Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 5, 1 May 2002 — Arakaki v. Cayetano: OHA asks court to dismiss [ARTICLE]

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Arakaki v. Cayetano: OHA asks court to dismiss

By Naomi Sodetani On April 29 Federal Judge Oki-Mollway heard OHA's motion to dismiss Arakaki, et al v, Cayetano, et al, whieh essentially seeks to dissolve the Office of Hawaiian Affairs and the Dept, of Hawaiian Home Lands, (Press time preceded court decision.) Honolulu attorneys H, William Burgess and Patrick Hanifin represent 16 Hawai'i residents in a taxpayer lawsuit contending that programs administered by the two agencies violate the U,S, Constitution because participation is limited to people of Hawaiian ancestry, OHA Attorney Sherry Broder argued that Mollway should not decide the case, citing the "political question doctrine," OHA's motion noted that state and federal statutes cited in prior court decisions have abundantly underscored the trust relationship between Native Hawaiians and the federal government, and so should

prevail as "the supreme law of the land," Political issues "ean only be addressed and resolved by the politieal branches of the federal government and is thereby inappropriate for judicial examination," Broder said, īn March, the court had granted the plaintiffs taxpayer standing, but dismissed their bid to temporarily halt programs funded for Hawaiians at OHA and the Dept, of Hawaiian Home Lands, OHA and the state had argued that taxpayer status was not justified as the group's pro rata share of taxes used to run the two agencies is almost too small to calculate, Deputy Attorney General Girard Lau stressed that the "vast majority" of funds used to pay OHA's and DHHL's operating costs derives from ceded land revenues, not the state general fund, He noted that 80 percent of the money earned from ceded lands goes to benefit all state residents, not only Native Hawaiians, Mollway will hear the plaintiffs'

motion for preliminary injunction on July 24, On June 10 the court will hear a separate OHA motion asking for judicial notice, a partial summary judgment, or dismissal on the basis that the plaintiffs failed to identify or prove any personal "or direct pocketbook injury" suffered by them as a consequence of OHA's or DHHL's mandate to improve the lot of Native Hawaiian beneficiaries, īf Arakaki v. Cayetano succeeds, both agencies will become defunct, as all monies, investments, lands and property of any kind, and all earnings thereon held by OHA or DHHL will be conveyed to state general funds as the property of the State of Hawai'i, The plaintiffs want the court to make all of the public assets of OHA and DHHL available to the state to be used for "non-discrimi-natory" purposes benefitting all Hawai'i residents, Mollway has granted intervenor status to the State Council of Hawaiian Hom.es tead Association,

whose members would be directly affected by a ruling that could potentially spell the demise of the homestead program, The plaintiffs want the court to permanently preclude the DHHL from issuing any new leases or further acting to carry out the Hawaiian Hom.es Commission Act, Existing Hawaiian homestead leases ean be converted by the state to fee ownership for existing homesteaders to acquire at no cost or at a reduced cost, "We want to sink those two ships of government racial discrimination, but we also want to rescue the passengers," Burgess said, The Plaintiffs are: Earl F. Arakaki, Evelyn C, Arakaki, Edward U, Bugarin, Sandra Puanani Burgess, Patricia A, Carroll, Robert M, Chapman, Brian L, Clarke, Miehael Y, Garcia, Roger Grantham, Toby M, Kravet, James ī, Kuroiwa, Jr,, Frances M, Nichols, Donna Malia Scaff, Jack H, Scaff, See ARAKAKI on page 8

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ARAKAKI from page 7 Allen H, Teshima, and Thurston Twigg-Smith, Only Sandra Burgess and Evelyn ,Arakaki are part-Hawaiian, Named as defendants are the governor and the directors of the various state agencies, OHA trustees, DHHL chairman and Hawaiian Homes commissioners, and the federal government, Broder said the lawsuit resembles those filed by

Republican gubernatorial candidate John Carroll and Patrick Barrett, whom Hanifin had also represented, Judge David Ezra had thrown out both lawsuits citing their failure to prove personal injury or denial of benefit, as the federal courts require, Joining forces, Carrol and Barrett consolidted their cases and their appeal goes before the 9th circuit cout on May 9 at 9 a.m. ■