WASHINGTON — State Attorney General Mark Bennett, in an extensive defense of a Native Hawaiian federal recognition bill, told U.S. House lawmakers yesterday that denying recognition "makes no sense for a country that prides itself on justice and fairness."
At a hearing before the House Judiciary subcommittee on the Constitution, Bennett said Native Hawaiians have had a special political relationship with the United States based on their unique status as indigenous people, not their race.
Bennett said Congress has the constitutional authority under the Indian commerce clause to recognize Hawaiians as it has Indian tribes and Alaska Natives. "It is not a matter of race. It is not unconstitutional. It is a matter of justice and fairness," he said.
Several conservative Republicans have been critical of the bill, which would create a process for Native Hawaiians to form their own government because it would classify people based on race.
The hearing yesterday, as the bill awaits a possible vote in the U.S. Senate, was the first to solely address whether it is constitutional. Supporters of the bill, known as the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, saw the hearing as a preview of potential opposition in the House if the bill were to make it through the Senate.
Several trustees from the Office of Hawaiian Affairs, who came here in anticipation of the Senate vote, were in the audience at the hearing, wearing purple and white lei.
Three of the four witnesses invited to testify fundamentally oppose the bill as unconstitutional, and the subcommittee's chairman, U.S. Rep. Steve Chabot, R-Ohio, said yesterday he believes it might be unconstitutional.
Chabot said the bill would divide people based on their race and conflict with the nation's goal of a colorblind society. "My impression at this point is that it is not constitutional or at least not appropriate," he told The Advertiser. "I think it is the wrong way for the nation to be heading."
The Judiciary Committee does not have jurisdiction over the bill — it was assigned to the House Resources Committee — but Chabot and other conservatives could have an influence on their colleagues.
H. William Burgess, an attorney with Aloha for All, which opposes the bill, said it would "validate the radical minority separatists" who want Hawaiian independence.
"The U.S. can't give rights to groups of people merely because they share an ancestry," Burgess said.
The constitutional questions involve whether the bill would violate due process and equal protection rights by limiting eligibility in a new government to Native Hawaiians. Legal experts believe the bill will likely be challenged in court if it passes.
The Supreme Court, in Rice v. Cayetano in 2000, ruled that it was unconstitutional to prohibit non-Hawaiians from voting for trustees of the state Office of Hawaiian Affairs. Opponents believe the Akaka bill could pose a similar problem if an appointed commission that would certify who belongs to a new government is restricted to Native Hawaiians.
Bruce Fein, a constitutional lawyer hired by the Grassroot Institute of Hawaii, which also opposes the bill, said one of the nation's strengths is its commitment to equal opportunity regardless of race or ancestry. "The Akaka bill, in my judgment, besmirches those ideals. It would weaken the country and must be defeated," he said.
Bennett said that while race is a component, the new government would be made up of descendants of the indigenous people of the Islands, who have already been recognized by Congress through numerous federal programs that have stood without challenge for decades.
The bill has broad support from OHA and Hawai'i politicians, but some in the Hawaiian community believe it would weaken any real claims to sovereignty.
Kilikina Kekumano, a retired flight attendant who has homes in Poka'i Bay and Williamsburg, Va., said she thought a formal 1993 apology to Hawaiians from President Clinton and Congress for the U.S. government's role in the 1893 overthrow might eventually lead to the restoration of the Hawaiian kingdom.
The Akaka bill, she said, might jeopardize independence. "Now we're going to be federal wards of America," Kekumano said.