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The Honolulu Advertiser
Posted on: Thursday, September 22, 2005

Justice Department still objects to Akaka bill

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By Derrick DePledge and Gordon Y.K. Pang
Advertiser Capitol Bureau


The U.S. Department of Justice still has substantial concerns about whether a Native Hawaiian federal recognition bill is constitutional, according to a statement released yesterday, which may fuel Republican opposition and weaken the bill's chances in the U.S. Congress.

The Justice Department under President Bush has consistently raised doubts about whether Congress can recognize Native Hawaiians as an indigenous people similar to Indian tribes, the fundamental premise of the bill sponsored by U.S. Sen. Daniel Akaka, D-Hawai'i. The Hawai'i congressional delegation and the Lingle administration have tried to minimize those concerns and work with the department to satisfy its more practical policy questions about the bill.

Over the past month, Hawai'i lawmakers, the Lingle administration and the Justice Department have agreed to amendments that would bar Hawaiians from bringing land claims against the United States in court and explicitly prohibit a Native Hawaiian government from authorizing gambling.

But in a statement yesterday in response to media inquiries, the Justice Department repeated its constitutional concerns about the bill, indicating the department shares many of the same objections as Republican opponents who have blocked it in the U.S. Senate for five years.

"The administration appreciates the work of the Hawai'i delegation to address some of the concerns raised by the Justice Department but there are substantial, unresolved constitutional concerns regarding whether Congress may treat Native Hawaiians as it does the Indian tribes, and whether Congress may establish and recognize a Native Hawaiian governing entity," said John Nowacki, a Justice Department spokesman. "As the Supreme Court has stated, whether Native Hawaiians are eligible for tribal status is 'a matter of some dispute' and 'of considerable moment and difficulty.' "

The statement comes as Akaka awaits word from the Senate leadership on when an important procedural vote on the bill might be scheduled. The vote was promised earlier this month but was delayed because senators turned their attention to the response to Hurricane Katrina in the Gulf Coast. Gov. Linda Lingle said yesterday she has heard a vote might happen during the third week of October and is planning for what would be her third trip to Washington, D.C., on the bill since July.


Akaka and others in the delegation downplayed the Justice Department's statement yesterday. "Every practical policy issue raised by DOJ in our negotiations has been addressed and resolved," Akaka said in a statement. "Although I realize and respect that there are those who have differing views, the bill is constitutional."

U.S. Sen. Daniel K. Inouye, D-Hawai'i, said in a statement he looks forward to the bill being debated on the Senate floor. "The Akaka bill has been strengthened to address the administration's policy concerns, and I believe the measure is constitutional," the senator said.

U.S. Rep. Ed Case, D-Hawai'i, said the delegation has always known that some Justice Department lawyers have constitutional questions about the bill but he believes the statement yesterday is not a rejection by the White House. The Justice Department under President Clinton had supported the bill.

"I do not believe this is a statement of policy opposition by the executive branch," Case said.

Lingle, after a news conference to announce new federal health-care money, also said the statement came as no surprise. "I'm optimistic about it getting out of the Senate," the governor said.


But others interpreted the Justice Department's statement as the latest setback for the bill, which would create a process for Native Hawaiians to form their own government and might provide a legal shield for Native Hawaiian programs being challenged in court because they are based on race.

"Given all the work that has been done on this bill, I can't imagine that the issue of constitutionality is raised now," said Clyde Namu'o, the administrator for the state Office of Hawaiian Affairs. "If the administration felt it was unconstitutional, I would've assumed that they would have raised this much earlier in the process of getting this bill refined. I'm not sure why the administration would feel obligated to issue this statement now."

Rowena Akana, an OHA trustee, was already unhappy with the amendments and said the Justice Department's statement is another blow. "What the Bush administration has done is taken the lifeblood out of the bill," she said. "Now, they're attacking constitutionality when we thought long ago that was solved."

While all OHA trustees supported the original Akaka bill, Akana said she is not so sure she and others would do so now. "It seems like we're just going around and around with this," she said. "Frankly, I think you can't trust this administration. It says one thing and then it does another thing."


Historian Tom Coffman, who has written about the Native Hawaiian movement, said the amendments are onerous to many Hawaiians, especially the agreement to bar any land claims in court, "which was the essence of the Hawaiian movement to begin with." Under an amendment to the bill, claims would be negotiated between a new Native Hawaiian government and the United States.

Now, he said, "the Department of Justice is saying, 'That's nice, you just gave up on your land claims, but we're going to hold out for you to give up even more claims.' It's hard to project if the Bush administration's real goal is to emasculate the bill or to kill the bill, but it's one of the two."

H. William Burgess, a leader of Aloha for All, which opposes the bill, said the Justice Department's statement should send a message to Republicans and Democrats that the bill has significant problems and should not be passed. "You wouldn't expect the administration to make a statement such as this unless there were some very substantial questions about it," he said.


The Justice Department has cited constitutional concerns about Native Hawaiian programs since at least September 2002, when it wrote Inouye about a bill giving federal grants to OHA for affordable housing for low-income Native Hawaiians. In a July letter to U.S. Sen. John McCain, R-Ariz., the department explained its policy concerns about claims, gambling and other issues in the Akaka bill and again referred to a "substantial, unresolved constitutional question" of whether Hawaiians could be recognized like Indian tribes.

Federal recognition, some believe, might protect Native Hawaiian programs from legal claims of racial discrimination, since their status would be political in nature, not racial.

The Supreme Court decided in Rice v. Cayetano in 2000 that it was unconstitutional to prevent non-Hawaiians from voting for OHA trustees, but the court chose not to rule on the larger question of Hawaiian recognition. The 9th U.S. Circuit Court of Appeals, in its August ruling striking down the race-based admissions policy at Kamehameha Schools, also noted that the relationship between Hawaiians and the federal government is legally unresolved.

Akaka and others believe Congress should pass the bill and, since a legal challenge would be inevitable, allow the courts to address the question directly.

"The question of whether or not Congress has the authority to federally recognize a Native Hawaiian governing entity is an issue that has yet to be ruled on by the courts," Akaka said. "However, I believe firmly in Congress' authority to extend the federal policy of self-governance and self-determination to Native Hawaiians, Hawai'i's indigenous people.

"As it has for America's other indigenous peoples, I believe the United States must fulfill its responsibility to Native Hawaiians."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com and Gordon Y.K. Pang at gpang@honoluluadvertiser.com.