Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 12, 1 December 2004 — Both sides in Arakaki suit impressed with judges' grasp of issues [ARTICLE+ILLUSTRATION]

Both sides in Arakaki suit impressed with judges' grasp of issues

By Derek Ferrar The fate of the lawsuit that seeks to abolish OHA and the Department of Hawaiian Home Lands (DHHL) now rests in the hands of a three-judge panel of the federal 9th U.S. Circuit Court of Appeals. The judges are expected to issue their ruling sometime in the next few months. The court, whieh is based in San Francisco but travels to Hawai'i twice a year to hear cases, heard appeal arguments in the Amkaki v. Lingle case on Nov. 1, amid the heated politieal atmosphere surrounding the closely contested presidential election. Attorneys for both sides agreed that the judges appeared to be very knowledgeable about Hawaiian issues and asked insightful questions. See ARAKAKI on page 4

ARAKAKI from page 1 "I was very encouraged by the court's grasp of the issues," said state Attorney General Mark Bennett, who has helped fight the lawsuit on behalf of the state. "The judges were extremely well prepared, and I think they addressed issues that could lead to a favorable resolution (for Hawaiians and the state)." Meanwhile, the attorney for the plaintiffs in the case, H. William Burgess, said, "I thought the court asked a lot of good questions, and I tried to provide what I thought were the correct answers. We'll just have to see what happens." The suit, first filed in March 2002, alleges that Hawaiian programs such as OHA and DHHL are based on racial preference and thus violate the U.S. Constitution. Last January, federal Judge Susan Oki Mollway dismissed the case, ruling that the status of Native Hawaiians is essentially a political question that should be decided by Congress instead of the courts. She also found that the plaintiffs - who brought the suit collectively as state taxpayers - did not have legal standing to ehallenge federal law. Both those issues were argued again before the appeals court. Court observers said that the judges' lines of questioning did not give any clear indication whieh way they might be leaning. Judge Melvin Brunetti, for example, said that "the issue before us is whether we should go into the question of Hawaiian sovereignty," whieh

some interpreted as a sign that he might agree that it is a political question best left to Congress. On the other hand, Judge Jay Bybee commented that Congress has had ample time to recognize Hawaiians as a special indigenous group, and yet it hasn't definitively done so. "If they haven't recognized them, doesn't that only leave us with the racial classification?" he said. In their arguments, both sides cited a recent ruling

by another panel of the 9th Circuit appeals court. In the Kahawaiola'a v. Norton case, the court ruled that Hawaiians cannot be considered exactly the same as Native Americans. The ruling was also strongly critical of the U.S. Department of Interior's treatment of Hawaiian issues. "I think that the Kahawaiola'a decision is in our favor, because it suggests that this is indeed a political issue," said OHA attorney Sherry Broder following the Arakaki hearing." Burgess, meanwhile, said that the Kahawaiola'a decision confirms that "Hawaiians are entirely different from American Indians and Alaska Natives, and that's what we've been saying all along." Onee the appeals court makes its ruling in the Arakaki case, only the U.S. Supreme Court could

overrule it. Broder said, however, that she "would be surprised if this particular case went to the Supreme Court. I have a hard time imagining the court accepting a state taxpayer's case like this, where the scope of the plaintiffs' interests are so minimal." Outside the downtown office building where the appeal was heard, dozens of Hawaiian homesteaders and others lined Bishop Street, waving signs and urging rush hour motorists to honk in support of Native Hawaiian rights. "There's a sense of solidarity among Hawaiian people on this,"

said Maui homesteader Kekoa Enomoto. "This juncture in history is so important to the Native Hawaiian people, and we need to be together on it, even though we are different people from different islands, with different ways of addressing the problem. We ean respect our differences, but we need to be together." University of Hawai'i Hawaiian studies professor Lilikalā Kame'eleihiwa said, "It's important for all of us to carry the banner of Hawaiian justice high, over and over and over. When our ancestors signed the Kū'ē Petition (objecting to the annexation of Hawai'i by the U.S), they showed us their will, and we will never stop protesting until we get our country back." ■

Attorney Sherry Broder has argued successfully on OHA's behalf in the Arakaki SUit. Photo: Sterling Kini Wong