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S.66, the Native Hawaiian Health Care Improvement bill in the 112th Congress -- Reauthorizing an ineffective but socially dangerous pork-barrel waste of taxpayer dollars

(c) Copyright March 4, 2011 by Kenneth R. Conklin, Ph.D. All rights reserved. Permission is hereby granted to reprint any portion(s) of this essay provided that the reprinting includes the author's name, the essay's title, and its internet URL
http://tinyurl.com/4vqfxeq


INTRODUCTION

S.66 is a bill in the 112th Congress, entitled "The Native Hawaiian Health Care Improvement Act," introduced by Senator Dan Inouye on January 15, 2011. At the end of February the bill had no cosponsors -- not even the figurehead champion of ethnic Hawaiians, Senator Dan Akaka.

The bill's stated purpose is to re-authorize and expand previous legislation going back to 1988, which established Papa Ola Lokahi, the federally-funded ethnic Hawaiian healthcare system -- one of the largest racially exclusionary programs for the benefit of ethnic Hawaiians. (There are more than a thousand Hawaiians-only programs; see "references").

A hidden purpose of S.66 is to restate and enshrine language from the apology resolution of 1993 and the failed Akaka bill of 2000 to 2010. S.66 would thereby bolster the claim that the federal government already recognizes ethnic Hawaiians as an Indian tribe, thus strengthening legal defenses against 14th Amendment challenges to Hawaii's plethora of racial entitlement programs.

Hawaii's racial separatist establishment has become so powerful that it now demands federal and state political recognition as a government. By defeating S.66 we can remove one large brick from Hawaii's wall of apartheid while helping reduce the federal budget deficit. As Rahm Emanuel famously said, we should never let a crisis go to waste. The budget crisis is an opportunity to get political support to eliminate failed pork barrel programs with bad social consequences, like S.66

S.66 can be downloaded in pdf format from the Government Printing Office:

http://www.gpo.gov/fdsys/pkg/BILLS-112s66is/pdf/BILLS-112s66is.pdf

There are four sections to this essay, in reader-friendly order. Section 2 has six subsections.

1. SUMMARY OF THE MAIN OBJECTIONS TO S.66 REGARDING POLITICAL POLICY AND RESEARCH METHODOLOGY

2. FURTHER EXPLANATION OF SOME OF THE POLICY AND METHODOLOGY OBJECTIONS

2.1 During a time of financial austerity, Congress should eliminate failed programs instead of perpetuating them.

2.2 Give help based on need, not race. All people needing medical help should be treated equally by the government regardless of race.

2.3 Ethnic Hawaiians do not have genetically or biologically determined medical needs in the same way as a few other ethnic groups

2.4 Do we need a race-based healthcare system to serve the medical needs of a racial group in a way that is appropriate to their specific culture?

2.5 The claim that ethnic Hawaiians have the worst statistics for disease is probably bogus (racial percentages of each individual's blood quantum would classify most "Native Hawaiians" in some category other than "Native Hawaiian." A median age of 25 is another factor explaining some economic and social disparities)

2.6 If Congress wants to spend money on ethnically-focused healthcare in Hawaii, the real federal obligation is to fund healthcare for thousands of non-citizens residing in Hawaii on welfare because of a treaty with the Federated States of Micronesia.

3. REFERENCES

4. 35 HISTORICAL AND POLITICAL "FINDINGS" ON PAGES 2-22 OF THE BILL ARE EACH GIVEN DETAILED REBUTTALS WITH SOURCE CITATIONS


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1. SUMMARY OF THE MAIN OBJECTIONS TO S.66 REGARDING POLITICAL POLICY AND RESEARCH METHODOLOGY

During a time of financial austerity Congress should eliminate failed programs instead of perpetuating them.

Pages 17-38 in S.66 are a list of horrible diseases which allegedly afflict ethnic Hawaiians disproportionately. The victimhood statistics can be challenged -- indeed, this essay offers strong arguments that many are bogus. But if true, the statistics provide evidence that hundreds of millions of taxpayer dollars spent during 23 years of the Native Hawaiian Healthcare system have failed to remedy the disparity; so Congress should cancel this failed program.

Ethnic Hawaiians will not be denied healthcare if the race-based system is cancelled. They would get healthcare the same way everyone else does. The only people who would suffer are the highly paid bureaucrats and tycoons of the Hawaiian grievance industry, who use the healthcare system as a center of racial preference patronage jobs, political power, and propaganda in a campaign for racial separatism.

Maintaining a federally funded healthcare system that is racially segregated violates the 14th Amendment equal protection clause of the Constitution, and is also morally wrong. Government should treat all people equally regardless of race. Suppose government help is given to people based on need alone. Then if it were true that ethnic Hawaiians have the most severe health problems and the greatest need, they will therefore get the lion's share of the help solely because they are needy.

There's no evidence to show that ethnic Hawaiians have any genetic, biological differences from people of other races (such as sickle cell anemia afflicting African-Americans or Tay-Sachs disease afflicting Ashkenazi Jews). But if they did have such differences, scientific and medical professionals of all races could create medicines to help afflicted individuals rather than huge institutions devoted to an entire racial group.

Some defenders of race-based medicine assert that ethnic Hawaiians are a unique people with unique social customs requiring a culture-based medical delivery system. But nearly all ethnic Hawaiians are of mixed race. They live, work, play, and pray right next to people of other races in Hawaii's fully integrated multicultural society. Assimilated people don't have unique social needs as a group, and should not be racially profiled or stereotyped that way. Hawaii has many first, second, or third generation U.S. citizens from countries which do indeed have very different cultures; but there are no demands for federally funded race-based or culture-based healthcare systems to serve them.

We often hear that Native Hawaiians have the worst statistics among Hawaii's ethnic groups for income, incarceration, drug abuse, breast cancer, diabetes, etc. S.66 includes more than 20 pages of allegations of disproportionate suffering. While discrepancies for income and incarceration are probably real, they are also normal because the average age of ethnic Hawaiians is 25 while the average age for everyone else in Hawaii is 39. Low income, drug abuse, and crime are dysfunctions of youth regardless of race.

Most claims that ethnic Hawaiians have disproportionate levels of disease or incarceration are probably false, but need more analysis. Here's why. Perhaps 3/4 of all ethnic Hawaiians have 3/4 of their genetic heritage that is Euro-American or Asian rather than native. When a woman with 1/16 native blood quantum gets breast cancer, one full tally mark for breast cancer is awarded to the "Native Hawaiian" category by the tycoons of the Hawaiian grievance industry. But actually that woman's tally mark should be awarded to the ethnic group which has the largest percentage of her genetic heritage. Better yet, fractional tally marks should be awarded to each ethnic group in proportion to their percentage of her heritage. Of course Hawaiian researchers have no desire to gather or analyze data according to percentage of blood quantum, because most of their claims to disproportionate victimhood would vanish, along with the government and philanthropic grants they get by citing their bogus statistics.

Congress should defeat S.66 and use the money to reduce the budget deficit. If Congress wants to send money to Hawaii, the correct program to fund is healthcare for the thousands of Micronesians who come to Hawaii under the Compact of Free Association. The U.S. signed a treaty which costs Hawaii taxpayers $120 Million per year for welfare and medical expenses. Senator Inouye has known about this problem for several years but has not submitted an earmark or a bill to get money for this unfunded federal mandate. Yet he introduces bills like S.66 to get money for his favorite racial group for unnecessary, failed programs.


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2. FURTHER EXPLANATION OF SOME OF THE POLICY AND METHODOLOGY OBJECTIONS

2.1 During a time of financial austerity, Congress should eliminate failed programs instead of perpetuating them.

2.2 Give help based on need, not race. All people needing medical help should be treated equally by the government regardless of race.

2.3 Ethnic Hawaiians do not have genetically or biologically determined medical needs in the same way as a few other ethnic groups

2.4 Do we need a race-based healthcare system to serve the medical needs of a racial group in a way that is appropriate to their specific culture?

2.5 The claim that ethnic Hawaiians have the worst statistics for disease is probably bogus (racial percentages of each individual's blood quantum would classify most "Native Hawaiians" in some category other than "Native Hawaiian." A median age of 25 is another factor explaining some economic and social disparities)

2.6 If Congress wants to spend money on ethnically-focused healthcare in Hawaii, the real federal obligation is to fund healthcare for thousands of non-citizens residing in Hawaii on welfare because of a treaty with the Federated States of Micronesia.

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2.1 During a time of financial austerity, Congress should eliminate failed programs instead of perpetuating them.

On pages 17-38 of the "Findings" section, S.66 provides a lengthy list of horrible diseases which allegedly afflict ethnic Hawaiians disproportionately to their share of the population, along with shorter lifespan, greater incarceration, lower income, etc. As will be discussed below, those victimhood statistics are mostly bogus because of the way the data were collected and categorized.

But suppose all those claims are true. Then it seems fair to ask: What good has been done during 23 years of throwing tax dollars down the rat-hole known as Papa Ola Lokahi? Since 1988 hundreds of millions of dollars have been given to the ethnic Hawaiian healthcare system, yet ethnic Hawaiians continue to suffer grossly disproportionate levels of disease and bad outcomes (at least, according to the "findings" in S.66).

In the 1960s President Lyndon Johnson declared a "war on poverty." Hundreds of billions of dollars have been spent fighting that war. We have lost both the money and the war.

Universities, philanthropic institutions, bureaucrats and politicians got wealthy and powerful fighting that war, while poor people stayed poor and hardly noticed what programs were created allegedly to help them. Did the war on poverty do some good? Yes, some people actually got help. But their lives would have been improved far more if a proportionate amount of money had simply been handed directly to them, rather than being given to bureaucrats, government housing agencies, and social workers who were supposed to help them but often ignored or actually harmed them through arrogant, condescending policies and programs which robbed them of the dignity that comes through pride, self-reliance, and individual initiative.

Our nation has borrowed a trillion dollars from China, and nearly the same amount from Japan. Our government is threatened with shutting down temporarily, or even bankruptcy. Our President has increased our national debt by trillions of dollars already through reckless spending programs, and has proposed a budget which increases the national debt by more trillions of dollars in the foreseeable future. It's time to cut government spending. When even valuable programs need to be reduced, it's time to totally abolish programs like the Native Hawaiian Healthcare system that have failed to achieve their objectives during more than two decades and actually have harmful social consequences.

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2.2 Give help based on need, not race. All people needing medical help should be treated equally by the government regardless of race.

If the "Native Hawaiian Healthcare" system were abolished, would that mean that the "clients" currently being "helped" by the system would go without healthcare? Of course not. It would only mean that ethnic Hawaiians would no longer have racially segregated healthcare. The wealthy and middle class ones would go to the same doctors as all other wealthy and middle class residents of Hawaii, while the poor ones would be served by the same welfare programs as all other poor people.

By defeating the Native Hawaiian Healthcare Improvement bill, we will not necessarily be abolishing the Native Hawaiian healthcare system. We will merely release those federal dollars to be used for more productive purposes (like reducing the national debt), and leaving it up to the State of Hawaii or private philanthropies to perpetuate the Native Hawaiian healthcare system if that system is considered worthy of such local support among other local priorities. But even if we abolish the Native Hawaiian Healthcare system, we will not be abolishing any actual healthcare for ethnic Hawaiians. We will only be abolishing the race-specific institutions and the high salaries of their bureaucrats, allowing ordinary ethnic Hawaiians to get their healthcare in the same way as everyone else.

It is, quite simply, racist to assert that ethnic Hawaiians should be given government assistance which is denied to similarly situated people of other races who are denied service merely on account of race. Give help to needy people based on need rather than race.

If it is true, as S.66 asserts, that ethnic Hawaiians have far greater needs for medical service than people of other races, then it is therefore true that ethnic Hawaiians will receive the lion's share of help when help is given based on need alone. I guess that's a hard concept for the tycoons of the Hawaiian grievance industry to grasp. So let me say it again. Help should be given to needy people based on need alone, regardless of race. Those who are neediest will get the greatest help. If ethnic Hawaiians are truly the neediest, then ethnic Hawaiians will get most of the help simply because they are the neediest, and not because they are racially entitled to it. Moral justice, and the 14th Amendment equal protection clause, demand that all people be treated equally by our government regardless of race.

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2.3 Ethnic Hawaiians do not have genetically or biologically determined medical needs in the same way as a few other ethnic groups

There is no evidence to show that ethnic Hawaiians have any genetic, biological differences from people of other races.

Some ethnic groups do have race-specific medical issues. For example, sickle-cell anemia afflicts primarily people whose ancestry is from sub-Sahara Africa; and Tay-Sachs disease afflicts primarily those whose heritage is Ashkenazi Jew. Those diseases can be researched and treated by people of any race, working in institutions which study many diseases afflicting all races. There are no known diseases that are racially specific to ethnic Hawaiians; but even if there were, there would be no need for race-specific institutions to diagnose or treat them. With race-based genetic diseases like sickle-cell, what gets targeted for research and treatment is the disease, not the entire group which has some members with the disease (most members are not afflicted by it).

There are more than 40 Million African-Americans. As a group they have short lifespan, poverty, disease, incarceration etc. disproportionate to their share of the population. Why is there no "African-American Health Care Improvement Act"? Why should Congress spend untold millions of dollars on racially-specific healthcare for ethnic Hawaiians when it provides no money at all for racially-specific healthcare for African-Americans, a group just as needy and about 100 times larger? The days of racial segregation in medical research and healthcare delivery ended long ago for African-Americans, but continue for Hawaiian-Americans through federal legislation such as S.66.

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2.4 Do we need a race-based healthcare system to serve the medical needs of a racial group in a way that is appropriate to their specific culture?

We know that ethnic Hawaiians are biologically no different from other people.

That's why there's another, fallback justification offered for having race-specific medical institutions for ethnic Hawaiians -- the assertion that ethnic Hawaiians have a unique culture which causes them to behave in unique ways regarding their medical needs. They might be embarrassed or ashamed to seek help; they might be fearful of buildings made of cement, aluminum, and glass; they might be afraid of the radiation from CT scanners; they might need Hawaiian-language prayers, and family members to be present, during examinations or treatment procedures; etc.

But there are two refutations to such a justification.

First: Most ethnic Hawaiians are thoroughly assimilated, intermarried, and dispersed among their neighbors of other races. Nearly all ethnic Hawaiians are of mixed race. Nearly all ethnic Hawaiians live, work, play, and pray right next to people of other races in Hawaii's fully integrated multicultural society. Assimilated people simply do not have unique social needs as a group, and should not be profiled or stereotyped as having such needs merely on account of their race.

Individuals of any race have unique social needs which must be addressed if medical services are to be successful. But ethnic Hawaiians as a group have the same social needs as everyone else.

Perhaps the Indian healthcare system is necessary to serve federally recognized tribes living on remote reservations far away from mainline medical facilities. But ethnic Hawaiians are a racial group, not an Indian tribe. They are fully assimilated and widely dispersed among all the racial groups in Hawaii, and have the same access to medical care as everyone else. There are several dozen "Hawaiian Homelands" established as racially segregated lands under the Hawaiian Homes Commission Act of 1920. Some Hawaiians jokingly refer to the Hawaiian homelands as "the reservation." Some of the "homelands have no homes -- they are so remote that nobody chooses to live there. But most of the "homelands" that are actually populated are located near towns where medical facilities are available. The most heavily populated "Hawaiian Homelands" are directly across the street from ordinary suburban communities with houses and streets that are indistinguishable from their neighbors, such as the oldest "homeland" Papakolea located next to Roosevelt High School and Punchbowl national cemetery, overlooking downtown Honolulu.

The word "indigenous", sprinkled liberally throughout S.66, is a political buzzword, not a defining characteristic of ethnic Hawaiians. We are all indigenous people of this Earth. Ethnic Hawaiians do not live a subsistence lifestyle in the remote reaches of the Amazon River basin or the Australian Outback; they are no different from everyone else.

Second: Hawaii has numerous ethnic groups, including large numbers of first, second, or third generation U.S. citizens from nations whose cultures are indeed unique, such as Japan, China, Philippines, Korea, Viet Nam, Samoa, Tonga, Marshall Islands, India, Mexico. If people from different cultures require culturally specialized medical services, then Hawaii citizens of each cultural group should be given such specialized medical care. Hawaii's people of Filipino ancestry neither require nor have institutions set up in culture-specific ways to do medical research and treatment. If Congress passes a Native Hawaiian Healthcare Improvement bill, then justice and fairness require Congress also to pass a Filipino Healthcare Improvement bill, and a Micronesian Healthcare Improvement bill, etc.

The only reason to have a race-specific healthcare system is to expand a system of racial entitlements and establish a cadre of people and institutions whose entire focus is to empower a particular racial group. That is socially divisive, breeding racial separatism; feelings of entitlement by members of the favored group; and jealousy and hatred against the favored group by those who are disfavored..

A few years ago the John A. Burns School of Medicine (JABSOM) at the University of Hawaii (UH) established a Department of Native Hawaiian Health (DNHH) using federal funds earmarked for that purpose. Although the original funding came from a specific earmark, one outcome of passing S.66 might be to give DNHH permanent funding. DNHH has its own highly paid chairman, faculty, facilities, and even its own public relations department headed by a semi-glamorous former TV news anchor and actress.

Perhaps the most productive sub-department of the Department of Native Hawaiian Health is its Center for Native and Pacific Health Disparities Research, which does data mining in the U.S. Census Bureau, the National Institutes of Health, the National Cancer Institute, etc. to gather statistics for Papa Ola Lokahi, DNHH, and other groups to use when applying for federal grants to gather more data to apply for more grants. That's a multimillion dollar industry! But there's no evidence that they have found a cure for ethnic Hawaiian cancer that is different from the cures for everyone else's cancer.

DNHH provides a place for ethnic Hawaiian medical doctors to serve as mentors to help ethnic Hawaiian medical students at JABSOM become doctors. But there's no corresponding department at JABSOM for Filipino doctors to help Filipino students. And maybe those ethnic Hawaiian medical students would be better off mingling with their colleagues of all races instead of getting educated in a politicized ghetto.

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2.5 The claim that ethnic Hawaiians have the worst statistics for disease is probably bogus (racial percentages of each individual's blood quantum would classify most "Native Hawaiians" in some category other than "Native Hawaiian." A median age of 25 is another factor explaining some economic and social disparities)

We often hear that Native Hawaiians have the worst statistics among Hawaii's ethnic groups for income, education, incarceration, breast cancer, diabetes, etc. S.66 includes more than 20 pages of specific "findings" on this topic. However, little work has been done to look for the causes and cures of alleged disparities.

I have looked for statistical, scientific analysis of cause and cure and have found none, except for vague statements not specific to ethnic Hawaiians, such as smoking causes cancer; or Dr. Shintani's diet of fish and poi would help Hawaiians lose weight and avoid diabetes.

There once was a major cultural event on the grounds of Iolani palace where various ethnic Hawaiian institutions had booths with pamphlets to take, where people from those institutions were available to answer questions. I spent about 30 minutes talking with a man who said he was a medical doctor working with Papa Ola Lokahi. In response to my questions he told me that they mostly do research to gather data, disseminate information to the community, offer occasional screening programs, and sometimes pay for medical tests or treatments such as mammograms or chemotherapy. But he said there was no research to discover race-specific causes of disease and no treatment programs that were medically race-specific (although some outreach programs were culturally focused as discussed in an earlier section).

I also spoke at length with a neighbor who is a hospital-based nurse and recently completed her master's degree in nursing. She did a lot of research for her degree, and continues to do research using grants from government and philanthropic sources. She says there's plenty of money for race-specific research and treatment for ethnic Hawaiians, but far less money for race-neutral research and treatment. She says the effect of programs like Papa Ola Lokahi is to divert resources and attention to ethnic Hawaiians at the expense of all other groups who then get less research and treatment for their own needs. Research and treatment should be grouped by disease, not by race.

Additional categories should be added to data collection and analysis.

For example, data from Census 2000 showed that ethnic Hawaiians have a median age of 25, compared with a median age of 39 for all other groups. Thus ethnic discrepancies in income, drug abuse, and incarceration are normal and to be expected -- the discrepancies are caused by youthfulness and not by race. Any comparisons between races regarding income, incarceration, etc. should be analyzed for comparable age groups and not merely for entire racial groups.

The most important data category that needs to be added to racial comparisons is blood quantum.

Most "Native Hawaiians" are mostly not of Hawaiian native ancestry. Perhaps 75% of all "Native Hawaiians" have more than 75% of their ancestry from Asia, Europe, and America. That's merely a guess -- researchers don't ask about blood quantum percentages, although they obviously should. But when someone with 1/16 Hawaiian native blood quantum is diagnosed with breast cancer, the Hawaiian grievance industry chalks up one full tally mark. That's clearly wrong.

It appears that the race mongers in the Hawaiian grievance industry count a full tally mark whenever anyone with even a small fraction of native blood quantum is identified as a victim; but they do NOT also count that same victim in the same way as a full tally mark for each and every other ethnic group that has a component in the victim's genealogy.

If we're going to play the game of putting people into racial groups and tallying victimhood counts, then there needs to be a more honest way to determine which group wins the tally mark.

One way is to count each person as belonging to the one racial group which is his highest percentage of blood quantum. If that method were adopted, then probably more than half of all allegedly "Native Hawaiian" victims would be removed from the "Native Hawaiian" category and placed into a different ethnic group. It might even turn out that "Native Hawaiians" have some of the lowest rates for some diseases because most victims of that disease who have Hawaiian blood have been placed into a different ethnic group which claims a higher percentage of their ancestry.

A better way is to allocate a fraction of a tally mark to each race, equal to each victim's percentage of blood quantum of that race. The lady who gets breast cancer with 1/16 Hawaiian native blood quantum should rack up 1/16 of a tally mark for the Hawaiian category, while the Irish victimhood account wins 1/2 tally mark for her 50% Irish blood, the Filipino account gets 5/16, and the Chinese account gets 1/8.

This method would also let us find out whether women with higher Hawaiian native quantum get breast cancer at a higher rate than low quantum Hawaiians -- clearly an important way to prove whether "being Hawaiian" is correlated with or perhaps causative of breast cancer.

But the "researchers" in the Hawaiian grievance industry make no effort to gather blood quantum data, and strenuously resist any suggestion that they should do so. They get highly agitated and use unscientific phrases like "doing that would violate privacy" or "everyone has a right to choose his own identity and not have it imposed upon him" or "you're proposing to commit statistical genocide." Apparently it never occurred to them to create a series of graphs such as "Native Hawaiian breast cancer, ages 45-50" where the horizontal axis is "percentage of native blood quantum" and the vertical axis is "percentage of Native Hawaiian women diagnosed with breast cancer while in that age range." If the line has a positive slope it means that "being Native Hawaiian" is correlated with having breast cancer, and if the slope is steep then the likelihood is great that there is some sort of race-based biological cause of breast cancer.

One amazing thing I stumbled across while doing internet research is that left-handed women have a significantly higher risk of getting breast cancer than right-handed women. Furthermore, the disparity of left-handed women getting breast cancer is larger than the disparity of "Native Hawaiian" women getting breast cancer when compared with the general population. If the logic of Papa Ola Lokahi and S.66 are to be applied to these facts, then all the money being spent on studies and treatments for breast cancer in Native Hawaiians should be spent instead on studies and treatments for breast cancer in left-handed women (Native Hawaiian or not).

Some activists say being Hawaiian is not about race, it's about culture. Fine. Then to do the data analysis properly, you must create a taxonomy of cultural behaviors and ascribe each one to some particular culture. Things like eating poi, dancing hula, putting kadomatsu by the door at New Years, eating kim chee, etc. Then for each individual determine the fractional portion of his cultural identity to be ascribed to each racial group. One thing is very clear -- it's absurd to award a full tally mark to "Native Hawaiians" for a victim who has only 1/16 native quantum of blood or culture. If culture is more important than race in determining who is "Native Hawaiian"; and if the Akaka bill is about recognizing a political group rather than a racial one; then why is it that every "Hawaiians only" program demands birth certificates or other forms of proof of Hawaiian ancestry, and why is it that the Akaka bill proposes a special commission of nine genealogists to certify the racial pedigree of anyone who wants to be eligible for tribal membership?

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2.6 If Congress wants to spend money on ethnically-focused healthcare in Hawaii, the real federal obligation is to fund healthcare for thousands of non-citizens residing in Hawaii on welfare because of a treaty with the Federated States of Micronesia.

During the late 1940s and 1950s the U.S. did testing of "atomic" bombs (uranium and plutonium) and "hydrogen" bombs (tritium or fusion bombs) on or near various Pacific islands and atolls. Some bombs were extraordinarily powerful, completely obliterating entire islands, creating immediate strong radiation which severely injured island residents, radioactive clouds which spread injury far and wide, and leaving behind lands and waters whose radioactivity caused medical problems and genetic damage for generations yet unborn.

The U.S. has acknowledged its humanitarian obligation to provide life-long medical treatment to the people who were injured in those tests, and to their children genetically damaged by radiation. The U.S. also has an interest in using some of the islands for military bases because of their strategic location midway between the U.S. and Asia.

The U.S. and the Federated States of Micronesia have a Compact of Free Association (i.e., a treaty) providing that the U.S. can control the foreign policy of those islands and maintain military bases there, in return for the payment of money and the right of citizens of those islands to freely enter the United States without visas and to take up residence, hold jobs, and attend school in any of the 50 states and other U.S. territories, with no time limit.

The burdens of this U.S. treaty have fallen on Hawaii far more than any other state, for several reasons. The people of Micronesia are accustomed to weather similar to Hawaii, and very unlike Minnesota. They are accustomed to Pacific islander culture, very unlike New York or Idaho. They like seeing a majority of the people around them looking like themselves. And so the great majority of Micronesians who come to live in the U.S. choose Hawaii.

The problem for Hawaii is that nearly all the Micronesians are impoverished and need welfare. Many of them have severe health problems requiring expensive treatment such as heart disease, diabetes, kidney dialysis, organ transplants, etc. The State of Hawaii is required by law to provide the same medicaid and welfare benefits to all residents of Hawaii regardless of citizenship.

What we have is, in effect, a $120 Million dollar per year unfunded federal mandate. The federal government is the one who created the problem with nuclear testing. The federal government is the one who signed the treaty giving Micronesians the right to live and work anywhere in the U.S. But the State of Hawaii is the one who must pay the costs, at a time when the economy is facing severe problems.

The Pacific Business News of December 24, 2009 reported that a new healthcare plan which the State of Hawaii tried to impose on the Micronesian welfare clients was ruled illegal. "The state intended to drop approximately 7,500 adult noncitizens — many of whom are from the Federated States of Micronesia, the Republic of the Marshall Islands and the Republic of Palau — from the more-comprehensive QUEST health insurance program ... denying them access to quality medical care, including kidney dialysis and chemotherapy. ... Koller estimates that more than $120 million in state funds are spent annually on health care, education and other services for these non-citizen immigrants, but the federal government provides the state with just $11 million to defray the costs."

Despite great publicity given to this problem, and the huge amount of money involved, U.S. Senator Dan Inouye failed to insert any earmark to reimburse Hawaii for these costs in any year before now. He failed to introduce legislation to deal with the problem, even now when earmarks are apparently going to be prohibited. But in the meantime he included an earmark in 2010 to fund the Polynesian Voyaging Society for a future round-the-world cruise (it failed when the ombibus spending bill failed in December), and he has continued to file bills every year to give hundreds of millions to various ethnic Hawaiian programs; and now in January 2011 one of the first things he did in the 112th Congress was to introduce S.66 to reauthorize the Native Hawaiian Healthcare Improvement bill.

Inouye clearly cares far more for wealthy, powerful ethnic Hawaiian institutions than he cares for the people of Hawaii as a whole. Inouye's bill would force all the people of America to pay for ethnic Hawaiian healthcare. But he ignores the Micronesian problem and thus forces Hawaii's people to tax retiree pensions and cut benefits and other programs for all Hawaii's people in order to pay at least $120 Million per year because of injuries to the Micronesians caused by the U.S., a treaty created by the U.S., and rights given to the Micronesians by the U.S.

Shame on Senator Inouye. Shame on Congress if it passes S.66 while the federal budget is running a huge deficit and even while ignoring its obligation to reimburse Hawaii taxpayers for the enormous welfare costs arising from a federal treaty.


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3. REFERENCES

** Note: After a short list of general references, there is a very lengthy and detailed analysis of 35 political and historical "findings" in S.66, including numerous footnotes. Those findings and rebuttals are placed after the references to be sure the relatively short list of references is not overlooked.

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The introductory section of this essay says there are more than a thousand government and private programs that are racially exclusive for ethnic Hawaiians. What's the evidence for that?

Senator Inouye's bill S.66, proposed Finding (31), page 13, line 18 says there are more than 160 federally funded programs racially exclusionary for ethnic Hawaiians. Senator Inouye doesn't name them; but he wouldn't lie, would he?

In addition, there's a huge privately funded Bishop Estate (Kamehameha Schools) worth $8-15 Billion, which owns about 9% of all the land in Hawaii plus a huge investment portfolio, with all income supposedly dedicated to the education of ethnic Hawaiians as allegedly (but falsely) required by the Will of Princess Bernice Pauahi Bishop.

There are two branches of the state government exclusively for the benefit of ethnic Hawaiians: Office of Hawaiian Affairs, with an investment portfolio of about $400 Million plus 40 square miles on Hawaii Island plus an entire valley on Oahu; and Department of Hawaiian Homelands, with more than 200,000 acres set aside for leasing exclusively to Hawaiians of at least 50% native blood quantum.

As of January 20, 2011, 837 racially exclusive government and private grants totaling approximately $320,726,953 have been cataloged on a webpage at
http://4hawaiiansonly.com/

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The Hawaiian Government Reorganization bill, informally known as the Akaka bill, was first introduced in July 2000. From then until December 2010 this highly controversial bill has been constantly present in Congress in perhaps two dozen different versions. At the end of February 2011 the Akaka bill has not yet been introduced in the 112th Congress, but Senator Akaka has said he definitely plans to introduce it. For several years the U.S. Civil Rights Commission has repeatedly warned Congress that the bill is racist and violates both the U.S. Constitution and Hawaii's multiracial history and Aloha Spirit. The bill has never reached the floor of the U.S. Senate thanks to holds and filibusters, including failure of a cloture motion after 6 hours of floor debate in 2006.

A collection of several hundred major publications opposing the Akaka bill, many authored by nationally-known commentators, includes a chronological index leading to full text of each one. See
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaPublishedOpposition.html

A very large webpage provides full text of all significant published news reports and commentaries tracking the history of the Akaka bill in the 111th Congress (2009-2010)
http://www.angelfire.com/big09a/AkakaHist111thCong.html

A similar webpage is tracking the Akaka bill in the 112th Congress (2011-2012).
http://www.angelfire.com/big09/AkakaHist112thCong.html

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As of the end of February, 2011 two bills to establish a state-recognized ethnic Hawaiian tribe have passed all the committees to which they were referred in the state Senate, and their companion bills in the state House are meeting no significant resistance.

SB1 proposes to establish a racial corporation, perhaps analogous to the Alaska native corporations; see
http://www.capitol.hawaii.gov/session2011/Bills/SB1_SD1_.HTM

SB1520 has language nearly identical to the Akaka bill but adapted to the state level.
http://www.capitol.hawaii.gov/session2011/Bills/SB1520_SD1_.HTM

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Native Hawaiian Victimhood Claims - Bad Statistics for Bad Purposes (a short summary for easy reading)
http://www.angelfire.com/hi5/bigfiles3/HawnVictimClaimsPopSum.html

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Native Hawaiian Victimhood Claims -- What Are They? Why Are They Being Asserted? How Can the Bad Statistics Be Explained? (detailed analysis)
http://www.angelfire.com/hi5/bigfiles3/HawnVictimClaimsDetailAnalysis.html

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Native Hawaiian Well-Being Statistics -- Suggestions for Improving How Data Are Gathered and Analyzed to Make Them More Useful for Scientific Study and Remedial Programs
http://www.angelfire.com/hi5/bigfiles3/HawaiianStatsHulili042106.html


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4. 35 HISTORICAL AND POLITICAL "FINDINGS" ON PAGES 2-22 OF THE BILL ARE EACH GIVEN DETAILED REBUTTALS WITH SOURCE CITATIONS

S.66 can be downloaded in pdf format from the Government Printing Office:
http://www.gpo.gov/fdsys/pkg/BILLS-112s66is/pdf/BILLS-112s66is.pdf

Below are some of the "findings" in S.66 and rebuttals to them.

An earlier reauthorization bill for the Native Hawaiian Healthcare system was S.1929 in year 2001. Most of the findings from that bill are repeated unchanged or with very minor changes of wording in S.66 in 2011. A webpage produced in 2001 provided detailed rebuttals to most of the findings in S.1929. Those rebuttals were based in large part on the work of attorney Paul M. Sullivan, along with attorneys H. William Burgess and Patrick S. Hanifin.
http://www.angelfire.com/hi2/hawaiiansovereignty/S1929.html

Nearly all of the rebuttals from S.1929 have been incorporated into the updated and expanded rebuttals for S.66. Many thanks to my attorney friends for their previous work incorporated into these updated rebuttals.

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Page 2, lines 8-11, proposed Finding (1): "Native Hawaiians begin their story with the Kumulipo, which details the creation and inter-relationship of all things, including the evolvement of Native Hawaiians as healthy and well people"

Rebuttal: The relevance of this finding is not explained, but the statement is a bit disingenuous. Without detracting from the historical, literary and religious significance of the Kumulipo, it should be noted that it is a family chant, believed to have been composed around 1700, which served a genealogical and, at times, a political purpose. MARTHA BECKWITH, HAWAIIAN MYTHOLOGY (1970), pp. 310-313. King Kalakaua (1874-1891), for example, used it to bolster his claim to the throne. MARTHA BECKWITH, THE KUMULIPO (1972), pp. 29, 153. Its citation here suggests that its political utility is still recognized.

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Pages 2 line 12 to page 3 line 2, proposed Finding (2): Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago within Ke Moananui, the Pacific Ocean; and have a distinct society that was first organized almost 2,000 years ago."

Rebuttal: This finding is factually incorrect in several respects.

2a. "A distinct people". If "people" is used in its usual sense of "a body of persons that are united by a common culture, tradition, or sense of kinship ... and that typically have common language, institutions and beliefs" (Webster's Third New International Dictionary (Unabridged) (1993), p. 1673), then Native Hawaiians as defined in the bill, cannot claim such a status. As one prominent Hawaiian scholar has put it:

"These are the modern Hawaiians, a vastly different people from their ancient progenitors. Two centuries of enormous, almost cataclysmic change imposed from within and without have altered their conditions, outlooks, attitudes, and values. Although some traditional practices and beliefs have been retained, even these have been modified. In general, today's Hawaiians have little familiarity with the ancient culture. Not only are present-day Hawaiians a different people, they are also a very heterogeneous and amorphous group. While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary Hawaiians are highly differentiated in religion, education, occupation, politics, and even their claims to Hawaiian identity. Few commonalities bind them, although there is a continuous quest to find and develop stronger ties." George S. Kanahele, The New Hawaiians, 29 Social Process in Hawaii 21 (1982).

2b. "A unique people". Such integration likewise counts against the claims of being "unique" as a group (in any other sense than the racial one), except insofar as every group within this country can claim "uniqueness". Of course, nothing in this finding explains how the claimed "distinctness" or "uniqueness" of this group, identified (in this bill and in other laws) solely by race or ancestry, would entitle it to preferential treatment under law, or exempt such treatment from the constraints of the Fourteenth Amendment.

2c. "Indigenous". While the ancestors of today's "Native Hawaiians" might have claimed to be the "indigenous peoples" of the Hawaiian Islands, their descendants today, extensively intermarried and integrated with all the other people of Hawaii for many generations, can hardly claim to be "indigenous". See ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 28-42.
See also the webpage "Are kanaka maoli indigenous to Hawai'i? Would the status of being indigenous give them special rights?" at
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html
See also the comments to proposed Findings (25) and (27) below.

2d. "Historical continuity to the original inhabitants". If "historical continuity" is intended to imply that modern-day Hawaiians maintain the societal and cultural forms of the "original" inhabitants of the islands, then this "finding" is incomplete and inaccurate.

2d1. Precontact Hawaiians had no written history, and there is debate as to who the "original inhabitants of the Hawaiian archipelago" were, where they came from and when they arrived. See generally ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 7-12. There is a considerable body of opinion that there were various waves of migration from the Marquesas Islands, Tahiti and possibly Samoa, beginning sometime between the birth of Christ and roughly 1000 A.D.

2d2. The society of the "original inhabitants" of the Hawaiian Islands underwent significant change both before and after Western contact. There was at least one radical discontinuity reflected in the legends and oral traditions which occurred long before Western contact, when immigrants from the South Pacific introduced the "kapu" system which ensured the absolute power of the chiefs over the commoners. See MARTHA BECKWITH, HAWAIIAN MYTHOLOGY (1970), pp. 369-375. Thus the precontact "society" of 1778 was very different from the precontact "society" of the earlier immigrants.

2d3. After Western contact, radical change and social discontinuity were the order of the day. Hawaii's early kings and chiefs accomplished a near miracle in maintaining their nation's independence while guiding and shaping the chaotic forces which focused on the islands. It was Hawaii's own native leaders who dispensed with the "old religion" of polytheism and human sacrifice even before the arrival of Christian missionaries in 1820. 1 KUYKENDALL, THE HAWAIIAN KINGDOM (1938) pp. 65-70. A generation later, it was Hawaii's own native leaders, drawing upon but not surrendering to their Western advisors, who replaced ancient forms of governance, land management, land ownership and many aspects of economic life with Western models. See generally 1 KUYKENDALL, THE HAWAIIAN KINGDOM (1938), pp. 227-334; Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998) 112-117. By the time it passed into history, the Hawaiian kingdom was a constitutional monarchy in the Western style, with a racially mixed legislature, judiciary and Cabinet governing a multi-racial nation which was fully accepted as an equal in Western diplomatic circles and boasted a literate citizenry well-educated in Western as well as Hawaiian ways. See generally 3 KUYKENDALL, THE HAWAIIAN KINGDOM (1967).

2d4. One other vital influence on Hawaiian history since Western contact was an early and continued practice of intermarriage with all the ethnic and racial groups which have made Hawaii their home over the last two hundred years and more. Intermarriage brought a multitude of cultural influences into the "historical continuities" of Hawaiians and new arrivals alike. Thus from the perspective of history we see that as the "continuity" of Hawaiians to the old culture waned, their "continuity" to the varied cultures of the Pacific and the world expanded and intensified.

2d5. Indeed, the asserted "continuity" of all modern-day Native Hawaiians to the "original inhabitants of the Hawaiian archipelago" is simply the justifiable pride of ancestry and historical connection we all feel for the best traditions and accomplishments of our ancestors. For today's 8,000 or so "pure" Hawaiians, perhaps, that pride is more focused than in the thousands of Hawaiians whose forebears came from varied regions of Europe, Asia and America and whose ancestors thus represent most of the great civilizations of the earth. It is, however, a universal characteristic of humanity. As it exists in Hawaii, it carries no political consequence and justifies no special treatment.

2e. "Native Hawaiians . . . have a distinct society organized almost 2000 years ago". This is simply not true. Whatever form or forms the precontact Hawaiian "society" took before Captain Cook arrived in 1778, it cannot be said that it persists today as it existed either at Western contact or at any earlier time.

2e1. Today's Native Hawaiians as defined by this bill do not "have" a "distinct society organized almost 2,000 years ago". As George Kanahele points out, the "society" of today's Native Hawaiians, as they are defined in this bill, is the "society" of the State of Hawaii and the United States. They do not, as a group or as several groups, live apart from the larger community of the state and nation. Today's citizens of Hawaiian extraction do not share the religion, language, forms of government, economics or any other of the defining social or cultural structures of precontact Hawaiian civilization. See Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998).

2e2. "Native Hawaiians", as a group defined by race or ancestry, cannot fairly be said to share today any common language, religion, economic regime, form of self-government or other unique group-identifying features except those of the United States as a whole; as Mr. Kanahele correctly observes, they are fully and completely integrated into the larger social and economic life of the state of Hawaii and the nation. They hold positions of power and respect at all levels of society including business, government and the arts; for example, in the past several years, Hawaii has had a Native Hawaiian Governor (John Waihee), a Native Hawaiian state supreme court chief justice (William S. Richardson), a U.S. Senator (Daniel Akaka) and numerous state officials and members of the state legislature.

2e3. Indeed, the use of the term "they" with respect to "Native Hawaiians" is of questionable validity, except in the context of the racial definitions of this bill, and of earlier Federal and state legislation using the same racial definition. If Mr. Kanahele is correct, then to misquote Gertrude Stein, there is no "they" there--no group in the real world with any definition other than the racial or ancestral one.

2f. If the committee undertakes a full and open exploration of this issue, it is likely to find that as to "Native Hawaiians", "they" are "us"--Americans, like all the other varied Americans in the state and the nation, mostly with mixed racial or ethnic backgrounds and sharing in the freedom and diversity of lifestyles guaranteed under the U.S. Constitution of this remarkable nation. The committee would therefore find, consistent with Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995), that each "Native Hawaiian" deserves the same access to medical care, and the same governmental assistance when necessary, as any American of any race--without regard to race except as it might bear on diagnosis and treatment of specific problems in specific individuals--but that they do not deserve any more.

Page 3, lines 3-6, proposed Finding (3): "The health and well-being of Native Hawaiians are intrinsically tied to the deep feelings and attachment of Native Hawaiians to their land and seas"

Rebuttal: This is a peculiar statement to apply without qualification to over 400,000 Americans, most with extensively mixed racial and ethnic background, pursuing widely varied lifestyles and livelihoods and living around the world. Assuming that this finding could have any relevance to the purpose and content of this legislation, something more to show its truth should be added. It probably states too much and too little; too much, because the statement is likely true for all persons of all races and locations who live an agrarian existence (which is, however, not the case for most Native Hawaiians), and too little, because such universal statements are of little value in fashioning either treatment regimens for individuals or health care policy for large or small populations with special needs. Whatever the case, Congress should demand proof of such a statement before making it a "finding"

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Page 3, lines 7-10, proposed Finding (4): "the long-range economic and social changes in Hawai‘i during the 19th and early 20th centuries have been devastating to the health and well-being of Native Hawaiians"

Rebuttal: This statement is factually inaccurate in large part, and is misleading as a whole.

It must be noted first that many of the dramatic social changes of the nineteenth century were originated by the Hawaiian royalty, not forced upon them by foreigners. In 1819 shortly after Kamehameha's death, his widow Ka'ahumanu, then the most powerful of the ali'i nui (high chiefs) , said, "We intend to eat pork and bananas and coconuts and to live as the white people do." Supported by her powerful Maui kinsmen, she "broke the kapu", the strictures of the old religion. Under her direction, the young King, Liholiho (Kamehameha II) ordered destruction of the heiau (temples) and burning of the wooden idols.

The next year, 1820, the first company of American missionaries arrived, and soon thereafter Ka'ahumanu took charge of Christianity and made it the official state religion. Christianity displaced the Hawaiian religion and became the new order. Those who did not convert were evicted from their land. Both the British and American consuls protested that Ka'ahumanu's new kapu was a threat to the whaling fleet and bad for business. Ka'ahumanu replied, "We do not rule there [in America or Britain], but these islands are ours, and we wish to obey the commands of God." LILIKALA KAME'ELEIHIWA, NATIVE LAND AND FOREIGN DESIRES (1992), pp. 82, 154-157.

The chiefs for the most part adopted western economic values and were eager to acquire western skills and goods and technology. Indeed, the chiefess Kapi'olani complained to a gratified Lahaina missionary in 1825 that when among her fellow chiefs "I hear so much said about money, and cloth, and land, and ships, and bargains, that it makes me sick..."

The King and chiefs worked with foreign nations, welcomed the westerners and their laws and forms of government and incorporated them into Hawaii's government. In 1845 Kauikeaouli (Kamehameha III) explained to S.M. Kamakau why he dismissed natives from government offices and appointed foreigners: "My native helpers do not understand the laws of the great countries who are working with us."

William Little Lee, who had studied law at Harvard under Supreme Court Justice Joseph Story, arrived in Honolulu in 1846 with Charles Reed Bishop. At the request of the King and chiefs, Lee drafted many of the documents which installed a stable democratic American form of government. The constitution of 1852 as approved by the King and chiefs established a strong role for the popularly elected House of Representatives but was not as democratic as Lee had proposed because the Chiefs (whose maxim was "Kanakas were made for the Ali'i") had become jealous of the growing power of the people. Unquestionably, the time between the first Western contact and the latter part of the nineteenth century was, from many standpoints including that of health, disastrous for Hawaiians. Precontact Hawaiians had reportedly suffered at least one devastating plague before the arrival of Westerners in 1778 (DAVID MALO, HAWAIIAN ANTIQUITIES 245 (Nathaniel Emerson, trans., 1951), but English, European and American visitors in the 18th and 19th centuries brought diseases to which the natives had no immunity and which dramatically reduced the native population. They also brought ideas and concepts which resulted in extensive social, political, religious and cultural changes for Native Hawaiians. ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989).

It cannot fairly be said, however, that the changes in the late 19th and the 20th centuries had similar effects. Intermarriage among all Hawaii's ethnic groups began immediately after Western contact and has always been extensively practiced, and while the number of "pure" Hawaiians has continued to decline to this day, "Native Hawaiians", as defined in this bill to include part-Hawaiians, have increased in numbers since about 1900 and life expectancy has increased dramatically. See id. at 38-42; LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960).

As Nordyke puts it: "Hawaiians in Hawaii in the last quarter of the twentieth century are a vibrant, proud, rapidly growing, young, heterogeneous group, with only 4.5 percent at age 65 and over. . . . Hawaiian resurgence is observed in politics, culture, education, and economics, with leading roles taken by highly educated native people." ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989) 40.

This picture, drawn by a respected and scholarly author, differs from that drawn by the preamble to this bill. The difference needs to be explored with care before this proposed finding is adopted.

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Page 3, lines 11-15, proposed Finding (5): Native Hawaiians have never directly relinquished to the United States their claims to their inherent sovereignty as a people or over their national territory, either through their monarchy or through a plebiscite or referendum

Rebuttal: This finding is both factually and legally inaccurate.

3a. "Inherent Sovereignty". Under the law of the Kingdom of Hawaii, the "people" had no inherent sovereignty. Sovereignty, in the Hawaiian kingdom, resided inherently in the monarch, not the "people". In this respect, the monarchy was very different from a republic like the United States, where sovereignty -- the supreme political authority within an independent nation -- is with the people.

This difference was clearly set out by the Hawaiian kingdom's supreme court in the case of Rex v. Booth, 2 Haw. 616 (1863). A law of the kingdom prohibited sales of liquor to "native subjects" of the kingdom, but not to other inhabitants or visitors. The defendants argued that the law was unconstitutional under the 1852 Constitution as discriminatory class or special legislation. They asserted that in constitutional governments, legislative authority emanates from the people, and that the legislature acts as agent of the people, and that "it is against all reason and justice to suppose . . . that the native subjects of this Kingdom ever entrusted the Legislature with the power to enact such a law as that under discussion."

The court responded: "Here is a grave mistake -- a fundamental error -- which is no doubt the source of such misconception. ... The Hawaiian Government was not established by the people; the Constitution did not emanate from them; they were not consulted in their aggregate capacity or in convention, and they had no direct voice in founding either the Government or the Constitution. King Kamehameha III originally possessed, in his own person, all the attributes of sovereignty."

The court reviewed Kamehameha III's promulgation of the 1840 Constitution and its 1852 successor and explained that by these documents the king had voluntarily shared with the chiefs and people of the kingdom, to a limited degree, his previously absolute authority. The court explained:

"Not a particle of power was derived from the people. Originally the attribute of the King alone, it is now the attribute of the King and of those whom, in granting the Constitution, he has voluntarily associated with himself in its exercise. No law can be enacted in the name, or by the authority of the people. The only share in the sovereignty possessed by the people, is the power to elect the members of the House of Representatives; and the members of that House are not mere delegates."

It would appear that both Kamehameha V and Queen Lili'uokalani believed that this sharing of sovereignty could be revoked or modified by the monarch who granted it, or by his or her successor. In 1864, when Kamehameha V became frustrated with the inability of the legislature to agree on amendments to the 1852 Constitution, he simply dissolved the legislature and promulgated a new Constitution on his own authority with the statement (quoted here from 2 KUYKENDALL, THE HAWAIIAN KINGDOM (1953), p. 132): "As we do not agree, it is useless to prolong the session, and as at the time His Majesty Kamehameha III gave the Constitution of the year 1852, He reserved to himself the power of taking it away if it was not for the interest of his Government and people, and as it is clear that that King left the revision of the Constitution to my predecessor and myself therefore as I sit in His seat, on the part of the Sovereignty of the Hawaiian Islands I make known today that the Constitution of 1852 is abrogated. I will give you a Constitution."

Of like mind was Queen Lili'uokalani, who stated: "Let it be repeated: the promulgation of a new constitution, adapted to the needs of the times and the demands of the people, has been an indisputable prerogative of the Hawaiian monarchy." LILIUOKALANI, HAWAII'S STORY BY HAWAII'S QUEEN (1898), p. 21

To these Hawaiian leaders of the past, a claim that the "Hawaiian people" had "inherent sovereignty" would likely have been viewed as a challenge to the prerogatives of the crown.

Of course, whether or not "Native Hawaiians" possessed "sovereignty" of any sort over a hundred years ago would appear to have little to do with whether they need special racially-restricted health care today, and if so, whether the U.S. Constitution permits such solicitude.

3b. "National lands". The meaning of the term "national lands" is unclear. If the reference is to the so-called "ceded lands" -- the Crown lands and government lands of the kingdom, taken over by the revolutionary government in 1893 and ceded to the United States at annexation in 1898 --then the proposed finding is inaccurate. These lands were lands of the kingdom, and from the time of the Great Mahele of 1848, "Native Hawaiians" as a racial or ancestrally-defined group had no legal interest in or right to these lands except insofar as they had rights to vote as subjects of the kingdom--rights shared by the non-"Native Hawaiian" subjects and denizens of the kingdom.

Patrick W. Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 Hawaii B.J. 107 (1982);
http://www.angelfire.com/hi5/bigfiles/HanifinReparations1982.pdf

"Existing Law, Native Hawaiians and Compensation", 1 FINAL REPORT OF THE NATIVE HAWAIIANS STUDY COMMISSION (1983), pp. 333-370.
http://wiki.grassrootinstitute.org/mediawiki/index.php?title=Native_Hawaiians_Study_Commission_Report

U.S. PACIFIC COMMAND, FINAL EIS FOR LAND USE DEVELOPMENT AT BELLOWS AIR FORCE STATION, WAIMANALO, HI (1995), section 6.6. All documents from the Bellows EIS are available at
http://www.angelfire.com/hi2/hawaiiansovereignty/bellows.html

Many of the circumstances surrounding the changes of government in Hawaii from 1893 through 1898 are still matters of historical debate. The U.S. Supreme Court reviewed these events briefly in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I. Among the unquestioned facts, however, is that in 1893, Queen Liliuokalani, the last Hawaiian monarch, surrendered her authority as queen following a bloodless revolution (which the U.S. Supreme Court characterized as an "intervention" by the group which supplanted her). Rice v. Cayetano, slip op. at 8. She was succeeded by a provisional government and eventually an independent republic, and this independent republic ceded the sovereignty and property of Hawaii to the U.S. in 1898, a cession which was accomplished, like the revolution, without violence and with the evident acquiescence of the populace. In 1959, a proposal that Hawaii become a state passed by a margin of seventeen to one. GAVAN DAWS, SHOAL OF TIME (1968), p. 391.

The references cited above reflect that during the years of the monarchy, many inhabitants of American, British and European extraction were full subjects of the kingdom and many of these held posts at the highest levels of the monarchy. The government was generally administered without regard to race or ancestry, and the public lands of the Kingdom were owned by the kingdom and administered for the benefit of all the kingdom's citizens, with neither special control nor special entitlements reserved for subjects of Hawaiian ancestry alone. Thus the "national lands" of the kingdom could not be said to be, in any respect, lands of Native Hawaiians alone. Even the lands which the monarch had reserved to himself in the great land division of 1848 had become, by 1865, lands of the kingdom set aside, under the supervision of a commission responsible to the legislature, as a resource for the maintenance of the monarch in what might be called his "official capacity", and not as his or her own private property. See generally
Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864); and
Liliuokalani v. U.S., 45 Ct.Cl. 418 (1910).
Both Lili'uokalani's complaint and the Court's decision can be found at
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html

There were no "national lands" either of the kingdom or of "Native Hawaiians" other than the crown and government lands referred to above. For the above reasons, this finding should be deleted from the bill and should play no part in Congress' deliberations or action.

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Page 3, lines 16-21, proposed Finding (6) "The Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their own spiritual and traditional beliefs, their customs, practices, language, social institutions, ancestral territory, and cultural identity"

Rebuttal: This section, like many others, has no evident relevance to the issue of Native Hawaiian health needs. It is also, as noted above, contradicted by scholarly opinion that Native Hawaiians, as defined in this statute, are a culturally, religiously, politically and socially diverse group, thoroughly integrated into the life of the state and nation, and that there is no unique or broadly-shared "Native Hawaiian" cultural identity and no unique and commonly-held set of "Native Hawaiian" spiritual and traditional beliefs, customs, practices, language, and social institutions.

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Page 3, lines 22-25, proposed Finding (7): "In referring to themselves, Native Hawaiians use the term 'Kanaka Maoli', a term frequently used in the 19th century to describe the native people of Hawaii."

Rebuttal: The term "Kanaka Maoli" is disturbing because, like the term "Native Hawaiian", it is a term of racial differentiation. Whatever its use in the 19th century, it is used today in a purely racial sense to identify the same group which this legislation identifies as "Native Hawaiians". It should be used, if at all, only with sensitivity to that connotation of racial separateness. The term "Kanaka Maoli" has a very interesting definition in the Hawaiian Dictionary, Revised and Enlarged edition (Pukui and Elbert, University of Hawaii Press, 1986, 572 pages). On page 127, there is only one definition for this term: "Full-blooded Hawaiian person." According to many sources, fewer than one percent of all ethnic Hawaiians living today would satisfy that requirement.

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Page 4, lines 1-9, proposed Finding (8): "The constitution and statutes of the State of Hawaii--
'(A) acknowledge the distinct land rights of Native Hawaiian people as beneficiaries of the public lands trust; and
'(B) reaffirm and protect the unique right of the Native Hawaiian people to practice and perpetuate their cultural and religious customs, beliefs, practices, and language.'"

Rebuttal:

(8)(A): The "public land trust" referred to would appear to be the trust established by section 5(f) of the Hawaii Admission Act, although this should be made clear. Section 5(f) provides that the lands therein described shall be held by the state of Hawaii as a public trust, "to be managed and disposed of for one or more" of five specified purposes, of which the "betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act of 1920" is only one. The other permissible purposes are education, promoting farm and home ownership, making public improvements and providing land for public purposes. Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section II.

The "native Hawaiians" referred to in section 5(f) are only those of 50% or greater Hawaiian "blood", and they become "beneficiaries" of the trust under the "betterment" clause only if the state of Hawaii chooses to use some or all of the trust for that purpose. "Native Hawaiians" as defined in this bill who have less than 50% Hawaiian "blood" are beneficiaries of the public lands trust only to the same extent as all the other citizens of the state of Hawaii. No "land rights" are granted by section 5(f) to any specific segment of the populace, Native Hawaiian or otherwise.

(8)(B): The relevance of this finding to health care is not explained and is not apparent. The "unique right" of the Native Hawaiian people to practice and perpetuate their cultural and religious customs, beliefs, practices, and language is not at all settled in the law of the state of Hawaii, and the state supreme court's description of such a "right" (albeit in dicta) raises grave constitutional questions. See Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998).

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Page 4, lines 10-15, proposed Finding (9) "At the time of the arrival of the first nonindigenous people in Hawaii in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistence social system based on communal land tenure with a sophisticated language, culture, and religion."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

It might be noted that the land tenure was feudal rather than communal. See

Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, LAWS 1848, p. 41, reprinted in 2 REVISED LAWS OF HAWAII (1925) 2124;

Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I.)

Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawaii, 20 U.Haw. Law Rev. 99 (1998);
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html

The monarch, who ruled absolutely, had absolute power over the control and management of land. Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864).

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Page 4, lines 16-18, proposed Finding (10): "A unified monarchical government of the Hawaiian Islands was established in 1810 under Kamehameha I, the first King of Hawaii."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent. In the interest of accuracy, it should be noted that Kamehameha I was the first king of the unified Hawaiian Islands. Prior to the unification of the islands, Kamehameha I had been king of the island of Hawaii, one of the Hawaiian Islands, but he was NOT the FIRST "king" of that island; the island of Hawaii had kings and great ruling chiefs before Kamehameha I. ABRAHAM FORNANDER, ANCIENT HISTORY OF THE HAWAIIAN PEOPLE TO THE TIMES OF KAMEHAMEHA I, (Mutual Publishing 1996) (1880), pp. 64-67.

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Page 4 line 19 to page 5 line 4, proposed Finding (11):
"Throughout the 19th century and until 1893, the United States--
'(A) recognized the independence of the Kingdom of Hawaii;
'(B) extended full and complete diplomatic recognition to the Hawaiian Government; and
'(C) entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875 and 1887."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

The assertions in proposed Finding (11) are all true; but incomplete.

It is true that the U.S. recognized the independence of the Kingdom of Hawaii, extended full and complete diplomatic recognition to its government, and entered into treaties and conventions with the Kingdom government.

But it is also very important to note that the government and citizenship of the Kingdom was not racially exclusive to ethnic Hawaiians.

One of the most important founders of the Kingdom was Englishman John Young (Hawaiian name Olohana), who served as battlefield general and was then appointed Governor of the Island of Hawaii and served in the ruling council of high chiefs. Young was given land and a house immediately next to the great Pu'ukohola Heiau. He married one of Kamehameha's daughters. His son (Keoni Ana) became second in rank only to the King (Kamehameha III) and his signature was required alongside the King's for any document to be official (including the Constitution of 1852). His granddaughter became Queen Emma, wife of Kamehameha IV and a candidate for monarch opposing Kalakaua in the election of 1874. John Young's bones are the oldest in Mauna Ala (the Royal Mausoleum), where his tomb is in the shape of a small heiau and guarded by a pair of pulo'ulo'u (sacred taboo sticks).

Throughout the Kingdom's history (1810-1893), most cabinet ministers were Caucasian, along with nearly all judges and department heads. At various times 1/4 to 1/3 of the members of the Legislature (both appointed and elected) were Caucasian. More than 1000 Chinese and some Japanese became naturalized subjects of the Kingdom, with voting rights.

These proposed findings are included in this bill for the purpose of claiming that ethnic Hawaiians had their own government which was recognized by the U.S.; and implying that ethnic Hawaiians (alone among Hawaii's people) have a trust relationship with the U.S. grounded in a history of diplomatic relations. But as this rebuttal clearly proves, that relationship was with the multiracial government of a multiracial nation in which people with no native blood had full citizenship and voting rights.

In the interest of completeness, it should be noted that Hawaii's national independence did not end in 1893. It continued after the termination of the monarchy up until the annexation of Hawaii to the United States in 1898, as evidenced by diplomatic recognition of the Provisional Government and the Republic. From July 1894 to January 1895 Emperors, Kings, Queens, and Presidents of at least 20 nations on 4 continents, including U.S. President Grover Cleveland, personally signed letters in 11 languages granting full, de jure diplomatic recognition to the Republic as the rightful government of Hawaii. Those letters are available in the state Archives. Photographs of them have been placed on a webpage at
http://tinyurl.com/4wtwdz

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Page 4, lines 5-11, proposed Finding (12): "In 1893, John L. Stevens, the United States Minister assigned to the sovereign and independent Kingdom of Hawaii, conspired with a small group of non-Hawaiian residents of the Kingdom, including citizens of the United States, to overthrow the indigenous and lawful government of Kingdom of Hawaii."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

The circumstances surrounding the overthrow of the monarchy in 1893 are the subject of an extensive historiography.

Perhaps the most objective description that is easy to read and widely available is found in RALPH S. KUYKENDALL, THE HAWAIIAN KINGDOM (1967), Chapters 18-21.

In early 1894, after two months of hearing sworn testimony under cross examination in open session, the Senate Committee on Foreign Affairs, chaired by James Morgan, published an 808-page report concluding that the U.S. had not conspired with the Hawaii revolutionaries beforehand and had not assisted them during the revolution. The Morgan report repudiated a previous report by Cleveland's hatchet-man Blount. It included evidence that Blount had listened to the royalists and excluded the revolutionaries, and had falsified or misrepresented some statements made to him. As a result of the Morgan report the Senate passed a resolution that there should be no further U.S. interference in Hawaii, thus destroying Cleveland's hope for approval of U.S. intervention to restore the Queen. Also as a result of the Morgan report, President Cleveland gave up any further efforts on the Queen's behalf; he extended formal diplomatic recognition de jure (rather than merely de facto) to the Dole government, and he engaged in diplomatic negotiations regarding further implementation of treaties. The Dole government held power for more than 5 years, including all 4 years of an initially hostile President Cleveland, and in the face of an attempted armed counter-revolution in which several men were killed and many were imprisoned. The complete report by the 1894 U.S. Senate Committee on Foreign Affairs can be found at
http://morganreport.org

The Native Hawaiians Study Commission was created by the Congress of the United States on December 22, 1980 (Title III of Public Law 96-565). The purpose of the Commission was to "conduct a study of the culture, needs and concerns of the Native Hawaiians." The Commission released to the public a Draft Report of Findings on September 23, 1982. Following a 120-day period of public comment, a final report was written and submitted on June 23, 1983 to the U.S. Senate Committee on Energy and Natural Resources and to the U.S. House of Representatives Committee on Interior and Insular Affairs. The NHSC examined the history of Hawaii and the current conditions (1980) of Native Hawaiians. One purpose of the commission was to explore whether Native Hawaiians have special needs, and what those needs might be. Another purpose of the commission was to explore whether the United States has any historical, legal, or moral obligation to meet the special needs of Native Hawaiians by providing them with political sovereignty or race-specific group rights. The commission found that Native Hawaiians have higher rates than other ethnic groups for indicators of dysfunction in health, education, income, etc. The commission concluded that the U.S. has no obligation to remedy those problems in any way other than the usual assistance given by government to all people afflicted with difficulties. The Commission report is available on the internet at
http://wiki.grassrootinstitute.org/mediawiki/index.php?title=Native_Hawaiians_Study_Commission_Report

A rather one-sided view of what happened in the Hawaiian revolution of 1893 appears in the so-called Apology Resolution, P.L. 103-150. Some of the proposed "findings" related to the revolution, in the present bill S.66, are taken directly from that resolution. Constitutional law scholar Bruce Fein provided a point-by-point criticism of the Hawaiian apology resolution on pp. 5-18 of his monograph "Hawaii Divided Against Itself Cannot Stand." That entire monograph in pdf format is available at:
http://www.angelfire.com/hi5/bigfiles3/AkakaHawaiiDividedFeinJune2005.pdf

Thurston Twigg-Smith's family now has seven generations of people born and raised in Hawaii, descended from one of the early New England missionaries. Mr. Twigg-Smith's grandfather, a native-born subject of the Kingdom, was one of the leaders of both Hawaiian revolutions in 1887 and 1893. Mr. Twigg-Smith published a book about the history of Hawaii entitled "Hawaiian Sovereignty: Do The Facts Matter?" Chapter 10 of that book analyzes the apology resolution. The entire book can be downloaded in pdf form free of charge from
http://bigfiles90.angelfire.com/HawnSovDoFactsMatterTTS.pdf

The U.S. Supreme Court in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I, presented a succinct and neutral summary of this element of Hawaii's history which deserves careful review.

It should be noted that more than half of the Committee of Safety, which led the revolution of 1893, were native-born or naturalized subjects of the monarchy, and thus were "Hawaiians" in a widely-accepted meaning of that term (see Rice v. Cayetano, supra). All were residents of the kingdom and committed to its orderly government.

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Page 5, line 12 to page 6, line 3, proposed Finding (13):

"In pursuance of that conspiracy, (A) the United States Minister and the naval representative of the United States caused armed naval forces of the United States to invade the sovereign Kingdom of Hawaii in support of the overthrow of the indigenous and lawful Government of Hawaii and (B) after the overthrow, the United States Minister extended diplomatic recognition of a provisional government formed by the conspirators without the consent of the native people of Hawaii or the lawful Government of Hawaii in violation of (i) treaties between the Kingdom of Hawaii and the United States; and (ii) international law."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

The "history" set out in this finding has been a subject of debate for over a hundred years. The references cited in the above comments on proposed Finding (12) should be consulted on this finding for both greater detail and greater accuracy.

It should be noted that at the time of the 1893 revolution, the government of Hawaii was not "indigenous" (since the electorate as well as the legislature, the judiciary and the executive branches of government consisted in significant part of persons other than Native Hawaiians) and that in the eyes of the revolutionaries at least, Queen Liliuokalani's presence on the throne was not "lawful" since she had committed herself to the promulgation of a new constitution without complying with the procedures prescribed in the existing constitution. See WILLIAM ADAM RUSS, JR., THE HAWAIIAN REVOLUTION (1893-94) (1959), p. 81.

The removal of the queen was accomplished without bloodshed and with only token opposition. Whatever might have been the feelings in 1893 of the "native people of Hawaii" (who formed less than 40% of the population), those same "native people" were a major political force within the Territorial government (see LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp. 79-85, 161-62). In 1959, at the time of the statehood vote, they were about one-sixth of the populace, and the overwhelming 17 to 1 majority vote in the 1950 statehood plebiscite shows support by Hawaiians as well as other groups for that measure. Id. at 414.

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Page 6 lines 4 to 16, proposed Finding (14) "In a message to Congress on December 18, 1893, President Grover Cleveland -- (A) reported fully and accurately on those illegal actions; (B) acknowledged that by these acts, described by the President as acts of war, the government of a peaceful and friendly people was overthrown; and (C) concluded that a `substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people required that we should endeavor to repair'."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

It should be noted, however, that the whole issue of how the United States should respond to the events of 1893 was the subject of extraordinary and intense debate, both in Congress and in the American press, both immediately after the revolution and in 1898, when annexation was under consideration. See WILLIAM ADAM RUSS, JR., THE HAWAIIAN REPUBLIC (1894-98) (1961). Whatever else might be said about the decisions of Congress during this period, they exemplified the fullest and most vital expression of the democratic process. President Cleveland's opinion was only one of many, both for and against the revolutionaries, and his view did not prevail in the open, vigorous and exhaustive debate. See the rebuttals to proposed Findings (12) and (13), and especially the Morgan Report. That was, and is, in its fundamental character, the American way.

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Page 6 lines 17-23, proposed Finding (15): "Queen Lili'uokalani, the lawful monarch of Hawaii, and the Hawaiian Patriotic League, representing the aboriginal citizens of Hawaii, promptly petitioned the United States for redress of these wrongs and for restoration of the indigenous government of the Hawaiian nation, but no action was taken on that petition."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

President Grover Cleveland's early support for the ex-queen's restoration waned after she declared to his representative that upon her restoration she would have the revolutionaries beheaded, and when the provisional government declined to step aside at the request of the President. Ultimately, he referred the matter to Congress.

Congress did not ignore the question, as this proposed finding implies. In fact, the Hawaiian revolution was the subject of two detailed reports which Congress carefully considered, one (the "Blount Report) by James H. Blount, who had been commissioned by President Cleveland shortly after the revolution to investigate the matter, and one (the "Morgan Report", S. Rep. 227, 53rd Cong., 2nd sess.) by the Senate Committee on Foreign Relations which conducted its own investigation upon receipt of President Cleveland's message. After intense debate, Congress passed resolutions warning all foreign nations that intervention in the political affairs of the islands would be considered an act unfriendly to the United States, but took no action to restore the monarchy. 3 KUYKENDALL, THE HAWAIIAN KINGDOM (1967), pp. 623-31, 642-47.

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Page 6 line 24 to page 7 line 9, proposed Finding (16): "in 1993, Congress enacted Public Law 103–150 (107 Stat. 1510), in which Congress— (A) acknowledged the significance of those events; and (B) apologized to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawai‘i with the participation of agents and citizens of the United States, and the resulting deprivation of the rights of Native Hawaiians to self-determination;"

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

Constitutional law scholar Bruce Fein provided a point-by-point criticism of the Hawaiian apology resolution on pp. 5-18 of his monograph "Hawaii Divided Against Itself Cannot Stand." That entire monograph in pdf format is available at:
http://www.angelfire.com/hi5/bigfiles3/AkakaHawaiiDividedFeinJune2005.pdf

Thurston Twigg-Smith's family now has seven generations of people born and raised in Hawaii, descended from one of the early New England missionaries. Mr. Twigg-Smith's grandfather, a native-born subject of the Kingdom, was one of the leaders of both Hawaiian revolutions in 1887 and 1893. Mr. Twigg-Smith published a book about the history of Hawaii entitled "Hawaiian Sovereignty: Do The Facts Matter?" Chapter 10 of that book analyzes the apology resolution. The entire book can be downloaded in pdf form free of charge from
http://bigfiles90.angelfire.com/HawnSovDoFactsMatterTTS.pdf

The U.S. Supreme Court in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section I, presented a succinct and neutral summary of this element of Hawaii's history which deserves careful review.

Members of the Senate reading this bill S.66 should note the way the 1993 apology resolution is being used to support race-based healthcare for ethnic Hawaiians. When the apology resolution was debated on the Senate floor in 1993, Senator Inouye, author of this S.66 who is using the apology resolution that way, solemnly promised his fellow Senators that the resolution would never be used for this purpose.

Former Senators Slade Gorton and Hank Brown, who participated in that 1993 debate, published a commentary on August 16, 2005 in the Wall Street Journal (online) severely criticizing Senator Inouye who was, in 2005, using the apology resolution to demand federal recognition of ethnic Hawaiians as an Indian tribe. Here is the relevant portion of what Senators Gorton and Brown wrote (everything to the end of this rebuttal to this proposed finding):

"The Resolution is cited by the Akaka Bill in three places to establish the proposition that the U.S. perpetrated legal or moral wrongs against Native Hawaiians that justify the race-based government the legislation would erect. These citations are a betrayal of the word given to us -- and to the Senate -- in the debate over the Apology Resolution.

"We specifically inquired of its proponents whether the Apology would be employed to seek "special status under which persons of Native Hawaiian descent will be given rights or privileges or reparations or land or money communally that are unavailable to other citizens of Hawaii." We were promised on the floor of the Senate by Daniel Inouye, the senior senator from Hawaii and a personage of impeccable integrity, that, "As to the matter of the status of Native Hawaiians . . . [t]his resolution has nothing to do with that. . . . I can assure my colleague of that." The Akaka Bill repudiates that promise of Sen. Inouye. It invokes the Apology Resolution to justify granting persons of Native Hawaiian descent -- even in minuscule proportion -- political and economic rights and land denied to other citizens of Hawaii. We were unambiguously told that would not be done.

"The Apology Resolution distorted historical truths. It falsely claimed that the U.S. participated in the wrongful overthrow of Queen Liliuokalani in 1893. The U.S. remained strictly neutral. It provided neither arms, nor economic assistance, nor diplomatic support to a band of Hawaiian insurgents, who prevailed without firing a single shot, largely because neither the Native Hawaiian numerical majority nor the Queen's own government resisted the end of the Hawaiian Kingdom. The Queen authored her own ouster by planning a coup against the Hawaii Constitution to recapture monarchical powers that had been lost in a strong democratic current. She later confided to Sen. George Hoar that annexation to the U.S. was the best thing that could have happened to Native Hawaiians.

"The Resolution falsely asserted that the Kingdom of Hawaii featured a Native Hawaiian government exclusively for Native Hawaiians prior to the 1893 events. In fact, the Kingdom was a splendid fusion of both native and non-native elements in both government and society. The definitive historian of the Kingdom, R.S. Kuykendall, elaborated: "The policy being followed looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king."

"The Apology falsely declared that Native Hawaiians enjoyed inherent sovereignty over Hawaii to the exclusion of non-Native Hawaiians. To the extent sovereignty existed outside the monarch, it reposed equally with all Hawaiians irrespective of ancestry. The Apology falsely maintained that Native Hawaiians never by plebiscite relinquished sovereignty to the U.S. In 1959, Native Hawaiians voted by at least a 2-1 margin for statehood in a plebiscite. Finally, the Apology Resolution and its misbegotten offspring, the Akaka Bill, betray this nation's sacred motto: E Pluribus Unum. They would begin a process of splintering sovereignties in the U.S. for every racial, ethnic, or religious group traumatized by an identity crisis. Movement is already afoot among a few Hispanic Americans to carve out race-based sovereignty from eight western states because the U.S. "wrongfully" defeated Mexico in the Mexican-American war.

"The U.S. Constitution scrupulously protects the liberties and freedom of Native Hawaiians. It always has. It always will. Native Hawaiians have never been treated as less than equal by the U.S. Their economic success matches that of non-Native Hawaiians. Intermarriage is the norm. Sen. Inouye himself boasted in 1994 that Hawaii was "one of the greatest examples of a multiethnic society living in relative peace." In other words, E Pluribus Unum is a formula that works. We should not destroy it."

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Page 7 lines 10-15, proposed Finding (17) "Between 1897 and 1898, when the total Native Hawaiian population in Hawai‘i was less than 40,000, more than 38,000 Native Hawaiians signed petitions (commonly known as ‘Ku‘e Petitions’) protesting annexation by the United States and requesting restoration of the monarchy"

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

However, this line of "Findings" seems intended to show that ethnic Hawaiians were dragged kicking and screaming into the United States. Does Congress really want to endorse the implication that today's ethnic Hawaiians are entitled to secede from the U.S. because their ancestors protested against annexation? And what is the relevance of all this to healthcare? Is race-based healthcare being viewed as some sort of racial reparation for an allegedly illegal revolution and allegedly illegal annexation? Both the House and Senate have apologized to African Americans for slavery (just as the U.S. apologized to ethnic Hawaiians for the overthrow of the Hawaiian monarchy). Should America provide free healthcare to African-Americans as reparations?

The petition against annexation contained about 21,000 signatures, and was rediscovered in the U.S. National Archives by a graduate student who has now completed her dissertation, Dr. Noenoe Silva. Copies of the petition were displayed throughout Hawaii in 1998, together with some of the original pages; and many ethnic Hawaiians took great pride in finding the signatures of their ancestors.

However, we must note that even if all the 21,000 signatures were by ethnic Hawaiians, that means that only a little more than half the ethnic Hawaiians living in Hawaii at that time actually signed the petition. The other half were either absent when the petition was circulated, or refused. Each page of the petition has the name of the place where the signatures were gathered. Thus we know that the petition was circulated in that place. We know the number of ethnic Hawaiians living in some of those places at that time because of census records and historical lists, and how many signatures were obtained in those places; so it is clear that there were many, many ethnic Hawaiians who could have signed but bravely resisted the pressure to do so.

Some signatures on the petition were by people with no native blood. That shows that non-natives were allowed to sign the petition, and were asked to do so. Each signer also wrote his/her age next to the signature, and we see that children signed it. About half the signatures were by women even though women did not have the right to vote. Because children and non-natives were allowed to sign the petition, the correct figure to use for getting a percentage of signers is the entire population of Hawaii in 1897, not merely the number of ethnic Hawaiians. Looking at it that way, only 19% of the population signed the petition.

A report was filed along with the petition by a member of the legislature who said there were many duplicate signatures (same name on different pages) and forged signatures (same handwriting for different names). He commented that some legislators made a habit of getting signatures on a blank petition and then later filling in the purpose of the petition when one was needed, thus nullifying the intention of the signer.

There was allegedly another petition containing about 17,000 signatures, demanding the restoration of the monarchy; but that petition was apparently never presented to Congress because it cannot be found in the U.S. Archives (and indeed it cannot be found anywhere despite diligent searching). Hawaiian sovereignty activists like to add up 21,000 + 17,000 to get the 38,000 figure mentioned in proposed Finding (17). But it is wrong to claim 38,000 signatures on a petition opposing annexation, when 17,000 of them were for a totally different purpose of restoring the monarchy.

Certainly the 17,000 who wanted restoration of the monarchy would have also opposed annexation, so there would probably be great overlapping of the signatures -- perhaps most of the 17,000 signatures were also among the 21,000. A different way of looking at the numbers on the two petitions would suggest that there must have been 4,000 people who, although opposed to annexation, were also opposed to restoring the monarchy and had enough courage to refuse to sign that restoration petition.

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Page 7 line 16 to page 8 line 2, proposed Finding (18) "despite Native Hawaiian protests, in 1898, the United State -- (A) annexed Hawai‘i through Resolution 55 (commonly known as the ‘Newlands Resolution’) (30 Stat. 750), without the consent of, or compensation to, the indigenous people of Hawai‘i or the sovereign government of those people; and (B) denied those people the mechanism for expression of their inherent sovereignty through self-government and self-determination of their land and ocean resources"

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

The finding is misleading in a number of respects; suffice it to note only (1) that neither the monarchy nor the successor governments before annexation were either by, for or of persons of Hawaiian ancestry exclusively, and (2) that under the monarchy, persons of Hawaiian ancestry had no "inherent sovereignty". The population of the Hawaiian Islands at about the time of annexation was somewhere near 35% of Hawaiian ancestry, the remainder consisting of both citizens and long-term residents of Japanese, Chinese, American, British and other foreign ancestry. See ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989), pp. 178-179, Tab 3-1.

The government was a republic conducted for all members of the populace. Five years earlier at the time of the overthrow of the monarchy, Hawaiians had formed only a slightly larger percentage of the population, and then, as at the time of annexation, the government was conducted for all the inhabitants of the kingdom. Hawaiians usually controlled the kingdom's legislature, but a major reason for this in the later years of the monarchy was that the constitution of the kingdom since 1887 had denied the franchise to Asians not born in the kingdom. See LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp. 82-84; 3 KUYKENDALL, THE HAWAIIAN KINGDOM, 1874-1893 (1967) pp. 406-407. This became a matter of great concern to the government of Japan, which pressed both the Kingdom and the successor Provisional Government and Republic to give the Japanese living in the islands the right to vote. WILLIAM ADAM RUSS, JR., THE HAWAIIAN REVOLUTION (1893-94) (1959), pp. 161-162.

At and after annexation, the United States always treated Native Hawaiians as equals. This contrasts starkly with the treatment of Alaska Natives. Both Alaska and Hawaii became territories of the U.S. in the late 1800's and became states in 1959. But the 1867 treaty by which Russia ceded Alaska to the U.S. expressly provided that all inhabitants of the Alaska territory would be granted US citizenship "with the exception of uncivilized native tribes." Like other tribal Indians, Alaska Natives were not granted US citizenship until 1924.

In contrast, the Organic Act of 1900 granted full and immediate U.S. citizenship to "all persons who were citizens of the Republic of Hawaii" in 1898, including Hawaiians. Hawaiians not only enjoyed citizenship and the right to vote, but they were the dominant political group in Hawaii for at least several decades after annexation. Thus Hawaiians came into the union as citizens, not as members of a separate, quasi-sovereign Indian tribe. In 1959, persons of Hawaiian ancestry joined with all other persons in Hawaii to vote overwhelmingly (17-1) for statehood. GAVAN DAWS, SHOAL OF TIME (1968), p. 391.

On the matter of "compensation" for the Crown and government lands which passed from the kingdom's government to the Provisional Government and thence to the Republic and the United States, it should be noted that the Newlands Resolution (30 Stat. 750) provided: "The public debt of the Republic of Hawaii, lawfully existing at the date of the passage of this joint resolution, including the amounts due to depositors in the Hawaiian Postal Savings Bank, is hereby assumed by the Government of the United States; but the liability of the United States in this regard shall in no case exceed four million dollars. So long, however, as the existing Government and the present commercial relations of the Hawaiian Islands are continued as hereinbefore provided said Government shall continue to pay the interest on said debt."

The public debt of the Republic at the time of annexation in 1898 was $4,457,605. The public debt of the Kingdom at the time of the overthrow in January 1893 was approximately $3,417,000. See THOMAS G. THRUM, HAWAIIAN ALMANAC AND ANNUAL FOR 1900 (1900).

Thus, even if the ceded lands had been transferred outright to the United States, the citizens of Hawaii would have received substantial compensation (by way of assumption of its public debt).

However, the lands were not ceded outright. The Newlands Resolution required that the U.S. use the revenues and proceeds of the ceded lands, "except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the United States ... solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." (At that time only about 26% of the inhabitants of the Hawaiian Islands were of Hawaiian ancestry.) The U.S. in 1900 turned over to the Territory of Hawaii the possession and control of over 1.4 million acres of the ceded lands. Those lands have remained in the possession, use and control of the government of Hawaii for the benefit of the citizens of Hawaii of all ancestries (with the arguable exception of the 200,000 or so acres reserved for leasing to "native Hawaiians" under the Hawaiian Homes Commission Act) continuously to the present.

Thus, the claim that the crown, government and public lands of Hawaii were ceded to the United States "without compensation" to the government of Hawaii is false.

The response and commentary to finding 3 above point out that Native Hawaiians do not and did not have any claim to the ceded lands or any right to "compensation" for their transfer to the United States.

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Page 8 line 3-17, proposed Finding (19): "through the Newlands Resolution and the Act of April 30, 1900 (commonly known as the ‘1900 Organic Act’) (31 Stat. 141, chapter 339), the United States -- (A) received 1,750,000 acres of land formerly owned by the Crown and Government of the Hawaiian Kingdom; and (B) exempted the land from then-existing public land laws of the United States by mandating that the revenue and proceeds from that land be ‘used solely for the benefit of the inhabitants of the Hawaiian Islands for education and other public purposes’, thereby establishing a special trust relationship between the United States and the inhabitants of Hawai‘i."

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

In the interest of accuracy, it should be noted that the Newlands Resolution excluded property "used or occupied for the civil, military, or naval purposes of the United States, or ... assigned for the use of the local government" from the dedication of the proceeds of the ceded lands to the benefit of the "inhabitants of the Hawaiian Islands".

Two other items deserve comment:

"Inhabitant". Webster's Third New International Dictionary (Unabridged) (1993), p. 1163 defines "inhabitant" as "a person who dwells or resides permanently in a place as distinguished from a transient lodger or visitor". There is no evidence that the term as used in the Newlands Resolution was intended to mean anything else, or to refer to "Native Hawaiians".

"Special trust relationship". The term "special trust relationship" should not be used here if it is intended to refer to the "special relationship" between the United States and Indian tribes. In 1900, two years after annexation, Hawaii's "inhabitants" included 29,799 full-blooded Hawaiians, 7,857 part Hawaiians, 25,767 Chinese, 61,111 Japanese and several other racial or ethnic groups totalling overall about 154,001 individuals. ELEANOR C. NORDYKE, THE PEOPLING OF HAWAII (2nd ed., 1989), pp. 178-179, Tab 3-1. There has never been any claim made that this group as it existed in 1898, or as it might be composed today, is entitled to the "special relationship" which exists between the U.S. and the Indian tribes.

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Page 8 line 18 to page 9 line 9, proposed Finding (20): "in 1921, Congress enacted the Hawaiian Homes Commission Act, 1920 (42 Stat. 108, chapter 42), which -- (A) designated 200,000 acres of the ceded public land for exclusive homesteading by Native Hawaiians; and (B) affirmed the trust relationship between the United States and Native Hawaiians, as expressed by Secretary of the Interior Franklin K. Lane, who was cited in the Committee Report of the Committee on Territories of the House of Representatives as stating, ‘One thing that impressed me ... was the fact that the natives of the islands ... for whom in a sense we are trustees, are falling off rapidly in numbers and many of them are in poverty.’"

Rebuttal: In the U.S. Census of 1900 there were fewer than 40,000 ethnic Hawaiians. In the U.S. Census of 2000 there were more than 401,000 ethnic Hawaiians. Thus the population of ethnic Hawaiians has multiplied tenfold during the first century of U.S. sovereignty in Hawaii. Ethnic Hawaiians are not the dying, poor, downtrodden victims of U.S. imperialism which these findings are trying to portray.

The Hawaiian Homes Commission Act (HHCA) provides treacherous support for the argument that a trust relationship exists between the U. S. and Native Hawaiians. Most obviously, it limits its benefits generally to those of 50% Hawaiian "blood", with some exceptions for children of homesteaders who may inherit a homestead lease if he or she has at least 25% Hawaiian "blood". Thus it provides service only to about 50,000 of the perhaps 200,000 "Native Hawaiians".

A claim of a trust relationship founded upon the HHCA was rejected in the case of Han v. Department of Justice, 824 F.Supp. 1480 (D. Hawaii 1993), aff'd 45 F.3d 333 (9th Cir. 1995), where the U.S. District Court explained in detail why no such trust relationship existed.

Nor does the HHCA provide support for an argument that its benefits are not "racially" allocated or that the racial distinction at its core is constitutional. The HHCA was enacted in the heyday of Plessy v. Ferguson, 163 U.S. 537 (1896), which upheld the racial segregation of railway carriages and the concept that "separate but equal" facilities meet the requirements of the Fourteenth Amendment. The thinking of those times is reflected in another quote from the testimony of the same Franklin Lane referred to in the proposed finding. Lane said of the "natives of the islands":

"There is a thriftlessness among those people that is characteristic among peoples that are raised under a communist or feudal system. They do not know what the competitive system is and they will get rid of property that is given them. They do not look forward. They can not see tomorrow. Therefore, they should be given as close identification with their country as is possible and yet be protected against their own thriftlessness and against the predatory nature of those who wish to take the land from them, and who have in the past." (H.R. Rep. No. 839, 66th Cong., 2nd sess. at 4.)

Never mind that this was said more than three generations after the end of the "communist or feudal" system in the islands. Never mind that Hawaiians at about that time were a major power bloc in the Territorial legislature and constituted much of the civil service (See LAWRENCE H. FUCHS, HAWAII PONO: A SOCIAL HISTORY (1960), pp. 161-62).

If such condescending stereotyping was ever a lawful basis for Federal legislation, Adarand and a simple regard for the truth deprive it of validity today.

Plessy was effectively overruled by Brown v. Board of Education, 347 U.S. 483 (1954), beginning a line of jurisprudence, culminating in Adarand, which forms the foundation for our present constitutional law on race-based decision-making by the government. It is hardly likely that if the HHCA were proposed today, it would survive the strict scrutiny which Adarand requires.

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Page 9 lines 10-19, proposed Finding (21): "in 1938, Congress again acknowledged the unique status of the Native Hawaiian people by including in the Act of June 20, 1938 (52 Stat. 781, chapter 530), a provision -- ‘‘(A) to lease land within the extension to Native Hawaiians; and (B) to permit fishing in the area ‘only by native Hawaiian residents of said area or of adjacent villages and by visitors under their guidance’"

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

This finding is inaccurate insofar as it states that Congress, in the cited statute, "acknowledged the unique status of the Native Hawaiian people." The act in question provides for the addition of certain land therein described, called the "Kalapana extension," to Hawaii National Park. That part of the statute pertinent to the proposed finding reads as follows:

"Sec. 3 (a) That the Secretary of the Interior is authorized to lease, ... land ascertained by him to be suitable for home site purposes in the Kalapana extension as described herein, to native Hawaiians when such occupancy does not encroach on or prevent free access to any points of historic, scientific, or scenic interest or an any manner obstruct or interfere with protection and preservation of said area as a part of the Hawaii National Park: Provided, however, That occupants of homesites shall reside on the land not less than six months in any one year: And provided further, That fishing shall be permitted in said area only by native Hawaiian residents of said area or of adjacent villages and by visitors under their guidance. (b) The term 'native Hawaiian', as used in this section, means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands in 1778."

There is no recognition of a "unique status" or of any other special relationship of any sort. More important, the persons accorded the homesteading and fishing privileges were not "Native Hawaiians" as defined in the S.66 (i.e., those with any degree of Hawaiian ancestry), but the "50% blood" Hawaiians who were also beneficiaries under the Hawaiian Homes Commission Act and within that group, only those who resided in the area. Of course, if the cited statute could not pass the test of strict scrutiny under Adarand, which is likely, it would be of little value today as precedent for any racially limited privileges for persons of Hawaiian ancestry.

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Page 9 line 20 to page 10 line 7, proposed Finding (22): "under the Act of March 18, 1959 (48 U.S.C. prec. 491 note; 73 Stat. 4), the United States -- ‘‘(A) transferred responsibility for the administration of the Hawaiian home lands to the State; but ‘‘(B) reaffirmed the trust relationship that existed between the United States and the Native Hawaiian people by retaining the exclusive power to enforce the trust, including the power to approve land exchanges and legislative amendments affecting the rights of beneficiaries under that Act"

Rebuttal: This finding is simply wrong.

First and most obviously, the Hawaii Admission Act here referred to as well as the HHCA provided benefits only to persons of 50% Hawaiian "blood", not "Native Hawaiians" defined in this bill as persons with any degree of Hawaiian ancestry.

Second, the Admission Act imposed a trust upon the State of Hawaii, but made no reference to a "trust relationship which existed between the United States and the Native Hawaiian people". In fact, case law on the point is directly contrary. In 1978 a Federal court dismissed claims for breach of a claimed trust brought by beneficiaries of the HHCA against that agency and its chairman. It held that plaintiffs had no Federal cause of action under the Admission Act because "[w]ith Hawaii's admission into the Union, the national government virtually relinquished its control over and interest in the Hawaiian home lands. The problem described in plaintiffs' complaint is essentially a matter of state concern." Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 588 F.2d 1216, 1224 (9th Cir. 1978). It held further that the Federal court lacked jurisdiction over plaintiffs' claims under the HHCA itself because that act, after statehood, was a matter of state rather than Federal law.

A claim of a trust relationship was raised again and rejected again in Han v. Department of Justice, et al., 824 F.Supp. 1480 (D. Hawaii 1993), aff'd 45 F.3d 333 (9th Cir. 1995). The District Court stated bluntly:

"First, as a matter of law, the federal defendants have no trust responsibility to plaintiff or other native Hawaiians under statutory or case law. The Ninth Circuit Court of Appeals has expressly held that "the state is the trustee . . . The United States has only a somewhat tangential supervisory role under the Admission [Statehood] Act, rather than the role of trustee. ... Furthermore, nothing in the statutes at issue here indicates the federal defendants have a trust duty. The Admission Act specifically requires the State of Hawaii to hold the home lands "as a public trust for the ... betterment of the conditions of native Hawaiians." Admission Act section 5(f). There is no such corresponding duty on the part of the United States." Id. at 1486.

Indeed, the District Court expressly rejected the argument set out in the proposed finding that the Federal government's reserved power to enforce the state's obligation, and the restrictions imposed on the state's power to amend the HHCA, implied a Federal trust obligation. The court stated: "Section 4 merely establishes a compact between the State of Hawaii and the United States, whereby the state has agreed not to amend any of the Commission Act's substantive provisions without the consent of the United States. Admission Act section 4. This creates an obligation of the state, not the federal government. And while the federal government may bring an enforcement action, it is not by law required to." Id. at 1486.

Given these decisions, and the absence of any express affirmation of a Federal trust relationship, this finding should be deleted.

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Page 10 lines 8-19, proposed Finding (23): "under the Act referred to in paragraph (22), the United States -- ‘‘(A) transferred responsibility for administration over portions of the ceded public lands trust not retained by the United States to the State; but (B) reaffirmed the trust relationship that existed between the United States and the Native Hawaiian people by retaining the legal responsibility of the State for the betterment of the conditions of Native Hawaiians under section 5(f) of that Act (73 Stat. 6)"

Rebuttal: This statement, taken as a whole, is false.

Nowhere in section 5(f) of the Admission Act, which concerns the so-called "ceded lands trust", does the United States affirm, reaffirm or acknowledge in any way a "trust relationship which existed between the United States and the Native Hawaiian people". Its only reference to persons of Hawaiian ancestry is to "native Hawaiians as defined in the Hawaiian Homes Commission Act" (50% blood quantum). Bettering the conditions of these 50% "native Hawaiians" is not a duty imposed upon either the state or Federal government; it is merely one of five permissible purposes for which trust proceeds may be used, and the statute expressly states that the proceeds of the ceded lands trust may be used for "one or more" of the five enumerated purposes. It permits the state to determine how the trust proceeds are distributed. Price v. State of Hawaii, 764 F.2d 623 (9th Cir. 1985). Such state decisions, of course, are subject to the constraints of the Fourteenth Amendment and the Adarand decision with respect to any racial test for allocation or receipt of benefits.

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Page 10 line 20 to page 11 line 17, proposed Finding (24): "in 1978, the people of the State of Hawai‘i -- (A) amended the constitution of the State of Hawai‘i to establish the Office of Hawaiian Affairs; and ‘‘(B) assigned to that Office the authority -- (i) to accept and hold in trust for the Native Hawaiian people real and personal property transferred from any source; (ii) to receive payments from the State owed to the Native Hawaiian people in satisfaction of the pro rata share of the proceeds of the public land trust established by section 5(f) of the Act of March 18, 1959 (48 U.S.C. prec. 491 note; 73. Stat.6); ‘‘(iii) to act as the lead State agency for matters affecting the Native Hawaiian people; and ‘‘(iv) to formulate policy on affairs relating to the Native Hawaiian people"

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page 11 lines 18-23, proposed Finding (25): "the authority of Congress under the Constitution to legislate in matters affecting the aboriginal or indigenous people of the United States includes the authority to legislate in matters affecting the native people of the States of Alaska and Hawai‘i"

Rebuttal: Nowhere in the Constitution does it say that Congress has the authority "to legislate in matters affecting the aboriginal or indigenous people of the United States." Article 1, Section 8 says only that Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Ethnic Hawaiians are a racial group, not an Indian tribe. Perhaps half of all the people in America who are racially Indian are not members of any tribe, and Congress does not have the power to regulate them merely because they are racially Indian.

Although the U.S. Supreme Court has reserved judgment on this point, an examination of pertinent authorities indicates that Congress does not have authority to legislate in matters specifically affecting the "aboriginal or indigenous peoples of the United States" as such, if those "peoples" are defined solely by race or ancestry rather than by some association with a true Indian tribe.

Specifically with respect to Congress' powers with respect to Native Hawaiians, the U.S. Supreme Court stated in Rice v. Cayetano, No. 98-818, 2000 WL 201127 (U.S., Feb. 23, 2000), section IV.A:

"If Hawaii's [racial voting] restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting [in the Hawaii Admission Act] the purposes for the transfer of lands to the State--and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993--has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the state a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998) with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996). We can stay far off that difficult terrain, however." Justice Stevens and Ginsburg, dissenting, took express note of 42 U.S.C. section 11701(17) which is essentially identical to the proposed finding. The majority of the court, however, evidently concluded that this statutory affirmation of Congressional authority did not lay the constitutional issue to rest.

A close examination of the issue indicates that Congress cannot constitutionally treat "Native Hawaiians" like tribal Indians. The Constitution at Article I, Section 8 extends to Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The U. S. Supreme Court has held that preferences for Indians were not violative of constitutional principles of equal protection of the laws, basing that conclusion on the fact that Indian preferences were created by Congress in recognition of the special status of Indian tribes as separate "quasi-sovereign" groups, not groups defined only by race. In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the U. S. Supreme Court considered an employment preference for Indians in the Bureau of Indian Affairs. In upholding the preference against a challenge that it constituted racial discrimination, the court pointed out:

"The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion."

The court subsequently noted: "The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians'. In this sense, the preference is political rather than racial in nature."

An annual listing of "Indian Entities Recognized and Eligible to Receive Services From The United States Bureau of Indian Affairs" (63 Federal Register 71941, Dec. 30, 1998) includes no Hawaiian "tribe", and an effort by a group of Hawaiians to have a court declare them a tribe was rejected in an opinion that indicated that no Hawaiian group could qualify as such an entity (see Price v. State of Hawaii, 764 F.2d 623 (9th Cir., 1985)).

See a 78 page legal analysis by Ryan William Nohea Garcia, "Who Is Hawaiian, What Begets Federal Recognition, and How Much Blood Matters." Asian-Pacific Law & Policy Journal, Vol. 11, No. 2, 2010, pp. 85-162.) Hawaii Political Info, August 27, 2010

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page 11 line 24 to page 12 line 5, proposed Finding (26): "the United States has recognized the authority of the Native Hawaiian people to continue to work toward an appropriate form of sovereignty, as defined by the Native Hawaiian people in provisions set forth in legislation returning the Hawaiian Island of Kaho‘olawe to custodial management by the State in 1994"

Rebuttal: The relevance of this finding to health care is not explained and is not apparent.

An examination of the legislation concerning the return of the island of Kaho'olawe to the State of Hawaii and providing funds and direction for environmental cleanup and restoration of that island does not disclose any language which might support the statements in this proposed finding. Legislation of the State of Hawaii pertinent to Kaho'olawe provides for transfer of "management and control" of that island to "the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii" (Hawaii Revised Statutes section 6K-9), but no such "entity" existed when the law was passed or exists now. In any event, that state law adds nothing to the Federal statute referred to here and would not be binding on the Federal government even if the state so intended.

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Page 12 lines 6-12, proposed Finding (27) "in furtherance of the trust responsibility for the betterment of the conditions of Native Hawaiians, the United States has established a program for the provision of comprehensive health promotion and disease prevention services to maintain and improve the health status of the Hawaiian people"

Rebuttal: There is no United States trust responsibility toward ethnic Hawaiians. See rebuttals to proposed Findings (21), (22), and (23) above. The U.S. may certainly enact legislation for health promotion and disease prevention services, but does not have authority to single out one racial group for special treatment denied to others on account of race.

The existence of a trust responsibility on the part of the United States toward "Native Hawaiians" is doubtful, and should not be assumed in this proposed finding. The case of Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995), read together with the thoughtful analysis in Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997), indicates that no trust relationship between the United States and a group defined by race alone could lawfully exist, even if that group consists of Indians or Alaska Natives. The comprehensive legal analysis in Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996), shows that no such relationship exists at all in the case of Native Hawaiians. Thus legislation passed on the assumption that such a relationship does exist is in fact based solely on a racial distinction, and is constitutionally questionable.

The matter cannot be resolved simply by Congressional fiat. The broad power of the Federal executive and Congress notwithstanding, no "tribe" can be created where none exists in reality. In U.S. v. Sandoval, 231 U.S. 28 (1913), the U.S. Supreme Court considered whether the Pueblo Indians could be brought by Congress within the "special relationship". It examined a variety of factors indicating that Congress could do so, including the facts that the Pueblos are "Indians in race, custom, and domestic government", that they lived "in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetichism [sic], and [are] chiefly governed according to the crude customs inherited from their ancestors." It balanced these considerations against arguments that the Pueblos were citizens of the United States (unlike most Indians at the time) and that their lands were held by them in fee simple (rather than being held in trust by the Federal Government) and concluded that it was within the power of Congress to treat the Pueblos as an Indian tribe. The court cautioned, however, that "it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts." Id. at 46. This caution deserves careful consideration before Congress attempts to bring "Native Hawaiians", who share none of the group or individual characteristics deemed pertinent in Sandoval, within the ambit of the "special relationship" which Congress has with true Indian tribes. Unlike the Pueblo communities, there is no unifying group character to "Native Hawaiians" other than race, and under current law, no aggregation of people on grounds of their race alone can lawfully be given special privileges at the ballot box (Katzenbach v. South Carolina, 382 U.S. 967 (1966); Gomillion v. Lightfoot, 364 U.S. 339 (1960)) or elsewhere (Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995).

There is no Hawaiian "tribe", and one case which considered a claim by a purported Hawaiian tribe indicates that Hawaiians are unlikely be able to establish such a status. Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985). Thus the claimed "special relationship" would, if recognized by Congress, extend privileged political status to a group defined solely by race or ancestry. Given the U.S. Supreme Court's cautionary language in Rice, Congress should consider carefully whether such an outcome is either socially wise or constitutionally permissible.

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Page 12 lines 13-15, proposed Finding (28) "the program described in paragraph (27) is conducted by the Native Hawaiian Health Care Systems and Papa Ola Lokahi"

Rebuttal: Such services are provided to ethnic Hawaiians by any licensed medical practitioner to whom any ethnic Hawaiian chooses to go.

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Page 12 line 16 to page 13 line 3, proposed finding (29): "health initiatives implemented by the Native Hawaiian Health Care Systems, Papa Ola Lokahi, and other health institutions and agencies using Federal assistance have been responsible for reducing the century-old morbidity and mortality rates of Native Hawaiian people by -- (A) providing comprehensive disease prevention; ‘‘(B) providing health promotion activities; and ‘‘(C) increasing the number of Native Hawaiians in the health and allied health professions"

Rebuttal: Services have been provided, but there is no evidence that the morbidity and mortality rates of ethnic Hawaiians have been reduced specifically on account of the services provided by the organizations mentioned. Morbidity and mortality rates have been reduced for many diseases for the population as a whole and for ethnic Hawaiians in particular; and there is no evidence that the rates for ethnic Hawaiians have improved more than the rates for the general population, nor is there evidence that the named organizations have had better results than other organizations which provide services to ethnic Hawaiians.

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Page 13 lines 4-13, proposed Finding (30): "the accomplishments described in paragraph (29) have been achieved through implementation of -- ‘‘(A) the Native Hawaiian Health Care Act of 1988 (Public Law 100–579; 102 Stat. 2916); and ‘‘(B) the reauthorization of that Act under section 9168 of the Department of Defense Appropriations Act, 1993 (Public Law 102–396; 106 Stat. 1948)"

Rebuttal: Those Acts of Congress have indeed been implemented, but there is no evidence that their implementation is the cause of any improvements in outcomes that would not have happened in the absence of those Acts.

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Page 13 line 14 to page 14 line 5, proposed Finding (31): "the historical and unique legal relationship between the United States and Native Hawaiians has been consistently recognized and affirmed by Congress through the enactment of more than 160 Federal laws that extend to the Native Hawaiian people the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities, including -- ‘‘(A) the Native American Programs Act of 1974 (42 U.S.C. 2991 et seq.); ‘‘(B) the American Indian Religious Freedom Act (42 U.S.C. 1996); ‘‘(C) the National Museum of the American Indian Act (20 U.S.C. 80q et seq.); and ‘‘(D) the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.)"

Rebuttal: The fact that charity has been given on numerous occasions and in various ways does not establish a trust relationship nor an entitlement to continue receiving it. Consider this scenario. On Monday on my way to work I pass by a beggar and drop a dollar into his tin cup. On Tuesday I do it again. On Wednesday I do it again. On Thursday I'm in a hurry and rush past the beggar without giving him anything. He chases after me and yells at me, demanding "his" dollar which he has a "right" to expect because of the "trust relationship" established by my repeated generosity.

It may be that all of these programs should be reconsidered in light of their presumptive unconstitutionality under Adarand v. Pena, 515 U.S. 200 (1995). This list of entitlement programs, and that which follows in the next several proposed findings, illustrate why this bill presents a grave risk of harm even if all the objectionable "findings" language is deleted. Each such piece of legislation is cited as precedent for the next. If race is not to be a divisive criterion for political and economic privileges in Hawaii, then not only must S.66 be rejected, but existing preference legislation should be repealed whenever the opportunity arises.

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Pages 14 through 15, proposed Findings (32) and (33) : The author of this bill is repeating himself. See rebuttals to proposed Findings (29) through (31).

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Page 15 line 22 to page 17 line 22, proposed Finding (34): "in addition, the United States -- ‘‘(A) has recognized that Native Hawaiians, as aboriginal, indigenous, native people of the State of Hawai‘i, are a unique population group in the State and in the continental United States; and (B) has so declared in -- (i) the documents of the Office of Management and Budget entitled— ‘‘(I) ‘Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity’ and dated October 30, 1997; and ‘‘(II) ‘Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity’ and dated December 15, 2000; ‘‘(ii) the document entitled ‘Guidance on Aggregation and Allocation of Data on Race for Use in Civil Rights Monitoring and Enforcement’ (Bulletin 00–02 to the Heads of Executive Departments and Establishments) and dated March 9, 2000; ‘‘(iii) the document entitled ‘Questions and Answers when Designing Surveys for Information Collections’ (Memorandum for the President’s Management Council) and dated January 20, 2006; ‘‘(iv) Executive Order 13125 (64 Fed. Reg. 31105; relating to increasing participation of Asian Americans and Pacific Islanders in Federal programs) (June 7, 1999); (v) the document entitled ‘HHS Tribal Consultation Policy’ and dated January 2005; and ‘‘(vi) the Department of Health and Human Services Intradepartment Council on Native American Affairs, Revised Charter, dated March 7, 2005."

Rebuttal: Whatever the United States might have "recognized" or "declared", the fact is that "Native Hawaiians" are a group defined by race or ancestry alone. A brief discussion of some of the key words in the finding, however, is appropriate.

34a. "People." "Native Hawaiians" are not a "people", at least in the sense apparently intended, which is defined in Webster's Third New International Dictionary (Unabridged) (1993), p. 1673 as "a body of persons that are united by a common culture, tradition, or sense of kinship though not necessarily by consanguinity or by racial or political ties and that typically have a common language, institutions, and beliefs." As noted above, Native Hawaiians are thoroughly integrated and do not form a "body of persons" separate from the rest of the state and nation in any significant sense. Their common language is English, their common institutions are those of the state of Hawaii and the United States, and their beliefs are as varied as those of the populace at large.

34b. "Indigenous." Webster at p. 1151 offers two definitions of "indigenous" which deserve consideration. The first is "a(1): not introduced directly or indirectly according to historical record or scientific analysis into a particular land or region or environment from the outside ", and the second is "(2) originating or developing or produced naturally in a particular land or region or environment ". The term "indigenous" does not appear in the Constitution, although that document does refer to the power of Congress to regulate commerce with the "Indian tribes". But Hawaiians have a strong oral tradition, supported by scholarly research, which places their arrival in the Hawaiian Islands somewhere between the time that Romans were colonizing England and the time that the Crusaders were invading the Holy Land. This hardly supports a claim of being "indigenous". In the context of Native Hawaiian claims, the term "indigenous" is merely a code word identifying the one racial group, out of the many in Hawaii, for which the claimants seek special political privilege and status.

34c. "Office of Management and Budget Circular 15" would appear to be OMB's Statistical Policy Directive No. 15, "Race and Ethnic Standards for Federal Statistics and Administrative Reporting", which was revised on October 30, 1997 (62 Fed. Reg. 58728) to separate the classification "Asian or Pacific Islander" into two categories, "Asian" and "Native Hawaiian or Other Pacific Islander". The Federal Register notice shows that the change was controversial. The classification is strictly a matter of race or ancestry and is for statistical reporting only. The notice does not address the issue of the existence of a "special relationship" between Native Hawaiians and the United States, although an earlier related report ("Recommendations From the Interagency Committee for the Review of the Racial and Ethnic Standards to the Office of Management and Budget Concerning Changes to the Standards for the Classification of Federal Data on Race and Ethnicity", 62 Fed. Reg. 36874, July, 9, 1997) at p. 36926 points out the unresolved issue as to whether Native Hawaiians have the same "special legal status with the Federal Government" as Indians. It is therefore difficult to interpret the October 30, 1997 OMB notice as any sort of authority on the constitutionality of special preferences for Native Hawaiians.

34d. "Presidential Executive Order No. 13125". This order, dated June 7, 1999, does not refer to "Native Hawaiians" but to "Pacific Islanders", which is defined to include "the aboriginal, indigenous, native peoples of Hawaii and other Pacific Islands within the jurisdiction of the United States". There is no mention of any uniqueness to this group or even any recognition of a "group" character. There remains the problem of determining whether any persons of Hawaiian ancestry alive today fit that definition.

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Page 17 lines 13-22, proposed Finding (35): "despite the United States having expressed in Public Law 103–150 (107 Stat. 1510) the commitment of the United States to a policy of reconciliation with the Native Hawaiian people for past grievances -- ‘‘(A) the unmet health needs of the Native Hawaiian people remain severe; and (B) the health status of the Native Hawaiian people continues to be far below that of the general population of the United States."

Rebuttal: Despite more than 160 federally funded programs racially specific to help ethnic Hawaiians exclusively, and despite hundreds of millions of dollars spent on programs for their benefit, "(A) the unmet health needs of the Native Hawaiian people remain severe; and (B) the health status of the Native Hawaiian people continues to be far below that of the general population of the United States."

No connection is apparent between any "policy of reconciliation" and the need of any individual Native Hawaiians for health care, and none is suggested in this finding. It should be noted, however, that "Native Hawaiians" are not a "people" in any sense; they are a group identifiable solely by race or ancestry, and otherwise thoroughly integrated into the social, political and economic life of Hawaii and the U.S. If their health needs deserve special governmental attention, that attention must be paid in accordance with the U.S. Constitution. As the U.S. Supreme Court said in Rice, "[t]he Constitution of the United States, too, has become the heritage of all the citizens of Hawaii".

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The 20 pages of "Unmet needs and health disparities" following Finding (35) proves that the programs have failed, and no amount of help will ever be sufficient. America is broke. We need to put our dwindling resources to work to reduce the deficit, or where they can accomplish good results.


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