Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 3, 1 March 2001 — Carroll/Barrett: THE ROAD AHEAD [ARTICLE+ILLUSTRATION]

Carroll/Barrett: THE ROAD AHEAD

By Manu Boyd May 2 is the rescheduled date for the injunction hearing in the Carroll/Barrett cases - Carroll vs. Nakatani and Barrett vs. State of Hawai'i - challenging OHA and the constitutionality of Article XII in the State Constitution. OriginaIIy scheduled for March 12, the extension was granted by Judge David Ezra at a recent status conferenee to afford more time to fully address issues, set schedules and mark exhibits. At stake are the Office of Hawaiian Affairs, the State Department of Hawaiian Home Lands, and traditional and customary gathering rights of Hawaiians. The challenge alleges that article XII of the State Constitution whieh provides for these Hawaiian programs and rights is unconstitutional based on the Fourteenth Amendment of the United States Constitution. In January, OHA, the State Council of Hawaiian Homesteaders Association and the 'īlio'ulaokalani Coalition, were granted permissive intervenor status, and have since been working cIosely to develop their collective defense strategy. According to OHA attorney Sherry

Broder, regular meetings are also being held with the State Attorney General's OfTice. "We are making arguments that Native Hawaiians are analogous to Native Americans," said Broder. One exhibit includes language from the Hawaiian Homelands Homeownership Act of 2000 passed by Congress Dec. 27 whieh strongly states the Hawaiians" case saying in section 13 that, "the United States has recognized and reaffirmed that Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a onee sovereign nation as to whom the United Sates has established a trust relationship," and, "TTie politieal status of native Hawaiians is comparable to that of Amenean Indians." It further states in Section 15 that "in the area of housing, the Untied States has recognized and reaffirmed the political relationship with the Hawaiian people through the enactment of the Hawaiian Homes commission Act of 1920." It is expected that after the May 2 injunction hearing - no matter who prevails - an appeal will be filed at the 9th Circuit Court of Appeals. A subsequent appeal could carry the

case to the United States Supreme Court. "The fact that the Supreme Court accepted and ruled in the Rice case magnifies many times over the probability that the Supreme Court would consider this case," said Broder. "Ted 01son, who represented Freddy Rice in Rice vs. Cayetano. has been nominated to the post of solicitor general, whieh represents the United States in U.S. Supreme Court Cases," she explained. The post in the Department of Justice supervises appellale work for the federal government, including arguments before the Supreme Court. In the Rice case, 01son was hired by the Campaign for a Color-Blind America and argued against the interests of OHA and the State of Hawai'i. In Oct. 1999, during oral arguments in the Rice case before the Supreme Court, then-Solicitor General Seth Waxman argued in favor of Hawaiians. It is expected if any challenge of Native Hawaiian rights or programs reaches the Supreme Court in the next four years, 01son will likely not favor Hawaiians, based on his position in Rice. Meanwhile, Hawai'i's congressional delegates are gaining support for federal recognition of Native

Hawaiians, one way to ensure the protection of native rights and entitlements. On Feb. 14, the Hawaiian recognition bill was introduced in the House by Reps. Neil Abercrombie and Patsy Mink. While the measure was introduced in the Senate by Sens. Inouye and Akaka in January, Abercrombie waited on the measure until he could get co-sponsors. Democratic co-sponsors are Dale Kildee (Michigan), chair of the House Native American Caucus; Niek Rahal (W. Virginia), member of the Resources Committee; and Eni Faleomavaega (American Sāmoa). Republican co-sponsors are James Hansen (Utah), chair, House Resources Committee; and Don Young (Alaska). With federal litigation looming and more potential challenges on the horizon, Hawaiians are coalescing. According to leaders throughout the Hawaiian community, grassroots support and widespread education on the unique status of Native Hawaiians as the indigenous people of Hawai'i with a political relationship with the federal government is imperative. ■

At a press conference Feb. 5, Hawaiian organiza1ion representatives mode a joint statement of sofidarity «ri ttie nxitter of Carro)l/Barrett. Pictured ieft to right are Sherry Broder, OHA attorney; Joby Yamaguchi. deputy, DHHL; Robert Klein. attorney: Cort ChristKjnsen. attomey: Kc*io'onei Panoke and Vctoria Hoit-Takamine (at podium), 'īlio'ulaokalani Coafition and OHA Trustees Powena Akana. John Waihe'e IV 0n bock). Haunani Apofiona. Oz Stender, Co»ette MoctxxJo and Donatd Catakjna Photo: Manu 8oyd