Hawaiian benefits THE FEDERAL COURT CASE on the constitutionality of government benefits for native Hawaiians, dubbed by some as "Rice II," will get its first big hearing tomorrow before U.S. District Chief Judge David Alan Ezra.
face further court
challenge
A federal judge will consider
tomorrow whether OHA and
homes commission are
constitutionalBy Pat Omandam
pomandam@starbulletin.comJudge Ezra is expected to rule on three jurisdictional issues raised by both sides in the case, which was filed Oct. 3 by Moiliili resident Patrick Barrett.
His rulings will determine whether the case moves to a trial on the merits of the complaint or is dismissed.
"We encourage all who support Hawaiian interests -- be Hawaiian or non-Hawaiian -- to come to Ezra's court (tomorrow) to hear the arguments," Haunani Apoliona said.
"You'll see Hawaiian institutions and interests working together," said the Office of Hawaiian Affairs chairwoman.
Barrett, 53, has challenged the constitutionality of the OHA and the Hawaiian Homes Commission, and is using the landmark Feb. 23, 2000, Rice vs. Cayetano ruling by the U.S. Supreme Court as the foundation for his argument.
That ruling struck down OHA's Hawaiians-only voting restriction, which was upheld in lower courts before it was appealed and reversed by the U.S. Supreme Court. The high court's decision led to a subsequent U.S. District Court ruling last fall that opened OHA elections to candidates of any ethnicity, not just Hawaiian.
Hawaii attorney Patrick W. Hanifin explained last week the Rice decision defined Hawaiians and native Hawaiians as racial classifications. Since government programs can't discriminate by race, programs offered by OHA and the Department of Hawaiian Home Lands now should be open to everyone without regard to race or ancestry, he said.
Barrett's complaint, he added, has been largely misunderstood by Hawaiians, many of whom believe he wants to eliminate all benefits to Hawaiians.
Instead, what he is seeking is equal treatment of his applications to OHA for a micro-loan and to the Hawaiian Homes Commission for a homestead, he said.
The OHA program provides loans of up to $75,000 to Hawaiians who want to start or expand a business but who are unable to secure conventional financing through traditional means.
Barrett wants a loan from OHA to open a printing business, a trade he learned during 30 years in Hawaii.
Hanifin wants Ezra to approve an amendment to Barrett's complaint so his intentions are "unmistakably clear."
"What Mr. Barrett wants is to open these programs up, not to blow them up," Hanifin said. "We do not believe that there is any way that OHA can explain why people who need money, need money more because of their ancestry."
Attorneys for the state, OHA, Hawaiian homesteaders and native gatherers, however, want the case dismissed for lack of merit.
OHA board counsel Sherry Broder said Barrett hasn't shown he has a bonafide interest in receiving any of the benefits given to Hawaiians by OHA or Hawaiian Homes. His complaint, she said, is more a philosophical disagreement with native Hawaiian programs.
Broder added the benefits these government agencies provide to Hawaii's native people can't begin to meet their needs, and it would be impossible to do so if they were expanded to the general population.
"I think if you take a look at the difficulties and the needs that native Hawaiians experience today, you'll see that expanding the beneficiary class would be very detrimental," she said.
State Deputy Attorney General Girard Lau said Barrett has no standing because he did not follow through with the application process and is not serious about seeking benefits from OHA. Barrett filed his lawsuit 25 days before he applied for a homestead, raising the question of how he could have suffered legal injury to file a lawsuit if he never applied.
Native Hawaiian Legal Corp. attorney Carl Christensen, who represents native gatherers of the 'Ilio'ulaokalani Coalition, which has been allowed to intervene in the case, added Barrett wants to engage in customary and traditional gathering but has said it is something he has never done and probably will never do.
The State Council of Hawaiian Homestead Associations is another intervenor.
Hanifin countered there's ample case law that shows you don't have to succeed in getting benefits before you can sue, saying there is a constitutional right of equal treatment.
He said his client will probably appeal the case if Ezra dismisses the complaint.
Meanwhile, a similar complaint filed by John Carroll, an attorney and unsuccessful state Senate candidate, has been consolidated with Barrett's case. Carroll's motion to halt ceded land revenue payments to OHA from various state departments will be taken up if the Barrett complaint moves forward.
Such threats to government programs for native Hawaiians have prompted federal legislation to give them the same political standing in the U.S. government as American Indians and Alaska Natives.
If approved, the so-called Akaka Bill could allow continued access to federal programs for native Hawaiians, as well as give Hawaiians an opportunity to reorganize a native government.
U.S. Public Law 103-150