Akaka Bill’s legality
is still unsettled,
says Justice official

Advocates say such constitutional issues
are unlikely to affect Senate support now

The U.S. Justice Department continues to raise questions about the constitutionality of the native Hawaiian recognition bill now stalled in the Senate.

"There are substantial, unresolved constitutional concerns regarding whether Congress may treat native Hawaiians as it does the Indian tribes, and whether Congress may establish and recognize a native Hawaiian governing entity," said John Nowacki, a Department of Justice spokesman, in response to media questions yesterday.

Last week, Sen. Daniel Akaka, D-Hawaii, released information about a series of proposed amendments to the bill, noting that the Justice Department had agreed to the proposals.

But in last week's statement, the Justice Department repeated questions about Congress's power to draw up an agreement with native Hawaiians.

Nowacki repeated those questions again yesterday, saying that the U.S. Supreme Court had also raised the question in previous legal decisions.

"As the Supreme Court has stated, whether native Hawaiians are eligible for tribal status is 'a matter of some dispute' and 'of considerable moment and difficulty,'" Nowacki said.

Republican Gov. Linda Lingle, a supporter of the Akaka Bill, said the statement was not likely to have much influence with GOP senators, because "congressional people already feel they have this authority, and they are not going to side with Justice (Department) in any limitation of their power."

Akaka said specific questions regarding the bill have been addressed and resolved.

"Although I realize and respect that there are those who have differing views, the bill is constitutional," Akaka said.

And Rep. Ed Case, D-Urban Oahu, said the Justice Department concerns are neither a new nor a fatal flaw.

"The Justice Department is the legal branch of the federal government, and it is in the business of raising such issues and it has done so from early on in this administration.

"But it is the courts, not the Department of Justice, that says what is constitutional," Case said.

Lingle said she has heard that the Akaka Bill is likely to be debated in the Senate during the last week of October, and she might return to Washington to lobby for the measure.

Lingle traveled to Washington twice this year to press Republican senators to support the bill.

Currently the Akaka Bill, S. 147, is stalled. A motion to end debate and call for a vote on the bill has been filed, but because of the federal action regarding Hurricane Katrina recovery, the motion has not been scheduled for a vote.

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