From: CN=Brett M. WHO To: Lisa J. OMB Sent: 6/4/2002 3:53:55 PM Subject: Re: FW: Treasury testimony on Capital Investment in Indian Country (OLA #1206) (OLC #35683) Begin Original ARMS Header RECORD TYPE: PRESIDENTIAL (NOTES MAIL) M. Kavanaugh CN=Brett M. WHO CREATION 4-JUN-2002 19:53:55.00 Re: FW: Treasury testimony on Capital Investment in Indian Country (OLC #35683) TOzLisa J. Macecevic CN=Lisa J. OMB End Original ARMS Header I think the testimony needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny an questionable validity under the Constitution. Lisa J. Macecevic 06/04/2002 07:l3:28 PM Record Type: Record To: Brett M. cc: Subject: FW: Treasury testimony on Capital Inv Country (OLA #l206) (OLC #35683) ent in Indian .pdsitive the comment below came 'ents to add? Thanks for your earlier email. I'm al from OLC. Do you have any additiolg 5 sa J. Macecevic/OMB/EOP on 06/04/2002 07:16 PM . "Jones, Gregory (OLA) ?gory.M.Jones@usdoj.gov> 06/04/2002 06:09:41 Record Type: Reco . ?sury testimony on Capital Investment in Indian Country (OLC #35683) Lisa, I spoke too soon. We do have one constitutional concern about the CDFI testimony. The testimony largely summarizes the findings and recommendations of a study the CDFI conducted on barriers to access to capital and financial services on Indian Lands and Native Hawaiian trust lands. To the extent that the testimony could be viewed as advocating that Congress enact programs to benefit Native Hawaiians, it would raise questions about the authority of Congress to treat Native Hawaiians as it would an Indian tribe. See Rice v. Cayetano, 528 U.S. 495, (2000) Committee Confidential (declining to address that question ?of considerable moment and difficulty"). In the event that the Supreme Court eventually determines that Congress lacks this authority, federal programs providing benefits to Native Hawaiians would be viewed as racial classifications subject to strict scrutiny. To avoid this concern, it would be helpful for the statement to make clear that Treasury is not recommending that Congress enact such programs (or alternatively to identify a compelling government interest that any such program would be narrowly tailored to serve). Committee Confidential