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Tuesday, May 16, 2000

An important proposal
for Hawaiian community

Bullet The issue: The Hawaii congressional delegation has prepared a draft bill that would recognize Hawaiians as an indigenous people with the right of self-determination.
Bullet Our view: The measure could lay a foundation for Hawaiians to attain sovereignty.

A first step toward addressing the issue of Hawaiian sovereignty at the federal government level is being taken by the Hawaii congressional delegation. Its members have drafted a bill proposing that the United States recognize Hawaiians as a "unique and distinct indigenous people" with the right of self-determination.

The bill, which is to be introduced by Senator Akaka next month, should be welcomed as an effort to provide a foundation in federal law for the sovereignty movement.

The measure declares that the United States has a trust responsibility to promote the welfare of native Hawaiians. It states that Congress has the authority to legislate for the betterment of native Hawaiians and notes that it has done so in a number of laws.

The bill would establish an Office of Native Hawaiian Affairs in the Department of the Interior and an interagency council to be known as the Native Hawaiian Interagency Council, which would coordinate federal policies affecting Hawaiians.

The congressional delegation is seeking comments on the draft from about 80 people divided into five working groups involved in Hawaiian issues. These include Hawaiians, state officials, including leaders of the Office of Hawaiian Affairs and legislators, federal officials representing several departments, members of Congress and American Indian leaders and constitutional scholars familiar with Indian law and federal policies affecting Indians.

The groups are to present their comments on the draft by the end of the month. Akaka hopes to move the measure through Congress this year -- one consideration is to get the bill to President Clinton for his signature before he leaves office -- but this may be difficult.

Akaka describes the bill as a first step in clarifying the relationship between Hawaiians and the federal government, an issue that has gained urgency as a result of the Rice vs. Cayetano decision declaring unconstitutional the Hawaiians-only restriction in elections for OHA trustees.

This measure is a sensible response to that Supreme Court ruling. It could encourage the Hawaiian community to establish a representative body that could negotiate a legal relationship with the federal government comparable to that of Indian tribes -- a form of sovereignty. With such a relationship, Hawaiians could hope to manage their own affairs and elect their own leaders.

That of course would require the achievement of consensus in the Hawaiian community on a course of action. Given the sharp divisions between rival Hawaiian leaders and organizations, this is an ambitious goal. But the congressional delegation's draft legislation provides a starting point.

Federal rape suits

Bullet The issue: The U.S. Supreme Court has struck down as unconstitutional a law allowing rape victims to sue their attackers in federal court.
Bullet Our view: Congress should refrain from interfering with states' constitutional responsibilities whenever if finds doing so politically popular.

VIOLENCE against women is a matter of national concern, and Congress was responding to public opinion when it enacted legislation in 1994 allowing rape victims to sue their attackers in federal court. The problem is that such lawsuits belong in state courts, not federal. The U.S. Supreme Court has struck down the new law as unconstitutional, sending a message to Congress that it should stop pandering to the public on issues outside its jurisdiction.

Christy Brzonkala, a former Virginia Tech student, brought the suit against two football players, alleging that they raped her in a dorm room. Her attorney, Eileen Wagner, and the Clinton administration argued that the law was necessary because states are doing too little to protect rape victims and because sex-based violence restricts women's choices in jobs and travel.

Those arguments that the interstate commerce clause was involved or that the Constitution's equal-protection guarantee needed to be enforced were a stretch, as the justices ruled by a 5-4 vote.

Even Wagner expected the high court to strike down the law, adding, "The national debate was worth it for sure." Michael E. Rosman, the attorney for the football players, called the ruling "a very good day for the Constitution and the rule of law." He said people who allege they are victims of sex-based violence "have perfectly good remedies in state court."

Unfortunately, Rosman is only half right. The problem is that rape victims who seek compensation through civil lawsuits in state court may jeopardize criminal prosecution of the offenders.

Defense attorneys naturally cite such lawsuits in criminal trials in contending that the rape complainants are motivated by financial gain. Nothing can counter such an argument except actual evidence of the offense. Of course, the same is true of all civil lawsuits stemming from criminal wrongdoing.

The Supreme Court in 1995 struck down as unconstitutional the federal Gun-Free School Zones Act, which made it a federal crime to possess a gun within 1,000 feet of a school. The justices ruled that the law usurped states' authority over such crimes. The overturning of the Violence Against Women Act is consistent with that ruling.

If state laws are inadequate in protecting rape victims, they should be strengthened. Inadequate state laws do not give Congress justification to try to supersede state authority by whimsically claiming that interstate commerce or equal-protection guarantees are involved.

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John M. Flanagan, Editor & Publisher

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A.A. Smyser, Contributing Editor

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