Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 3, 1 April 2002 — Arakaki vs. Cayetano [ARTICLE]

Arakaki vs. Cayetano

By Ryan Mielke ANOTHER challenge to Hawaiian rights, entitlements andprograms is again in the courts with the filing of Arakaki, et al, V5. Cayetano, et al. On March 12, Federal Judge Susan Oki-Mollway dismissed a motion by attomeys H. William Burgess and Patrick W. Hanifin to temporarily halt programs funded for Hawaiians at the office of Hawaiians and the Department of Hawaiian Home Lands. However, the case is moving forward with key dates looming in Mollway's court: a motion to dismiss hearing April 29 and a motion for preliminary injunction hearing July 24. "The plaintiffs are in 'denial' of facts by attempting to use the U.S. constitution and the Court to obliterate the United States' tmst obligations to Hawaiians," said OHA Chairwoman Haunani Apoliona, "and by further ignoring centuryold U.S. congressional action and decades of U.S. congressional funding for programs to benefit Native Hawaiians." Burgess has been party to other failed attempts to find relief in eomplaints against OHA, an all too familiar scenario for some. "I have always maintained that we ean defeat this case on the merits," said OHA Board of Trustees Counsel Sherry Broder. "Congress has passed 160 statutes for the betterment of conditions of Hawaiians, and the Admissions Act of 1959 imposed a specific duty on the state to utilize ceded lands for the betterment of conditions of Hawaiians," said Broder. "It is unfortunate that we cannot work together to improve our community rather than continuously finding ourselves in court." Apoliona sees actions possible in Congress as a possible solution to ending continued threats similar to Arakaki V5. Cayetano. "While this critically important litigation battles its way through the Courts, our eommunities, Hawaiians and nonHawaiians alike, must work to pass legislation, like federal recognition, to See ARAKAKI on page 12

Hawaiian programs, agencies threatened in

ARAKAKI from page 1 neutralize any further attempts to erode the U,S, trust obligation to Hawaiians," she said, Specifically, the case attempts to "find and declare" the following: □ That the provisions of the Constitution of the State of Hawai'i creating the Office of Hawaiian Mfairs and Chapter 10, Hawai'i Revised Statutes, are unconstitutional and invalid under the provisions of the Constitution of the United States of ,America. □ That the Hawaiian Homes Commission Act and the Department of the Hawaiian Home Lands are unconstitutional and invalid under the provisions of the Constitution of the United States of America, □ That any moneys, investments, lands and property of any kind, and all earnings thereon and growth thereon, held by OHA or DHHL are

state general funds and the property of the State of Hawai'i, □ That all such property is ffee of any trust or other encumbrance, whieh restricts its use to the benefit of any racial classification or prevents its use for the benefit of all the people of the State of Hawai'i, □ That all such property and funds be entrusted under the care and control of the Governor to be used at the discretion of the State for purposes deemed appropriate and in eomplianee with the public land trust for all of the residents of the State, □ That the continued management, administration and enforcement of the Homestead leases by the DHHL is an ongoing and continuing violation of the Constitution of the United States of ,America, the United States Civil Rights Act and a breach of the State's fiduciary duty under state and federal law as trustees of

the public land trust, Also, Arakaki v,s. Cayetano seeks an injunction that would find and mandate as follows: □ Order the DHHL and the State to negotiate with existing Homesteaders for the State's right to withdraw the lands demised in a manner that is fair to the Homesteaders but does not perpetuate or violate the rights of the plaintiffs. □ Permanently preclude the DHHL from issuing any new Hom.es tead leases, make any further grants, loans, guarantees, transfers, contracts, expenditures or any further developments and actions implementing, enforcing or carrying out the HHCA. □ Permanently preclude the OHA from making any further grants, loans, guarantees, transfers, contracts or expenditures or further implement-

ing, enforcing or carrying out laws related to the Office of Hawaiian Affairs. □ Order the OH-A. to transfer all moneys, investments, lands and property of any kind, and all earnings thereon and growth thereof to the State of Hawai'i, □ Order the DHHL to transfer all moneys, investments, lands and property of any kind, and all earnings thereon and growth thereof to the State of Hawai'i, The battle lines are drawn, Hawaiians organizations are joining the fight to protect programs and entitlements mandated by law, "Victory by the defendants and intervenors in this case will realize quantum leaps for native people in this century and will advance the United States toward true reconciliation with Native Hawaiians," said Apoliona, ■