Post by Okwes on Jun 13, 2006 13:35:19 GMT -5
Suits will continue without Akaka bill: Native Hawaiian government i
Posted by: "MIKECHEROKEE@aol.com" MIKECHEROKEE@aol.com unitednative
Sun Jun 11, 2006 5:21 pm (PST)
United Native America has emailed the reporter that posted this report, we
have asked for them to give UNA a chance to respond to this issue, we will let
you know what happens!
_http://www.unitednativeamerica.com/issues/HR_309_Native_Hawaiian.html_
(http://www.unitednativeamerica.com/issues/HR_309_Native_Hawaiian.html)
Suits will continue without Akaka bill
In February 2000, the U.S. Supreme Court issued a landmark decision for
Hawai'i, saying that serving as a trustee with the Office of Hawaiian Affairs
cannot be restricted to Native Hawaiians.
A major point of the ruling was that the restriction was unconstitutional
because it was based on race, not on a recognition that Native Hawaiians
deserve treatment as a political entity such as Native American tribes.
The decision led to fears that government programs for Native Hawaiian
programs would be in jeopardy. It prompted U.S. Sen. Daniel K. Akaka in July of
that year to introduce the bill that would essentially provide federal
recognition to Native Hawaiians in an attempt to defuse the high court's decision.
But after six years, the bill named for its sponsor still languishes in
Congress, stalled now that the U.S. Senate last week refused to force a vote on
the legislation.
The setback for the bill means that the U.S. Supreme Court's pronouncement
that Native Hawaiians are not a political entity remains the law of the land.
Because the legal landscape for Native Hawaiians remains the same, attorneys
don't believe the Senate action will have a direct impact on two major
federal pending court cases, one challenging Native Hawaiian programs funded by
the state, the other addressing Kamehameha Schools admissions policy.
But more legal challenges can be expected in the future, according to H.
William Burgess, an attorney in one of the two cases who filed a taxpayer
lawsuit challenging state money going to the Office of Hawaiian Affairs.
"The challenges will continue until everybody in Hawai'i is required to
follow the same rules," Burgess said.
He said those challenges would be filed even without the Akaka legislation,
but Akaka bill supporters believe the legislation would deter or doom those
future suits.
"It would bring the litigation to a quick close," said Jon Van d**e, a
University of Hawai'i law professor who has written in support of the bill.
FEDERAL RECOGNITION
The Akaka bill would establish a process for the federal government to
formally recognize the 400,000 Native Hawaiians here and elsewhere as an
indigenous people similar to American Indians and Alaska Natives. It would also lay
out the procedure for a Native Hawaiian government that could negotiate with
the United States and Hawai'i over land use and other rights.
Burgess, head of a loosely knit group called Aloha for All, is the lawyer
representing Earl F. Arakaki and about a dozen others who challenged state
government funding for OHA and the Hawaiian Home Lands program.
Although both sides are asking the U.S. Supreme Court to review the case,
the merits of the lawsuit have yet to be decided.
The issue is whether taxpayers have legal standing to challenge the
programs, a matter separate from whether Native Hawaiians are recognized by the
federal government as an indigenous people.
The suit had been tossed by U.S. District Judge Susan Mollway Oki in 2004.
In September, the 9th U.S. Circuit Court of Appeals reinstated only a sliver
of the suit, the part challenging state general funds going to OHA.
Lawyers for the state and OHA believe a recent U.S. Supreme Court decision
in an Ohio taxpayer case decided in May means the end of Burgess' challenge.
Burgess, however, doesn't believe the Ohio case applies to his lawsuit.
The high court has yet to say whether it will hear the case.
The other major lawsuit deals with the Kamehameha Schools admissions policy,
which is under challenge by lawyers for an unnamed, non-Native Hawaiian
teenager and his mother.
In a 2-1 decision in August last year, a three-member panel of the 9th
Circuit held that the school's policy of admitting only Native Hawaiians violate
the federal civil rights law.
That decision, however, was withdrawn when the 9th Circuit agreed to rehear
the case with an "en banc" panel of 15 appeals court judges. The hearing is
scheduled for June 20 in San Francisco.
In that case, Kamehameha Schools, a charitable trust, has acknowledged that
its policy is based on race, but is justified to remedy the social, economic
and educational disadvantages of Native Hawaiians.
John Goemans, one of the lawyers for the teenager as well as Big Island
rancher Harold "Freddy" Rice, whose challenge to the OHA voting led to the high
court's 2000 ruling bearing his name, Rice v. Cayetano, said he doesn't think
the lack of Akaka legislation has any bearing on the Kamehameha Schools case.
Eric Grant, a California lawyer and lead counsel for the teenager, agrees.
"It removes a potential distraction," he said.
But Van d**e, one of OHA's lawyers and a consultant to Kamehameha Schools in
its case, said the passage of the Akaka legislation would have helped the
charitable trust, although he believes the schools have enough of a case to
prevail.
FLURRY OF LAWSUITS
The legislation would have made it much clearer that the courts — in
interpreting and applying the federal civil rights law — should defer to Congress'
recognition of Native Hawaiians in allowing the private educational entity to
defend its admission practices, Van d**e said.
One of the school's main contentions is that Congress has already recognized
racial preferences are permissible for a private educational institution by
authorizing federal funds for loans and scholarships exclusively to Native
Hawaiians.
Other lawsuits were filed in the wake of the Rice v. Cayetano ruling.
One was filed for 14 Hawai'i residents, including Ken Conklin, a
non-Hawaiian who wanted to run for the OHA trusteeship. It led to U.S. District Judge
Helen Gillmor declaring unconstitutional the ban on non-Hawaiians running for
OHA trusteeships, opening the office to other ethnic groups.
Another suit was filed by Patrick Barrett, a Mo'ili'ili resident, who
unsuccessfully filed for an OHA loan.
He contested the constitutionality of OHA serving only Native Hawaiians, but
Barrett's suit was dismissed before arguments on the merits of his case.
U.S. District Judge David Ezra found that Barrett could not establish that the
rejection was based on race because his loan application was insufficient.
In 2003, the 9th Circuit affirmed the dismissal.
CHALLENGES REMAIN
Burgess said even if the Arakaki suit is thrown out because taxpayers don't
have standing to sue, there will be other challenges, with or without the
Akaka bill becoming law. Burgess maintains that the Rice v. Cayetano decision
would still bar preferential treatment for one ethnic group.
"It'll be a long, slow process, but the challenges will continue," he said.
"Those (government-funded) programs have no future."
He said the challenge might include someone who properly applies for any of
those loan or educational programs.
"There are people who are prepared to go through that slower process if we
have to," he said.
Van d**e, however, believes the Akaka bill, by recognizing Native Hawaiians
as a political entity, would bring an end to the legal challenges.
"The Akaka bill would have been very important simply to allow OHA and
Kamehameha Schools and Hawaiian groups to get back to trying to achieve their
mission rather than taking this rear guard action to defend their programs," he
said.
Reach Ken Kobayashi at _kkobayashi@honoluluadvertiser.com_
(mailto:kkobayashi@honoluluadvertiser.com) .
_http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060611/NEWS01/
606110368/1001/NEWS_
(http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060611/NEWS01/606110368/1001/NEWS)
Posted by: "MIKECHEROKEE@aol.com" MIKECHEROKEE@aol.com unitednative
Sun Jun 11, 2006 5:21 pm (PST)
United Native America has emailed the reporter that posted this report, we
have asked for them to give UNA a chance to respond to this issue, we will let
you know what happens!
_http://www.unitednativeamerica.com/issues/HR_309_Native_Hawaiian.html_
(http://www.unitednativeamerica.com/issues/HR_309_Native_Hawaiian.html)
Suits will continue without Akaka bill
In February 2000, the U.S. Supreme Court issued a landmark decision for
Hawai'i, saying that serving as a trustee with the Office of Hawaiian Affairs
cannot be restricted to Native Hawaiians.
A major point of the ruling was that the restriction was unconstitutional
because it was based on race, not on a recognition that Native Hawaiians
deserve treatment as a political entity such as Native American tribes.
The decision led to fears that government programs for Native Hawaiian
programs would be in jeopardy. It prompted U.S. Sen. Daniel K. Akaka in July of
that year to introduce the bill that would essentially provide federal
recognition to Native Hawaiians in an attempt to defuse the high court's decision.
But after six years, the bill named for its sponsor still languishes in
Congress, stalled now that the U.S. Senate last week refused to force a vote on
the legislation.
The setback for the bill means that the U.S. Supreme Court's pronouncement
that Native Hawaiians are not a political entity remains the law of the land.
Because the legal landscape for Native Hawaiians remains the same, attorneys
don't believe the Senate action will have a direct impact on two major
federal pending court cases, one challenging Native Hawaiian programs funded by
the state, the other addressing Kamehameha Schools admissions policy.
But more legal challenges can be expected in the future, according to H.
William Burgess, an attorney in one of the two cases who filed a taxpayer
lawsuit challenging state money going to the Office of Hawaiian Affairs.
"The challenges will continue until everybody in Hawai'i is required to
follow the same rules," Burgess said.
He said those challenges would be filed even without the Akaka legislation,
but Akaka bill supporters believe the legislation would deter or doom those
future suits.
"It would bring the litigation to a quick close," said Jon Van d**e, a
University of Hawai'i law professor who has written in support of the bill.
FEDERAL RECOGNITION
The Akaka bill would establish a process for the federal government to
formally recognize the 400,000 Native Hawaiians here and elsewhere as an
indigenous people similar to American Indians and Alaska Natives. It would also lay
out the procedure for a Native Hawaiian government that could negotiate with
the United States and Hawai'i over land use and other rights.
Burgess, head of a loosely knit group called Aloha for All, is the lawyer
representing Earl F. Arakaki and about a dozen others who challenged state
government funding for OHA and the Hawaiian Home Lands program.
Although both sides are asking the U.S. Supreme Court to review the case,
the merits of the lawsuit have yet to be decided.
The issue is whether taxpayers have legal standing to challenge the
programs, a matter separate from whether Native Hawaiians are recognized by the
federal government as an indigenous people.
The suit had been tossed by U.S. District Judge Susan Mollway Oki in 2004.
In September, the 9th U.S. Circuit Court of Appeals reinstated only a sliver
of the suit, the part challenging state general funds going to OHA.
Lawyers for the state and OHA believe a recent U.S. Supreme Court decision
in an Ohio taxpayer case decided in May means the end of Burgess' challenge.
Burgess, however, doesn't believe the Ohio case applies to his lawsuit.
The high court has yet to say whether it will hear the case.
The other major lawsuit deals with the Kamehameha Schools admissions policy,
which is under challenge by lawyers for an unnamed, non-Native Hawaiian
teenager and his mother.
In a 2-1 decision in August last year, a three-member panel of the 9th
Circuit held that the school's policy of admitting only Native Hawaiians violate
the federal civil rights law.
That decision, however, was withdrawn when the 9th Circuit agreed to rehear
the case with an "en banc" panel of 15 appeals court judges. The hearing is
scheduled for June 20 in San Francisco.
In that case, Kamehameha Schools, a charitable trust, has acknowledged that
its policy is based on race, but is justified to remedy the social, economic
and educational disadvantages of Native Hawaiians.
John Goemans, one of the lawyers for the teenager as well as Big Island
rancher Harold "Freddy" Rice, whose challenge to the OHA voting led to the high
court's 2000 ruling bearing his name, Rice v. Cayetano, said he doesn't think
the lack of Akaka legislation has any bearing on the Kamehameha Schools case.
Eric Grant, a California lawyer and lead counsel for the teenager, agrees.
"It removes a potential distraction," he said.
But Van d**e, one of OHA's lawyers and a consultant to Kamehameha Schools in
its case, said the passage of the Akaka legislation would have helped the
charitable trust, although he believes the schools have enough of a case to
prevail.
FLURRY OF LAWSUITS
The legislation would have made it much clearer that the courts — in
interpreting and applying the federal civil rights law — should defer to Congress'
recognition of Native Hawaiians in allowing the private educational entity to
defend its admission practices, Van d**e said.
One of the school's main contentions is that Congress has already recognized
racial preferences are permissible for a private educational institution by
authorizing federal funds for loans and scholarships exclusively to Native
Hawaiians.
Other lawsuits were filed in the wake of the Rice v. Cayetano ruling.
One was filed for 14 Hawai'i residents, including Ken Conklin, a
non-Hawaiian who wanted to run for the OHA trusteeship. It led to U.S. District Judge
Helen Gillmor declaring unconstitutional the ban on non-Hawaiians running for
OHA trusteeships, opening the office to other ethnic groups.
Another suit was filed by Patrick Barrett, a Mo'ili'ili resident, who
unsuccessfully filed for an OHA loan.
He contested the constitutionality of OHA serving only Native Hawaiians, but
Barrett's suit was dismissed before arguments on the merits of his case.
U.S. District Judge David Ezra found that Barrett could not establish that the
rejection was based on race because his loan application was insufficient.
In 2003, the 9th Circuit affirmed the dismissal.
CHALLENGES REMAIN
Burgess said even if the Arakaki suit is thrown out because taxpayers don't
have standing to sue, there will be other challenges, with or without the
Akaka bill becoming law. Burgess maintains that the Rice v. Cayetano decision
would still bar preferential treatment for one ethnic group.
"It'll be a long, slow process, but the challenges will continue," he said.
"Those (government-funded) programs have no future."
He said the challenge might include someone who properly applies for any of
those loan or educational programs.
"There are people who are prepared to go through that slower process if we
have to," he said.
Van d**e, however, believes the Akaka bill, by recognizing Native Hawaiians
as a political entity, would bring an end to the legal challenges.
"The Akaka bill would have been very important simply to allow OHA and
Kamehameha Schools and Hawaiian groups to get back to trying to achieve their
mission rather than taking this rear guard action to defend their programs," he
said.
Reach Ken Kobayashi at _kkobayashi@honoluluadvertiser.com_
(mailto:kkobayashi@honoluluadvertiser.com) .
_http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060611/NEWS01/
606110368/1001/NEWS_
(http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060611/NEWS01/606110368/1001/NEWS)