Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 11, 1 Nowemapa 1997 — Page 12 Advertisements Column 1 [ADVERTISEMENT]

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L U T I ) WmĒamĒ i ■l t m m t| — 1

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Nat$e Hawaiian Legal Corporation directcd Clt thc Office of Affairs and the second, at the Kamehameha Scnools/Bishop Estate should worry all of us even though the targets appear to be institutions.

Why should we be concerned? Mainly because if the person suing OHA and KSBE is successful, all services and programs sp>ecifically set up to help Native Hawaiians may be dismantled. In the first lawsuit, Rice V. Cavetano, Big Island rancher, Harold Rice, is challenging a state law that says only Native Hawaiians ean vote in the elections for OHA trustees. Mr. Rice, a non Hawaiian, claims that this restriction violates his rights under the 14th and 15th amendments of the United States Constitution. In the second lawsuit, Rice V. Kamehameha Schools/Bishop Estate. the same Mr. Rice charges that Kamehameha Schools violate the Civil Rights Act of 1866 ; by giving preference to Native Hawaiian i children in its admissions policy. i Both lawsuits raise the fundamental issue of whether or not Native Hawaiians : ean be given special legal status or whether attempts to recogni2e such a special status is wrong because it is a form of racial discrimination. In his lawsuits, Mr. Rice argues that a recent U.S. Supreme Court decision alters the scope of earlier laws that form the basis for how Native Hawaiians are to be treated. Under a 1974 decision, the U.S. Supreme Court upheld a law that allowed the federal govemment to give hiring preferences to members of Indian tribes over nonNative Americans. The hirings were for jobs [ within the Bureau of Indian Affairs. But the Court has never dealt directly with the question of whether the U.S. Constitution permits such benefits to be given to Native Americans who are not federally recognized. The key to understanding the legal debate lies with the term "federal recognition" or "federally recognized". There are more than 500 Indian nations (tribes) within the borders of the United States. Yet not all of these nations are "federally recognized" as politically distinct by the federal government. That is, not all of them have the status that includes the existence of a "govern-ment-to-govemment" relationship with the ■ _ __

federal govemment. Native Hawaiians, for example, are not federally recognized. In a 1995 decision referred to as Adarand V. Pena. the U.S. Supreme Court struck down a program that gave preference to "social!y and economicalIy disadvantaged individuals". The justices basically concluded that such preferences led to racial discrimination against people who are not members of minority groups. The decision greatly limited the conditions under whieh govemment programs may provide ethnic minorities with special benefits and assistance not available to non minorities, even though the minority groups have historically been the victims of racial discrimination. Mr. Rice argues that the Adarand decision shows that Native Hawaiians cannot be given special treatment or preference in the same way as other Native Americans who are federally recognized. If this were his views alone, we could all breathe easier. But in a 1996 article in the prestigious Yale Law Journai, author Stuart Minor Benjamin wrote that the Adarand decision required that special programs for Native Americans be restricted to members of tribes formally recognized as sovereign and having a gov-ernment-to-govemment relationship with the United States. In a recent case dealing with Alaskan Natives, two judges on the U.S. Court of Appeals for the Ninth Circuit (the same appeals court that hears Hawaii cases) favorably used the Benjamin article. If these opinions prevail, Native Hawaiians will lose. Native Hawaiians could lose their ability to elect trustees of the Office of Hawaiian Affairs. They could lose their special status under the Admissions Act and the Hawaiian Homes Commission Act. Kamehameha Schools could well lose their ability to give admissions preference to Native Hawaiian children. Indeed Hawaiians could lose all existing legal recognition under federal or state Iaw of their unique history as a native people and as the heirs of the sovereign and independent Kingdom of Hawaii. So far, the lower federal courts have

rejected legal challenges to govemment programs for Native Hawaiians. In 1991 U.S. District Judge David Ezra rejected the argument that the Hawaiian Homes Commission Act was unconstitutional because only native Hawaiians could apply to it. Again in 1996 and 1997, in two decisions in Rice V. Cayetano, Judge Ezra upheld the legality of the OHA elections and the Native Hawaiian Vote against a similar challenge. In doing so, Judge Ezra gave great signifieanee to the enactment of the Hawaiian Homes Commission Act in 1921, the adoption of special protections for Native Hawaiians in the Hawaii Admissions Act in 1959 and the inclusion of Native Hawaiians with other Native Americans as beneficiaries of a number of federal programs. Even if Native Hawaiians are not "federal!y recognized", Ezra said Congressional actions demonstrate the recognition of the existence of a special trust relationship between Native Hawaiians and the federal govemment. But in recent years, the U.S. Supreme Court has shown itself to be increasingly hostile to both to "affirmative action" and to the sovereign powers of Native Americans and other entities. Because of the potential for great hann, all Native Hawaiians should be watching the courts closely as the cases work their way through the system.

The Native Hawaiian Legal Corporation is lookingfor community representatives to sit on its Board of Directors. We are interested in individuals who ean serve as community representatives for the islands of i O'ahu, Maui, Moloka'i and Kaua'i. hidividuals must be \ 1| appointed by a community organization.

Ifyou oryour organization is interested, please eall the Native Hawaiian Legal Corporation at (808) 521-2302 oryou ean write us at 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i 96813 Fax: (808) 537-4268