Big Island lawyer John Carroll says he is considering pulling the plug on his challenge to public financing of the state’s Native Hawaiian entitlement programs.
Meanwhile, pro bono lawyers for Honolulu resident Patrick Barrett are scraping to raise money for out-of-pocket expenses to challenge the constitutionality of state-backed Hawaiian programs.
The developments threaten the momentum for Barrett v. State of Hawai‘i, a case in which Carroll and Barrett have joined in federal court.
In Washington, the battle over what one side calls Hawaiian entitlements and the other side calls racial preferences developed another twist this week. President Bush announced that he intends to nominate attorney Theodore Olson, who argued Rice v. Cayetano before the U.S. Supreme Court, to be U.S. solicitor general.
Olson’s argument helped persuade the Supreme Court last year to grant Caucasian Big Island rancher Harold "Freddy" Rice the right to vote in Hawaiians-only elections of the Office of Hawaiian Affairs.
Despite Olson’s background, OHA did not immediately protest his nomination.
"Mr. Olson’s record and experience with Hawaiian issues is a concern, but that does not mean he’s not open to Hawaiian self-determination once it has been amply explained," said OHA spokesman Ryan Mielke.
First, however, OHA must survive a March 12 federal court hearing on Barrett’s request for a preliminary injunction to halt operations at OHA and the state Department of Hawaiian Home Lands.
Barrett, 52, filed suit last October, challenging Article 12 of the state constitution, which established OHA, laid the foundation for native gathering rights on private property and adopted the Hawaiian Homes Commission Act.
Around the same time, Carroll filed a complaint contending that OHA money is used for racially discriminatory purposes. In the name of judicial economy, both suits were consolidated into one case.
On Wednesday, Carroll said he is thinking of withdrawing his lawsuit to pursue legislative alternatives.
"I’m considering withdrawing my suit without prejudice and asking Barrett to do the same," Carroll said.
Carroll, a former state Republican Party chairman, has been a staunch opponent of Democratic Sen. Daniel Akaka’s federal recognition bill to authorize a form of Hawaiian sovereignty and programs to benefit Hawaiians. The plaintiff said he opposes race-based solutions.
As an alternative, Carroll said, he is advocating a federal reparations bill that would benefit descendants of citizens of the multiracial Hawaiian kingdom. The kingdom was overthrown by local businessmen with the help of U.S. Marines in 1893.
Lawyers for Barrett scoff at the notion of a legislative solution to what they call Hawai‘i’s racial spoils system. They say they have no intention of abandoning their mission to "make the state of Hawai‘i constitutional."
But while they have the Rice ruling on their side, they don’t have the money, at least not yet.
"Either we cover our costs or we’re unable to proceed," said John Goemans, one of Barrett’s attorneys.
Goemans said he is turning for support to national foundations that oppose affirmative action, such as the Pacific Legal Foundation and the California-based American Civil Rights Institute, which recently absorbed the Campaign for a Colorblind America.
Rice, who said he wants nothing to do with the Barrett case, recalls that his legal effort ran on a shoestring budget. He said he raised $5,000 to $8,000 from family and friends.
When the U.S. Supreme Court accepted the case on appeal, donations trickled in through the Campaign for a Colorblind America.
Unlike Rice, a fifth-generation Hawai‘i resident and scion of a distinguished New England missionary family, Barrett is a highly reclusive California native of modest means.
For two weeks earlier this month, Goemans was unable to reach him. The attorney finally discovered that Barrett had inadvertently turned off the ringer on his telephone.
Meanwhile, the defendants in the Barrett case are flush with money. OHA and the state Department of Hawaiian Home Lands have committed $700,000 to their legal defense.
If the case goes all the way to the nation’s high court, as did the Rice case, the state’s war chest is likely to exceed $1.5 million.
"We’ll never match the kind of money that the state and other agencies are throwing at this," said William Helfand, a Houston attorney who is lead counsel in the Barrett case and specializes in employment and civil rights law
Still, Helfand said, "We’re going to fight this as long as we can breathe."
