Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 8, 1 ʻAukake 2001 — BARRETT DISMISSED [ARTICLE+ILLUSTRATION]

BARRETT DISMISSED

Plai ntiff moves for reconsideration, OHA prepared for further attacks

By Manu Boyd On July 12, U.S. District Chief Judge David Ezra dismissed the controversial lawsuit filed Oct. 3 by Patrick Barrett of Honolulu. Barretl vr. Slate of Hawai'i challenges the constitutionality of Article XII of the State Constitution whieh provides for the Office of Hawaiian Affairs. the Hawaiian Homes Commission and Native Hawauan gathering rights, based on the Equal Protection Clause of the Fourteenth Amendment to the Unīted Stales Constitution. In January, OHA, along with the State Council of Hawaiian Homesteaders Association and the 'īlio'ulaokalani Coalition, was granted intervenor status, and in conjunction with the State Attorney General's office, prepared their vigorous defense.

In March, OHA filed a motion to dismiss the lawsuit. at whieh time ihe combined cases of Barrett vs. State of Hawai'i and Carroll vj. Nakaiani were removed from the court calendar. In his summary judgement, Judge Ezra underscored that the area of constitutional law is complex, extremely precise and not readily understood by the public or the media. He described the merits of lhree separate areas of the lawsuit upon whieh he bascd his ruling. First, Barrett's application to OHA's Native Hawaiian Revolving Loan Fund was not genuine as Barrett did not take the usual pre-loan steps and had no business plan. Ezra cited that in his eomplainl against the Hawaiian Homes Commission, Barrett failed to bring the federal government in as a defendant . The Hawaiian Homes Commission Act,

enacted by Congress in 1921, is also a federal law and the Hawaiian ancestry requirement is a federal requirement, according to Ezra. As in the OHA loan issue, Ezra was unable to identify any injury suffered by the plaintiff. Judge Ezra's greatest illustration of the plaintiff's laek of standing was in the area of native gathering rights. By Barrett's own admission. he has never altempted to gather and has no plans to do so. In his findings, Judge Ezra explains that the plaintiff must have suffered an "injury-in-fact." whieh is aelual. not hypothetical. "Although we won on a molion to dismiss, OHA is fully prepared to defend the case on its own merits," said OHA Attomey Sherry Broder. "The See EZRA on page 10

Barrett's new motion On July 19, Attorneys Patrick Hanifin and William S. Helfand filed a motion on behalf of Patrick Barrett to reconsider the order granting summary judgement on the elaim conceming the Hawaiian Homes Commission homestead program. The plaintiff asserts that the United States was not given the opportunity to ^ intervene to express its views, and that the United States Attorney General should have been notified that the constitutionality of a federal statute had been drawn into issue. ■

OHA Attorney Sherry Broder; OHA Trustee Rowena Akana; ilio'ulaokalani President Vicky Holt īakamine and Attorney Carl Christiansen; OHA Chairperson Haunani Apoliona.

EZRA from page 1

history of Native Hawaiians is the same as other native peoples. Lands were taken, sovereignty was taken and their population was decimated by disease. "The Navajo have 15 million acres of land, and that trust is solely for their benefit. The Passanaquoddy Indians' settlement with the State of Maine aeknowledged that lands and funds held in trust are solely for their benefit," explained Broder. "Hawaiians should be treated the same."

I Attorney Patrick Hanifin, who also worked with Freddy Rice in Rice vs. Cayetano gaining nonHawaiians the right to vote in OHA elections, said that while Judge Ezra's ruling is a set back, his client, Barrett, will likely continue his mission to make Hawaiian benefits and entitlements available to all state residents. Formerly of California, Barrett, 53, is on full medical disability with the Social Security Administration, and resides in Mō'ili'ili. ■