Letter on Hawaiians
sets off policy talkSen. Inouye and Gov.
Lingle differ over the U.S.
Justice Department missive
A U.S. Justice Department letter to a Senate committee could signal that the Bush administration will oppose continuing federal programs for native Hawaiians, U.S. Sen. Daniel Inouye said.
The letter says a reference to native Hawaiians should be deleted from a bill benefiting native American small businesses because it "could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria."
Gov. Linda Lingle said yesterday she has seen a copy of the letter but doubts it represents a policy by the administration to shut off Hawaiian programs.
The May 16 letter seems to address a specific case, she said.
"Some person down in an office who wrote a letter does not represent the policy of the Bush administration," Lingle said.
The letter from Assistant Attorney General William Moschella to Sen. Olympia Snowe, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship, said including native Hawaiians in a bill to assist in small-business start-ups and expansions for native Americans "raises significant constitutional concerns."
Moschella heads the department's Office of Legislative Affairs, which "articulates the views of the department" on congressional legislation, according to its Web site.
"We'll let the letter speak for itself," Justice Department spokesman Blaine Rethmeier said yesterday in a telephone interview from Washington when asked if the Bush administration has established a policy regarding Hawaiian programs. He would not elaborate.
"If that position should prevail in the United States, then all programs we have would be in jeopardy," Inouye told West Hawaii Today's Washington bureau. He referred to $45 million in federal funding for housing, employment, health and education programs for native Hawaiians.
The Justice Department letter cites the U.S. Supreme Court's Rice vs. Cayetano ruling in 2000 that Hawaiians-only voting for Office of Hawaiian Affairs trustees was unconstitutional racial discrimination.
The Rice ruling is the basis for several legal and administrative challenges to federal and state programs specifically benefiting Hawaiians, such as OHA and the Department of Hawaiian Home Lands.
Where the bill's grants are to members of federally recognized Indian tribes and Alaska Native villages, "courts would likely uphold them as constitutional," Moschella's letter said. "To the extent, however, that the bill could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria, rather than tribal affiliation ... the grants would be subject to strict scrutiny."
"To avoid this constitutional concern, the bill should be amended to include only those individuals who have a close affiliation with a recognized tribal entity," the letter said.
"In the absence of findings demonstrating that the bill's authorization of benefits for native Hawaiians is narrowly tailored to serve a compelling government interest, we recommend that the term 'native Hawaiians' be deleted," Moschella said.
He also noted that the department is not aware of any Hawaiian lands that would satisfy the definition of "Indian lands" in the bill.
Office of Hawaiian Affairs Administrator Clyde Namuo sounded the alarm about Moschella's letter in an article in last week's edition of Honolulu Weekly, saying it demonstrates the importance of gaining federal recognition for native Hawaiians.
"As long as Hawaiian remains classified as a 'race' in the eyes of the federal government, our people will remain vulnerable to legal attacks such as those currently making their way through the courts, which seek to deprive us of our rights as an indigenous population with a well-established history of sovereign nationhood," Namuo wrote.
Inouye said he has met with White House officials about the Hawaiian recognition bill, but did not elaborate on those discussions.
Rethmeier said the Justice Department has taken no position on the recognition bill now before the Senate.
Lingle is banking on the so-called "Akaka Bill" for federal recognition of Hawaiians to thwart constitutional challenges to Hawaiians-only programs.
The Republican governor said she, Attorney General Mark Bennett, Hawaiian Homes Chairman Micah Kane and Republican National Committeewoman Miriam Hellreich are working with the White House on the Hawaiians issue.
"Actually, I feel a little more optimistic than I did a few weeks ago on the Akaka Bill," Lingle said, noting that Alaska's Republican U.S. Sen. Ted Stevens has signed on as a co-sponsor, which should help.
She said she is also contacting all GOP senators to explain the issue.
"It's a difficult issue to explain on the mainland," Lingle said. "People try to make a false case that it's somehow race-based. It's just the opposite of that. It's simply treating them fairly the same way other native Americans have been treated."
Lingle said the attorney general has a good case to take before U.S. District Judge Susan Mollway on June 16, asking her to dismiss a lawsuit that challenges OHA and the Department of Hawaiian Homes Lands as being unconstitutional because of racial discrimination.
H. William Burgess filed the lawsuit last year, representing a multiethnic group.
"These two programs make the state of Hawaii the only state in the entire nation that grants homesteads on its public lands exclusively to one race, and in the case of OHA it grants what amounts to all the income from the public lands of Hawaii to one race," he said.