Ruling hailed as
‘victory for Hawaiians’

A U.S. appeals court upholds
the dismissal of suits
challenging entitlement programs

The 9th Circuit Court of Appeals has upheld U.S. Chief District Judge David Ezra's dismissal of two lawsuits challenging Hawaiian entitlements.

The appellate court agreed yesterday that plaintiffs John Carroll and Patrick Barrett, who filed separate lawsuits in October 2000 that were later consolidated, did not have standing to challenge the constitutionality of Hawaiian programs.

Carroll, a Republican who ran for U.S. Sen. Daniel Akaka's seat in 2000, sued to stop state ceded-land payments to the Office of Hawaiian Affairs, arguing that the office serves only Hawaiians and was established by a discriminatory state law.

Ezra dismissed the case, ruling Carroll had not suffered any injury and had a philosophical grievance that should be addressed by the Legislature.

Barrett, a Moiliili resident, challenged the validity of the 1978 state constitutional amendment creating OHA and the enactment by Congress in 1921 of the Hawaiian Homes Commission.

He was seeking equal access to benefits provided by those agencies to only native Hawaiians.

Ezra tossed out the suit, finding that Barrett had not shown he was "ready and able" to benefit from an OHA small-business loan or had standing to complain he was being denied access to Hawaiian homestead land because he is not a native Hawaiian.

Barrett had not applied for an OHA small-business loan or a Hawaiian Home Lands lease before filing the suit. He did so after filing the complaint.

Sherry Broder, lead attorney for OHA, called the ruling an "important victory for Hawaiians and their continuing battle to preserve Hawaiian rights."

"The most important part of the ruling is that they held specifically that to challenge the Hawaiian Homes Commission Act, the challengers have to address the Admissions Act and argue that it's unconstitutional," Broder said.

Ezra had ruled Barrett must sue the United States in order to challenge the Hawaiian Home Lands program.

The Hawaiian Homes Commission Act set aside 200,000 acres for native Hawaiian homesteads. When Hawaii became a state in 1959, the state agreed to adopt the Hawaiian Homes Commission Act as part of its constitution and agreed that one of the purposes of the public land trust would be to better the conditions of native Hawaiians.

The Admissions Act requires that recipients of Hawaiian Homestead leases be native Hawaiians.

State Attorney General Mark Bennett said he was pleased the 9th Circuit sided with Ezra. He said he hopes similar court challenges to programs benefiting Hawaiians will also be dismissed.

A hearing is scheduled for Monday before U.S. District Judge Susan Mollway in a lawsuit alleging that OHA and the state Department of Hawaiian Home Lands are unconstitutional because the state agencies are race-based.

Bennett was not clear whether the 9th Circuit's decision would have any impact on those pending cases, but said it was a step in the right direction.

Neither Barrett nor Carroll could be reached for comment.


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