Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 4, 1 April 2001 — What's wrong with this picture? [ARTICLE+ILLUSTRATION]

What's wrong with this picture?

IOHA lost the Rice case at the U.S. Supreme Court in • February 2000 by a vote of 7-2. 2. Republican Presidents appointed seven of the nine sitting justices of the U.S. Supreme Court; 3. Democratic Presidents appointed the other two justices of the U.S Supreme Court; 4. The same justices of the U.S. Supreme Court who decided Rice continue to sit as U.S. Supreme Court justices today; 5. Former President George Bush supported the Department of the Interior Jan. 19, 1993 opinion, that there does not exist any trust relationship between the United States and Native Hawaiians. 6. The United States of Amenea, represented by Seth Waxman, the solicitor general at the time, supported the OHA position in the Rice case; 7. John Ashcroft, who as a U.S. Senator voted against the civil rights of minorities, is now the U.S. Attorney General; 8. According to the The Honolulu Advertiser (1-30-01, & 2-12-01), Attorney Ted 01sen, who represented

President Bush before the U.S. Supreme Court and also argued against the OHA position in the Rice case, may become the next solicitor general; 9. According the Honolulu StarBulletin (1-31-01), OHA is confident of victory in the Barrett and Carroll lawsuits challenging OHA's entitlements; and 10. The Rice case cost OHA $500,000 to lose. The Barrett and Carroll defenses will conservatively cost OHA $ 1 milion should it reach the U.S. Supreme Court and an additional $1 million of its share of attorney fees to the plaintiffs should OHA lose again. On Jan. 4, OHA trustees appropriated $200,000 to pay for legal fees to prepare legal arguments as a defendant in both cases. Sadly, nothing's wrong with the picture because numbers one through seven are fact. Number eight is probable. Number nine is pure fiction on the assumption that victory is to be attained in the U.S. Supreme Courthouse. And number ten is just plain disgraceful.

A judicial victory by OHA in either case is unattainable for all the reasons stated in numbers one through eight. Moreover, the lawyers for Barrett and Carroll will argue that because OHA is a state agency and serves only Hawaiians, OHA violates the equal protection section of the U.S. Constitution. The reality is that just as in the Rice case, where OHA was found to violate the 15th amendment of the Constitution, the exact same Supreme Court justices will rule that OHA also violates the 14th amendment, eommonly known as the Equal Protection amendment of the U.S. Constitution. Unless OHA and others look to solutions outside of the courthouse the only winners will be the lawyers who, should the case reach the U.S. Supreme Court (like the Rice case) will reap millions upon millions of dollars, all of whieh will be financed by taxpayer state funds and assets from the OHA trust - monies that could and should be better spent on helping Hawaiian people. Onee the court cases begin OHA's lawyers will be limited to defending the rules of the court. By

those rules lawyers will be strictly limited only to procedures and matters of law. Moreover, lawsuits and constitutional challenges will eontinue to plague OHA. OHA cannot rely solely on the lawyers to defend itself. It must look to pro-active solutions by thinking "outside of the box." OHA must look to a political solution. It frankly must appeal to both sides of the political aisle for ideas, proposals and solutions. It must lobby the Hawai'i Legislature as well as the U.S. Congress. It must consider legislative proposals from Republicans and Democrats. OHA must seek out experts in the corporate world for help. It must look to other trusts for advice. It must search out any and all alternative means to resolve these cases out of the courthouse. It must protect its trust assets by eonsidering any and all thoughts and ideas. And it must do it now. Tomorrow will be too late. ■ 4r

Clayton Hee

Trustee, O'ahu