Ka Wai Ola - Office of Hawaiian Affairs, Volume 24, Number 9, 1 September 2007 — Appeals panel revives blood quantum suit against OHA [ARTICLE]

Appeals panel revives blood quantum suit against OHA

By KWŪ staff Afederal appeals court has reinstated a lawsuit brought by five native Hawaiians seeking to prohibit spending by the Office of Hawaiian Affairs on programs that benefit Hawaiians of less than 50 percent blood quantum. On August 7, a three-judge panel of the U.S. 9th Circuit Court of Appeals reversed U.S. District Iudge Susan Oki Mollway's earlier dismissal of the lawsuit filed by Virgil E. Day, Mel Ho 'omanawanui, Josiah L. Ho'ohuli, PatrickL. Kahawaiola'a and former Office of Hawaiian

Affairs Trustee Samuel L. Kealoha, all of whom are 50 percent Hawaiian or more. The plaintiffs elaim that OHA's trustees violated their rights as beneficiaries of the state's ceded lands trust by using revenues to benefit Hawaiians with less than a 50 percent blood quantum, and their suit seeks restoration of all the allegedly misspent funds to the trust. The lawsuit also ehallenges OHA's expenditure of trust money on supporting the Akaka Bill, claiming that the hill, without a blood quantum requirement, would "erode the rights and privileges of the beneficiaries" of the ceded lands trust.

Lurthermore, the plaintiffs elaim that OHA should not be "unreasonably" accumulating trust funds by investing them, because investment does not better the conditions of the 50 percent native Hawaiians. A year ago, Mollway dismissed their case, saying that the federal Admission Act that made Hawai'i a state - and whieh lays out the intended uses of the ceded lands trust - contains no clear intent that allows individuals to sue over alleged violations of the land trust law, and that recent Supreme Court rulings had conflicted with previous case law allowing such suits. The appeals court panel disagreed, however, writing that "we cannot agree that there is a eonflict sufficient to disregard wellestablished precedent .... We thus reaffirm what we have already held and reaffirmed: that eaeh Native Hawaiian plaintiff, as a

beneficiary of the trust ... has an individual right to have the trust terms complied with, and therefore ean sue ... for violation of that right." Attorney Walter Schoettle, who represents the five plaintiffs in the case and has been involved in a number of previous blood-quan-tum-related suits against OHA, said in a statement that his clients were elated by the appeals court's decision. While affirming the plaintiffs' right to sue, the appeals panel did not take any position on the merit of their blood-quantum elaim. "OHA continues to believe that there is no merit in the plaintiffs' position," OHA Board of Trustees Chairperson Haunani Apoliona said. "We believe we will ultimately prevail based on the merits of this case." State Attorney General Mark Bennett, who had filed the friend-of-the-court brief that resulted in

Mollway's earlier dismissal of the suit, said he was looking into whether it would be possible to file a further appeal of the 9th Circuit panel's ruling. If the case is not further appealed, it will be remanded to the federal District Court in Honolulu for further litigation. Blood quantum has long been a divisive issue within the Hawaiian community. While OHA does receive the bulk of its funds from ceded lands revenue, the agency is mandated to benefit all Hawaiians. In 1988 and 1990, OHA tried to gauge its beneficiaries' views on the issue by putting two separate referenda before Hawaiian voters. More than 80 percent of those who voted said they supported a single definition of Native Hawaiian - one that includes all Hawaiians, regardless of blood quantum. S