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Federal Recognition
U.S. Supreme Court intervenes in Native Hawaiian case

Native Hawaiians suffered a big political defeat last week but the U.S. Supreme Court offered some legal hope for the sovereignty movement on Monday.

Just days after the Senate killed the Native Hawaiian recognition bill, the justices intervened in a Native Hawaiian case. In a short order, the high court ordered new proceedings in a lawsuit filed by non-Natives against the state of Hawaii.

The lawsuit accuses the state's Office of Hawaiian Affairs of violating the U.S. Constitution by setting aside money for Native Hawaiian-only programs. The 9th Circuit Court of Appeals last August ruled that the non-Natives, as taxpayers, have legal standing to bring the case.

But a fresh ruling from the Supreme Court has changed the landscape. In a unrelated case, the justices ruled unanimously that a group of taxpayers in Ohio couldn't challenge the state's spending decisions simply because they are taxpayers.

In response, the justices vacated the 9th Circuit's ruling in the Native Hawaiian lawsuit and sent the case back to the appellate court for "further consideration" in light of their recent May 15 ruling.

And in a significant development, Chief Justice John G. Roberts "took no part in the consideration or decision of this petition," yesterday's order stated. Although no reason was given, he previously defended the state of Hawaii before the Supreme Court by arguing that Native Hawaiians deserve the same treatment as American Indians and Alaska Natives.

There is no guarantee that the 9th Circuit will dismiss the case in favor of Hawaii. Even if the lawsuit is thrown out, the non-Natives could try to push the issue of Native-only funding in the state courts.

But reconsideration gives the state some rest in its ongoing legal battle to preserve Native Hawaiian programs, services and benefits. In the last six years, the state has lost four major lawsuits -- including the one that Roberts took on -- filed by non-Natives who say Native-only programs are illegal because they are based on race.

The most recent case involves a private school that restricts admission to Native Hawaiians. A three-judge panel of the 9th Circuit ruled that the policy violates the U.S. Constitution but the full court has since decided to rehear the controversy.

Advocates for Native Hawaiians argue that federal recognition of a Native governing entity will resolve these kinds of disputes. By extending the self-governance policy to Native Hawaiians, they hope to protect the land, culture, heritage and rights of the island's first inhabitants.

A procedural move in the Senate prevented the recognition bill from moving forward, however. After two days of debate last week, supporters secured 56 votes but that tally fell short of the 60 votes needed to clear the measure for an up or down vote.

"I am disappointed that we did not overcome the procedural obstacles to bring the bill to the floor, but I am heartened by the fact that 56 Senators supported our efforts," said Sen. Daniel Akaka (D-Hawaii), the primary sponsor of S.147, the Native Hawaiian Government Reorganization Act. "I have always said that we had the votes to enact this bill on an up or down vote."

Conservative Republicans rallied against the bill, saying it creates a new government based solely on race. They said the trust relationship that exists between the United States and American Indians and Alaska Natives cannot be extended to Native Hawaiians.

The Supreme Court, and the 9th Circuit, have never ruled directly on the issue of federal recognition for Native Hawaiians. Their decisions have said resolution of the matter resides with Congress.

The case is Lingle v. Arakaki, No. 05-988. Case documents and briefs can be found on the Native American Rights Fund site [Tribal Supreme Court Project].

The case that prompted the reconsideration is DaimlerChrysler Corp. v. Cuno [Wikipedia Entry].

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)

Civil Rights Commission Report:
The Native Hawaiian Government Reorganization Act of 2005 (May 2006)

Civil Rights Commission Transcript:
January 20, 2006 Meeting

Rice v. Cayetano Resources:
Abstract, Audio and More

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

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

Relevant Links:
Office of Hawaiian Affairs -