Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 12, 1 December 2003 — Federal Arakaki defendants dismissed [ARTICLE+ILLUSTRATION]

Federal Arakaki defendants dismissed

One Kamehameha suit tossed out; ruling on second expected soon

By Naomi Sodetani Homesteaders and waiting list applicants breathed a sigh of relief last month after a federal judge dismissed claims against every party in the Arakaki v. Lingle lawsuit but the state and OHA, saying the plaintiffs lacked standing to challenge the Hawaiian Home Lands federal program. On Nov. 22, U.S. District Judge Susan Oki Mollway issued a decision that excused the Department of Hawaiian Home Lands, Hawaiian Homes Commission, state homesteaders association, federal government and other intervening parties from the

suit. The one remaining elaim leaves OHA programs for Hawaiians funded by state tax revenues still at risk. In her 32-page decision, however, Mollway signaled that "any success Plaintiffs may have in this lawsuit ... will fall short of closing down entirely either the Department of Hawaiian Home Lands or the Office of Hawaiian Affairs, as neither relies entirely on state tax revenue." "We celebrate the victory for Hawaiian Home Lands, but it is a victory we will take one step at a liine," OHA Chairperson Haunani Apoliona told the press. "It's important to underscore to all Native Hawaiian beneficiaSee HEARINGS on page 5

ln front of the federal building, Halau Lokahi and Halau Ku Mana charter school students stand up for native rights challenged by three federal lawsuits heard last month.

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HEARINGS from page 1 ries this still does not take the Hawaiian community out of harm's way." Mollway also indicated that three Hawaiian plaintiffs lacked standing to assert claims of harm due to racial bias, and attorney William Burgess agreed to the dismissal of plaintiffs Sandra Puanani Burgess, Donna Malia Scaff and Evelyn C. Arakaki from the case, saying that their Hawaiian ancestry makes them potential beneficiaries of OHA. On Jan. 12, the judge will hear a motion concerning OHA's expenditure of state tax revenue, whieh could lead to the agency's dismissal from the suit as well. Kamehameha suit thrown out Mollway's ruling eame after two days of whirlwind hearings in three suits against Hawaiian programs. The three hearings followed a weekend of vigils and demonstrations by Hawaiian-rights supporters. On Nov. 16, King Kalākaua's birthday, hundreds gathered at Mauna'ala, the royal mausoleum, then marched to 'Iolani Palaee. Following an overnight vigil at the palaee, protesters marched in a candlelit procession to the federal building, hoping for the best but braced for the worst. On Nov. 17, however, Hawaiian demonstrators at the federal courthouse were jubilant when U.S. District Judge Alan Kay ruled in

favor of Kamehameha Schools' Hawaiians-preference admission policy, calling the policy a remedial action to correct manifest socioeconomie "imbalances" resulting from historic injustices. Kay dismissed the Doe v. Kamehameha suit, in whieh attorneys representing an anonymous Hawai'i island student who was denied admission argued that the trust violated a federal 1866 civil rights law enacted to protect former slaves from discrimination in employment contracts. Observers in Judge Kay's courtroom were surprised when he issued his decision from the heneh immediately after attorneys wrapped up oral arguments. In his ruling, Kay emphasized that the school is privately funded and cited the existence of a special trust relationship between the federal government and Hawaiians. As recently as 2002, the judge noted, Congress endorsed the school's efforts when it reenacted the Native Hawaiian Education Act. "The court finds that Kamehameha Schools has a legitimate remedial purpose by improving Native Hawaiian socioeconomic and educational disadvantages," Kay said, "...thereby remedying current manifest imbalances resulting from the influx of Westem civilization." Constance Lau, chair of the school's board of trustees, said, "What we always felt was right, what Hawaiians knew was pono,

has been upheld under Western law." A tearful Nainoa Thompson called Kay's ruling "a restoration of hope." Ruling due soon in second Kamehameha suit On Nov. 18, U.S. District Judge David Ezra heard a motion to dismiss a separate suit challenging Kamehameha's admissions policy. Argued by Eric Grant and John Goemans, the same attorneys who brought the suit thrown out by Judge Kay the previous day, the second Kamehameha suit involves Brayden Mohica-Cummings, a 13-year-old Kaua'i boy who was admitted to Kamehameha this fall only to have the school rescind its

offer when it discovered that his mother had misrepresented the boy as having Hawaiian blood. In August, Ezra directed the school to admit Mohica-Cummings until the court could review the school's admissions policy. Ezra promised to render a decision on the dismissal motion by early December, and noted that his decision would not be affected by Judge Kay's ruling. Attorneys for the two plaintiffs said they will immediately file an appeal of Kay's dismissal ruling in the Ninth Circuit Court. Should Ezra rule in sync with Kay's decision to dismiss, they said, the two Kamehameha cases will likely be combined on appeal. ■

Attorney Eric Grant represents a non-Hawaiian boy and his mother, Kalena Santos-Cummings (at right), who seek to overturn Kamehameha Schools' admission policy. A similar suit represented by Grant was dismissed the day before.