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Akaka bill gets boost
from Bush administration

THE ISSUE The U.S. Senate is expected this week to begin consideration of federal recognition of Hawaiians.

PROPONENTS of Hawaiian sovereignty have received a major boost from the Bush administration as the measure nears a Senate vote. A Justice Department letter recommending modest changes in Senator Akaka's bill does not challenge its constitutionality, a major argument being made by Republican opponents. Defeating the argument should result in the long-awaited federal recognition of Hawaiians on a level equal to that of other native American groups.

The good news comes two years after Assistant Attorney General William Moscella sent a letter to a Senate committee expressing "constitutional concerns" about a bill that would include Hawaiians among eligible recipients of small-business startups and expansions for native Americans. The letter cited the U.S. Supreme Court's 2000 decision in Rice vs. Cayetano that non-Hawaiians be allowed to vote in Office of Hawaiian Affairs Elections.

The 2003 letter by Moscella, the Justice Department's legislative affairs director, implied that providing federal benefits to Hawaiians would violate the Equal Protection Clause of the Fourteenth Amendment for the same reason that formed the basis of the high court's ruling in the Rice case: racial discrimination.

That is the argument made by many opponents of the Akaka bill. A paper published last month by the Republican Policy Committee and authored its chairman, Sen. John Kyl of Arizona, maintains that the Akaka bill "would lead the nation down a path to racial balkanization, with different legal codes being applied to persons of different races who live in the same communities." The bill defines a Hawaiian as a "direct lineal descendent of the aboriginal, indigenous, native people."

In a letter this week to Sen. John McCain, R-Ariz., chairman of the Senate Indian Affairs Committee, Moscella recommended minor changes in the Akaka bill. "The administration stands ready to work with Congress on specific language to address and resolve each policy issue discussed," Moscella said.

Moscella's letter did not support the contention of the bill's detractors that it is unconstitutional, instead suggesting that the issue is open to dispute. His distinction between the ordinary legislation in 2003 and the Akaka bill appears to take into account the point made by state Attorney General Mark Bennett that the Supreme Court has recognized the plenary, or absolute, constitutional authority of Congress to deal with indigenous peoples.

In a 10-page response to Kyl's statement, Bennett and Governor Lingle cited a 2004 Supreme Court decision confirming the broad authority of Congress to legislate in accordance with Indian commerce clause of the Constitution. The ruling "provides very strong support" for the Akaka bill's constitutionality, Bennett and Lingle asserted.

The activity of the Lingle administration in support of the bill is crucial in obtaining the bipartisan support needed for passage of the bill and for President Bush's agreement that it become law. The chances of that occurring are brighter than ever.

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