Entitlements still at issue in Akaka Bill

The Justice Department and the White House continue to raise questions about the constitutionality of federal programs to help native Hawaiians.

Last week, the Bush administration's Office of Management and Budget cited Justice Department questions about the constitutionality of native Hawaiian program funding in the military appropriations bill, H.R. 2863. The administration has raised similar questions about programs for native Hawaiians every year since 2002.

"The Department of Justice advises that there is a substantial, unresolved question whether Congress has authority to deal with Native Hawaiians as it does with Indian tribes. To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts," OMB officials wrote last week.

Supporters of native Hawaiian recognition say the Justice Department is just looking for court guidance on the issues, and doesn't necessarily oppose passage of the measure known as the Akaka Bill, although it has harbored similar questions.

Spokespersons for Hawaii Sens. Daniel Akaka and Daniel Inouye interpreted the note to mean the administration is continuing to raise concerns, but not threatening to veto the bill.

"In its statement, the administration is noting that it is not objecting to the provision. If you read the paragraph closely, it referred to 'unresolved questions,'" said Mike Yuen, Inouye's press secretary.

Donalyn Dela Cruz, spokeswoman for Akaka, noted that the Akaka Bill is designed to answer concerns about the constitutionality of native Hawaiian programs. "The Akaka Bill is working to establish a political and legal relationship with the United States," she said.

The Justice Department has brought up the same concerns in discussing the Akaka Bill, saying that the courts have never dealt with the issue of Congress extending sovereign- ty to native Hawaiians.

Robert Klein, a former Hawaii Supreme Court justice and attorney for the Office of Hawaiian Affairs, also said the Akaka Bill was developed to handle such worries.

"It would be a concern if the administration had acted on the issue and denied the appropriation, but that has never happened. They are pointing out the question, can Congress extend this recognition?

"It is an open question, and we won't know the answer until a court of law answers it," Klein said.