A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco concentrated mostly on whether Kamehameha's preference for Hawaiian students was part of a valid affirmative action plan to remedy historic socioeconomic and educational difficulties within the Hawaiian community. The court ruled the policy is illegal under a 1866 federal law that was aimed at ending racial discrimination against blacks in the South and was later amended in the modern civil-rights era.

The court sidestepped defining the exact nature of the relationship between Native Hawaiians and the federal government, which was also left open by the Supreme Court in 2000 when it ruled in Rice v. Cayetano that barring non-Hawaiians from voting for trustees for the state Office of Hawaiian Affairs was unconstitutional.

The appeals court found that Congress has recognized Native Hawaiians in several federal programs — including grants to Kamehameha for a demonstration program to support Native Hawaiians who attend college — but had not given Kamehameha "blanket approval for private race discrimination."

The ruling was being closely examined yesterday by both supporters and opponents of Native Hawaiian recognition.

A bill that would formally recognize Native Hawaiians as an indigenous people with the right to form their own government could come up for a vote in the U.S. Senate in September, more than five years after it was introduced in the wake of Rice v. Cayetano.

Some Native Hawaiians hope the bill might protect the $70 million in federal money for Hawaiian programs that could come under legal assault given the decisions in the Rice and Kamehameha cases. A legal challenge against the Office of Hawaiian Affairs, filed by Earl Arakaki, is pending before the appeals court. U.S. District Judge Susan Oki Mollway threw out the case last year because it might interfere with the debate in Congress on the bill.

AKAKA'S REACTION

U.S. Sen. Daniel Akaka, D-Hawai'i, who attended Kamehameha and is the bill's main sponsor, said he was saddened by yesterday's ruling.

"In its halls and classrooms we learned to think critically and excel in all the ordinary disciplines that a school ought to provide," Akaka said in a statement. "Our studies were also informed by the values of our ancestors and imbued with a sense of duty toward this land of ours and all of its people.

"Today's decision ... fills me with a great sadness because there are those among us who will misinterpret the words of the court as a rejection of my alma mater, and the values it stands for."

Akaka said his bill would "answer the silence of the court with an act of Congress. When we pass (the bill), the court will soon have its answer, and our Native Hawaiians will be able to reclaim their place in history."

But H. William Burgess, an attorney who is opposed to the Akaka bill, said the ruling could hurt the bill's chances. Burgess said: "The message it sends to the Senate and Congress is 'You're going through the trouble of creating this whole new government to protect what?' Racial discrimination."

INOUYE'S HOPES

U.S. Sen. Dan Inouye, D-Hawai'i, said Native Hawaiians are descendants of a sovereign nation and equal to American Indians and Alaska Natives, who have been recognized by the federal government. He also suggested that the Akaka bill would provide Hawaiians with some legal protection.

"When we are successful, Native Hawaiians will be postured to reclaim their ancient dignity and forge a destiny for themselves in partnership with our state and our nation," Inouye said in a statement.

State Attorney General Mark Bennett said the Akaka bill could help protect Native Hawaiian programs and cause the Kamehameha case to be viewed in a different way by the higher court. He also said Congress could choose to exempt Native Hawaiians from the civil rights law.

"I think that you might have this looked at in a different perspective if you have the Akaka bill," Bennett said.

Republicans in the Senate have blocked the Akaka bill for the past five years, primarily claiming it would create a government that excludes people on the basis of their race.

The appeals court ruled yesterday that even if Congress were to exempt Native Hawaiians from civil rights law, Kamehameha's admissions policy could not be exclusively racial and at the same time covered under a special relationship with the government similar to Indian tribes. The Supreme Court has ruled, in a case involving hiring practices at the federal Bureau of Indian Affairs, that hiring preferences for Indians were legal because they were based on their tribal affiliation and were political, not racial, in nature.

In a footnote related to the dissent, the appeals court also warned that constitutional problems could be raised against other Native Hawaiian programs if the grants to Kamehameha were seen as the federal government authorizing exclusive racial preferences.

"My suspicion is that this case won't help them at all," said Paul Sullivan, a Honolulu attorney who has been critical of the Akaka bill. The ruling, he said, sends a "very cautionary message to Congress about passing bills that give rights to people based solely on race."