Appeals court revives Native Hawaiian trust lawsuit

Wednesday, August 22, 2007  

Native Hawaiians can sue for alleged mismanagement of their state-administered trust funds, a federal appeals court ruled earlier this month.

In a unanimous decision, the 9th Circuit Court of Appeals determined that a group of Native Hawaiians should be allowed to pursue a breach of trust case against the state Office of Hawaiian Affairs. The plaintiffs, who say the trust funds have been misspent on lobbying and other activities, want an accounting of the money.

"We thus reaffirm what we have already held and reaffirmed: that each Native Hawaiian plaintiff, as a beneficiary of the trust ... has an individual right to have the trust terms complied with, and therefore can sue ... for violation of that right," Judge Marsha S. Berzon wrote for the majority in the August 7 opinion.

The 9th Circuit pointed out that it wasn't ruling on the merits of the lawsuit filed by the Native Hawaiian plaintiffs. A lower court will have to consider whether OHA is violating state law in the way it spends its $28 million budget.

According to Virgil Day and the other plaintiffs, OHA is illegally using state funds to lobby for the Native Hawaiian recognition bill that has been pending in Congress for several years. The measure would extend the policy of self-determination to Hawaii's first inhabitants.

Day, however, claims the bill goes against state law, which requires OHA to use trust money for "the betterment of the conditions of Native Hawaiians." Under state law, a Native Hawaiian must have at least one-half Native blood.

The bill, on the other hand, would help Native Hawaiians with as low as one-fourth blood quantum. Day and his fellow plaintiffs also want OHA to limit housing and other programs to people with at least 50 percent Native blood.

Blood and race have been a major issue in the debate over Native Hawaiian recognition. The bill has been held up by Senate Republicans, who say it violates the U.S. Constitution by creating a race-based government.

The U.S. Supreme Court has already barred OHA from limiting elections for board members to Native Hawaiians. In 2000, the justices rejected arguments that Native Hawaiians should be treated the same as sovereign tribal governments in Alaska and mainland U.S.

Since then, OHA has come under fire by non-Natives who want to tap into state trust funds. The 9th Circuit, however, threw out the case, saying the non-Native plaintiffs lacked standing.

Another lawsuit over a Native-only admissions policy at the private Kamehameha Schools was before the Supreme Court until it was settled in May. The 9th Circuit said the school was justified in limiting enrollment to Native Hawaiians.

With self-determination, Native Hawaiian advocates hope to avoid these threats in the future. But the recognition bill failed an important vote last fall and Republicans have targeted other Hawaiian bills with support from the Bush administration.

Department of Justice officials have quietly opposed Native Hawaiian self-determination but the administration didn't outright come out against the recognition bill until last fall. Ted Olson, the former solicitor general at DOJ, had represented a non-Native rancher in the OHA election suit that went to the Supreme Court.

The anti-Hawaiian campaign has since been extended to urban Indians, lineal Indian descendants and certain Alaska Natives. In testimony to the Senate Indian Affairs Committee, a DOJ official said that health care for these groups could violate the U.S. Constitution.

Get the Decision:
Day v. OHA (August 7, 2007)

Recognition Bill:
Native Hawaiian Government Reorganization Act (S.310)

Relevant Links:
Office of Hawaiian Affairs - http://www.oha.org