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Bush questions legality of Native Hawaiian bill
Wednesday, September 28, 2005

The Bush administration continues to oppose a bill to recognize a Native Hawaiian governing entity despite attempts to draft a compromise.

Just two weeks ago, Sen. Daniel Akaka (D-Hawaii), the sponsor of the Native Hawaiian Reorganization Act of 2005, announced a series of amendments to the bill. Akaka said the compromise addressed concerns the administration raised about litigation liability, military readiness, civil and criminal jurisdiction and gaming.

But in a new statement released last week, the Department of Justice said Bush officials still have doubts about the legislation. The objection centers on the ability of Congress to deal with Native Hawaiians in a manner similar to the trust relationship with American Indians and Native Hawaiians.

"The administration appreciates the work of the Hawaii 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," the statement read.

The statement underscores long-running opposition within the Department of Justice. Since the start of the Bush administration, government attorneys have questioned the legality of the recognition bill in addition to federal programs that benefit Native Hawaiians.

But the statement is the first indication of much-larger doubts throughout the administration. Until now, the White House had not given its position on the bill, whose consideration has been delayed in the Senate several times this year.

Akaka and other members of the Hawaii delegation had said the White House was included in the compromise amendments announced on September 16. In response to the DOJ statement, he said he was confident that the recognition bill was legal.

"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," he said last week. "However, I believe firmly in Congress' authority to extend the federal policy of self-governance and self-determination to Native Hawaiians, Hawaii's indigenous people."

Conservative Republicans and organizations have been heavily lobbying the Senate to oppose the measure. Through newspaper columns, web sites, public forums and other methods, they argue that Congress doesn't have the power to create a "race-based" government.

Meanwhile, Gov. Linda Lingle, a Republican, has been engaged in some lobbying of her own. She is hoping to convince any holdouts about the bill's constitutionality.

The bill was to be considered earlier this month when lawmakers returned from their August recess. But relief efforts for Hurricane Katrina and the death of chief justice William H. Rehnquist, along the subsequent nomination of attorney John G. Roberts Jr. to that post, delayed the schedule.

Akaka and other supporters have said the bill has enough votes to break a filibuster on the floor. Sixty votes are needed to force consideration on the measure. In the House, the bill has easily won passage in prior years.

The effort comes amid renewed challenges to Native Hawaiian rights. On August 2, a panel of three judges on the 9th Circuit Court of Appeals struck down the admission policy of a private school that limited enrollment to Native Hawaiians. On August 31, another 9th Circuit panel that citizens of Hawaii can sue to stop funding for the Office of Hawaiian Affairs.

Both cases have raised the question of the ability of Congress to treat Native Hawaiians in a manner similar to American Indians and Alaska Natives. The issue has yet to be resolved, leading to a likely showdown before the U.S. Supreme Court.

With Roberts headed for confirmation as chief justice for the court, some opponents of the recognition bill are worried that his past work on behalf of Native Hawaiians might be a sign of bias. In Rice v. Cayetano, he argued before the high court that "Congress has singled out Hawaiians as a beneficiary of a trust relationship, just like the trust relationship that is extended to American Indians," according to a transcript of the hearing.

Incidentally, the attorney who handled the other side of the case was Ted Olsen, who served as Solicitor General for the Bush administration from June 2001 through July 2004. Olsen coordinated all Supreme Court litigation on behalf of the United States and oversaw other cases that were on their way to the high court.

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Rice v. Cayetano Resources:
Abstract, Audio and More

Rice v. Cayetano Election Rights Decision:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Michelle Malkin Column:
Apartheid in Hawaii: Which Side is John Roberts on? (August 4, 2005)

Heritage Foundation Forum:
Native Hawaiian Sovereignty Act: A Step Toward Secession? (August 30, 2005)

Senate Republican Policy Paper:
Why Congress Must Reject Race-Based Government for Native Hawaiians (June 2005)

Office of Hawaiian Affairs Decision:
Arakaki v. Lingle (August 31, 2005)

School Admission Policy Decision:
Doe v. Kamehameha Schools (August 2, 2005)

Relevant Links:
Kamehameha Schools - http://www.ksbe.edu
Native Hawaiian Sovereignty Site - http://www.hawaii-nation.org
Native Hawaiian Federal Recognition Site - http://www.nativehawaiians.com