Ka Wai Ola - Office of Hawaiian Affairs, Volume 23, Number 5, 1 Mei 2007 — Bartolomucci, Dinh and Katyal: ʻōlelo pono [ARTICLE+ILLUSTRATION]

Bartolomucci, Dinh and Katyal: ʻōlelo pono

Aloha e nā 'ōiwi 'ōlino. Go to the OHA website at www.oha.org, eliek on Hawaiian Recognition, eliek on the title "The Authority of Congress to Establish a Process for Recognizing a Reconstituted Native Hawaiian Governing Entity," a legal paper dated Feb. 26, 2007, and authored by H. Christopher Bartolomucci (he served in the White House Counsel's Office as associate counsel to the president from 2001-2003), Viet D. Dinh (a professor of law and co-director of Asian law and policy studies at the Georgetown University Law Center and a leading consultant on constitutional and regulatory policy issues who also served as U.S. assistant attorney general for legal policy in the Department of Justice from 2001-2003) and Neal Katyal (professor of law at Georgetown Law Center, a specialist in constitutional, criminal and education law. He has been counsel in a number of leading U.S. Supreme Court cases and served as national security adviser to the deputy U.S. attorney general from 1998-1999). The following are excerpts from the 39-page paper. The three legal experts say: "Congressional authority to enact S. 310 and HR 505 encompasses two subordinate questions. First, would Congress have the power to adopt such legislation for members of a Native American tribe in the contiguous 48 states? Second, does such power extend to Native Hawaiians? The answer to both questions is yes." These three legal experts say: "of particular significance to the present analysis, the Court in Lara specifically recognized Congress' power to restore previously extinguished sovereign relations with Indian Tribes. The Court observed that 'Congress has restored previously extinguished tribal status - by re-recognizing a Tribe whose tribal existence it previously terminated. Indeed the Supreme Court has

gone so far as to hold that it is not for the federal judiciary to 'second guess the political branches' own determinations in such circumstances. Congress has determined - and would determine again in passing the NHGRA - that it has such authority. See 42 U.S.C. 11701(17) ('The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of Alaska and Hawai'i'); NHGRA 4(a)(3) (finding that 'Congress possesses the authority under the Constitution, including but not limited to Article I, section 8, clause 3, to enact legislation to address the conditions of Native Hawaiians'). We conclude that courts will likely affirm these assertions of congressional authority. The courts may interfere with such a determination only if it is 'arbitrary.' And a congressional decision through the NHGRA to recognize Native Hawaiians in the same way it has recognized other indigenous groups cannot fairly be said to be arbitrary. To the contrary, it is supported not just by extensive congressional fact-finding (whieh standing alone would suffice to insulate the statute from court review for arbitrariness) but also by numerous other factors, including the parallels between the United States' historical treatment of Native Hawaiians and its treatment of other Native Americans." The three legal experts say: "the principal constitutional objection to the NHGRA - that it classifies U.S. citizens on the basis of race, in violation of the constitutional guarantee of equal protection - would depart from the longstanding precedent with respect to both Native Americans and equal protection. Those who level this objection have cited Rice v. Cayetano, supra, for support. But Rice is inappropriate for two reasons: (1) It did not eoneem Congress' special powers to employ political classifications when dealing with Native Americans but rather concerned a state legislative determination; and (2) it was limited to the unique 15th Amendment voting context." E heluhelu 'oukou. 30/48 ^

LEO 'ELELE ■ TRUSTEE MESSAGES

Haunani Apuliuna, MSW Chairpersūn, TrustEE, At-large