Ka Wai Ola - Office of Hawaiian Affairs, Volume 24, Number 3, 1 March 2007 — Appeal dismissed in 'race-based' suit to abolish Hawaiian programs [ARTICLE+ILLUSTRATION]

Appeal dismissed in 'race-based' suit to abolish Hawaiian programs

BY KWŪ Staff Afederal appeals court has dismissed the appeal of a lawsuit ehallenging the constitutionality of government programs for Native Hawaiians. In response to a recent U.S. Supreme Court ruling that taxpayers do not have the right to sue over how a state allocates its tax funds, the 9th Circuit Court of Appeals reversed its earlier decision that had allowed a narrow aspect of the appeal in the Amkaki v. Lingle case to proceed. "Today's ruling means agencies such as the Office of Hawaiian Affairs and Department of Hawaiian Home Lands ean continue to provide benefits to Native Hawaiians," said former Hawai'i Supreme Court Iustice

Robert Klein, who represented the State Council of Hawaiian Homestead Associations and also serves as OHA board eounsel. However, the attorney representing the plaintiffs in the suit said that he still feels his clients will ultimately prevail in the case. "This is just a bump in the road," H. William Burgess told The Honolulu Advertiser. OHA Chairperson Haunani Apoliona said she was pleased with the court ruling, but that Native Hawaiians must still gain political status to shield Hawaiian programs from further legal challenges. "Although we have prevailed in the legal battle, we must continue our efforts to recognize Native Hawaiians as an indigenous people with a sovereign identity," Apoliona

said. "These lawsuits ignore the fact that Native Hawaiians had a poliīieal relationship with the United States." Apoliona said "the time is right" to pass the Native Hawaiian Government Reorganization Act currently before Congress. The measure calls for a process to establish a Native Hawaiian governing entity, similar to the federal status provided to the two other indigenous groups in the United States, the Native American Indian Nations and Alaskan Natives. The lawsuit dismissed by the 9th Circuit on Feb. 9 was originally filed in 2002 by 18 state taxpayers, led by retired Honolulu polieeman Earl Arakaki, who claimed that OHA, the Department of Hawaiian Home Lands and

other programs solely benefiting Native Hawaiians violate the equal protection clause of the 14th Amendment to the U.S. Constitution. In 2004, U.S. District Iudge

Susan Oki Mollway dismissed the case for several reasons, including that the plaintiffs, simply acting as state taxpayers, do See MSMISSEDon page 18

NŪ HOU • NEWS

Supporters of Hawaiian programs demonstrate outside an earlier Arakaki case hearing at federal court in Honolulu. - Pholo: KWO archive

DISMISSED Cūntinued fram page ŪG not have the right to challenge the funding OHA receives from state tax revenue, whieh makes up approximately 10 percent of the agency's total annual budget. The next year, a three-mem-ber panel of the San Franciscobased 9th Circuit affirmed most of Mollway's ruling, but reinstated the state tax revenue challenge. Then, last May, the Supreme Court ruled unanimously that a group of taxpayers in Toledo, Ohio, lacked the right to challenge tax breaks that were being offered for a new leep plant. And in a brief statement issued on lune 12, the high court directed that the 9th Circuit must reconsider its Arakaki ruling in light of the Ohio case. Asaresult, onFeb. 9, another three-judge panel of the 9th Circuit issued a unanimous opinion reversing the court's earlier ruling on the taxpayer standing issue. In doing so, the court sent the case back to the federal District Court in Hawai'i for proceedings to determine whether the plaintiffs have any other standing to continue pressing the suit. S