Sen. John Kyl, who has been identified as the senator who has put a hold on the bill, explained his opposition in a letter addressing his concerns.
The Arizona Republican says the measure named for Sen. Daniel Akaka, D-Hawaii, "would violate the United States Constitution and create a divisive and unworkable system of government."
"Persons of different races, who live together in the same society, would be subject to different legal codes," Kyl maintains. "This would not produce racial reconciliation in Hawaii. Instead, it is a recipe for permanent racial conflict."
Kai'opua Fyfe and Ehu Cardwell, of the Kauai-based Koani Foundation, said that during a recent visit to Washington, they met with aides to Kyl, Senate President Bill Frist, R-Tenn., and Sen. John McCain, R-Ariz.
All agreed that the bill, commonly known as the Akaka bill, will not be approved this year, according to Fyfe and Cardwell.
The Akaka bill would establish an office in the Department of the Interior to address native Hawaiian issues and create an interagency group composed of representatives of federal agencies that currently administer programs and policies affecting Hawaiians.
In effect, the federal government would recognize Hawaiians as a native population, as it already does American Indians and native Alaskans.
Senate rules give individual senators the power to hold up any bill. Fyfe said the group was told that Frist has no intention of scheduling the bill even if the hold were lifted and that McCain, chairman of the Indian Affairs Committee, does not support it.
Despite repeated calls to their offices, no comment could be gotten from Frist or McCain. Kyl spokesman Scott Montrey said he could not comment on the chances of the bill being passed before Congress adjourns this fall, but did say that the senator is not the only one opposed to the bill.
Akaka and Sen. Daniel Inouye, D-Hawaii, however, are optimistic the bill will win approval. They and two prominent constitutional law professors disagree that the bill would violate the Constitution.
Akaka believes that he and Inouye have effectively countered the constitutional arguments, according to his spokesman, Paul Cardus.
Inouye said the Interior Department also does not see any constitutional problems.
Charles Wilkinson, a law professor at the University of Colorado, said in a memorandum prepared for the state Office of Hawaiian Affairs that most scholars believe Congress has authority under the Indian Commerce clause of the Constitution to recognize native Hawaiians.
"This is because the overthrow and subsequent actions affected only the recognition of Hawaiian sovereignty; the sovereignty itself continued to exist, albeit not recognized by the United States," he said.
A U.S. Supreme Court decision this year "strongly confirms Congress's power to legislate for native people and thus gives strong support for the conclusion that the Akaka bill would be found to be a constitutional exercise of congressional power under the Indian Commerce Clause," said University of Hawaii law professor Jon Van Dyke.
With that backing -- and despite Kyl's efforts -- Akaka, Inouye, Lingle and OHA are optimistic on prospects for the bill.
"We are not giving up," Inouye said. "The session won't end until October."
Inouye said he and Akaka are identifying several legislative vehicles that the bill can be attached to. "We are not waiting until next session," he said.
Lingle has spoken by telephone to Frist several times and met briefly with him during the National Governors Conference in February, said her spokesman Russell Pang.
There was no indication from Frist that the Akaka bill would die, he said.
OHA administrator Clyde Namuo said reports that the Akaka bill is dead are "absolutely false. ... It is very much alive."
Namuo said he and several OHA trustees talked to McCain's staff during an earlier visit to Washington and were told that McCain is not opposed to the bill.
"His objection last year was procedural," Namuo said, noting that McCain objected to inserting the Akaka bill into an appropriations bill.
"I don't think he has an ideological opposition to federal recognition of Hawaiians. I don't think Kyl does, either," said Namuo.
But Kyl, in his letter, said he is concerned the bill could deny Hawaii citizens protection of the Bill of Rights.
"By subjecting native Hawaiians to a government that is not bound by the Constitution, the Akaka bill effectively would take away these constitutional rights from persons who currently enjoy their protection," Kyl said. "This is something that I believe Congress neither can nor should do."
Kyl also said the bill is motivated by a desire to immunize government preferences for native Hawaiians from constitutional scrutiny under the U.S. Supreme Court's 2000 Rice v. Cayetano ruling, which overturned Hawaiians-only voting in OHA elections.
"The Supreme Court generally has frowned on legislative efforts to reverse the effect of its decisions," he said. "I do not think that the Akaka bill would fare any better."
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