In February 2000, the U.S. Supreme Court issued a landmark decision for Hawai'i, saying that serving as a trustee with the Office of Hawaiian Affairs cannot be restricted to Native Hawaiians.

A major point of the ruling was that the restriction was unconstitutional because it was based on race, not on a recognition that Native Hawaiians deserve treatment as a political entity such as Native American tribes.

The decision led to fears that government programs for Native Hawaiian programs would be in jeopardy. It prompted U.S. Sen. Daniel K. Akaka in July of that year to introduce the bill that would essentially provide federal recognition to Native Hawaiians in an attempt to defuse the high court's decision.

But after six years, the bill named for its sponsor still languishes in Congress, stalled now that the U.S. Senate last week refused to force a vote on the legislation.

The setback for the bill means that the U.S. Supreme Court's pronouncement that Native Hawaiians are not a political entity remains the law of the land.

Because the legal landscape for Native Hawaiians remains the same, attorneys don't believe the Senate action will have a direct impact on two major federal pending court cases, one challenging Native Hawaiian programs funded by the state, the other addressing Kamehameha Schools admissions policy.

But more legal challenges can be expected in the future, according to H. William Burgess, an attorney in one of the two cases who filed a taxpayer lawsuit challenging state money going to the Office of Hawaiian Affairs.

"The challenges will continue until everybody in Hawai'i is required to follow the same rules," Burgess said.

He said those challenges would be filed even without the Akaka legislation, but Akaka bill supporters believe the legislation would deter or doom those future suits.

"It would bring the litigation to a quick close," said Jon Van Dyke, a University of Hawai'i law professor who has written in support of the bill.

FEDERAL RECOGNITION

The Akaka bill would establish a process for the federal government to formally recognize the 400,000 Native Hawaiians here and elsewhere as an indigenous people similar to American Indians and Alaska Natives. It would also lay out the procedure for a Native Hawaiian government that could negotiate with the United States and Hawai'i over land use and other rights.

Burgess, head of a loosely knit group called Aloha for All, is the lawyer representing Earl F. Arakaki and about a dozen others who challenged state government funding for OHA and the Hawaiian Home Lands program.

Although both sides are asking the U.S. Supreme Court to review the case, the merits of the lawsuit have yet to be decided.

The issue is whether taxpayers have legal standing to challenge the programs, a matter separate from whether Native Hawaiians are recognized by the federal government as an indigenous people.

The suit had been tossed by U.S. District Judge Susan Mollway Oki in 2004. In September, the 9th U.S. Circuit Court of Appeals reinstated only a sliver of the suit, the part challenging state general funds going to OHA.

Lawyers for the state and OHA believe a recent U.S. Supreme Court decision in an Ohio taxpayer case decided in May means the end of Burgess' challenge. Burgess, however, doesn't believe the Ohio case applies to his lawsuit.

The high court has yet to say whether it will hear the case.

The other major lawsuit deals with the Kamehameha Schools admissions policy, which is under challenge by lawyers for an unnamed, non-Native Hawaiian teenager and his mother.

In a 2-1 decision in August last year, a three-member panel of the 9th Circuit held that the school's policy of admitting only Native Hawaiians violate the federal civil rights law.

That decision, however, was withdrawn when the 9th Circuit agreed to rehear the case with an "en banc" panel of 15 appeals court judges. The hearing is scheduled for June 20 in San Francisco.

In that case, Kamehameha Schools, a charitable trust, has acknowledged that its policy is based on race, but is justified to remedy the social, economic and educational disadvantages of Native Hawaiians.

John Goemans, one of the lawyers for the teenager as well as Big Island rancher Harold "Freddy" Rice, whose challenge to the OHA voting led to the high court's 2000 ruling bearing his name, Rice v. Cayetano, said he doesn't think the lack of Akaka legislation has any bearing on the Kamehameha Schools case.

Eric Grant, a California lawyer and lead counsel for the teenager, agrees.

"It removes a potential distraction," he said.

But Van Dyke, one of OHA's lawyers and a consultant to Kamehameha Schools in its case, said the passage of the Akaka legislation would have helped the charitable trust, although he believes the schools have enough of a case to prevail.

FLURRY OF LAWSUITS

The legislation would have made it much clearer that the courts — in interpreting and applying the federal civil rights law — should defer to Congress' recognition of Native Hawaiians in allowing the private educational entity to defend its admission practices, Van Dyke said.

One of the school's main contentions is that Congress has already recognized racial preferences are permissible for a private educational institution by authorizing federal funds for loans and scholarships exclusively to Native Hawaiians.

Other lawsuits were filed in the wake of the Rice v. Cayetano ruling.

One was filed for 14 Hawai'i residents, including Ken Conklin, a non-Hawaiian who wanted to run for the OHA trusteeship. It led to U.S. District Judge Helen Gillmor declaring unconstitutional the ban on non-Hawaiians running for OHA trusteeships, opening the office to other ethnic groups.

Another suit was filed by Patrick Barrett, a Mo'ili'ili resident, who unsuccessfully filed for an OHA loan.

He contested the constitutionality of OHA serving only Native Hawaiians, but Barrett's suit was dismissed before arguments on the merits of his case. U.S. District Judge David Ezra found that Barrett could not establish that the rejection was based on race because his loan application was insufficient.

In 2003, the 9th Circuit affirmed the dismissal.

CHALLENGES REMAIN

Burgess said even if the Arakaki suit is thrown out because taxpayers don't have standing to sue, there will be other challenges, with or without the Akaka bill becoming law. Burgess maintains that the Rice v. Cayetano decision would still bar preferential treatment for one ethnic group.

"It'll be a long, slow process, but the challenges will continue," he said. "Those (government-funded) programs have no future."

He said the challenge might include someone who properly applies for any of those loan or educational programs.

"There are people who are prepared to go through that slower process if we have to," he said.

Van Dyke, however, believes the Akaka bill, by recognizing Native Hawaiians as a political entity, would bring an end to the legal challenges.

"The Akaka bill would have been very important simply to allow OHA and Kamehameha Schools and Hawaiian groups to get back to trying to achieve their mission rather than taking this rear guard action to defend their programs," he said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.