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Programs for Native Hawaiians Challenged

By Bruce Dunford/AP

The $12 million in state funds spent annually on education, health and social programs for native Hawaiians would end if a federal lawsuit filed succeeds. It also could jeopardize tens of millions of dollars in more than 160 federally funded programs for Hawaiians, a $370 million state trust fund designated for Hawaiians, a 200,000-acre land trust for Hawaiian housing, and a potential $1 billion claim against the state.

The complaint by Patrick Barrett, a non-Hawaiian, contends the state’s Office of Hawaiian Affairs is unconstitutional because its programs discriminate against non-Hawaiian citizens.

Hawaiians and part-Hawaiians make up about 20 percent of the state’s 1.2 million multiethnic population. Most the state’s Hawaiian programs and trusts, however, are designated for those who are 50 percent or more Hawaiian blood.

Barrett’s claim is based on the U.S. Supreme Court’s Feb. 23 decision striking down the Hawaiians-only requirement in state-run elections for the Office of Hawaiian Affair’s (OHA) board of trustees as racial discrimination. A federal judge more recently struck down the Hawaiians-only requirement to be a candidate in the OHA election.

Attorney John Goemans, who represented non-Hawaiian rancher Harold “Freddy” Rice in the landmark voting rights case, represents Barrett in the challenge to the 1978 state constitutional amendment that established OHA.

The Supreme Court declared in the Rice case that being Hawaiian is a racial category, not a political status like many American Indian tribes enjoy, Goemans said.

Barrett’s lawsuit seeks a declaratory judgment and a preliminary injunction against OHA’s continued operation, Goemans said.

“Because it’s race, all programs that are specific to native Hawaiians are presumed unconstitutional,” he said. “That means the burden of proof is on the government to establish adequate justification for that race discrimination.”

That would require a finding that in 1978 when OHA was created there was a history of race discrimination against Hawaiians and the present effects of that discrimination, Goemans said.

The 1978 amendment also reaffirmed native Hawaiian gathering rights on private lands and adopted the 1920 federal Hawaiian Homes Commission Act that set aside 200,000 acres to provide house lots and agriculture lands to those with at least 50 percent native blood.

The lawsuit challenges all three aspects of the amendment as a violation of the 14th Amendment, Goemans said.

Goemans said he’ll be assisted by Houston attorney William Helfand, who last year won a federal case that challenged race-based busing of students in Charlotte, North Carolina.

Meanwhile, John Carroll, a Republican candidate challenging the re-election bid of Daniel Akaka, a Democrat from Hawaii, also filed a federal lawsuit against OHA charging racial discrimination.

Gov. Ben Cayetano said state attorneys will defend OHA’s constitutionality. Akaka, meanwhile, is pressing to get Senate approval before congressional adjournment of an administration-backed bill establishing federal recognition of Hawaiians as an indigenous people with a right to self-determination and a government-to-government relationship with the United States.

The House approved the bill on a voice vote last week.

The legislation was rushed by Hawaii’s congressional delegation with backing by most leaders in the Hawaiian community who fear the Rice decision opened the door to dismantle all government-supported Hawaiian programs.

However, Goemans said congressional action “can’t trump the decision of the Supreme Court.”

“Once the Supreme Court rules that native Hawaiian means race, Congress can’t come in and get around it by saying native Hawaiian is a political characterization,” he said.

Also at stake in the federal lawsuits is OHA’s claim before the state Supreme Court that the state owes OHA 20 percent of all state revenues over a 15-year period from Honolulu International Airport landing fees, the Waikiki Duty Free store, Hilo Hospital and various state housing projects.

That could cost state taxpayers anywhere from $500 million to $1.2 billion, participants estimate. It would be on top of the $370 million trust OHA accumulated following the 1993 settlement with the state on its share of revenues from ceded lands earnings from commercial leases from 1980 to 1991.

OHA contends it never has been given its fair share of revenues from ceded lands as required by the 1978 state constitutional amendment.

These are the lands successively ceded to the new Republic of Hawaii after the 1893 overthrow of the monarchy, to the Territory of Hawaii after U.S. annexation of the islands in 1898, and to the state in 1959. They make up about 95 percent of state-owned lands.