Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 7, 1 Iulai 2003 — Arakaki plaintiffs' attorney Hanifin dies; hearing rescheduled [ARTICLE]

Arakaki plaintiffs' attorney Hanifin dies; hearing rescheduled

By Naomi Sodetani AJune 16 hearing on motions submitted in the Arakaki v. Lingle case has been rescheduled because of the sudden death of one of the plaintiffs' attorneys. Patrick Hanifin, 48, suffered a heart attack on June 13 and died the following day. Federal Judge Susan Oki Mollway has rescheduled the hearing to Sept. 8. The three-month delay means the case could be affected by the outcome of the Hawaiian Recognition Bill. The bill is pending before the U.S. Senate, and action could be taken on it before the hearing begins. The March 2002 lawsuit filed by Hanifin and retired attorney William Burgess on behalf of 16 plaintiffs challenges the constitutionality of OHA and the state Department of Hawaiian Home Lands (DHHL). The rescheduled hearing will address the first in a series of pretrial motions in this case, whieh is scheduled for a trial in June 2004. Sherry Broder, Jon Van Dyke and Melody MacKenzie filed OHA's motion for partial summary judgment, asking the court to recognize Native Hawaiians as an indigenous people for whom the state and federal governments have a recognized trust responsibility. The motion alternatively asks the court to dismiss the elaim as a "nonjusticiable political question" it has no authority to decide. The court had rejected a similar motion filed by OHA last spring. But Broder said new grounds merit reconsideration. The new motion cites a recent district court ruling, Kahawaiola'a v. Norton, that Native Hawaiians are recognized as "indigenous to the United States, and that therefore it is up to Congress to determine the full See ARAKAKI on page 1 7

ARAKAKI from page 1 extent of the trust obligation owed by the United States to Native Hawaiians and the manner of its fulfillment." Oki-Mollway had last May indicated that "whether native Hawaiians are a 'tribe'... may raise a political rather than a purely legal question." She further acknowledged, "The court is well aware that legislation is pending before Congress that, if passed, may well affect any reconsideration of the merits" of the case. Such layering of judicial opinion "leads to the conclusion that the present elaim must be dismissed as a nonjusticiable question," OHA's new motion asserts. "If it is a nonjusticiable political question to challenge the failure of Congress to grant rights to and establish programs for Native Hawaiians, then it must logically also be a nonjusticiable political question to ehallenge those programs that have been established by Congress, and by the State pursuant to the mandate laid down by Congress." On Sept. 8, the judge will hear State Council for Hawaiian Homesteaders (SCHHA) pretrial motion to dismiss the case. Like OHA, the homestead associations contend the constitutional challenge to DHHL is more a political than judicial issue that Congress should decide. SSCHA's motion cites the 1921 Hawaiian Home Lands Act that set aside 200,000 acres for native Hawaiians and the 1959 Admissions Act that directed the state to use a portion of its revenue from puhlie lands for the betterment of native Hawaiians. Broder said, "It would be excellent

for us if DHHL is dismissed from the case, quite a success story for us. If they're let out, Native Hawaiians will have achieved an important victory that will provide arguments we could use as a springboard to make additional arguments." Hanifin, 48, a Saint Louis High School graduate, is noted for being the plaintiff's attorney in several cases that challenged government programs for Native Hawaiians. Hanifin won a federal court case that allowed non-Hawaiians to run for the OHA board. The ruling followed the landmark U.S. Supreme Court Rice decision in Feb. 2000 that opened up OHA's Hawaiians-only elections to voters of all ethnicities. He represented Patrick Barrett, who challenged the constitutionality of OHA, the Hawaiian Homes Commission and native gathering rights. A federal judge in Aug. 2001 ruled Barrett had no standing to bring his case. Kenneth Conklin, the first nonHawaiian to file as an OHA candidate as a result of Hanifin's work, called Hanifin "a warrior fighting for the unity of Hawai'i's people under a single sovereignty, and for equality under the law." Hanifin was at work on the morning of June 13 when he suffered a heart attack. He died the next day, after undergoing open heart surgery. The 16 plaintiffs are Earl Arakaki, Evelyn Arakaki, Edward Bugarin, Sandra Burgess, Patricia Carroll, Robert Chapman, Brian Clarke, Miehael Garcia, Roger Grantham, Toby Kravet, James Kuroiwa Jr., Fran Nichols, Donna Scaff, Jack Scaff, Allen Teshima and Thurston Twigg-Smith. n