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  • Hawaiian Issues
  • Tracie Ku'uipo Cummings Losch (bio)

In the past year Native Hawaiians faced challenges in the courts, in the US Congress, and in the environment. In the courts, the Office of Hawaiian Affairs triumphed over litigation threatening first to dismantle and thento bankrupt the agency, and the Kamehameha Schools awaits a decision on its Hawaiian-preference admission policy. In the realm of indigenous rights, the "Akaka Bill" was scrutinized and denied a full debate in the US Senate, while the United Nations' Human Rights Council adopted the Declaration on the Rights of Indigenous Peoples. In environmental matters, Native Hawaiians joined forces against "biopiracy," and the Northwestern Hawaiian Islands became a national monument.

The latest in a string of lawsuits precipitated by the US Supreme Court's 2000 Rice v Cayetano decision was defeated in June 2006. In the Rice v Cayetano ruling, the US Supreme Court invalidated the state's Hawaiians-only voting policy for the Office of Hawaiian Affairs (OHA). In March 2002, sixteen plaintiffs filed [End Page 222] the Arakaki v Lingle case, challenging the constitutionality of the Office of Hawaiian Affairs, the Hawaiian Homes Commission Act (HHCA), and other state and federal Native Hawaiianfocused programs and agencies. Claiming standing solely as taxpayers, the plaintiffs objected to the use of general state and federal income tax revenues for the agencies. They demanded the dissolution of the Office of Hawaiian Affairs, the Hawaiian Homes Commission Act, and other similar programs, arguing that they violated the equal protection clause of the Fourteenth Amendment of the US Constitution.

In November 2003, Hawai'i's US District Court Judge Susan Mollway removed the Department of Hawaiian Homelands (DHHL), Hawaiian Homes Commission, State Council of Hawaiian Homestead Associations, the federal government, and other intervening parties from the suit. The district court dismissed the plaintiffs' claims because "any challenge to the lessee requirements of the DHHL lease program set up by the HHCA, a state law, necessarily involves a challenge to the Admissions Act (1959)," and the plaintiffs had no standing to sue the United States (Arakaki v Lingle, No 04-15306, US 9th Circuit Court of Appeals: 9–10). In addition, the Native Hawaiian Government ­Reorganization Act of 2005 was ­beingdiscussed at the congressional level. So, in January 2004, Judge Mollway dismissed the case against the State of Hawai'i and the Office of Hawaiian Affairs, because the courts should not interfere with an existing debate over Hawaiians' political ­status (Viotti 2004).

Eleven of the original sixteen plaintiffs (three were dismissed because they were Native Hawaiian, one withdrew, and one passed away) appealed to the Ninth Circuit Court of Appeals (Viotti 2004). In August 2005, the appellate court upheld the lower court's ruling, but reinstated a portion of the suit challenging the funding of the Office of Hawaiian Affairs from state general funds. The office currently receives about $2.8 million a year from the state general fund, about 9 percent of the agency's annual operating budget (OHA 2006).

Arakaki v Lingle was dependent on the plaintiffs' legal standing to challenge state policies. In a May 2006 Ohio case (Cuno v DaimlerChrysler, Inc, 386 F.3d 738 [6th Cir. 2004]), the US Supreme Court ruled that a group of taxpayers, who challenged nearly $300 million in tax breaks for an automobile manufacturing plant, had no legal standing to challenge the tax or spending policies of a state "simply by virtue of their status as taxpayers" (US Chief Justice John Roberts, quoted in Kobayashi 2006). In light of the Ohio ruling, on 14 June 2006, the US Supreme Court rejected the plaintiffs' legal standing in Arakaki v Lingle and overturned the lower court's decision.

While the State of Hawai'i and the Office of Hawaiian Affairs were triumphant in the Arakaki v Lingle case, another prominent Hawaiian institution continues to battle similar litigation challenging the legitimacy of its policies. The Kamehameha Schools 'ohana (family)—trustees, administration, alumni, students and faculty—and the Hawaiian community wait anxiously as a panel of fifteen judges in the Ninth Circuit Court of Appeals decides the future of the institution. [End Page...


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