Posted on: Friday, January 16, 2004

EDITORIALS
Status of Hawaiians isn't out of limbo yet

Once again, a Hawai'i federal judge has thrown out a case challenging Hawaiian-only government programs, citing a special trust relationship between the U.S. government and Native Hawaiians.

And once again, the plaintiffs, who charge that Hawaiian-only programs discriminate against non-Hawaiians, pledge to appeal the ruling, if necessary, all the way to the U.S. Supreme Court.

This pattern is likely to keep repeating until either the courts or Congress resolve the prickly issue of whether Native Hawaiians constitute a political entity or a racial group.

But neither seems in a great hurry to make a final decision, and so the dance goes on and on, with operators of Hawaiian programs wondering whether the plug will be pulled, and homesteaders worrying about losing their dollar-a-year leases.

Also in limbo are important economic decisions facing the Islands that will not be made until there is clarity about Hawaiian rights, Hawaiian programs and Hawaiian land claims.

This uncertainty has been going on since 2000 when the Supreme Court struck down the Hawaiians-only requirement for elections of state Office of Hawaiian Affairs trustees in the landmark Rice v. Cayetano case.

The high court reversed a 9th Circuit decision that affirmed U.S. District Judge David Ezra's ruling that OHA's voting restriction is based on the unique status of Native Hawaiians, and not on race.

In the latest case, U.S. District Judge Susan Oki Mollway has ruled that the court should not interfere with ongoing congressional debate over Hawaiians' political status.

She's referring to the Akaka bill, which was introduced in the wake of the Rice v. Cayetano ruling to ward off subsequent constitutional challenges to Hawaiian-only programs.

The Akaka legislation is supposed to help Native Hawaiians attain the kind of federal recognition granted to more than 500 American Indian and Alaska Native tribes.

But why bother with the Akaka bill if the courts are already dismissing constitutional challenges based on a special trust relationship between Congress and Native Hawaiians?

Moreover, can you dismiss a constitutional challenge to a program because legislation designed to protect the program from constitutional challenges is pending? Aren't the legislative and judicial branches of the government supposed to operate independently?

Essentially, it seems, Mollway has punted the big decision to Congress, and though that might seem like a victory for Native Hawaiians, it's really just another dance.

Who knows when Congress will pass the Akaka bill or if the Bush administration will sign off on it?

All we know is that someone is going to have to resolve this question of Hawaiian status once and for all so that Hawaiians and non-Hawaiians in the Islands can move on.