For Immediate Release

For further information contact:

H. William Burgess



OHA and HHCA Violate U.S. Constitution, Suit Charges

Ballot count illegalities surface in '78 vote on amendments to state constitution

(Honolulu, HI March 4, 2002) A multi-ethnic group of Hawai'i residents filed suit in federal court today challenging the constitutionality of both the Office of Hawaiian Affairs and the Hawaiian Homes Commission Act. Those programs violate the principle of equality under the law for all of Hawai'i's people.

The plaintiffs ask the federal court to:

• Declare both the OHA and HHCA laws invalid.

• Make all public assets (money, land, property, etc.) held by OHA, HHC or DHHL available to the state to be used for public, non-discriminatory purposes.

• Stop the state from issuing any more homestead leases, grants loans, guarantees, etc, under these programs.

• Allow the State to convert existing Homestead leases to fee for the existing homesteaders to acquire.

• Prohibit any further implementation of OHA laws and HHCA laws.

The suit was filed in U.S. District Court by Attorneys H. William Burgess and Patrick Hanifin on behalf of 16 local residents. (Names provided in alphabetical order below.)

Burgess calls the OHA laws and the HHCA laws the "mother ships" of government racial discrimination in Hawaii. They divide Hawaii's citizens into two classes and give status and entitlements to one class which are denied to others solely because they are not of the favored ancestry. That is not allowed under the equal protection clause of the Fourteenth Amendment.

The plaintiffs also note that the 1978 constitutional amendment ballots were illegally tallied. In that balloting, OHA was created and additional state funding for the Department of Hawaiian Home Lands was required, both by narrow margins. The ballot counting violated the rule that a vote should be counted if a voter's intent can be reasonably determined -- 18,833 voters were disenfranchised. The state never revealed the irregularity when the election was challenged, even though there were enough disqualified ballots to affect the outcome. Without counting those ballots, it was impossible to determine whether these two amendments were ratified by the majority of voters. It is therefore doubtful that majority of voters ratified the establishment of OHA & the additional funding for DHHL.

"We seek to end both programs" said Burgess, "but we recognize the practical reality that the Hawaiian Homes program has been in effect for 81 years and that many people of native Hawaiian ancestry have relied on it, built homes and improvements and planned their lives around it. We do not think they should be subjected to harsh results merely because they acted on the basis of what they thought was a valid law." In other words, we want to sink those two ships of government racial discrimination but we also want to rescue the passengers.

The plaintiffs' suit asks the court to order the State officials to negotiate with the Homesteaders so that the HHCA will be ended in a way that is fair to the Homesteaders but does not further violate the rights of plaintiffs and others. Such negotiations could result in a lease to fee conversion. If approved by the Legislature, the fee simple interest could be conveyed to each Homesteader for no payment or a reduced payment and the Homesteaders would become home owners with the same rights, responsibilities, dignity and respect as other home owners.

The suit lists as defendants the Governor, other state officials, trustees of OHA and Hawaiian Homes commissioners as well as the United States.

It challenges a number of sections of Article XII of the Hawai'i State Constitution, a number of Hawai'i statutes and two federal statutes that violate the U.S. Constitution.

The HHCA adopted by Congress in 1921 set aside about 200,000 acres of public land for the exclusive benefit of people of one race. Starting in 1978 and since, the OHA laws have set aside hundreds of millions of taxpayer dollars or public land trust revenues exclusively for the benefit of people of that same race.

These two programs make Hawaii the only state in the nation that grants homesteads on its public lands and grants revenues from its public lands for the exclusive use of one race.

The Hawaiian Homes program was forced on the state of Hawaii in 1959 by the federal government. As part of its admission into the Union, the State was required to adopt the HHCA. Under the federal Constitution, other states are not allowed to discriminate. But the federal government makes the State of Hawaii discriminate on the basis of racial ancestry. This violates the "equal footing" doctrine by imposing a restriction on a state's constitutional powers that isn't required of other states.

These laws hurt everyone, Burgess said. "They hurt Hawaiians by making them wards of the State and treating them like children incapable of handling their own affairs. They hurt everyone else by taking money from public education, wasting hundreds of millions of tax dollars and creating racial resentments." We believe Hawaiians are competent, responsible human beings who should be permitted to show their excellence by playing by the same rules as everyone else.

The plaintiffs in the case:

Earl F. Arakaki

Evelyn C. Arakaki

Edward U. Bugarin

Sandra Puanani Burgess

Patricia Carroll

Robert M. Chapman

Brian L. Clarke

Michael Y. Garcia

Roger Grantham

Toby M. Kravet

James I Kuroiwa, Jr.

Fran Nichols

Donna Malia Scaff

Jack H. Scaff

Allen Teshima

Thurston Twigg-Smith

Chinese, English, Dutch, Filipino, French, German, Hawaiian, Irish, Japanese, Jewish, Okinawan, Polish, Portuguese, Scottish, Spanish and other ethnicities are represented among the plaintiffs.

Copies of the complaint and motion for temporary restraining order and preliminary injunction and related documents filed in court this morning, may be seen at:

For further Reference:

Resolution No. 30 RD 1: Constitutional Convention of Hawaii of 1978, includes ballot and voting instructions. Available through Hawaii State Archives.

Standing Committee Report No. 99 (September 18,1978) Committee on Submission and Information, which contains ballot recommendations and voter education. Available through Hawaii State Archives.

ConCon Journal 1978 64th day, September 21, 1978

Result of Votes Cast General Election Tuesday, November 7, 1978, available at state Office of Elections.



1898 Republic of Hawaii cedes public lands (1.8 million acres) to U.S. on condition that, (except for parts used by government,) revenues & proceeds to be used “solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.” U.S. accepts by Newlands Resolution (Annexation Act).

This establishes the public land trust for inhabitants of Hawaiian Islands.

At that time only about 31% of the inhabitants were of Hawaiian ancestry.

1900 Organic Act reiterates revenues and proceeds from these public lands be used “for the benefit of the inhabitants of the Territory of Hawaii.”

1921 Hawaiian Homes Commission Act. Congress sets aside 200,000 acres of ceded lands for native Hawaiians—“any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” This express racial classification sets U.S. in violation of equal protection under Fifth Amendment.

1959 Admission Act. U.S. returns title to most of the public (ceded) lands to Hawai‘i, but requires that the State adopt HHCA, and use revenues and proceeds for one or more of five purposes, including “for the betterment of the conditions of native Hawaiians”. This violates not only equal protection but also “equal footing” doctrine—restricts Hawaii’s constitutional powers in a way not imposed on other states.

1978 Voters purportedly approve amendments to the Hawai‘i State Constitution that sets up the Office of Hawaiian Affairs and requires the state to fund the Department of Hawaiian Homes Lands beyond the traditional self-funding.

• Votes improperly tallied.

State did not tally as officially requested by the ConCon, nor as required by common law. 18,833 ballots rejected. Each should have been examined to determine voter intent. Without counting those votes it was impossible to determine that majority approved OHA & DHHL amendments. Doubtful that ratified by majority.

• The official informational booklet and newspaper supplement to educate voters about the amendments did not disclose the definitions of “Hawaiian” and “native Hawaiian”. Hawaii Supreme Court holds these definitions not ratified by voters. Kahalekai case.

• OHA & DHHL amendments violate equal protection clause of 14th Amendment of U.S. Constitution & breach fiduciary duty of State under public land trust.

2000 February 23. U.S. Supreme Court rules in Rice v. Cayetano that definitions of “Hawaiian” and “native Hawaiian” are racial classifications. Use of those definitions to restrict voting in OHA elections violates 15th Amendment.

2000 September 19. U.S. District Court, Hawaii rules in Arakaki v. State: Use of those same racial definitions to restrict seeking or holding public office as OHA Trustee violates 14th and 15th Amendments.

2002 March 4. In the new suit, Arakaki v. Cayetano, plaintiffs ask court to declare Hawaiian Homes program and OHA program, both based on the same racial classifications, are invalid because they violate the 14th Amendment and other federal laws. Plaintiffs seek to do so in a way which will avoid inequitable financial consequences to the existing Homesteaders.


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