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Native Hawaiians in limbo as courts open up programs
Thursday, September 4, 2003

A federal appeals court on Tuesday rejected two lawsuits challenging Native-only programs in Hawaii but didn't rule on the constitutionality of loans, funding and other benefits for the state's first inhabitants.

The unanimous decision from the 9th Circuit Court of Appeals stopped short two non-Natives who claim their rights are being violated. A three-judge panel found that Patrick Barrett and John Carroll, a former state Republican Party chairman, lack standing to dispute programs available only to residents with at least one-fourth Hawaiian blood.

But a federal judge is about to rule in a separate lawsuit against the same programs. U.S. District Judge Susan Mollway has already found that the plaintiffs in that case have standing. She will hold a hearing Monday.

If Mollway opens the programs to non-Natives, it would be another in a string of defeats for Native Hawaiians and their supporters. Ever since the Supreme Court, in the 2000 case Rice v. Cayetano, struck down as unconstitutional an election limited to Natives, the state has been attacked on several fronts.

In response to court decisions, the Office of Hawaiian Affairs (OHA) has been forced to allow non-Natives to run for its trustee positions. Late last month, the Kamehameha Schools was ordered to admit a non-Native student.

The decisions come as Native Hawaiians lobby for federal recognition from the U.S. A bill to establish a Native government has languished in Congress since 2000 amid doubts over its legality.

Supporters, including Gov. Linda Lingle (D), believe recognition will preserve Native-only benefits. They make a similar comparison to programs for American Indians and Alaska Natives on the mainland.

The issue is crucial because many Natives fear their homelands will be opened to non-Natives. The courts have yet to rule whether land set-asides violate the U.S. constitution's ban on race-based privileges.

Months after the Cayetano decision came down, the Clinton administration recommended that the U.S. confirm a government-to-government relationship with Native Hawaiians. The August 2000 report, from the Department of Interior and Department of Justice, underscored a long, and often tumultuous, history between the two nations that includes the 1893 overthrow of Queen Liliuokalani and an apology from Congress 100 years later.

The Bush administration has not embraced the Hawaiian sovereignty movement, prompting criticism from supporters who note that Solicitor General Ted Olson, the government's top Supreme Court lawyer, won the Cayetano case while he was in private practice.

The Senate Indian Affairs Committee has sent the recognition bill to the Senate floor after incorporating changes suggested by the Bush administration. The House, in 2000, passed an earlier version of the bill but has not taken up the revision.

Get the Decision:
Carroll v. Nakatani (September 2, 2003)

Federal Recognition Bills:
S.344 | H.R.665

Relevant Links:
Native Hawaiian Sovereignty Site -
Native Hawaiians, Department of Interior -
Native Hawaiian Federal Recognition Site -

Related Stories:
Native Hawaiian recognition stalled in Congress (09/01)
Judge to rule in Native Hawaiian school case (08/20)
Native Hawaiians fight for federal recognition (07/21)
Student denied entry into Hawaiian school sues (06/30)
DOJ objected to Native Hawaiian legislation (06/06)
Native Hawaiians denied party status in suit (04/01)
Native Hawaiian office established in D.C. (02/27)
Opinion: Oppose Native Hawaiian bill (2/21)
Court affirms Native Hawaiian ruling (01/06)
Native Hawaiians press sovereignty (10/14)
U.S. dismissed from Native Hawaiian case (09/04)
Inouye: Native Hawaiian bill won't pass (8/8)
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Native Hawaiians intervene in lawsuit (7/12)
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Shift in Senate means changes for Indian Country (5/25)
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