Ka Wai Ola - Office of Hawaiian Affairs, Volume 23, Number 9, 1 September 2006 — Federal judge dismisses blood-quantum suit against OHA [ARTICLE]

Federal judge dismisses blood-quantum suit against OHA

Lawsuit had challenged OHA's use of ceded-lands funds to benefit Hawaiians of less than 50 percent blood quantum

By KWŪ staff On Aug. 10, U.S. District Iudge Susan Oki Mollway issued a formal order dismissing Virgil E. Day, et al, v. Haunani Apoīiona, a lawsuit that challenged the

legality of OHA's expenditure of ceded land revenues on programs that benefit all Hawaiians, regardless of blood quantum. Day v. Apoliona was filed Oct. 13, 2005 by attorney Walter R. Schoettle on behalf of five native Hawaiian plaintiffs who claimed that the trustees of the Office of Hawaiian Affairs violated their rights as beneficiaries of the ceded-lands trust, whieh was created under the federal Admission Act thatmade Hawai 'i a state, by using revenues to benefit Hawaiians with less than a 50 percent blood quantum. The plaintiffs included Virgil E. Day, Mel Ho'omanawanui, Iosiah L. Ho'ohuli, Patrick L. Kahawaiola'a and former OHA

Trustee Samuel L. Kealoha. In her ruling, Mollway said she dismissed the suit because the Admission Act, 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. "Statutory violations may be brought ... only if the text or legislative history of the statute shows clear and unambiguous intent to create individuals rights," she wrote, "and ... the Ninth Circuit [Court of Appeals] has already concluded that neither the text nor the history of the Admission Act indicates such congressional intent." While satisfied with Mollway ' s

dismissal of the case, OHA officials said they expect the suit to be pursued through appeal or in another court. "I am pleased that the complaint lodged by the plaintiffs has been dismissed by the Lederal District Court," said OHA Chairperson Haunani Apoliona. "Despite their ringing defeat, however, it is possible for these Hawaiian plaintiffs and their attorney to re-file their complaint in state court or appeal to the Ninth Circuit Court of Appeals." "Judge Mollway dismissed the action based on a laek of jurisdiction," said OHA Administrator Clyde Nāmu'o. "Though we are all pleased with the outcome, we realize

that this is probably not the last that we will hear of this matter." OHA currently receives $15.1 million annually in ceded-landrevenues. Underthe current fiscal year's operating budget, OHA will receive an additional $2.8 million from the State General Lund over the course of the year. OHA's total annual operating budget is currently $37 million for programs that provide for the betterment of the conditions of all Hawaiians, with the balance of the budget coming from investment revenue derived from the agency's trust fund, whieh now stands at more than $350 million. S