As Hawaii’s senators were working with Senate leaders in late September to schedule a vote on a newly amended version of the Akaka Bill, the federal Department of Justice issued a surprise statement outlining concerns over the bill’s constitutionality. In response, the bill’s primary sponsor, Sen. Daniel Akaka, said he believes the bill will be deemed constitutional by the courts if it passes, and that he will continue to press for a vote on the issue.

“I believe firmly in Congress’ authority to extend the federal policy of self-governance and self-determination to Native Hawaiians,” Akaka said in a written statement. “Although I realize and respect that there are those who have differing views, the bill is constitutional.”

The Justice Department’s concerns are not new; they were also raised in a July letter the department sent to Sen. John McCain, chairman of the Senate Committee on Indian Affairs. However, Hawaii’s senators and Gov. Linda Lingle, who had previously announced an agreement with the Bush administration over amendments to the bill, were taken by surprise on Sept. 21, when Justice Department spokesman John Nowacki told two Hawaii reporters that his department still has “substantial, unresolved constitutional concerns” about the bill. Nowacki pointed to the Supreme Court’s statement in the Rice v. Cayetano case that it is “a matter of some dispute” whether Congress may treat Native Hawaiians as it does Indian tribes.

In response, Rep. Ed Case said that, as the legal arm of the federal government, the Justice Department is just being cautious. “It is the courts, not the Department of Justice, that says what is constitutional,” Case said. “Since there’s no doubt opponents of federal recognition will litigate this issue, assuming [the Akaka Bill] passes, the question should and will eventually be settled by the courts.”