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The Honolulu Advertiser

Posted on: Monday, June 11, 2001

Island Voices
Akaka Bill unlikely to survive challenge

By Paul Sullivan
An O‘ahu attorney

In his Island Voices commentary of June 1, attorney H.K. Bruss Keppeler disagrees with those who say that the Akaka Bill will be found to be unconstitutional. He predicts that "the Hawaiians' cherished trusts and benefits will be protected," and he encourages those who believe otherwise to "hit the books," including the U.S. Supreme Court's Rice v. Cayetano decision.

Everyone should read the Rice decision. It's not written just for lawyers or in legal jargon. It's written in straight-forward language and it's intended for all the people of Hawai'i as a guide to future political decisions. It's available on the Web at http://supct.law.cornell.edu/supct/html/98-818.ZS.html

But a careful reading of the Rice decision does not support Keppeler's optimistic views. Instead, it indicates that the Akaka Bill will not survive a constitutional challenge.

At the heart of the issue is the question of race. The Rice decision focused on the definitions of "Hawaiian" and "native Hawaiian" in OHA's governing statutes.It held that the definition of "Hawaiian" (a person with at least one pre-1778 Hawaiian ancestor) created a "racial" classification. It said that "the State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose."

The Supreme Court is not favorably disposed toward race-conscious legislation. It has accepted it only reluctantly and only in circumstances of grave necessity.The court has ruled that racial distinctions in state or federal law must pass "strict scrutiny;" that is, they must be justified by a "compelling interest" and be "narrowly tailored" in duration and effect to achieve their purpose.

The court in Rice made no secret of its attitude toward racially discriminatory laws. Quoting from one of the Japanese internment cases, it said that "distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality."

It pointed out that "one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." It said: "Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name."

By holding that the definition of "Hawaiian" was racial, the court gave clear warning that other laws giving special privileges to persons of Hawaiian ancestry would be tested by the demanding standards applicable to race-conscious legislation.

Perhaps anticipating this, proponents of these laws have always asserted, as Keppeler does in his commentary, that the preferences are like those for Indian tribes and their members, which the U.S. Supreme Court in the case of Morton vs. Mancari upheld as "political" rather than racial because they are grounded in the historical government-to-government "special relationship" between the United States and the Indian tribes. Indeed, the State of Hawai'i relied heavily on this argument before the U.S. Supreme Court in Rice.

But the Supreme Court found the argument unpersuasive. It did not reject it outright, but it called it "difficult territory" and expressed serious reservations about its merits.

The fact that the court said anything at all about the argument is significant. The court could have expressed no opinion on it. It reached its decision on other grounds. The court usually keeps its discussions as narrow as possible. But in Rice, the court went out of its way to highlight the problems with the argument that Native Hawaiians share the special constitutional status of Indian tribes and their members.

The court's discussion of this argument is hardly a helpful guide toward a "safe harbor," as Keppeler suggests. Instead, it's a warning. In essence, the court said "Don't go there."

But the Akaka Bill goes directly there. It carves out a segment of Hawai'i's population by a classification already determined to be "racial" and proposes to give that racially defined group a "political relationship" with the United States as if it were an Indian tribe.

Does Congress have the constitutional power to do that? As Keppeler points out, the Constitution gives the federal government authority to regulate commerce with Indian tribes. That power is extensive, but it is not unlimited. In U.S. vs. Sandoval, the court said that while Congress has broad power to deal with Indian tribes and to determine what entities are in fact tribes, "it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe[.]"Yet the Akaka Bill proposes to do exactly that.

Anyone who has lived in Hawai'i knows there is no "Native Hawaiian tribe" here, or anything resembling a tribe. For generations, Hawaiians have intermarried and intermingled with all the state's other ethnic groups. They are fully integrated into the state's social, economic and political life.

Contrary to the findings of the Akaka Bill, people of Hawaiian ancestry do not live separately and apart from the rest of the state's people. They are not defined or identified by a territory, a common language or a religion different from that of the rest of the state's population, and they have no governing entity other than Hawai'i's state and municipal governments. In fact, the word "they" really doesn't apply except in the context of racial definitions such as those in the OHA governing statutes and in S. 746. In every way that matters to the Constitution, "they" are "us," fellow citizens whose only political relationship with the United States is our shared U.S. citizenship.

We must assume these facts will be made known during any constitutional challenge to the bill. Would the court nonetheless feel compelled to abide by a congressional declaration that Native Hawaiians are like Indians and can be recognized as a tribe? Consider how the Court in Rice dealt with the so-called the Apology Resolution, P.L. 103-150. That resolution offered an extensive (and debatable) summary of Hawaiian history, including the overthrow of the monarchy. The Rice decision, too, began with a summary of Hawai'i's history, including the 1893 overthrow of the monarchy. But the court obviously did not feel bound by the Apology Resolution and its lurid version of Hawai'i's history. It made its own study and came to far more moderate and balanced conclusions. Although it referred to numerous historical sources, it never once cited the Apology Resolution as historical authority.

So if the court were asked to render an opinion on the Akaka Bill, it would likely reach its own conclusions about the factual findings in that bill as well as the bill's interpretation of the Constitution. If it does that, it is also likely to decide that by enacting the Akaka Bill, Congress had embarked on an unconstitutional venture into racial politics.