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The Honolulu Advertiser
Posted on: Friday, June 6, 2003

OHA lobbies for Akaka bill

By Derrick DePledge
Advertiser Washington Bureau

WASHINGTON — Trustees from the state Office of Hawaiian Affairs will arrive here tomorrow to rally support for Native Hawaiian sovereignty and to lobby Congress for a federal recognition bill.

OHA will hold a seminar on self-determination at the Smithsonian's National Museum of American History for Hawaiians who live on the East Coast, stressing the urgency in passing federal legislation before the courts consider further legal challenges to Hawaiian programs. The trustees then plan to meet with lawmakers next week to push for Senate consideration of the recognition bill.

Patton Boggs, the influential lobbying firm hired by OHA to advance the bill, has lawyers preparing a detailed response to arguments from conservative Republicans that the bill would validate unconstitutional race-based preferences for Hawaiians. The analysis is part of the firm's broader strategy to present a substantive case for the bill for lawmakers and the Bush administration.

The Senate Indian Affairs Committee approved the bill, sponsored primarily by Sen. Daniel Akaka, D-Hawai'i, in May and it is awaiting debate before the full Senate. The Bush administration has not announced its position, despite strong appeals from the Hawai'i congressional delegation and Gov. Linda Lingle, a Republican.

"Each day, we feel more and more comfortable,'' said Micah Kane, the director of the state Department of Hawaiian Home Lands, who will travel here in mid-June to speak with lawmakers and administration officials. "It's not going to be an easy road, but I'm confident."

Despite this optimism, supporters of the bill both here and in Hawai'i are concerned by statements from the Bush administration over the past several months that could offer hints to the administration's thinking on Native Hawaiian sovereignty:

• The Department of Justice sent a letter on May 16 to Sen. Olympia Snowe, R-Maine, chairwoman of the Senate Small Business and Entreprenuership Committee, recommending that Native Hawaiians be removed from a bill that would provide federal grants for small business development because of "significant constitutional concerns.''

The letter, by Assistant Attorney General William Moschella, who leads the department's Office of Legislative Affairs, said the courts would likely uphold grants to federally recognized Indian tribes and Native Alaskan villages or corporations but questioned whether it would be constitutional to award grants to Hawaiians on the basis of racial or ethnic criteria.

"Congress has not recognized any group of Native Hawaiians as an Indian tribe,'' Moschella wrote, "and there is a substantial, unresolved question 'whether Congress may treat the Native Hawaiians as it does the Indian tribes.' "

Supreme Court ruling

Moschella was referring to Rice v. Cayetano, the 2000 Supreme Court case that held that it was unconstitutional for OHA to bar non-Hawaiians from voting in trustee elections. The case prompted other legal challenges to Native Hawaiian programs.

• A White House policy statement on May 8 raised questions about provisions in an energy bill that provide certain preferences based on race. The Washington Post reported that the administration's concerns included defining Native Hawaiian organizations exclusively by race.

• The Justice Department sent a letter on Sept. 11, 2002, to Sen. Dan Inouye, D-Hawai'i, at the time the chairman of the Indian Affairs Committee, that cited constitutional concerns over a bill providing federal grants to OHA for affordable housing for low-income Native Hawaiian families.

Like the letter to Snowe, the Justice Department questioned whether Native Hawaiians should be treated like Indian tribes and whether the government should provide benefits based on race or ethnicity. Assistant Attorney General Daniel Bryant noted that a federal recognition bill for Native Hawaiians was pending but wrote that "we have some concern as to whether the Supreme Court would hold that Native Hawaiians constitute a 'distinctly Indian community.' "

Native Hawaiians already receive health, education and other assistance from the federal government, but the administration's correspondence suggests that the Justice Department holds a skeptical view of race-based preferences.

Lingle dismissed the May 16 Justice Department letter in an interview Wednesday with the Associated Press.

Clyde Namu'o, administrator for the Office of Hawaiian Affairs who is en route to Washington for more rounds of lobbying, said criticism from the Justice Department takes aim at legislation benefiting Hawaiians who do not yet have special status under federal law. It doesn't signal the administration position for or against giving them that federal recognition, he said.

"The signals are telling us, 'You better hurry up and get this federal recognition through,' " he said. "What they're saying is, absent federal recognition, Hawaiians should not be included in this bill. But indirectly, they're saying if there were federal recognition for Hawaiians, there would be no problem."

Conservative Republicans have blocked Hawaiian recognition for the past two sessions of Congress, and at least a handful of Senate Republicans remain strongly opposed to the Akaka bill.

The bill would authorize the Department of Interior to compile a list of Hawaiians eligible for a new government and create a process for Native Hawaiians to achieve federal recognition — similar to American Indians and Native Alaskans. Federal recognition may provide legal protection for existing Hawaiian programs, and a greater voice for Hawaiians over land use and cultural issues in the Islands, although it is likely that any new law would be contested in court.

Political hurdles

Several Republicans see the bill as an end run around Rice v. Cayetano and are hopeful that the Justice Department will go on record in opposition. The lawyer who argued the Supreme Court case on behalf of Harold "Freddy" Rice, the Big Island rancher who fought OHA over voting rights, was Theodore Olson, now the U.S. solicitor general who represents the government before the high court.

Ideally, for the Akaka bill's supporters, the Justice Department would either endorse the bill or take no position at all. If the Justice Department opposes the bill, Lingle and Hawai'i Democrats could still appeal to the White House, but the political hurdle would be higher.

Paul Sullivan, a Honolulu attorney who has written a widely circulated legal analysis against a Native Hawaiian recognition bill, said many Hawaiians have been "swayed by this idea that they are like Indians and deserve special treatment.''

Sullivan said the bill would undermine Hawaii's unique multi-cultural society by creating separate classes of people under the law. "I don't think the Akaka bill has any chance of surviving a court challenge,'' he said.

Staff Writer Vicki Viotti contributed to this report.