Island Voices
Native Hawaiians will have their day

By H.K. Bruss Keppeler
Honolulu attorney

The Akaka Bill will not be found to be unconstitutional, and the Hawaiians' cherished trusts and benefits will be protected.

Recently published opinion pieces predicting that the so-called Akaka Bill (the congressional measure seeking federal recognition for Hawaiians) will be declared unconstitutional and discussing the Rice and Arakaki cases betray the shallowness of their authors' legal research.

Surely the majority opinion in Rice, which relied on the 15th Amendment and prior case law, and the decision in Arakaki, a 14th Amendment case, drew dark and ominous clouds over the programs and, perhaps, the very existence of the Office of Hawaiian Affairs. Moreover, the pending Barrett and Carroll cases have clearly threatened other Hawaiian trusts and benefits. However, those cases don't show the total picture, and I'd advise the authors to "hit the books."

First, I suggest that they read the dictum in the majority opinion in the Rice case itself. The opinion's discussion of the Morton vs. Mancari case reveals that the Supreme Court has a broad understanding of the critical issues facing Hawaiians today and, in a sense, offers to chart a course for the arduous voyage Hawaiians face in search of a safe harbor. The court said:

"If (the OHA voting) restrictions were to be sustained under Mancari, we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the state — and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993 — has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the state a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty." (Majority opinion at page 11.) "If a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of (Hawai'i). OHA is a state agency, established by the state Constitution, responsible for the administration of state laws and obligations." (Majority opinion at page 12.)

Clearly, the court is saying that, if Hawaiians had the status that other native peoples residing in the United States have achieved, the Rice case would have come out differently. This spreads out a mariner's chart for Hawaiians to follow, showing a direct course to a safe harbor.

Next, I would advise the authors of those pieces to read the whole U.S. Constitution, not just the parts that are favorable to their arguments. Their arguments are centered on the 14th and 15th amendments and the impact of such cases as Rice and Arakaki, as well as the opinions in Adarand Constructors, Inc. vs. Pena and City of Richmond vs. J.A. Crosson Co. However, to stop there is folly.

In the Mancari case, the Supreme Court noted that Indian tribes have a "unique status ... under federal law" and that Congress has a "plenary power" to regulate commerce ... with Indian tribes," which "is drawn both explicitly and implicity from the Constitution itself" (Article I, section 8, clause 3) and that the Constitution "gives the President the power, by and with the consent of the Senate, to make treaties ... with Indian tribes" (Article II, section 2, clause 2). The Mancari court held that an employment preference program for Indians was not suspect as racial discrimination, stating that "(t)he preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes" and "(t)his operates to exclude many individuals who are racially classified as 'Indians' " and "(i)n this sense, the preference is political rather than racial in nature."

No doubt, detractors will respond to all of this by saying: "What's this got to do with Hawaiians? That stuff is all about Indians. It's about Indian tribes and tribal nations.

I'd advise them to think about that for a minute. When the Founding Fathers were framing the language of the Constitution, they had very little experience with natives. That led them to mistakenly call the natives "Indians." Remember that Columbus, who first called the native in the Americas that, was lost and somewhat confused when he came upon the New World while seeking a more convenient passage to the Orient. The drafters of the Constitution knew a little about the Eastern Seaboard "Indians" they had encountered, but absolutely nothing about the tribes farther West, let alone Aleuts, Inuits and Eskimos.

Since even before the Alaskan Natives Claims Settlement Act, the term "Indian," as it appears in the old constitutional language, has been interpreted to mean or include all of the natives of the lands that now make up the United States, whatever their ethnic derivation.

Where is all of this leading us? That's simple. It's leading us to the federal recognition of another group of natives. They're called Hawaiians. They are really not much different than the Navahos, the Chippewas, the Iroquois, the Aleuts or the Eskimos. Just like the others, their ancestral lands were swallowed up by the United States.

In their wisdom, the Founding Fathers decided that the native peoples of the territory that had been subsumed into the United States were to have a "unique status" in perpetuity. As the United States grew and more native lands were absorbed, later leaders of the United States decided that natives organized into political entities of the kind or form that satisfied their needs, whatever they were called, could be recognized as having an equally unique political relationship to the United States. Over 550 such entities have been recognized so far and counting. Can you imagine what would happen on the continent if those entities were called "unconstitutional"?

So what's "unconstitutional" about the Akaka Bill? Other legislation like the Akaka Bill has granted recognition to other natives. What's the difference about Hawaiians wanting to achieve the same "unique status" enjoyed by other native people in the United States? After all, they are the native people of these Islands, which the United States has, since 1898, considered part of its territory.

With that status recognized, Hawaiians and their cherished trusts and benefits can sail out of the stormy waters of Rice, Arakaki, Adarand and Crosson into the relatively safe haven created by no less than the U.S. Constitution itself and preserved in the Mancari case. When you fully understand all of this, perhaps you too will wish Hawaiians "safe voyage."