[ OUR OPINION ]

Akaka bill passage
has become urgent

THE ISSUE The Justice Department says federal assistance to Hawaiians is unconstitutional.

THE Bush administration has conveyed its opinion to Congress that federal assistance to Hawaiians is unconstitutional racial discrimination. Citing the U.S. Supreme Court decision that struck down the Hawaiians-only restriction on voting for Office of Hawaiian Affairs trustees, the Justice Department has taken a significant legal leap in regarding federal assistance to Hawaiians as unconstitutional. Regardless of the merits of that position, it should spur Congress to enact legislation giving Hawaiians equal standing with other native American groups.

Concerns by the Justice Department and a federal court challenge to the benefits would be erased by enactment by Congress of a bill proposed by Senator Akaka providing recognition of Hawaiian sovereignty. It is paramount that the Akaka bill be enacted in the current session.

The administration's position was put forth by Assistant Attorney General William Moscella in a May 16 letter to Sen. Olympia Snow, R-Maine, chairwoman of the Senate Committee on Small Business and Entrepreneurship. Moscella recommended that, because of "constitutional concerns," a bill pending before the committee be changed to remove Hawaiians as eligible recipients of small-business start-ups and expansions for native Americans.

Moscella's letter cited the high court's 2000 decision in Rice vs. Cayetano that non-Hawaiians be allowed to vote in OHA elections. However, that decision was narrowly based on Fifteenth Amendment voting rights. The letter implies that providing federal benefits to Hawaiians would violate the Equal Protection Clause of the Fourteenth Amendment for the same reason that formed the basis of the Supreme Court's ruling.

The Senate bill at issue provides benefits to Indian tribes and Alaska Native villages, but the Supreme Court in its Rice decision ruled that Hawaiians lack that status. Moscella's letter asserts similarly that providing benefits to Hawaiians could be construed as using "racial or ethnic criteria, rather than tribal affiliation," as the basis for providing benefits.

That is the thrust of a lawsuit brought by an ethnically diverse group challenging OHA and the Department of Hawaiian Home Lands as being unconstitutional. The state's motion to dismiss the lawsuit is scheduled to be heard by U.S. District Judge Susan Mollway on June 16. Moscella's letter is a warning that Hawaiians cannot afford to wait for that case to reach the Supreme Court.

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UH would benefit
in Mountain West

THE ISSUE University leaders have ended a moratorium on expanding the Mountain West Conference.

KENNETH Mortimer was so miffed when eight teams eloped from the Western Athletic Conference in 1996 that he vowed University of Hawaii teams would boycott the runaways. As soon as Mortimer's UH presidency was scheduled to end five years later, so did the snub. The WAC deserters this week ended their self-imposed moratorium on expansion of their Mountain West Conference, and Hawaii should be first in line to rejoin its former league mates. Evan Dobelle, Mortimer's successor, understands the common sense of such a remarriage.

Part of the anger felt by Mortimer and many UH fans stemmed from the immediate absence of Brigham Young University from the Rainbows' schedule. They had treasured BYU as Hawaii's arch-rival. That emotion puzzled many BYU folks, distracted by more proximate rivalries that stretch back beyond the WAC's 1962 founding, before even the predecessor Skyline Conference's birth in 1939. (Hawaii joined the WAC in 1979.)

The WAC had allowed itself to expand in the 1990s to a cumbersome 16 teams, separating into two divisions some of the love-to-hate competition that had thrived for the better part of a century. In deciding to consider expansion, the eight Mountain West members will take great care in not repeating the mistake.

Most of the Mountain West teams are steeped in the tradition of not only Hatfield-McCoy relationships but of strong athletic programs. The current WAC has performed well -- on a par with if not superior to Mountain West teams in the past four years -- and its most successful programs would improve the Mountain West if they were to join it. The programs themselves also would benefit from the affiliation.

Those mentioned most for inclusion in the Mountain West are the cream of the WAC -- Hawaii, Fresno State, Nevada and Boise State, relative upstarts seeking respect and a permanent home. Dobelle has publicly supported such a move for UH. The 11 benchmarks to be considered by the Mountain West include geographical relevance, a disadvantage for Hawaii that should be overcome by its competitive record, also a benchmark.

The Mountain West says it could take as long as a year to decide whether to expand and, if so, by how much.