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Roberts could hear from Native Hawaiians again
Wednesday, September 7, 2005

A bill to recognize a Native Hawaiian governing entity has been delayed in the Senate but that doesn't mean lawmakers won't be discussing the legal status of Hawaii's first inhabitants.

When the Senate Judiciary Committee starts confirmation hearings for U.S. Supreme Court nominee John Roberts Jr., his work on behalf of Native Hawaiian rights is expected to be one of many issues raised.

As an attorney in private practice, Roberts represented the state of Hawaii in its attempt to preserve a Native Hawaiian election. Harold "Buddy" Rice, a white rancher, challenged the election as a violation of the U.S. Constitution.

On behalf of former governor Benjamin Cayetano (D), Roberts argued that Native Hawaiians enjoy a status similar to that of American Indians and Alaska Natives. "Congress has singled out Hawaiians as a beneficiary of a trust relationship, just like the trust relationship that is extended to American Indians," Roberts told the court on October 6, 1999.

The court, however, didn't agree. In a 7-2 decision, the justices said that restricting the election to people of Native Hawaiian ancestry violated the Fifteenth Amendment. The ruling has since been used to challenge a number of education, land and other programs that benefit Native Hawaiians.

Despite the negative outcome, supporters of Roberts cite the work as proof of his lack of a political ideology. The case came up during the January 29, 2003, confirmation hearings for Roberts' seat to the D.C. Circuit Court of Appeals.

"Although my Democratic colleagues are, and some in the Senate and elsewhere, have tried to paint you as an extremist, the truth is that you are a well-respected appellate lawyer, who has represented an extremely diverse group of clients before the courts," said Sen. Orrin Hatch (R-Utah), who was the chairman of the Senate Judiciary Committee at the time. "In fact, you have often represented clients and what is considered to be the so-called 'liberal' position on issues."

Now that Roberts is headed for the top seat on the Supreme Court, Native Hawaiian issues are likely to end up before him again. Two cases, one affecting a Native-only school admissions policy and the other affecting Native-only housing and land programs, were recently decided by the 9th Circuit Court of Appeals, a level below the Supreme Court.

The landscape has some conservative Republican opponents of the recognition bill worried. "Roberts will probably be a fine Justice on other issues, particularly national security-related issues," conservative columnist Michelle Malkin wrote last month. "But an attorney who argued against colorblind policies in Hawaii should not be counted on to work for a colorblind America once he's on the Supreme Court."

At a recent forum held by the conservative Heritage Foundation, a staff member for Rep. Jim Walsh (R-New York) also wondered whether Roberts could be biased in favor of Native Hawaiians and help their cause.

"It would seem that if he actually supported this ... that he felt there was some reason for arguing the case on behalf of the Native Hawaiians," said the Walsh staffer. "It would seem as there are a number of Hawaiian-related cases that are going to be making their way to the Supreme Court."

John Fund, a board member of the conservative editorial page of the Wall Street Journal, didn't think it was an issue, however. He said that Roberts was merely acting as an "advocate" for the state.

"I can give you a long list of cases that Supreme Court justices have handled as private advocates or private lawyers ... in which they have voted the other way," Fund said at the forum. "I don't think we can judge John Roberts on the fact that he took on that case."

Some Senate Republicans and conservative groups have mounted opposition to the recognition bill out of fear that it will rewrite the Rice v. Cayetano decision. They say that Native Hawaiians aren't like American Indians or Alaska Natives -- the argument that Roberts advanced in the case.

"The Supreme Court has held that Congress cannot simply create an Indian tribe. Only those groups of people who have long operated as an Indian tribe, live as a separate and distinct community (geographically and culturally), and have a preexisting political structure can be recognized as a tribe," a Senate Republican policy paper stated. "Native Hawaiians do not satisfy any of these criteria."

On August 2, the 9th Circuit Court of Appeals rejected the admissions policy of the private Kamehameha Schools. In a 2-1 decision, the court said that restricting enrollment to Native Hawaiians violates a federal civil rights law. The judges, however, suggested that the law could carve out an exception or that Congress could pass other laws.

On August 31, the 9th Circuit ruled that citizens of Hawaii can sue to stop funding for the Office of Hawaiian Affairs. In a unanimous decision, a three-judge panel said that it wasn't necessary to wait until Congress decides the "political question" of Native Hawaiian recognition.

Both cases are likely to end up before the Supreme Court in the coming years, when Roberts will already be seated. Historically, some justices have not participated in cases in which their bias or appearance of bias may be called into question. Roberts may address this issue during his confirmation hearings.

Meanwhile, supporters of the recognition bill hope a vote can be scheduled in the coming weeks. Consideration was delayed due to efforts to deal with Hurricane Katrina and the death of chief justice William H. Rehnquist.

Sen. Daniel Akaka (D-Hawaii), a member of the Senate Indian Affairs Committee, believes he has the votes to pass a "cloture motion." It takes 60 votes to approve the motion and force final consideration of the bill.

Opening statements on Roberts' confirmation as chief justice will start on Monday. Questioning is expected to start on Tuesday and conclude by the end of the week. A committee vote could be held the week of September 22, with a floor vote targeted for the end of the month.

Rice v. Cayetano Resources:
Abstract, Audio and More

Rice v. Cayetano Election Rights Decision:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Michelle Malkin Column:
Apartheid in Hawaii: Which Side is John Roberts on? (August 4, 2005)

Heritage Foundation Forum:
Native Hawaiian Sovereignty Act: A Step Toward Secession? (August 30, 2005)

Senate Republican Policy Paper:
Why Congress Must Reject Race-Based Government for Native Hawaiians (June 2005)

Office of Hawaiian Affairs Decision:
Arakaki v. Lingle (August 31, 2005)

School Admission Policy Decision:
Doe v. Kamehameha Schools (August 2, 2005)

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Relevant Links:
Kamehameha Schools - http://www.ksbe.edu
Native Hawaiian Sovereignty Site - http://www.hawaii-nation.org
Native Hawaiian Federal Recognition Site - http://www.nativehawaiians.com

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