Akaka Bill's defeat imperils programs

THE ISSUE Hawaiian sovereignty has failed to win enough Senate votes to receive final consideration.

SOVEREIGNTY for Hawaiians has been set aside at least for the duration of the Bush administration and might not be achievable beyond then. Yesterday's setback in the Senate should prompt serious discussion about how to shield Hawaiian programs from legal challenges.

The Senate voted 56-41 in favor of proceeding with the Akaka Bill, but 60 votes were needed. More importantly, it fell 11 votes short of being enough to override a veto telegraphed by President Bush. On the eve of the vote, the Bush administration declared that it "strongly opposes" the bill's passage.

William E. Moschella, the assistant attorney general for legislative affairs, had indicated as much three years ago in a letter to Sen. Olympia Snow, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship. That letter said a Senate bill's inclusion of Hawaiians as eligible recipients of small-business startups and expansions for native Americans "raises significant constitutional concerns."

Governor Lingle 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." Moschella's letter on Wednesday to Majority Leader Bill Frist made clear that the administration opposes Hawaiian recognition because it would "divide people by their race."

The Constitution gives Congress plenary authority to recognize indigenous peoples, but opponents of the Akaka Bill pointed out that the Hawaiian monarchy overthrown in 1893 was multiracial. The fact that the overthrow was spearheaded by Americans living in Hawaii and backed by American troops failed to persuade them.

The bill's opponents implied that any sovereign Hawaiian nation should be extended to all people who can trace their lineage to anyone living in the islands at the time of the overthrow. Distorted as that reasoning might seem, it could be the only way to rescue programs aimed at helping Hawaiians.

Taxpayers cannot challenge federal expenditures in court, and the U.S. Supreme Court ruled last month that state funding also is safe from taxpayer lawsuits. While that should bring an end to a current lawsuit challenging public expenditures on Hawaiian programs, they might be challenged by people claiming to be denied benefits because of race.

A 9th U.S. Circuit Court of Appeals panel ruled last August that Kamehameha Schools' admission policy is illegally discriminatory against non-Hawaiians. In the absence of Hawaiian sovereignty, Kamehameha might need to broaden admission to include all children who can trace their ancestry in Hawaii to 1844, when Princess Bernice Pauahi Bishop wrote her will.