Tuesday, August 23, 2005

Lawyer urges Akaka
to withdraw legislation

A Big Island attorney who has successfully challenged native Hawaiian preferences in two major court cases has asked U.S. Sen. Daniel Akaka to withdraw the so-called Akaka Bill from Senate consideration.

John Goemans faxed a letter to Akaka's Washington, D.C., office yesterday that said the bill "on its face and by its plain meaning is volitive of the 15th Amendment of the U.S. Constitution, which provides citizens of the United States shall not be denied the right to vote by the United States on account of race."

The Akaka Bill, which is formally called the Native Hawaiian Reorganization Act of 2005, authorizes the organization of a native Hawaiian governing entity that, once recognized by the federal government, will have a government-to-government relationship with the United States.

Under the broad outline of the bill, a register of native Hawaiians, based on ancestry, would be drawn up and used to vote for the new government and participate in it.

The U.S. Senate is expected to take up the Akaka Bill the week of Sept. 6.

Akaka could not be reached for comment late yesterday. However, spokeswoman Donalyn Dela Cruz said, "The senator would not sponsor a bill that was illegal, nor would we be negotiating with the White House and the Department of Justice if it were illegal."

Attorney General Mark Bennett, who along with Gov. Linda Lingle has lobbied hard for the bill, disagreed yesterday with Goemans' application of the 15th Amendment. "Our view is that the Akaka Bill is constitutional," he said.

Goemans told the Star-Bulletin, "It's quite clear that an election is being created by the Congress to be conducted by the Department of Interior in which only one race of people will be able to vote."

The 15th Amendment was passed in 1870 after the Civil War to protect the rights of the newly freed slaves. It says, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude."

The 13th Amendment abolished slavery, and the 14th Amendment guarantees equal protection for all citizens under the law.

"It is our belief that the Akaka Bill doesn't violate any of the Civil War amendments because it does not extend a racial preference in any way," Bennett said. "What it does is it extends a preference and a recognition under the Indian Commerce clause of the Constitution."

Goemans is one of the attorneys for the plaintiff in Rice v. Cayetano. In that case, Big Island rancher Harold "Freddy" Rice challenged the state's limit that only native Hawaiians could vote for trustees to the Office of Hawaiian Affairs. Rice argued that allowing only Hawaiians violated the 14th and 15th amendments.

In February 2000 the U.S. Supreme Court voted 7-2 that the Hawaiians-only voting restriction was discriminatory under federal laws and the 15th Amendment.

"It's clear to me that the Akaka Bill is Rice v. Cayetano all over again," Goemans said. "It's amazing this bill has gone as far as it has given that, on its face, it's a clear violation of the 15th Amendment."

The other case in which Goemans is involved is John Doe v. Kamehameha Schools, which challenges the private school's Hawaiians-only admission policy as violating federal anti-discrimination laws. Earlier this month, the 9th Circuit Court of Appeals in San Francisco voted 2-1 that the policy discriminated under federal law because it is "an absolute bar" to non-Hawaiians and "tramples" their rights. Kamehameha attorneys are expected to file their appeal of that decision today.

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