The Office of Hawaiian Affairs has survived a serious challenge to its mission by native Hawaiians with 50 percent or more Hawaiian blood. A federal appeals court ruled this week that OHA is not constrained by the Admission Act from spending money for the benefit of all Hawaiians, regardless of blood quantum. OHA can be confident that its worthy activities can proceed undeterred.
This latest ruling is a welcome development in the long, tangled legal history of OHA and its detractors. Five years ago, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that non-Hawaiians could not contest on racial grounds OHA’s revenue from crown or public lands ceded to the state in accordance with the Admission Act. However, two years later, a different 9th Circuit panel ruled that Hawaiians with 50 percent or more Hawaiian blood could challenge how OHA is spending the money.
Some of them did. And on Monday, yet another 9th Circuit panel ruled that OHA is not required to limit its primary beneficiaries to native Hawaiians of 50 percent or more Hawaiian blood. The decision upholds a ruling by U.S. District Judge Susan Oki Mollway, and affirms that the state enjoys broad discretion in administering the provisions of the Admission Act.
The Act, which made Hawaii a state in 1959, set aside 1.8 million acres of land to be held by the state as a "public trust" in support of "one or more" of five areas of concern: public schools, development of farm and home ownership, public improvements, the provision of land for public use and "for the betterment of the conditions of native Hawaiians," as defined in the 1920 Hawaiian Homes Commission Act. State lawmakers took that to mean that 20 percent of the state revenue from those lands should go to OHA.
And while the HHCA defined native Hawaiians as those with at least 50 percent Hawaiian blood, the judicial panel noted that the state law allows OHA to work for the benefit all Hawaiians.
"So long as trust funds are used for ‘one or more’ of the numerated purposes…Congress intended to leave the manner in which the trust is managed in Hawaii’s sovereign control," Judge Raymond C. Fisher wrote in the panel’s ruling.
OHA receives more than $15 million from the state in annual ceded lands payments. To reserve that money for the handful of 50-percent-plus native Hawaiians, at the expense of all other Hawaiians, would be spectacularly unwise.
The 50-percent-plus native Hawaiians who contested the way OHA spends its revenue, including lobbying Congress in favor of Hawaiian sovereignty, may try taking their case to the U.S. Supreme Court.
But clearly OHA’s activities comply with state law, which aims to help the Hawaiians who have a legitimate stake in sovereignty—which would be all of them.