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Akaka Bill opposition loses ground on constitutionality, race and separatism issues

WASHINGTON - Full-length hearings on the Akaka Bill in the Senate and House of Representatives built a solid legislative record for the latest effort to authorize a process that would re-establish a Native Hawaiian governing entity. The United States participated in the overthrow of the Hawaiian monarchy, the aboriginal governing entity of the islands, in 1893.

Opponents of federal recognition for Native Hawaiian self-governance, including the U.S. Department of Justice, have raised a host of issues against it. Foremost among them have been arguments that a Native Hawaiian governing entity would divide U.S. sovereignty by encouraging so-called ''secessionist'' sentiment in the islands, foster race-based governance and invite constitutional scrutiny from the courts.

The early May hearings built a detailed case for rejection of these leading arguments against the Akaka Bill. (Its informal namesake is Sen. Daniel Akaka, D-Hawaii; its official number in the Senate is S. 310.) Patricia Zell, a lobbyist for the bill with Zell and Cox Law in Washington, said the hearings had increased her confidence in the bill's constitutionality. ''I think that the issues that the Justice Department identified as their constitutional concerns were very capably addressed by the Attorney General of Hawaii [Mark Bennett] and professor [Viet] Dinh, and given professor Dinh's former capacity as the head of the Office of Legal Counsel in the Department of Justice, I think that should be given great weight.''

Both Bennett and Dinh testified that Congress has the ''plenary and exclusive power'' to establish, terminate and restore Native governments, including ''ample authority to enact this legislation,'' as Dinh put it. Both added that because the historical dealings of Congress with Native Hawaiians have been anything but arbitrary, the Supreme Court is most unlikely to overturn congressional recognition of the Native Hawaiian governing entity that would be negotiated under S. 310, which both said has been modeled on the constitutionally tested Menominee Restoration Act, restoring a terminated tribe to federal recognition. ''Never, in the more than two centuries of this Republic,'' Bennett said, ''has the Supreme Court of the United States struck down the recognition of an aboriginal people by the Congress, pursuant to Congress' authority under the Indian Commerce Clause of the Constitution.''

Race is no basis for federal recognition of indigenous peoples and governments, both maintained. ''The Supreme Court has specifically stated that the recognition afforded to our Native peoples is political and not racial, and this bill specifically states that the recognition afforded Native Hawaiians is of a type and nature of the relationship the United States has with the several federally recognized Indian tribes,'' Bennett said. Dinh added that he does not believe the bill would create a citizen class based on race ''for the exact reason that the Supreme Court has never considered such legislation dealing with Indian affairs to be race-based bills. Sure, it does single out a class, as with a tribe itself, but that in itself is a power expressly granted in the Constitution ... and the court has very clearly and consistently characterized this as a political decision, not a race-based classification.''

The Justice Department's discernment of a secessionist threat came in for incredulous dismissal from Sen. Daniel K. Inouye, D-Hawaii, a member of the Senate Committee on Indian Affairs. Questioning Justice Department Principal Deputy Associate Attorney General Gregory Katsis, Inouye asked if the department was really serious to suggest it. He gave examples of Native Hawaiians' patriotism in time of war and said they have participated so fully in federal and state governance that they are well-prepared to govern responsibly. ''They are just as American as anyone else, and to suggest that they may involve themselves in separatist movements I think is an insult to them.''

Bennett said a loud few in Hawaii who seek Native Hawaiian independence do not support the bill in any case. Seventy-five of 77 Hawaiian state legislators support the Akaka Bill, and 84 percent of polled Hawaii residents support federal recognition for Native Hawaiians, he said. ''That would not be the case if they thought there was any small possibility of secession.'' In fact, there is ''no possibility'' of Native Hawaiian secession, he said.

Dinh said Native Hawaiian separatism would be contrary to everything Native Hawaiians believe ''as Americans and as Native Hawaiians.''