Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 10, 1 October 2005 — DOUBLE WHAMMY [ARTICLE+ILLUSTRATION]

DOUBLE WHAMMY

Courts rule against OHA in Arakaki, ceded lands cases

Appeals court allows challenge to use of tax funds

By Derek Ferrar Public lnfūrmatiūn Specialist On Aug. 31, the 9th U.S. Circuit Court of Appeals partially reversed a lower court's dismissal of a lawsuit that seeks to have the Office of Hawaiian Affairs and other government programs benefiting Hawaiians declared unconstitutional. While the appeals court affirmed that the plaintiffs in the Amkaki v. Lingle case cannot challenge federally mandated benefits such as Hawaiian Home Lands and the ceded lands trust - from whieh OHA receives the bulk of its revenues - it ruled that they ean sue over the agency's use of state tax funds. The San Francisco-based court ordered the case to be sent back to federal district court in Hawai'i for retrial on the tax revenue issue. "The ruling demonstrates that the courts and their doctrines do not favor Hawai'i's native people," said Office of Hawaiian Affairs Chairperson Haunani Apoliona. "Only by establishing a poliīieal relationship with the United Stated ean we hope to eliminate these

dire threats to our existence onee and for all." Gov. Linda Lingle said after the release of the ruling that her administration is "committed to defending OHA's right to receive state funds to carry out its important purpose, and we will fight vigorously any attempt to take anything away from the Hawaiian people. These programs are right, they're just, they're constitutional, they're fair and they're the right thing to do." Meanwhile, H. William Burgess, the attorney for former Honolulu polieeman Earl Arakaki and the 13 other plaintiffs in the case, told the press that while he was pleased with the portion of the ruling that allows the tax-revenue challenge to go forward, "we are disappointed that the court narrowed the scope of our suit as mueh as it did" by exempting Hawaiian Home Lands and the ceded lands trust. Expressing his ambivalenee over the ruling, Burgess told The Honolulu Advertiser that "it's like being kissed by your sister." The three-judge panel of the appeals

court unanimously rejected U.S. District Iudge Susan Oki Mollway's earlier dismissal of the suit on the grounds that Congress has not yet settled the question of Native Hawaiians' poliīieal status. The appeals judges said that even if Congress extends federal recognition to Native Hawaiians similar to Native American tribes, the courts would still have to determine whether OHA's benefits to Hawaiians are based on race or on tribal status. The court ruled, however, that the plaintiffs cannot challenge the Hawaiian Homes program or OHA's ceded lands revenue - including the $136.5 million settlement the agency received from the state in 1993 - because they don't have standing to sue the United States, whieh mandated both Hawaiian Homes and the ceded lands trust in the federal Admissions Act that made Hawai'i a state. "The United States is an indispensable party to the challenge to the expenditure of trust revenue, and yet Plaintiffs eannot establish standing to sue the United States either as taxpayers or as trust beneficiaries," the appeals ruling stated. OHA receives approximately $2.8 million per year in state tax revenue, or roughly 10 percent of the agency's total annual budget of $28 million, the remainder of whieh comes from the ceded lands trust. Mueh of the state tax revenue is used to fund three programs that directly benefit Hawaiians: Alu Like, the Native Hawaiian Legal Corp. and the Nā Pua No'eau educational enrichment program. The 9th Circuit Court of Appeals' decision in the Amkaki case marked the second time in a month that the appeals court ruled against Hawaiian programs. On Aug. 2, a three-judge panel, including two of the same judges that heard the OHA case, ruled that Kamehameha Schools' Hawaiian-preference admissions policy violates federal civil-rights law. School officials have filed a petition for a rehearing of that ruling by a larger panel of 9th Circuit judges. If that petition fails, they have vowed to take the case to U.S. Supreme Court.

NŪ HOU • NEWS

HūWūiian homesteoders lend support during the appeals court's hearing of the Arakaki case. Phoio: Sterling kini Wong