Barrett loses Supporters of government programs for native Hawaiians may have won the latest court battle, but the war over those entitlements will likely continue.
OHA lawsuit
U.S. Judge David Ezra rules
a challenge to Hawaiian programs
has no legal standingBy Pat Omandam
pomandam@starbulletin.com"Basically, this issue is not going to go away, and neither are we," said local attorney Patrick Hanafin.
U.S. Chief Judge David Alan Ezra yesterday dismissed a lawsuit filed last year by Hanafin's client, Patrick Barrett of Moiliili. Barrett was seeking equal access to benefits provided only to native Hawaiians by the Office of Hawaiian Affairs and the Hawaiian Homes Commission. He also wanted equal access to native gathering rights afforded to Hawaiian cultural and religious practitioners.
Ezra said Barrett, who is on 100 percent disability by the Social Security Administration, did not have a genuine complaint before the federal court and therefore lacked standing to bring his lawsuit.
Barrett did not attend the hearing. Ezra ruled against Barrett on three procedural motions that decided whether the case would have gone to trial on its merits. On the first motion, the judge said Barrett did not have standing to challenge an OHA business loan program because he could not show he would benefit from such a loan.
"Plaintiff Barrett cannot establish that he is 'ready and able' to benefit from an OHA business start-up loan," Ezra said in his 32-page ruling.
"He has shown no real initiative in starting a new business -- he has not sought alternative sources of financing, he has not formulated even the most basic of business plans, and could offer no real details about his proposed business, among other things," he said.
Ezra then ruled Barrett did not have standing to complain he is being denied access to homestead lands because he is not a native Hawaiian. The judge ruled there was not any way for the court to offer redress to Barrett's grievance because the United States, which created the Hawaiian Homes Commission Act of 1920, was not named a defendant in the case.
Finally, the judge ruled Barrett has no standing to challenge native gathering rights because he admits he never has attempted to gather and has no plans to do so.
Ezra stressed yesterday his rulings do not address whether these laws are constitutional on their merits, but that the challenge must come from someone who has a real cause and not a philosophical difference with them. The judge said his bias is to let cases go to trial unless the record is clear the plaintiff has no standing, such as in this case.
"I believe my ruling is correct. If it isn't, I'm sure the 9th Circuit Court of Appeal will tell me so," Ezra said.
The U.S. Supreme Court ruled on Feb. 23, 2000, in the Rice vs. Cayetano case, that the state's Hawaiians-only OHA elections were unconstitutional, overturning decisions by Judge Ezra and the 9th Circuit Court of Appeals, which had ruled in favor of the elections.
Subsequently, a U.S. district judge in August 2000 opened OHA elections to candidates of any ethnicity. Barrett's lawsuit was filed that October as the next step following the Rice decision.
Hanafin said Ezra's rulings yesterday were a setback but that the judge has provided a road map on how to properly challenge these programs. He said the next step may be to appeal the dismissal or file a new lawsuit with new plaintiffs, or both.
OHA attorney Sherry Broder said the agency will be ready for them.
"On behalf of the Office of Hawaiian Affairs, I can also say quite clearly that we are prepared to defend the case on the merits, and that the history of the native Hawaiian people is the same as the history of other native peoples," Broder said.
OHA Chairwoman Haunani Apoliona said Hawaiians must continue to be diligent and focus on federal legislation that would grant political status to native Hawaiians, thereby protecting the federal programs that already serve them.
Office of Hawaiian Affairs
