Can Native Hawaiians Be Treated Differently from Native Alaskans Under the Equal Protection Clause of the 14th Amendment?
Nuesca challenged the Alaskan exemption on equal protection grounds. He argued that Congress failure to include Native Hawaiians in the exemption was a violation of equal protection.[124] Judge Ezra refused to accept Nuescas argument that Native Alaskans and Native Hawaiians are similarly circumstanced and therefore should be treated alike under the statute.[125] Although both groups of indigenous people surrendered vast amounts of land to the United States and suffered great hardship, he concluded that these similarities are not relevant to an exemption from the ESA.[126] The key difference between Native Alaskans and Native Hawaiians for determining an ESA exemption is that Native Alaskans depend upon hunting certain endangered species for subsistence purposes. Nuesca failed to show that Native Hawaiians depend upon Green Sea Turtles for subsistence.[127] Whether the Alaskan and Hawaiian situations are parallel depends upon the definition of subsistence. Judge Ezra applied the strict
