Ka Wai Ola - Office of Hawaiian Affairs, Volume 16, Number 7, 1 July 1999 — Hou Hawaiians lose Ninth Circuit appeal [ARTICLE]

Hou Hawaiians lose Ninth Circuit appeal

By Paula Durbin ĪHE NINTH Circuit Court of Appeals has upheld U.S. District Judge Helen Gilmore's dismissal of liou Hawaiians ei al. vs. Benjamin Cayetano et al. in its opinion published June 6. At issue in the suit against various federal and state officials, including Clayton Hee in his capacity as OHA trastee and ehainnan of the board when the suit was filed, were OHA's use of trast funds and the duty of the United States to sue the state for breach of the ceded lands trast. The Hou Hawaiians, described in the case caption as "a Native Hawaiian tribal 'ohana," consist primarily of the family of the late Kamuela Price who had sued OHA unsuccessfully before. In this most recent complaint, filed last year, the Hou claimed that failure to spend ceded land revenues exclusively on homesteads for Native Hawaiians has resulted in a violation of the Hawai'i Admission Act. The Hou wanted the federal defendants to eompel the

state either to limit the use of trast funds to that purpose or to ehannel the funds toward satisfying the $600 million 1995 settlement between the Department of Hawaiian Home Lands and the State of Hawai'i. But the Ninth Circuit judges agreed with Judge Gilmore that the federal defendants enjoyed constitutional immunity from the Hou's suit and held that, under the Admission Act, the U.S. government did not have a duty to prosecute the state. According to the court, OHA, a state agency for purposes of the same sovereign immunity, was also protected from the Hou's suit for compensation for past wrongs. OHA's trustees could be sued under federal law for breach of trust, but, said the court, the Admission Act does not tell the state how to "deal with its property." In other words, while the Hou might have had a right to a remedy, they had not proved their case. This reduced the Hou Hawaiians' elaim regarding OHA's expenditure of trast ineome to a dispute involving "matters with OHA's management prerogative." ■

Hou file amicus brief in Rice In their amicus eunae brief filed in the United States Supreme Court simultaneously with the petitioner's brief, the Hou Hawaiians are asking for a reversal of the Ninth Circuit's decision in Rice vs. Cayetano , upholding the constitutionality of state limitations restricting the right to participate in OHA's election to voters of Hawaiian ancestry, According to the Hou's attorney, Walter Schoettle, his clients support neither side in Rice. They do agree with petitioner Freddy Rice's argument that the election is wrong as currently structured. But while Rice, a Caucasian, wants the election open to all registered voters, the Hou are asking the Supreme Court to "limit the qualifications" for voting to Hawaiians of 50 percent blood quantum. Alternatively, rather than just include with them Hawaiians of less than 50 percent blood, whom his clients elaim should not benefit from the publie land trust, Schoettle said, "lt would be better to have everyone vote with no expectation of being beneficiaries." ■

FRONTPAGENEWS: U P O A T E S