High court should decline case

Even as U.S. Sen. Daniel Akaka’s bill to grant recognition of Hawaiian sovereignty sits stalled in Congress, Native Hawaiians’ present recognition faces a serious legal challenge. The U.S. Supreme Court is giving serious consideration on whether to consider stripping legal tax exemptions from Hawaiian homelands lessees, a case that could have a devastating effect.

In April, the Hawaii Supreme Court rejected the argument by five non-Hawaiians who challenged Hawaiian property tax exemptions as race-based civil rights violations — but the case is being appealed to the U.S. Supreme Court. If the high court decides to hear it, then rules in favor of non-Hawaiian residents’ attempt to dismantle property tax exemptions to Native Hawaiian lessees, the result could ripple throughout the native community by dashing conditions set by the Hawaiian Homes Act passed by Congress in 1921 and codified in the Hawaii Constitution.

The lawsuit relies largely on a 2000 federal high court ruling in Rice v. Cayetano that struck down the requirement that only Native Hawaiians can cast votes in Office of Hawaiian Affairs trustee elections.

The issue of native rights also lies at the heart of the Akaka Bill, which would grant rights similar to those of American Indian tribes. But Hawaiians’ history differs significantly from those of Indian tribes, which were granted rights through treaties and have been recognized in courts as "domestic dependent nations." Unique remedy is due Native Hawaiians because of the complex history between the U.S. and Hawaii, including overthrow of the monarchy and seizure of Hawaiian lands.

THE U.S. Supreme Court sometimes asks the opinion of the U.S. Justice Department’s solicitor general, who represents the administration before the high court, if a petition has a federal consequence. The solicitor general was asked by the high court this week to provide such advice.

While the request to the solicitor general may cause concern that the court is taking a step toward hearing the case, the result of past inquiries could be reassuring to Native Hawaiians. While the high court grants only one in 100 petitions that ask to hear issues in lower court rulings, a 1992 study found that it granted 88 percent of petitions where the solicitor general filed a brief supporting the petitioner and denied 60 percent of petitions where the solicitor general opposed the petitioner.

ANOTHER — perhaps the most — encouraging sign is that the Obama administration has supported the Akaka Bill and the cause of native self-determination. Sam Hirsch, deputy associate attorney general, told a Senate committee two years ago that indigenous Hawaiians have much in common with Indian tribes, pointing out that they exercised self-rule prior to the arrival of Western explorers and have worked to preserve traditional culture. Therefore, the solicitor general is likely to urge the Supreme Court to reject the petition, according to the past records.

However, the court’s Republican majority could easily choose to align with the previous administration. That is because the George W. Bush administration threatened to veto the Akaka Bill four years ago, saying it would "formally divide sovereign United States power along suspect lines of race and ethnicity." The lawsuit at hand is supported by politically conservative or libertarian groups such as the Pacific Legal Foundation, the Cato Institute, the Grassroot Institute of Hawaii and the Goldwater Institute.

While Republicans dominate the Supreme Court, former Gov. Linda Lingle’s administration supported Hawaiian sovereignty and her attorney general, Mark Bennett, told the Star-Advertiser’s Ken Kobayashi that he hopes and expects the high court to deny review of the case. We echo that sentiment.

The failure over the past decade by Congress to approve the Akaka Bill has been disappointing, but hopes persist that the deserved legislation eventually is approved and signed into law. In the meantime, steps in the opposite direction would be more frustrating and could stand in the way of eventual success for deserved Hawaiian sovereignty.