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The Honolulu Advertiser
Posted on: Monday, April 16, 2001



Native bill supporters in race with courts

By Yasmin Anwar
Advertiser Staff Writer

From the congressional chambers of Washington to the legal chambers of Houston and Honolulu, antagonists in the bitter struggle over government-backed native entitlements are girding for their race against time.

Sen. Daniel Akaka said a modified bill is "clearer and on target."

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Members of Hawai'i's congressional delegation will meet with groups here in the Islands this week to discuss the latest changes to U.S. Sen. Daniel Akaka's bill to win federal recognition for Native Hawaiians.

Washington insiders say the measure is unlikely to see a Senate vote until fall at the earliest, and there's no telling how a bill to add a potential 300,000-plus Native Hawaiians to America's long list of federally recognized indigenous tribes will play with the Bush administration.

Still, backers are optimistic that the new streamlined version of the bill will receive a better reception on Capitol Hill than the previous version.

"It's much stronger, clearer and on target," said Paul Cardus, a spokesman for Akaka, a Hawai'i Democrat.

Meanwhile, depositions are continuing in the case of Barrett vs. State of Hawai'i, which seeks to abolish the kind of publicly financed Native Hawaiian benefits that the Akaka bill is designed to protect. That, too, could take months and even years to resolve.

These two competing crusades are inching along separate tracks, leaving stakeholders anxious to know which side will reach the finish line first.

What happens to the Barrett case if the Akaka bill passes first; and if it doesn't pass soon, will Hawaiian entitlements fall like dominoes if Barrett prevails?

"It's one of the biggest concerns in the Hawaiian community," said Arthur Hoke, chairman of 'Aha Hawai'i Oiwi, a group of 79 delegates elected in 1999 by a small minority of Hawaiian voters to formulate a Native Hawaiian constitution.

Though grass-roots efforts such as 'Aha Hawai'i Oiwi's are striving to establish consensus among Hawaiians on a model of government, there's a growing sense that the fate of Hawaiian self-determination will be played out in Congress and the courts.

It took last year's U.S. Supreme Court decision in the case of Rice vs. Cayetano to drive home for many the reality that, like it or not, Hawai'i answers to the U.S. Constitution.

Big Island cattle rancher Harold Freddy Rice sued the state in 1996 after he was barred from voting in an Office of Hawaiian Affairs election. In response, the nation's highest court struck down the agency's Hawaiian ancestry restriction for violating the 15th Amendment ban on race-based voting limits.

The decision opened the door to more constitutional challenges, including a federal lawsuit filed last October by Patrick Barrett, 53, of Mo'ili'ili.

The disabled California native is seeking to invalidate a 1978 amendment that created OHA, adopted the federal Hawaiian Home Lands program and provided for native gathering rights on private property. He says such race-based programs violate 14th Amendment equal protection guarantees.

Lawyers for OHA and the state Council of Hawaiian Homestead Associations are trying to get the case dismissed on grounds that Barrett has failed to demonstrate injury because he did not complete his applications for an OHA loan and homestead lease.

In a tiny conference room in Honolulu's Waterfront Plaza last week, attorney William Helfand of the Houston firm Magenheim, Bateman &ÊHelfand sought to establish that even if Barrett had successfully completed his applications, they would have been denied on account of his race.

In her deposition, Jobie Yamaguchi, deputy to the chairman of the state Department of Hawaiian Home Lands, confirmed the program is limited to people of Hawaiian ancestry.

It is such programs that the Akaka bill seeks to safeguard.

"There is a great urgency to obtain federal recognition for so-called Native Hawaiians as an Indian tribe, because such recognition would presumably protect the entitlement programs from attack under the 14th Amendment equal protection clause," said Kenneth Conklin, a non-Hawaiian Kane'ohe resident who successfully sued for his right to run for the OHA governing board..

The original bill was hastily introduced last summer in the wake of the Rice decision and died in the waning days of the 106th Congress. Despite strong support from the Clinton administration, it drew sharp criticism from a variety of groups ranging from staunch Hawaiian nationalists to Republican foes of affirmative action.

Some worried it would open a back door to gambling in Hawai'i. Others feared federal recognition of Native Hawaiians would drain the resources of the Bureau of Indian Affairs.

Earlier this month, the bill was modified to discourage gambling interests and prevent Hawaiians from claiming benefits from the Bureau of Indian Affairs.

Reactions here in the Islands suggest they have not won over its harshest critics in Hawai'i, including Conklin.

"The new bill is even more dangerous than the old bill because it provides much faster recognition of an 'Akaka Kanaka' tribe and less oversight over potential corruption . . . and because it deceives those who have legitimate concerns over Native Hawaiians competing against genuine Indian tribes for a limited pot of federal money," Conklin said.

Staunch advocates for an independent Hawai'i maintain, as they did before the latest changes, that the measure will sell out their right for true independence and turn them into "Indians" and wards of the federal government.

"Our basic objections are still there," said Kekuni Blaisdell, a physician and outspoken critic of the bill.

Even the bill's supporters have raised some concerns about the changes, including the elimination of a federally prescribed process to establish a Hawaiian governing entity.

Critics insist Hawaiians should be able to come up with their own process. But "it's easier said than done," said Roy Benham, another delegate for 'Aha Hawai'i Oiwi, who has experienced firsthand the complexities of finding consensus on leadership in the Hawaiian community.

Meanwhile, lawyers for Barrett are looking for more money so they can forge ahead with their equal-protection challenge to Hawaiian entitlements. Opponents are throwing up obstacles in hopes that, if the courts don't throw out the case, federal recognition will render the Barrett case moot.

Washington correspondent Susan Roth contributed to this report.


Correction: A quote was erroneously attributed to U.S. Sen. Daniel Akaka in a previous version of this story because of a reporter’s error. The following quote should have been attributed to Kenneth Conklin: “There is a great urgency to obtain federal recognition for so-called Native Hawaiians as an Indian tribe, because such recognition would presumably protect the entitlement programs from attack under the 14th Amendment equal protection clause.”