While two federal lawsuits aimed at Hawaiian programs and privileges may be running out of steam, supporters of Hawaiian rights should not expect them to go away.
Even if these two particular suits disappear, other challenges to Hawaiian entitlements will arise. Thus, it is in the interest of the threatened Hawaiian organizations to push forward on both the legal and legislative front.
The uncertainty surrounding everything from federal social programs for Hawaiians through the Office of Hawaiian Affairs and the Hawaiian Home Lands program serves no one. It creates anxiety within the Hawaiian community and drives a wedge between various sectors of our Island community.
Advertiser staff writer Yasmin Anwar reports that Big Island attorney and former GOP lawmaker John Carroll is considering dropping his suit against OHA. Carroll contends that as currently constituted, OHA is racially discriminatory.
Meanwhile, a second lawsuit against a panoply of Hawaiian-only programs found in the state Constitution appears to be at least temporarily stymied for want of funds.
That hardly puts an end to things. A number of national groups interested in battling race-based programs and laws are focused on the Hawai‘i situation and will find ways to keep their cause alive. In the long run, a permanent answer to such challenges will have to be found.
One avenue is to convince the courts that programs such as OHA or privileges such as native gathering rights are not race-based. That will require a fairly radical shift in thinking within the federal courts.
Certainly, in the challenge to Hawaiians-only voting for OHA brought by Big Island rancher Freddy Rice, the U.S. Supreme Court saw the voting restriction as a constitutionally impermissible race-based requirement.
To get around such objections, some are working on a philosophical argument that programs aimed at Hawaiians are not based on race, but on recognition of a historical reality involving a culture with its own political identity.
Another route is to simply define Hawaiians as a political entity, similar to Native American Indian tribes. That is the underlying purpose of the so-called Native Hawaiian "recognition" bill that is once again before Congress.
Critics then would have to argue that the United States has no business recognizing any form of political sovereignty for Hawaiians.
And if that argument gets back before the Supreme Court over the next four years or so, another hurdle may present itself. The new U.S. solicitor general will be none other than Theodore Olson, the lawyer who helped argue Rice’s successful case before the Supreme Court.
In the Rice case, the Clinton administration’s solicitor general sided with OHA.
It is a good bet that Olson, representing the Bush administration, would take a different approach.
In short, there are huge legal and political difficulties ahead as Hawaiians move toward self-determination. But they must not give up.
If Hawaiians are not able to seize some form of control over their own future, someone else will certainly step up and offer to do it for them.
