Saturday, July 14, 2001

Ruling in Barrett case didn’t
resolve constitutional issue

The issue: U.S. District Judge David Ezra
has dismissed on technical grounds a lawsuit
challenging Hawaiian programs.

FEDERAL Judge David Ezra's dismissal of a lawsuit challenging government entitlements to Hawaiians did not resolve the constitutional issues involved. Those questions may be addressed in future court proceedings, which are promised. A better way to resolve them would be through federal legislation proposed by Senator Akaka that would clarify Hawaiians' legal status, providing a measure of sovereignty and qualification for programs similar to those available to Native Americans on the mainland.

Patrick Barrett, a 53-year-old Moiliili resident, filed the lawsuit last year challenging the validity of the 1978 state constitutional amendment creating the Office of Hawaiian Affairs and the enactment by Congress in 1921 of the Hawaiian Homes Commission. The lawsuit followed the U.S. Supreme Court's ruling earlier in the year, in Rice vs. Cayetano, striking down OHA's voting restriction in elections of its trustees to native Hawaiians. The ruling opened the polling booths to all voters in the state and led to trustee candidacies regardless of race.

The Rice and Barrett cases both involve the issue of racial discrimination but are not identical. In the Rice case, the high court found the state in violation of the 15th Amendment right of Americans to vote regardless of race. Barrett contends that OHA and the Hawaiian Homes Commission programs deny him equal protection under the law guaranteed to all citizens by the 14th Amendment. The argument that this is a distinction without much difference is strong, and it is not weakened an iota by Ezra's dismissal of the suit.

The judge threw out the suit because Barrett had not shown that he had been a victim of discrimination; Barrett had not completed applications for an OHA small-business loan or a Hawaiian Home Lands lease before filing the suit. OHA attorney Sherry Broader and state Deputy Attorney General Girard Lau branded the Barrett suit as a philosophical disagreement with the Hawaiians-only programs rather than a complaint by a serious applicant. Ezra agreed.

Patrick Hanifin, Barrett's attorney, said he will proceed with an appeal of Ezra's ruling or file a new lawsuit satisfying the judge's concerns. Hanifin predicted he will prevail in the end.

Hawaiians' celebration of victory against the court challenge is premature. They will not be assured protection against disruption of OHA and Hawaiian Homes Commission programs until Congress recognizes Hawaiians as a political class of people rooted in their native status. Disagreement about various aspects of sovereignty should take a back seat to that basic necessity.

Published by Oahu Publications Inc., a subsidiary of Black Press.

Don Kendall, President

John Flanagan, publisher and editor in chief 529-4748;
Frank Bridgewater, managing editor 529-4791;
Michael Rovner,
assistant managing editor 529-4768;
Lucy Young-Oda, assistant managing editor 529-4762;

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