Should native Hawaiians living on Hawaiian Home Lands, or state lands set aside for native Hawaiians with a 50 percent or higher blood quantum, pay a lower property tax rate than other Hawaii residents?

As of September 15, 2011, a lawsuit challenging this very issue is being appealed to the U.S. Supreme Court in Corboy vs Louie.

Dr. John Corboy, a resident of Molokai, and other Hawaii residents who pay property taxes in the state, but are not of native Hawaiian ancestry, lost their court challenge against the state in the Hawaii Supreme Court.

But Washington D.C. attorney Roy Englert of Robbins Russell Attorneys at Law, a firm that describes itself as focusing on “high stakes legal proceedings”, filed an appeal on September 15, 2011, to the nation’s highest court.

H. William Burgess, a Hawaii attorney who has challenged a number of racially based state government programs including this one, said the case is important.

“Homestead lessees use county services like police and fire protection and many other services and infrastructure like streets, beaches and parks and others but pay little or none of the costs.  As Chief Justice John Marshall said in McCulloch v. Maryland, ‘The power to tax involves the power to destroy.’ The use of such a destructive power by the state and counties to discriminate between homeowners based solely on their racial ancestry, destroys the concept of equal protection at its most direct and basic level.”

The premise of the lawsuit, Burgess said, is: “In Rice v. Cayetano (2000) the Supreme Court held that ‘native Hawaiian’ is a racial classification (and therefore unconstitutional under the 15th Amendment as a voting eligibility requirement); but the state continues to use the same classification to determine eligibility for a ‘homestead lease’ program that entitles lessees to significant property tax exemptions for the first seven years.  And each of the four counties extends the special exemption indefinitely. As a result, petitioners pay significantly more in property taxes each year than do “native Hawaiians” who are homestead lessees. Petitioners challenged this differential tax treatment in the Hawaii state courts, under the Equal Protection Clause of the Constitution of the United States.”

An legal analysis of the Hawaii case provided by Burgess to the media said “On appeal, the Hawaii Supreme Court did not reach the merits of the challenge, finding that petitioners lacked standing under Hawaii law because they (a) were really only challenging their ineligibility to be homestead lessees, and (b) had failed to seek homestead leases. The state court’s standing analysis was completely untenable under either state or federal law…”

But the state of Hawaii is promising a fierce fight in the nation’s highest court. A statement issued to Hawaii Reporter from Joshua A. Wisch, Special Assistant to the Attorney General, simply said:  “The Department of the Attorney General agrees with the Hawaii State Supreme Court’s decision to dismiss the challenge to the tax exemptions for homesteaders under the Hawaiian Homes Commission Act.  We will take all steps necessary to preserve those exemptions.”

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