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Lawsuit threatens
Hawaiian agencies’
very existence

The Rice decision made
OHA and the Hawaiian Homes
Commission unconstitutional,
it claims

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By Pat Omandam
Star-Bulletin

Officials at the two major agencies that assist native Hawaiians in the state have told lawmakers there are serious concerns about a lawsuit that could strike down the constitutional provision that created them.

Office of Hawaiian Affairs Chairwoman Haunani Apoliona told the House Judiciary and Hawaiian Affairs Committee yesterday that a lawsuit filed by Moiliili resident Patrick Barrett claims OHA and the Hawaiian Homes Commission are unconstitutional because of last year's Rice decision.

Barrett's lawsuit challenges the validity of Article 12 of the state Constitution and seeks a preliminary injunction to prohibit the state from funding and continuing any programs or agencies created under the article until a decision in a trial.

OHA, the state Council of Hawaiian Homestead Associations and a handful of other organizations want to intervene in the case. A court ruling is expected this month on whether any of them will be allowed to defend the case along with the state attorney general's office when the hearing on the preliminary injunction is held March 12.

"It's a very dangerous situation," Apoliona said.

"We must do what we must do."

In the meantime, homesteaders have planned a massive rally at the state Capitol on Monday to raise awareness of the case. Hundreds have gathered at homestead meetings in recent weeks to learn more about the case and what they can do.

One of the options homesteaders have discussed is civil disobedience.

Yesterday, lawmakers wondered if legislation that "divests" OHA as a state agency would help. The OHA board has not taken a position on such an idea, but wants to work with the Legislature on it, Apoliona said.

Hawaiian Homes Chairman Ray Soon said there is grave concern about the Barrett case, but he will not let it stop the agency from putting more Hawaiians on homestead land.

Soon said the commission last December approved a $600,000 loan to the state Council of Hawaiian Homestead Associations so it could hire attorneys to help the group intervene in the Barrett case.

But some have complained the statewide council does not represent all of the homesteaders and question its timeliness to intervene. They also believe the money should be spent on the homesteads and not on litigation.

Soon responded yesterday that the commission awarded the loan to the homestead council because it is the most broad-based Hawaiian group (some 30,000 people) and it has tangible assets -- homestead lots -- to lose in an adverse ruling in the Barrett case. He said the council will have to repay the loan.

State Judiciary Chairman Eric Hamakawa (D, Hilo) said his committee will discuss the issue further during this session.