Congress has begun to renew consideration of a bill granting tribal status to native Hawaiians — and supporters have reason to be confident of approval. A more difficult contest could occur in the courts, and every effort should be made to satisfy constitutional questions before the bill's enactment.

Democrats have been the major supporters of the bill in Congress, where it was narrowly stopped by a Senate filibuster in 2006. Since then, Democrats have increased their numbers in the Senate from 45 to 58. While President George W. Bush probably would have vetoed the bill, President Barack Obama has assured his signature.

The House Natural Resources Committee heard testimony yesterday, and the only opposition came from Gail Heriot, a member of the Bush-packed Commission on Civil Rights that opposed the bill three years ago along party lines. She and other opponents argue that the bill is race-based while pegged largely to the overthrow of a multi-racial kingdom.

Indeed, Sen. Daniel Akaka's sovereignty bill emphasizes the 1893 overthrow, “;the active participation of agents and citizens of the United States”; and the “;ramifications”; of the overthrow. The bill defines native Hawaiians as those who can trace their ancestry to “;aboriginal, indigenous, native people”; who lived in Hawaii in 1893.

In a report for the state Office of Hawaiian Affairs, Washington lawyer H. Christopher Bartolomucci maintains that the argument that the Hawaiian kingdom was multi-racial should not undermine the indigenous requirement for inclusion.

“;Taken to its logical endpoint,”; he asserts, “;this argument suggests that any sovereign political group that permits outsiders into its ranks surrenders its sovereignty; this clearly cannot be.”;

Bartolomucci, who focuses on appellate and U.S. Supreme Court litigation, further argues that non-Hawaiian participation in the kingdom's government “;was at least in part the result of direct pressure by Europeans and Americans who sought increased influence over Hawaiian affairs.”;

In her testimony, Heriot argued the “;the greatest irony”; would be that native Hawaiians as defined in the bill could include, through intermarriage over the years, descendants of “;those 19th-century white settlers (who) are the ones who wronged the 19th-century ethnic Hawaiians.”;

Those messy arguments should not have to be made in Congress or, more importantly, the courts. Instead, the Office of Hawaiian Affairs now suggests that the Akaka Bill's definition of native Hawaiian be pegged to 1778, the year that English explorer Captain James Cook became the first non-Hawaiian to set foot on the islands. That is among three new amendments to H.R. 2314 and S. 1011 that OHA is urging Hawaii's congressional delegation to support.

Haunani Apoliona, chairwoman of the OHA board of trustees, says the 1778 definition would conform more with the native American and Alaskan tribes, which have the sovereignty that Hawaiians now seek. Heinous as the overthrow was, citing it as the reason for granting sovereignty to indigenous Hawaiians could create a legal risk that should be avoided.