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Washington in brief

Fine-tuning of Akaka Bill for Native Hawaiian recognition

HONOLULU - Interior Secretary Gale Norton has acknowledged that Bush Administration officials at Interior and the Department of Justice are discussing a proposal for federal recognition of a Native Hawaiian governing entity with the Hawaiian congressional delegation.

Honolulu newspapers and the Office of Hawaiian Affairs report that Norton made the acknowledgment in answer to a question following her speech to the American Farm Bureau Federation convention Jan. 11. In the administration's first direct public statement on Senate bill S. 344, the so-called Akaka Bill, Norton said her department is primarily concerned with practical matters, such as the relationship between the state and the Native Hawaiian governing entity.

As outlined in the bill as written, she said, the entity could invite the kind of disputes over taxation, criminal jurisdiction and other matters that have become all too common between states and tribes, or for that matter between states and Alaska Native villages. A priority should be to make sure the Native Hawaiian governing entity can function properly once it is in place, she added.

Others within the administration are concerned with the constitutionality of the bill as written, Norton said.

Sen. Ben Nighthorse Campbell, R-Colo., chairman of the Senate Committee on Indian Affairs, noted in February 2003 that Norton was supportive of the Akaka Bill. Later on the legislative calendar, the committee passed the bill. It has not yet come up for a vote of the Senate.

Paul Cardus, press secretary for Sen. Daniel Akaka, D-Hawaii, the bill's leading sponsor along with fellow Hawaii Democrat Daniel K. Inouye, said no voting date has been set but the senator has asked Senate leadership for an hour in a crowded schedule to vote on the bill in the current congressional session, which opened Jan. 20. "His commitment is to push S. 344."

Cardus added that discussions between Akaka, Inouye and the Interior Department on S. 344 are numerous and ongoing. "If it would reach the point where changes would be made that everyone agreed on, he would share that with the [Hawaiian] community."

Gov. Linda Lingle, a popular Republican in the Democratic stronghold of Hawaii, has drawn Republican attention to the bill and continues to advocate for it. She met with the Hawaii congressional delegation shortly before Norton's remarks.

Not all Native Hawaiians favor S. 344. Significant groups of independence-minded Native Hawaiians argue that old Hawaii was a monarchy illegally deposed, in part by U.S. forces, and that resistance to the overthrow and subsequent forms of statehood has been uninterrupted ever since. (In 1993, 100 years later, Congress formally apologized for the U.S. role in the overthrow.)

But for those willing to work within the framework of U.S. federal law, much hinges on S. 344. Following a U.S. Supreme Court decision in 2000 that found a long-established Native Hawaiian voting preference unconstitutional on racial grounds, many Native preferences in Hawaii have come under attack in the courts. The Supreme Court precedent in the voting rights case has encouraged court challenges to vital Native interests in Hawaii, involving many millions of dollars in support of Native needs and challenging the viability of key Native-specific institutions, including the Office of Hawaiian Affairs, the Department of Hawaiian Home Lands, and Kamehameha Schools.

Many of these challenges have been turned back. But only one proposal has made public headway on resolving the problem: formal federal recognition of a Native Hawaiian government for purposes of a government-to-government relationship with the United States. As proposed in the Akaka Bill, federal recognition would extend the same preferences to Native Hawaiians that Indian tribes and Alaska Native villages now enjoy, but without breaking altogether new ground because federal recognition has always extended to Native Hawaiians in some form. The preferences of a more formal federal recognition would derive not from membership in a minority, but from status as indigenous peoples under self-determined governance - that is, from a political rather than a racial classification. This status would be based on the commerce clause of the U.S. Constitution, which has been upheld many times by the Supreme Court, and on the historical relationships of the United States with indigenous peoples within its borders. As Sen. Daniel Akaka, D-Hawaii, the bill's sponsor, never fails to point out, federal recognition for Native Hawaiians would complete the political and legal relationship of the United States with its indigenous peoples.

In an unrelated development that followed Norton's remarks by a matter of days, a federal judge found in favor of the Office of Hawaiian Affairs in a court case that could have undermined OHA's legitimacy by holding that its Native Hawaiian entitlements are racially based. The presiding judge ruled on Jan. 14 that a federal "special trust relationship" with Native Hawaiians of varying blood quanta has been recognized by Congress and should be refined there without intervention by the courts.

Though plaintiffs promised an appeal and Native Hawaiian advocates warned of continuing legal challenges, the ruling is the latest precedent for a political, rather than racial, classification of Native Hawaiians.

Department of Justice in trouble again

WASHINGTON - A federal judge on Jan. 23 issued an order demanding that Department of Justice attorneys explain themselves or face contempt of court proceedings in a case involving Native Americans.

Pursuant to a report in the Jan. 24 Washington Post, the chambers of District Court Judge Emmet G. Sullivan confirmed that the order had been issued because DOJ attorneys had instructed court-subpoenaed witnesses not to appear for testimony. The case in question involves Native American allegations of discrimination in farm lending and technical assistance at the U.S. Department of Agriculture. The USDA has settled a similar lawsuit by black farmers. The Post report described Sullivan as "furious" while he addressed a DOJ lawyer from the bench on Jan. 23.

This is not the first time the DOJ has been in hot water with a district court judge in a major Native American case. In the Cobell litigation over Indian trust funds, District of Columbia District Court Judge Royce C. Lamberth has found a "pattern and practice of litigation misconduct" in the proceedings of DOJ attorneys, according to Keith Harper, the Native American Rights Fund attorney who has taken a prominent role in the Cobell class action lawsuit. In addition, he said, in March 2003 Lamberth referred DOJ attorneys to the disciplinary committee of the D.C. bar over a deposition.

"Whenever a Native American claim is brought, the Ashcroft Justice Department thinks it can set aside the rules," Harper said (in reference of course to U.S. Attorney General John Ashcroft). "I think the country should expect more ? It's a sad day when Department of Justice attorneys stand by and throw sand in the wheels of justice."