one step at a time," he said. Mollway, who ruled earlier that the plaintiffs have limited standing as state taxpayers to proceed, indicated that they cannot challenge state spending by DHHL or OHA that does not come from state tax revenues. H. William Burgess, one of two attorneys who filed the suit on behalf of the plaintiffs, said if Mollway rules as she has indicated, their case will be reduced to a shadow of the original suit. "It's not the case we filed and want to proceed with, but we will follow through and we're in it for the long run," he said. He had argued that state taxpayer standing is sufficient to challenge federal law, but could not cite any case law. With OHA remaining as a defendant, the plaintiffs will only be allowed to challenge the constitutionality of using state tax revenue for OHA, he said. Burgess agreed to the dismissal of three plaintiffs from the case: Sandra P. Burgess, Donna M. Scaff and Evelyn Arakaki. He said they do not have standing to sue because they have some degree of Hawaiian ancestry and are potential beneficiaries of OHA.


On November 19, 2003 attorney H. William Burgess sent a letter to Judge Mollway stating that, contrary to media reports, he does NOT agree to the dismissal of the three plaintiffs who have native ancestry. Mr. Burgess also reiterates his objection to the denial of standing for taxpayers to complain about ceded land revenues. Here is his letter, in full.


H. William Burgess

2299-C Round Top Drive C Honolulu, Hawaii 96822

Telephone: (808) 947-3234 C Fax: (808) 947-5822


November 19, 2003


The Honorable Susan Oki Mollway

United States District Judge                                             Via Fax 541-1724

300 Ala Moana Boulevard, Room C409                           & hand delivery

Honolulu Hawai`i 96850-0409                                         


Re:     Response to point raised at hearing November 17, 2003 and in the Court's inclinations.


Dear Judge Mollway:


          At the hearing on Monday morning, November 17th, Your Honor asked if persons of some, but less than 50%, Hawaiian ancestry would have standing to challenge laws benefiting persons of some, but less than 50%, Hawaiian ancestry.  I agreed that they would not.  But that does not mean any plaintiffs should be dismissed.  I wondered why Your Honor asked for their names. 


          The Star Bulletin article on Monday afternoon said, "Burgess agreed to the dismissal of three plaintiffs from the case: Sandra P. Burgess, Donna M. Scaff and Evelyn Arakaki.  He said they do not have standing to sue because they have some degree of Hawaiian ancestry and are potential beneficiaries of OHA."

          I did not agree to dismissal of any of the plaintiffs.  


          Plaintiffs challenge the OHA laws and the HHC/DHHL laws that exclude Plaintiffs solely because they are not "native Hawaiian" (50% or more).  All Plaintiffs are taxed to support those programs but are excluded from receiving the benefit of their taxes because they are not of the favored race (50% or more, i.e., not less than one-half part of the blood of the races that inhabited the Hawaiian Islands previous to 1778.)  That is why all plaintiffs have a stake in the outcome of this case.[1]   


          The severe restriction that Plaintiffs, as taxpayers, may not challenge the validity of those laws (and the suggestion that the three plaintiffs of some, but less than 50% Hawaiian ancestry, should be "dismissed as plaintiffs") illustrates the flaw in the Standing order which has plagued this case for the last year and a half.   It is based on the Court's assumption that no tax dollars are used to pay ceded "land rents" to OHA or Hawaiian Homes.  That is a finding of fact by the Court without the benefit of any evidence and in contravention of the requirement that at this stage the Court must accept the allegations of the complaint as true.  It flies in the face of the statement by the Hawaii Supreme Court in OHA v. State, "Indeed, on at least four different occasions, the legislature has chosen to pay OHA its pro rata share of ceded land revenue pursuant to HRS § §  10-12 and 10-13.5 by appropriating sums from the general fund."  OHA v. State, 96 Hawai'i 388, 31 P.3d 901(2001) at FN 15.  The aggregate amount appropriated from the general fund on those four occasions was $178 million.


          Standing is a "threshold" issue decided at the pleading stage.  The Court determines whether the plaintiff may or may not cross the threshold, come into court and present his or her case for adjudication.  Yes or No.  This Court has gone far beyond Yes or No as to Plaintiffs' standing:  It has made, and now seems inclined to make more, factual determinations, for example relating to causation (whether there is any causal connection between the Admission Act and the hundreds of millions of taxpayer moneys spent for OHA and HHC/DHHL) and relating to ceded lands payments (whether the State uses tax moneys to make those  payments), without the benefit of evidence, and then made and seems inclined to make more legal conclusions based on those erroneous factual findings.  The result of this misuse of the Standing order is to cut the heart out of Plaintiffs' complaint at the pleading stage without ruling on the merits or issuing an appealable order.      


    The Court's inclination to release the U.S. and HHC/DHHL rests on the same failure to accept as true and favorably construe the allegations of the Complaint.  The novel proposition that "state taxpayer standing is too limited to support a challenge to a federal law" (in the context of a federal law which authorizes and requires the state to violate the Fourteenth Amendment) has apparently never been adopted or even discussed by the Supreme Court or Ninth Circuit (to Plaintiffs' knowledge).  Thus we are left with, and this Court is bound to follow, the general rule repeatedly announced by the Supreme Court,


To satisfy the "case" or "controversy" requirement of Article III, which is the "irreducible constitutional minimum" of standing, a plaintiff must, generally speaking, demonstrate that he has suffered "injury in fact," that the injury is "fairly traceable" to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.  Bennett v. Spear, 520 U.S. 154 (1997), in reversing and remanding a decision of the Ninth Circuit,


    Thus, while a plaintiff must "set forth" by affidavit or other evidence "specific facts" to survive a motion for summary judgment, Fed. Rule Civ. Proc. 56(e), and must ultimately support any contested facts with evidence adduced at trial, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we 'presum[e] that general allegations embrace those specific facts that are necessary to support the claim.' Id. at 520 U.S. 168.



Very truly yours,


H. William Burgess


cc:     Girard D. Lau, Esquire              Via email and Fax:           586-1239

          Charleen M. Aina, Esquire                     "           "            586-1237              

          Sherry P. Broder, Esquire                      "          "             531-8411

          Jon Van Dyke, Esquire                          "           "            956-5569

          Robert G. Klein, Esquire                        "           "            524-8293

          Yuklin Aluli, Esquire                              "           "            262-5610    

            Edward H. Kubo, Esquire                      "           "           541-3752

          Steven Miskinis, Esquire                        "          "    (202) 305-0271

[1] Twelve of the Plaintiffs also challenge the OHA laws that exclude them solely because they are not "Hawaiian" (with any degree of the favored ancestry). 

The Honolulu Star-Bulletin. Saturday, November 22, 2003

2 defendants dismissed from Hawaiian programs suit
OHA, though, remains in the suit challenging benefits for Hawaiians By Debra Barayuga

The Office of Hawaiian Affairs is the remaining defendant in the federal lawsuit challenging the constitutionality of programs that benefit Hawaiians. In a 32-page ruling issued late yesterday, U.S. District Judge Susan Mollway followed her earlier announced inclinations and dismissed the other defendants -- the state Department of Hawaiian Home Lands/ Hawaiian Homes Commission and the federal government. She also dismissed defendant intervenors, the State Council of Hawaiian Homestead Association and Anthony Sang Sr., Hui Kako'o'aina Ho'opulapula, Blossom Feiteira and Dutch Saffery. Earl Arakaki and 15 others had sued the state, DHHL and OHA in March 2002, alleging that the race-based programs discriminate against non-Hawaiians. They asked that the state stop spending state tax revenues for both programs. Mollway ruled that the plaintiffs do not have standing to challenge the federal requirements for the Hawaiian Home Lands program, which was adopted as part of Hawaii's Constitution under the federal 1959 Statehood Admissions Act. Based on a recent 9th U.S. Circuit Court of Appeals ruling, the plaintiffs would have to challenge federal law to challenge the corresponding state law, she said. "State taxpayer standing is too limited to permit a challenge to a federal law and therefore does not allow plaintiffs to challenge the Hawaiian Home Lands lease program, which is mandated by both state and federal law," Mollway ruled. Micah Kane, DHHL director, said the agency's dismissal from the lawsuit validates its legal standing as recognized by Congress when it enacted the Hawaiian Homes Commission Act in 1921. The act set aside about 200,000 acres of ceded land and created a program of loans and long-term leases to benefit native Hawaiians. H. William Burgess, attorney for the plaintiffs, said that when considering a motion to dismiss for lack of standing, the court is required to take the plaintiffs' allegations as true and to construe it in favor of the plaintiffs. The court basically disregarded that and made what amounts to factual determinations, Burgess said. "She says the Admissions Act doesn't have any causal connection to the taxpayer injury that the plaintiffs are suffering, and that's just contrary to the law," he said. State Attorney General Mark Bennett said he is pleased that the court accepted the state's argument to dismiss claims against DHHL, and his office looks forward to defending the claims against OHA. One of the arguments OHA intends to raise is that it should also be dismissed from the case because it was also established pursuant to the Admissions Act, said Jon Van Dyke, one of three attorneys representing OHA. The same reasoning Mollway used to dismiss DHHL might lead her to deny the plaintiffs' standing and conclude OHA should be dismissed from the suit as well, he said.

NOTE: THE NEXT HEARING IS SCHEDULED FOR JANUARY 12, including a motion to dismiss the case on the theory that the Hawaiian Homes Commission Act of 1921 was tantamount to federal recognition of Native Hawaiians as a political entity.


Plaintiffs are constantly inundated with motions and memoranda from the numerous defendants, all of which must be answered. Here is one of the answers by plaintiffs to the opposition by the state and OHA to a request for an order to show cause. This document is not formatted, but its full text is provided. The issue is whether the three plaintiffs who have Hawaiian ancestry should be dismissed from the lawsuit because they lack standing now that the judge has dismissed the federal government and also in light of the judge’s earlier rulings that taxpayers have no standing to complain about ceded land revenue. This document was filed December 22, and is one of many to be dealt with at the January 12 hearing.



1. Introduction. This memorandum will reply to the objections and oppositions filed December 15, 2003 by the State Defendants (collectively the “State” or “State Defendants”) and the Office of Hawaiian Affairs Defendants (collectively “OHA” or the “OHA Defendants”) relating to Plaintiffs’ response to the Court’s November 21, 2003 Order that Plaintiffs Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess show cause why their claims should not be dismissed for lack of standing because of their eligibility for OHA programs. Neither the State nor OHA provide any evidence to dispute the facts that: (a) The State has been and continues to appropriate moneys from the general fund to OHA for the betterment of “native Hawaiians;” (b) OHA holds moneys appropriated from the general fund which it is required to use solely for the betterment of “native Hawaiians”; and (c) Plaintiffs Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess are State taxpayers but, solely because they are not “native Hawaiian”, are not eligible for any OHA programs using those funds.

2. The Dog that Didn’t Bark. The State does not deny that most, and probably all, appropriations for the betterment of native Hawaiians are from the general fund or otherwise financed by taxpayer dollars. Inspector Gregory: "Is there any other point to which you would wish to draw my attention?" Holmes: "To the curious incident of the dog in the night-time." "The dog did nothing in the night-time." "That was the curious incident," remarked Sherlock Holmes. From "The Adventure of Silver Blaze" by Arthur Conan Doyle The State’s five page objections filed December 15, 2003, at 2 and 3, accurately summarize Plaintiffs’ argument “that the receipts from the public land trust OHA receives are really tax revenues because ‘the public lands in the public land trust generate no net income from which cash distributions could legally be made to OHA’”. The State then argues that Plaintiffs’ arguments stray beyond the Court’s order to show cause. But the State presents no evidence to refute Plaintiffs’ arguments nor does it even dispute their accuracy. "The Simpson incident had shown me that a dog was kept in the stables, and yet, though someone had been in and had fetched out a horse, he had not barked enough to arouse the two lads in the loft. Obviously the midnight visitor was someone whom the dog knew well." From "The Adventure of Silver Blaze" by Arthur Conan Doyle . If the State Attorney General represents to the highest State court that “X is true” and then, when another party argues that “X is true” and the State Attorney General does not deny it, obviously the State Attorney General is aware that “X is true.” The Attorney General of the State of Hawaii argued to the Hawaii Supreme Court that “OHA’s claim to 20% of the gross revenue could be satisfied only by allocating taxpayer revenue from the general fund.” Plaintiffs make the same argument here. The State Attorney General does not deny it. The State’s Exhibit H (filed by the State December 15, 2003) includes a sheet called, “Calculation of OHA Payment”. The first entry shows “Amount due to OHA from State pursuant to State’s analysis for period 6/16/80 – 6/30/91” as $111,582,256.00. But it does not show how the $111,582,256.00 for that 11 year period was calculated. However, that information is provided by Exhibit A to the Affidavit of Earl Anzai dated October 24, 1996 filed in the State First Circuit Court in OHA v. State, Civil No. 94-0205-01 (Mr. Anzai’s Affidavit and Exhibit A thereto are Exhibit 1 to the Declaration of H. William Burgess filed herewith.) Exhibit A to Mr. Anzai’s Affidavit shows that the State received revenues of $559,388,043 during that 11 year period and that 20% of that “Due to OHA” is $111,877.609. The exhibit shows no deduction for expenses. It does show that over $345 million of the revenues (which is slightly over 57% of the total revenues for the 11 year period) came from the Department of Transportation, Airports Division.

3. The State’s exhibits prove funds were and are being appropriated from the general fund for the betterment of "native Hawaiians." The State’s Exhibit B (filed by the State December 15, 2003) is a copy of Act 304 SLH 1990. Section 11 “appropriates out of the general revenues of the State of Hawaii the sum of $7,200,000” to OHA, which “shall be expended by the office of Hawaiian Affairs for the betterment of the conditions of native Hawaiians.” In the Receipt “made this thirtieth day of May 1993” included in Exhibit H (filed by the State December 15, 2003), OHA acknowledges receipt of $5 million appropriated from the general fund for the betterment of native Hawaiians: WHEREAS, Act 300, Section 164.4 Session Laws of Hawaii 1992 (Act 300) provided that of the general fund appropriation for statewide planning and coordination (GOV 103), the sum of $5,000,000 in fiscal year 1992-93 shall be used to partially satisfy and pay to the Office of Hawaiian Affairs the amount of $111,883,000, subject to audit, payable to the Office of Hawaiian Affairs under Act 304, Session Laws of Hawaii 1990 (Act 304); provided further that the moneys appropriated by this section shall be utilized by the Office of Hawaiian Affairs for the betterment of native Hawaiians. (Emphasis added.) Also included in the State’s Exhibit H is the June 4, 1993 transmittal to, and acknowledgment of receipt by, OHA of $129,584,488.85 pursuant to Act 304. The summary sheet enclosed with the transmittal letter shows the calculation of OHA Payment which is to cover the period 6/16/80 – 6/30/91. Section 8 of Act 304 directed the department of budget and finance and OHA to determine the actual amount equivalent to 20% of the revenue under §§ 10-2 and 10-13.5 HRS. Those sections require those amounts to be used for the betterment of the conditions of native Hawaiians. This confirms the 1993 entry in Plaintiffs’ Exhibit B, and also ties in with the $136,500,000 appropriated for that period mentioned by the Hawaii Supreme Court as one of at least four occasions when “the legislature has chosen to pay OHA its pro rata share of ceded land revenue pursuant to HRS §§ 10-2 and 10-13.5 by appropriating sums from the general fund.” Plaintiffs’ Exhibit F and G. Exhibit F, also filed by the State December 15, 2003, is a copy of Act 329, SLH 1997 which confirms the accuracy of Plaintiffs’ entries for 1997-98 and 1998-99 in the compilations in Plaintiffs’ Exhibits B and G. Act 329 confirms specifically that the Legislature appropriated $15.1 million from the general fund to OHA for each of those two years for the betterment of native Hawaiians. ONE HUNDRED SEVENTY EIGHT MILLION, NINE HUNDRED THOUSAND DOLLARS ($178.9 million) taken from the general fund for an invidiously discriminatory purpose is enough to cause a significant injury to the pocketbooks of taxpayers of the State of Hawaii. Even if we disregard the $136.5 million paid with money borrowed on taxpayers’ credit by way of general obligation bonds, the remaining FORTY TWO MILLION, FOUR HUNdred thousand dollars ($42.4 million) of general fund money paid for an invidiously discriminatory purpose, even if divided among all State taxpayers, is more than enough to satisfy the requirement of an injury in fact. As this Court said at one hearing, “”Even two dollars is enough.” In U.S. v. Scrap, 412 U.S. 669, 93 S.Ct. 2405 (1973), SCRAP, an environmental group (an unincorporated association formed by five law students), sought to enjoin enforcement of Interstate Commerce Commission orders allowing railroads to collect a surcharge on freight rates pending adopting of selective rate increases. SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members '(u)ses the forests, rivers, streams, mountains, and other natural resources … for camping, hiking, fishing, … and that these uses have been adversely affected by the increased freight rates, … and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials. The Supreme Court said in footnote 14, The Government urges us to limit standing to those who have been 'significantly' affected by agency action. But, even if we could begin to define what such a test would mean, we think it fundamentally misconceived. 'Injury in fact' reflects the statutory requirement that a person be 'adversely affected' or 'aggrieved,' and it serves to distinguish a person with a direct stake in the outcome of a litigation--even though small--from a person with a mere interest in the problem. We have allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of an action than a fraction of a vote; a $5 fine and costs; and a $1.50 poll tax. While these cases were not dealing specifically with s 10 of the APA, we see no reason to adopt a more restrictive interpretation of 'adversely affected' or 'aggrieved.' As Professor Davis has put it: 'The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation.' (Internal citations omitted.) Plaintiffs, including the three Hawaiian Plaintiffs, as State taxpayers are adversely affected or aggrieved by the transfer of millions of dollars from the general fund to OHA for the betterment of the conditions of native Hawaiians. Their taxes go into the general fund but they are denied the benefit of those transfers solely because they lack the required degree of racial ancestry. This direct stake each Plaintiff, including the three Hawaiian Plaintiffs, has in the outcome of this litigation – even though small – is what distinguishes each Plaintiff, including each of the three Hawaiian Plaintiffs, from a person with a mere interest in the problem. In addition, the State’s continuing appropriations of general fund moneys to OHA “to better the conditions of native Hawaiians” are shown by the State’s Exhibit D, Act 34, SLH 2003, Section 3, “There is appropriated out of the general revenues of the State of Hawaii the sum of $2,041,852 or so much thereof as may be necessary for fiscal year 2002-2003 to be deposited into the public land trust proceeds trust fund and used to better the conditions of native Hawaiians.” Even worse, OHA’s financial report for the same year (fiscal year ending June 30, 2003, the last statement in Plaintiffs’ Exhibit E) shows receipt of $17,543,804 supposedly from the public land trust. Even worse still, Governor Lingle issued an Executive Order no. 03-03 dated February 11, 2003 (Exhibit 2 to Declaration of H. William Burgess filed herewith) directing all departments to calculate OHA’s portion of receipts for the use of parcels of ceded lands by multiplying the receipt by 20% and transferring those amounts to OHA within ten calendar days of the close of each quarter. No provision is made for first deducting the expenses of the public land trust.

4. Conclusion. For the above reasons, and the reasons stated in Plaintiffs’ Response to Order to Show Cause filed December 3, 2003, the claims of Plaintiffs Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess may not be dismissed for lack of standing.

Dated: Honolulu, Hawaii, December 22, 2003.
H. WILLIAM BURGESS Attorney for Plaintiffs

Honolulu Star-Bulletin, Tuesday, January 6, 2004

Veterans of ’78 Con-Con publicly back OHA
By Nelson Daranciang

Several former leaders of the 1978 Hawaii Constitutional Convention supported the state Office of Hawaiian Affairs yesterday in its fight against legal challenges. Appearing at an OHA news conference yesterday were William Paty, former president of the convention; Adelaide "Frenchy" DeSoto, a former convention delegate who became OHA chairwoman; and former convention delegate and Gov. John Waihee III, who voted in favor of an amendment to the Constitution to create OHA. U.S. District Judge Susan Mollway is scheduled to hear oral arguments Monday in the Arakaki vs. Lingle lawsuit, which seeks to abolish the state agency tasked with bettering conditions for Hawaiians. H. William Burgess, one of two attorneys representing the people challenging OHA, was also a delegate to the 1978 convention. He could not be reached for comment. Waihee called on Hawaiians to refocus the legal debate over Hawaiian programs away from racial preference and back onto Hawaiian entitlements and Hawaiian self-determination, the issues leading to the creation of OHA. DeSoto said native Hawaiians are "literally faced with self-survival. This is not play time anymore, when they want to kick thousands of people off their homesteads." The lawsuit also sought originally to abolish the state Department of Hawaiian Home Lands, but Mollway removed the department as a defendant because the plaintiffs did not challenge the federal law that established the program to distribute former crown lands to native Hawaiians. Sherry Broder, the attorney for the 1978 Constitutional Convention who assured delegates that the creation of OHA would not violate the U.S. Constitution, said she did not anticipate the Hawaiians-only provision for OHA elections would reach the U.S. Supreme Court. The high court struck down the Hawaiians-only voting provision in Rice vs. Cayetano in 2000, spurring Arakaki vs. Lingle and other lawsuits challenging programs benefiting Hawaiians.

The Honolulu Advertiser, Sunday, January 11, 2004

Ruling due on motion to reject challenge to Hawaiian benefits

By Vicki Viotti

A federal judge is set to rule tomorrow on a motion to dismiss a controversial case challenging the constitutionality of programs benefiting only Hawaiians. U.S. District Judge Susan Oki Mollway will preside over a 9 a.m. hearing at the federal courthouse, where a rally by those defending the programs has been called by the Office of Hawaiian Affairs. The state agency is the remaining target of the so-called Arakaki case, named for Earl Arakaki, one of the plaintiffs. The original roster of 16 plaintiffs was shortened by the death of Roger Grantham in March and by the withdrawal late last month of Brian Clarke, who cited "personal reasons," said his attorney, H. William Burgess. OHA attorney Sherry Broder said the basis of her argument is that the treatment of Hawaiians is "a political question, and Congress has made a determination that Native Hawaiians should be treated the same as Native Americans." Mollway, who usually issues an "inclination" about how she is likely to rule, has not done so this time. She also will hear arguments about whether to dismiss three more of the remaining 14 plaintiffs — Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess — because they are of Hawaiian ancestry and therefore can't claim they are excluded from Hawaiians-only programs. Burgess said they have legal standing because they are less than 50 percent Hawaiian and thus are excluded from some programs requiring that blood quantum. He also is arguing against OHA's requested dismissal of the suit as a political question. "They say that courts don't adjudicate political questions," he said. "They made the same motion a year ago and it was denied, and nothing has changed in the case." Broder said the motion this time is "more specific," citing more recent congressional acts that she said establish Hawaiians as a political entity, such as the Native Hawaiian Education Act and the Hawaiian Home Lands Home Ownership Act. OHA's rally, expected to be distinguished by the uniform red protest shirts evident at several recent rallies on Hawaiian entitlements, will begin at 7 a.m. tomorrow at the courthouse.

The Honolulu Advertiser, Tuesday, January 13, 2004, ** excerpts **

OHA position on status of Hawaiians may be swaying judge

By Vicki Viotti

Attorneys on both sides of the controversial Arakaki federal lawsuit said they saw indications yesterday that the judge was attentive to arguments that Hawaiians have moved steps closer toward achieving status as a political class, even though a bill to clearly grant them that status is stalled in the U.S. Senate. If U.S. District Judge Susan Oki Mollway does favor those arguments in her written ruling due later this week, it could shut down the lawsuit's remaining challenge against programs that benefit only Hawaiians. OHA attorney Sherry Broder said after yesterday's hearing that Mollway "asked interesting questions" about laws already on the books that assert a special trust relationship between Hawaiians and the U.S. government, akin to the nation-within-a-nation status of Native American tribes . The exchange left her feeling "hopeful" that the case against OHA could be dismissed, although Broder declined to predict how Mollway would rule. Plaintiffs' attorney H. William Burgess also admitted that "it was pretty clear that she (Mollway) was considering putting the case on hold." But he said this would fly in the face of more standard court proceeding, which he said is to rule on the basis of laws already passed. In the nearly two years since the suit was filed, Mollway has continually restricted its scope. The plaintiffs were found to have standing to challenge only the use of state tax money for programs. In November Mollway eliminated Hawaiian homesteads as a target program, saying that the benefit was mandated by federal law that could not be challenged on the basis of injury to state taxpayers. Yesterday, the courtroom was filled with those who support Hawaiian benefits, many wearing a now familiar uniform of red shirts. Burgess argued that Hawaiians do not enjoy the same political status Congress has accorded to Native American tribes that already won federal recognition. Broder maintained that, even with the Akaka bill for federal recognition stalled in the U.S. Senate, numerous congressional acts already have moved Hawaiians several steps along the pathway toward a separate political status. If Mollway agrees, this could derail the plaintiff's suit that OHA's programs unconstitutionally discriminate on a racial basis. The OHA motion to dismiss the case cited laws such as the Native Hawaiian Education Act and the Hawaiian Home Lands Home Ownership Act. Mollway allowed that Congress has not issued a clear statement on the status of Hawaiians, evidenced by the slow progress of the Akaka bill. But she also acknowledged that the process is still proceeding. "If they (Congress) are in the process of considering it actively, that makes it a political question," Mollway said. Mollway yesterday dismissed three plaintiffs on the grounds that they are part Hawaiian and thus have no grounds to claim injury. They are Evelyn C. Arakaki, Donna Malia Scaff and Sandra Puanani Burgess. The original list of 16 plaintiffs previously had been shortened by the death of Roger Grantham in March and by the withdrawal late last month of Brian Clarke.

Honolulu Star-Bulletin, Tuesday, January 13, 2004 ** excerpts adding to the above story **
By Debra Barayuga

A federal judge dismissed three plaintiffs yesterday from a lawsuit challenging the constitutionality of entitlement programs for native Hawaiians. U.S. District Judge Susan Mollway ruled that plaintiffs Sandra P. Burgess, Donna M. Scaff and Evelyn Arakaki had not shown they had the basis to sue and dismissed them from the case. In their written filings, the three plaintiffs argued that they are required by the state to pay taxes, but because they have less than 50 percent Hawaiian ancestry, they are not eligible to benefit from Office of Hawaiian Affairs funds. OHA argued that the three failed to cite any programs they were not eligible for or had been prevented from applying for. Because they have suffered no injury, they should be dismissed from the suit, OHA argued. Mollway reserved ruling until later this week whether to dismiss the lawsuit on the grounds that the case is a political question for Congress to decide. Congress is debating the Akaka bill, which would give native Hawaiians federal recognition comparable to other native groups. "It seems to me if Congress is in the process of considering it ... makes it a political question," Mollway said. Mollway said she was not thoroughly convinced Congress has declared that native Hawaiians should be treated as other federally recognized tribes such as American Indians. Sherry Broder, attorney for OHA, argued that decisions regarding native Hawaiians should be made by the political branch of government, not the courts, and the case should be dismissed. Broder argued that Congress has made it "crystal clear" in legislation after the Rice vs. Cayetano decision that native Hawaiians have a unique political relationship with the United States, comparable with American Indians and Alaska Natives, and that the federal government has a trust responsibility to address the needs of native Hawaiians, delegating some of that responsibility to the state of Hawaii. More than 150 statutes enacted by Congress for the benefit of native Hawaiians, such as the Hawaiian Homelands Home Ownership Act and the Native Hawaiian Education Act, both passed since the Rice decision, recognize native Hawaiians as an indigenous people, she said. H. William Burgess, attorney for the plaintiffs, said the complaint does not present a political question. Regardless of whether the federal law is constitutional, the state use of taxpayer funds for one particular group is unconstitutional, he said. "We challenged, based on the Constitution, the state laws that give special treatment to one group and exclude all others simply because they don't have the favored racial ancestry, and that doesn't require any political question to be decided by the court," Burgess said. He does not believe in waiting for Congress to act on the Akaka bill, saying the case should have been decided sooner.


The Honolulu Advertiser, Thursday, January 15, 2004

Federal judge dismisses lawsuit against OHA

By Vicki Viotti

A federal judge yesterday dismissed a case challenging the constitutionality of government programs for Native Hawaiians, ruling that the court should not interfere with the ongoing congressional debate over Hawaiians' political status.

U.S. District Judge Susan Oki Mollway found that Congress had in recent years recognized a "special trust relationship" with Hawaiians of varying blood quantum levels, drawing them closer to becoming a political class akin to Native Americans for whom separate benefits are allowed.

H. William Burgess, attorney for Earl Arakaki and 10 others who filed the challenge, said he would appeal the case to the 9th U.S. Circuit Court of Appeals in San Francisco.

But the judge's action in the Arakaki v. Lingle case ends, at least for now, the latest attack on the state Office of Hawaiian Affairs, the last remaining target named in the lawsuit. OHA was established by a 1978 state constitutional amendment for the benefit of Native Hawaiians.

Mollway earlier dismissed the state Department of Hawaiian Home Lands and other defendants from the case.

OHA supporters were enthralled yesterday. "I think she (Mollway) recognizes that it's for Congress, not the courts, to determine the question of whether native people are going to be accorded special benefits, and to what extent," said attorney Sherry Broder.

Broder's motion to dismiss the case contended that recent acts of Congress shepherding Hawaiian programs have fueled a political process that the courts should not interrupt.

Burgess maintained last night that his clients' claims were made merely against state agencies such as OHA and DHHL, and that the issue of whether Hawaiians are comparable to a Native American tribe is irrelevant to the case. "But I've read the decision, and it's specific and clear," he said. "It's done and we can move on, and that's what courts are supposed to do."

The original lawsuit, filed almost two years ago, continued a series of challenges against Hawaiian-only benefits. They began five years ago with the U.S. Supreme Court's landmark Rice v. Cayetano decision. In that case, the court found that restriction of OHA elections to Hawaiian voters as a racial group was unconstitutional.

Another case opened candidacy for OHA trustees to all voters. The Arakaki lawsuit sought to extend the equal-protection claim to OHA programs as well as its elections.

The suit was dealt a serious blow when Mollway decided the plaintiffs did not have standing to challenge the constitutionality of federally mandated programs, which meant the plaintiffs had no claim against Hawaiian homesteaders.

But OHA contended Native Hawaiians are recognized as a political entity rather than a racial group with the Akaka bill pending in Congress and federal laws providing educational and health benefits for Native Hawaiians.

"Congress is not silent here," Mollway wrote. "It is speaking, but what it will conclude is unclear. It is in recognition of the continuing debate in Congress that this court defers to Congress."

OHA Chairwoman Haunani Apoliona offered thanks in Hawaiian to the spiritual realm: "Mahalo i ke Akua, mahalo i na 'aumakua."

But she also acknowledged that Hawaiians will continue to face legal threats — including the appeal of a case challenging Kamehameha Schools' admission policy.

Honolulu Star-Bulletin, Thursday, January 15, 2004

Judge dismisses last OHA challenge
The ruling rejects a claim that using taxes for Hawaiian benefits is unconstitutional

By Debra Barayuga

Hawaiians lauded a federal judge's dismissal yesterday of the last remaining claim challenging the constitutionality of the Office of Hawaiian Affairs, calling it a milestone.

But trustees of the state agency created to better the condition of Hawaiians caution that they are still not out of harm's way.

"We must continue to pursue self-governance over Hawaiian assets," said OHA Chairwoman Haunani Apoliona. "It's self-determination for Hawaiian people."

U.S. District Judge Susan Mollway ruled yesterday that the lawsuit filed by plaintiffs Earl Arakaki and others raises a political question that should be up to Congress to decide.

She dismissed the plaintiffs' remaining claim challenging OHA's use of state tax revenues for programs not subject to federal matching funds.

Earl Arakaki and 15 other Hawaii residents filed suit in March 2002 alleging that OHA and the state Department of Hawaiian Home Lands programs are race-based and discriminate against non-Hawaiians.

They argued that OHA's use of state taxpayer funds to benefit only Hawaiians is unconstitutional.

OHA had asked the court to dismiss the case, arguing that Congress, not the courts, should decide how to best provide benefits to Hawaiians.

H. William Burgess, attorney for the plaintiffs, who disputed that their case raised a political question, said they intend to appeal to the 9th U.S. Circuit Court of Appeals.

"In a way it's a big relief. We've been wanting to take this case to the next level for a long time because we disagree strongly with the earlier standing ruling," he said.

Mollway had dismissed the Department of Hawaiian Home Lands as a defendant in November, saying that the program was mandated by federal law and that the plaintiffs as state taxpayers had no standing to challenge federal law.

Burgess said they are confident they will succeed on appeal because the court's final decision was based on the political question doctrine, which was not raised by the plaintiffs.

The ruling means OHA, as well as the Department of Hawaiian Home Lands, "can continue to provide benefits to native Hawaiians and doing the good work they do," said Sherry Broder, attorney for OHA, "and that hopefully, the Akaka bill will continue to progress in Congress and be enacted into law."

The Arakaki case is the last remaining case that challenges the constitutionality of native Hawaiian entitlements.

In September the 9th Circuit Court of Appeals dismissed two similar lawsuits filed by Patrick Barrett and John Carroll, ruling that they had no standing to challenge the constitutionality of Hawaiian entitlements.

Apoliona said Mollway's recognition that a political process is under way reinforces the importance of pursuing passage of the Akaka bill before Congress.

The proposed Akaka bill would affirm a political relationship with native Hawaiians and the United States.


The Honolulu Advertiser, Friday, January 16, 2004


Status of Hawaiians isn't out of limbo yet

Once again, a Hawai'i federal judge has thrown out a case challenging Hawaiian-only government programs, citing a special trust relationship between the U.S. government and Native Hawaiians.

And once again, the plaintiffs, who charge that Hawaiian-only programs discriminate against non-Hawaiians, pledge to appeal the ruling, if necessary, all the way to the U.S. Supreme Court.

This pattern is likely to keep repeating until either the courts or Congress resolve the prickly issue of whether Native Hawaiians constitute a political entity or a racial group.

But neither seems in a great hurry to make a final decision, and so the dance goes on and on, with operators of Hawaiian programs wondering whether the plug will be pulled, and homesteaders worrying about losing their dollar-a-year leases.

Also in limbo are important economic decisions facing the Islands that will not be made until there is clarity about Hawaiian rights, Hawaiian programs and Hawaiian land claims.

This uncertainty has been going on since 2000 when the Supreme Court struck down the Hawaiians-only requirement for elections of state Office of Hawaiian Affairs trustees in the landmark Rice v. Cayetano case.

The high court reversed a 9th Circuit decision that affirmed U.S. District Judge David Ezra's ruling that OHA's voting restriction is based on the unique status of Native Hawaiians, and not on race.

In the latest case, U.S. District Judge Susan Oki Mollway has ruled that the court should not interfere with ongoing congressional debate over Hawaiians' political status.

She's referring to the Akaka bill, which was introduced in the wake of the Rice v. Cayetano ruling to ward off subsequent constitutional challenges to Hawaiian-only programs.

The Akaka legislation is supposed to help Native Hawaiians attain the kind of federal recognition granted to more than 500 American Indian and Alaska Native tribes.

But why bother with the Akaka bill if the courts are already dismissing constitutional challenges based on a special trust relationship between Congress and Native Hawaiians?

Moreover, can you dismiss a constitutional challenge to a program because legislation designed to protect the program from constitutional challenges is pending? Aren't the legislative and judicial branches of the government supposed to operate independently?

Essentially, it seems, Mollway has punted the big decision to Congress, and though that might seem like a victory for Native Hawaiians, it's really just another dance.

Who knows when Congress will pass the Akaka bill or if the Bush administration will sign off on it?

All we know is that someone is going to have to resolve this question of Hawaiian status once and for all so that Hawaiians and non-Hawaiians in the Islands can move on.

The Honolulu Star-Bulletin, Saturday, January 17, 2004

Suits make passage of Akaka bill urgent

Federal judges have dismissed discrimination lawsuits against Office of Hawaiian Affairs programs and Kamehameha Schools.

WHEN the U.S. Supreme Court ruled four years ago that Office of Hawaiian Affairs elections could not be confined to Hawaiian voters, it avoided confronting other issues related to Hawaiian recognition, saying those "would raise questions of considerable moment and difficulty." The moment of decision is growing nearer with the dismissal of two lawsuits challenging recognition of Hawaiians as a political entity. The appeals process has begun in both cases, making more urgent the need for enactment of a Hawaiian recognition bill in Congress.

The lawsuits maintain that state Office of Hawaiian Affairs programs and the Hawaiians-only admission policy of Kamehameha Schools discriminate on the basis of race. U.S. District Judge Alan Kay dismissed the lawsuit against the school in November, and District Judge Susan Oki Mollway dismissed the OHA suit on Wednesday. Both decisions will be appealed to the 9th U.S. Circuit Court of Appeals and eventually the Supreme Court.

The suit on behalf of a non-Hawaiian applicant to Kamehameha Schools contends that the policy violates a civil rights law enacted after the Civil War. The Supreme Court has ruled that a provision of the law forbidding racial discrimination in contracts pertains to private school admissions and protects members of all races, not just minorities.

The suit against OHA maintains that expenditures of public money benefitting only Hawaiians violates 14th Amendment guarantees of equal protection regardless of race. OHA attorney Sherry Broder maintained in court that Hawaiians are a political entity recognized by past legislation such as the Native Hawaiian Education Act and the Native Hawaiian Health Care Act.

In striking down OHA's Hawaiians-only voting system four years ago, the Supreme Court declined to address directly the issue of Hawaiian recognition as a political entity, referring to the issue as "a matter of some dispute," adding, "We can stay far off that difficult terrain."

Not for long. In her ruling, Judge Mollway made note not only of past legislation but of a pending bill sponsored by Senator Akaka that would designate Hawaiians as a political entity similar to American Indian tribes. The Akaka bill is not likely to be a factor in appellate rulings in the two cases unless it becomes law.


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