[ OUR OPINION ]
Substitute Akaka Bill
should be enactedADVOCATES of federal recognition of a native Hawaiian governing entity have achieved a breakthrough in satisfying concerns expressed by the Bush administration's Department of the Interior but the bill still faces scrutiny by the Justice Department. Those constitutional questions are not likely to be answered through additional changes in the bill and may have to be decided in court battles that are certain to follow its enactment.
THE ISSUE
Hawaii's U.S. senators have introduced a substitute Hawaiian recognition bill to satisfy concerns by the Interior Department.
Senators Akaka and Inouye advised Senate leaders this week that they are introducing a substitute measure for the recognition measure, known as the Akaka Bill. After months of negotiations with Justice and Interior department officials, changes were made to meet concerns of Interior Secretary Gale Norton about taxation, legal jurisdiction, land use and other issues that have arisen between states and Indian tribes.
The substitute bill calls for the state and federal governments to negotiate those issues with the Hawaiian governing body. The changes also include restoring a provision from a 2000 version that would create a commission of nine Hawaiians appointed by the interior secretary to develop and maintain a base roll of eligible participants in the entity, similar in standing to Indian tribes on the mainland.
Still unresolved is the issue of racial discrimination. The U.S. Supreme Court ruled in Rice vs. Cayetano four years ago that non-Hawaiians be allowed to vote in elections of Office of Hawaiian Affairs trustees. While that decision was narrowly based on 15th Amendment voting rights, the Justice Department cited it last year in recommending the removal of Hawaiians as eligible recipients of small-business startups and expansions for native Americans in a Senate bill.
The citation was in a letter from Assistant Attorney General William Moschella to Sen. Olympia Snowe, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship. Moschella said the inclusion of Hawaiians as recipients "raises significant constitutional concerns."
Governor Lingle has minimized the letter's importance, saying, "Some person down in an office who wrote a letter does not represent the policy of the Bush administration." When asked about it last June, Justice Department spokesman Blaine Rethmeier said, "We'll let the letter speak for itself." When asked in February about the Bush administration's position on the Akaka Bill, Rethmeier said it "has not yet been finalized" and pointed to the Moschella letter.
The Akaka Bill defines native Hawaiian as "an individual who is one of the indigenous, native people of Hawaii who is a direct lineal descendant of the aboriginal, indigenous, native people who resided in the islands that now comprise the state of Hawaii on or before Jan. 1, 1893," the year that the monarchy was overthrown.
The only sure way to meet constitutional objections would be to include as beneficiaries descendants of non-Hawaiians who lived in the islands before the overthrow, but that would destroy the essence of the legislation. Sponsors of the bill should go forward without the Justice Department's endorsement.
