Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 10, 1 October 2003 — Arakaki hearing continued in light of Barrett appeal ruling [ARTICLE]

Arakaki hearing continued in light of Barrett appeal ruling

The United States may re-enter as a party to litigation

By Manu Boyd The morning after thousands gathered at Waikīkī to march for justice for Native Hawaiian causes, the federal courtroom of Judge Susan Oki Mollway in Honolulu was abuzz with discussion on the landmark case that threatens the existence of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands — Amkaki v. Lingle. Although hundreds of Hawaiians had planned a vigil and a quiet

protest at the Jonah Kūhiō Kalaniana'ole Federal Building that morning, riding on the momentum of the weekend's events in Waikīkī, the court continued the hearing and instead conducted a status conference to determine how to proceed in the complex challenge. In July 2000, 16 plaintiffs, including attorney William Burgess and overthrow conspirator descendant Thurston Twigg-Smith, filed the Amkaki v. Cayetano suit (whieh heeame Amkaki v. Lingle

following last year's gubernatorial election), alleging that taxpayer revenues, whieh make up part of the state's general fund, should not be used to fund programs exclusively serving any single racial group — in this case, Hawaiians. The Amkaki lawsuit also alleges that Article XII of the state constitution, whieh makes provision for the Hawaiian Homes Commission and the Office of Hawaiian Affairs are unconstitutional based on the equal protection clause of the Fourteenth Amendment.

See BARRETT on page 5

BARRETT from page 1 On Sept. 2, just days before the scheduled Arakaki hearing, an opinion was filed by the United States Court of Appeals for the Ninth Circuit, whieh upheld U.S. District Chief Judge Ezra's dismissal of complaints filed by John Carroll and Patrick Barrett also challenging the constitutionality of Article XII. The Ninth Circuit Court determined that the plaintiffs lacked standing, and stated that the court should not provide forums to persons airing generalized political grievances and who are not able to demonstrate individual injuries. In addition, the absence of the United States as a party in the suit further affirmed the plaintiffs' laek of standing. Two Congressional acts were challenged in the Barrett and CarroII cases, as well as Arakaki: the Admission Act of 1959 and the Hawaiian Homes Commission Act of 1920. The United States, as a party to this action, was granted a motion for an extension of time. A hearing is set for Nov. 17

before Judge Mollway on the United States' re-entry into Arakaki, and whether or not the plaintiffs ean force the federal govemment into litigation. In Barrett v. State, Patrick Barrett asserted that he was denied an OHA business loan and a Hawaiian Homes lease, and claimed that Article XII of the State Constitution violates the Fourteenth Amendment of the U.S. Constitution because it permits government benefits on the basis of race. Similarly, Carroll vs. Nakatani challenged the existence of the Office of Hawaiian Affairs based on racial discrimination. Filed in October 2000 as CarroII v. Nakatani and Barrett v. State of Hawai'i, the cases were later combined. In March 2001, OHA filed a motion to dismiss the lawsuit. On July 12, 2001, Judge Ezra dismissed Barrett v. State citing that the plaintiffs lacked standing. Barrett then filed an appeal. The appeal was argued at the appellate court on

Jan. 14, 2003, before Circuit Judges Procter Hug Jr., Arthur F. Alarcon and Susan P. Graber. OHA attorneys Sherry Broder and Robert Klein, along with Deputy Attorney General Girard D. Fau argued on behalf of the Office of Hawaiian Affairs, the 'īlio'ulaokalani Coalition and others. The opinion was written by Judge Hug and issued Sept. 2, 2003. Of the Barrett ruling, whieh significantly impacts the pending Arakaki case, OHA Chairperson Haunani Apoliona was hopeful, saying, "I think it's very significant that the ruling was made today — Queen Fili'uokalani's birthday. It speaks to the protection of Hawaiian benefits and is another step in the right direction. We hope this will help in other legal challenges to Native Hawaiians. A hearing on the first round of motions in Arakaki v. Lingle is scheduled for Jan. 12, 2004. ■