More on Hawaii Reverse Discrimination

A few days ago, I reported on Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 416 F.3d 1025 (9th Cir. 2005), holding that the way in which a charitable trust was administered for the special benefit of native Hawaiins was discriminatory because it barred individuals from a non-preferred race from receiving benefits.

Although not a trust case, the same court extended the same principle on Wednesday (Aug. 31, 2005) in the case of Arakaki v. Lingle.  Here are some excerpts from the court’s opinion:

In this case we are called on, yet again, to hear a challenge to state programs restricting benefits to “native Hawaiians” or “Hawaiians.” * * *

Plaintiffs in this case are citizens of the State of Hawaii who allege that various state programs preferentially treat persons of Hawaiian ancestry, in violation of the Fifth and Fourteenth Amendments, 42 U.S.C. § 1983, and the terms of a public land trust. Plaintiffs brought suit against the Department of Hawaiian Home Lands (“DHHL”), the Hawaiian
Homes Commission (“HHC”), the Office of Hawaiian Affairs (“OHA”), various state officers, and the United States. Plaintiffs claim standing to sue as taxpayers and as beneficiaries of
the public land trust. In a series of orders, the district court held that Plaintiffs lacked standing to raise certain claims and that Plaintiffs’ remaining claims raised a nonjusticiable political question, and dismissed the entire lawsuit. * * * The district court also issued three
unpublished orders, dated December 16, 2003, January 26, 2004, and May 5, 2004, which this opinion will address.

We affirm in part and reverse in part. We hold that Plaintiffs lack standing to sue the federal government and that the district court therefore correctly dismissed all claims to which the United States is a named party or an indispensable party. We affirm the district court in finding that Plaintiffs have demonstrated standing as state taxpayers to challenge those
state programs that are funded by state tax revenue and for which the United States is not an indispensable party. Plaintiffs therefore have standing to bring a suit claiming that the
OHA programs that are funded by state tax revenue violate the Equal Protection Clause of the Fourteenth Amendment.

However, we reverse the district court’s dismissal of that claim on political question grounds and hold that a challenge to the appropriation of tax revenue to the OHA does not raise
a nonjusticiable political question. We therefore affirm in part, reverse in part, and remand.