[ OUR OPINION ]

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Battle over treatment
of Hawaiians will be lengthy

THE ISSUE A federal appeals court has scheduled a hearing on the appeal of a lawsuit challenging Kamehameha Schools' admission practices.

AT a snail's pace, Congress and the courts are approaching the end of what may be only the first round in an important battle over government recognition and treatment of native Hawaiians. While supporters of recognition have been assured congressional action on that issue by next August, a federal appeals court will hear arguments in November about a lawsuit challenging Kamehameha Schools' Hawaiians-only admission policy.

Educational and social programs are needed for the continued benefit to Hawaiians, but the issues in legal challenges are daunting. Resolution of those and related disputes may be years away.

The recognition bill would give native Hawaiians a similar status as that provided to Native Americans and native Alaskans. Sponsored by Senator Akaka, it has been lingering in Congress, held up by obstructionist tactics. Akaka and Senator Inouye applied a strategic maneuver to overcome those tactics last week and received assurance of a Senate vote on the issue by Aug. 7. The House gave voice approval of the bill in 2000 and is likely to approve it in the coming Congress.

Enactment of the Akaka bill would not bring an end to the battle. Some opponents are likely to contend in court that the Akaka measure itself is unconstitutional. They point out that the bill's purpose of atoning for the overthrow of the monarchy in 1893 seems not to recognize that the monarchy at that point was multiracial. The bill recognizes as native Hawaiians those whose lineage precedes the arrival of Captain Cook in 1778.

A panel of the 9th U.S. Circuit Court of Appeals is scheduled to hear arguments in the Kamehameha Schools case on Nov. 4 at the University of Hawaii's law school. Federal Judge Alan Kay ruled last November that the priority for Hawaiians to attend the school is legal because its purpose is to remedy racial injustices of the past.

That legal doctrine was scaled back in June 2003 when the U.S. Supreme Court ruled that the University of Michigan could not accept or reject undergraduate applicants solely on the basis of race. The court found that the admissions policy was disallowed under the Civil Rights Act of 1866, which bans racial discrimination at public and private schools. That law is central to the Kamehameha Schools case.

Nainoa Thompson, a Kamehameha Schools trustee, notes that the school does not receive federal funds, but that is of no consequence in the lawsuit. The Civil Rights Act of 1964, which bans racial discrimination at any institution receiving federal funds, is not at issue in the case.

Another lawsuit against the Office of Hawaiian Affairs for programs that specifically benefit Hawaiians also is pending appeal. Federal Judge Susan Oki Mollway dismissed the suit in January, citing past legislation and the continuing consideration of the Akaka bill. Enactment of the Akaka bill could be critical to the protection of those government benefits for Hawaiians.