(c) Copyright 2009
Kenneth R. Conklin, Ph.D.
All rights reserved
SUMMARY: The Akaka bill is S.381 and H.R.862 in the 111th Congress, 2009-2010. The "new" version is exactly the same as the old version which was nearly enacted in 2000. During that nine year history, numerous changes were made because of objections from the Department of Justice, Department of Defense, the President, and civil rights groups. The changes were to protect the people of America and Hawaii against racial balkanization, permanent jurisdictional disputes, seizure of public and private lands, gambling, and other evils. The stripping away of all such protections in the new bill shows that our politicians will knowingly sacrifice the good of all our people for the (alleged) benefit of some of our people by promoting creation of a racially exclusionary government to carve up Hawaii along racial lines. But even if all the protections were restored, the bill is so unconstitutional and morally repugnant that it must be stopped. This essay briefly reviews the history of the Akaka bill and the reasons for its existence; and then identifies and analyzes details of some of the most important protections actually inserted in previous versions of the bill but now stripped away. References are provided at the end. This essay is filled with important details which cannot be summarized for easy reading; so please scroll down to find headlines of interest, and then dig in.
A BRIEF HISTORY OF THE AKAKA BILL
The Akaka bill was first introduced in both the U.S. Senate and House July 20, 2000. Later that year the bill passed the House in 6 minutes on a stealth maneuver by including it on the calendar of non-controversial bills passed by voice vote under suspension of the rules at the dinner hour with only a handful of Representatives present (the truly noncontroversial bill immediately before it was to transfer jurisdiction of a parcel of land at the Gettysburg Memorial Park). In the Senate it actually passed momentarily on the last day of Congress in December because Senator Inouye attached it as a single-sentence earmark buried deep inside a huge, urgent military appropriations bill. But Inouye was forced by his colleagues to remove it when they called a recess, took him to the cloakroom, and reminded him that earmarks are only for appropriations bills and not for substantive policy matters. If it had passed, it would surely have been signed by outgoing President Clinton, who had previously signed the notoriously inaccurate apology resolution in 1993, which the Akaka bill cites as its primary justification.
The "new" version of the Akaka bill was introduced in both the House and Senate on February 4, 2009, with bill numbers S.381 and H.R.862. Its content is identical with the bill that was nearly enacted in 2000. Repeated introduction and amendment of the Akaka bill throughout a nine year period is reminiscent of an old horror movie where a mummy repeatedly rises out of its ancient tomb to terrorize the villagers. Making the new bill exactly the same as one from 2000 and 2001 is reminiscent of the movie "Groundhog Day" where the unfortunate hero is forced to wake up every day and re-live his very bad yesterday, knowing how awful it was and being unable to escape from the cycle. All the discoveries of shortcomings in the Akaka bill during the past nine years, and all the amendments to patch them over, will now be replayed; except that the elections of 2006 and 2008 have empowered those who seek to ram the bill through without amendments.
The good news is that during a period of nine years the Akaka bill in various incarnations has been debated extensively in the media, and also in Congress. Sunlight is the best disinfectant. The Akaka bill was debated on the floor of the House for about an hour in 2007, before it passed; and also on the floor of the Senate for about 5 hours over a 2-day period in June 2006 leading to a cloture vote where the bill failed. Quite a few members of both chambers -- but especially the Senate -- have learned what the bill proposes and have stood strong in opposition. Lies about Hawaiian history told on the Senate floor by Senators Inouye and Dorgan have been refuted. The U.S. Commission on Civil Rights held hearings and opposed the Akaka bill. The Department of Justice strongly opposed it because of jurisdictional and civil rights issues. The House Committee on the Judiciary, Subcommittee on the Constitution held hearings and called the bill unconstitutional. President Bush issued statements on two occasions saying he would veto the bill. Along the way numerous amendments were included from time to time supposedly to meet the objections of the Department of Justice and provide protection to all of America and especially to the people of Hawaii. However, when Hawaii's two Senators and two Congressmen held a joint press conference announcing that the Department of Justice had agreed to a final compromise, DOJ issued a public statement saying there was no agreement.
The bad news is that newly elected President Obama said during his campaign that he will sign the Akaka bill if Congress passes it, and reiterated that statement during a White House meeting with reporters on February 11. A significantly enlarged Democrat majority in both chambers seems to ensure that Congress will pass it.
The bad news is somewhat mitigated by the fact that some Democrat Senators who previously voted to bring the bill to the floor on a cloture motion indicated that they would vote against the bill itself if it actually came to a vote. Further mitigation comes because many members of the House and Senate who are newly elected in 2006 and 2008 might be persuaded to vote against it. President Obama himself might be persuaded to oppose it when he considers more carefully its implications for racial divisiveness and its unconstitutionality.
In a moment we'll take a look at some of the protections for the people of America and Hawaii which were previously inserted into the Akaka bill during its nine year history but have now been stripped out of it.
However, let there be no confusion over the fact that the basic concept of the Akaka bill is so unconstitutional and morally repugnant that no repair can make it acceptable. One tactical reason why Akaka/Inouye stripped the new bill of numerous protections is that they can now offer to "compromise" in the interest of "bipartisanship" by putting a few of them back in. That tactic is reminiscent of a merchant who doubles his prices but then advertises a 10% discount off posted prices. Putting a teaspoon of sugar in a cupful of poison does not make it good to drink, as hundreds of Jim Jones' followers discovered in the jungles of Guyana.
MOTIVES OF SENATORS AKAKA AND INOUYE, AND GOVERNOR LINGLE
Let's remember that Senators Akaka and Inouye have spent decades serving on the Senate Committee on Indian Affairs where they became experts on tribal recognition bills and the technical and legal issues involved. When writing the Akaka bill they clearly knew the effect of including, or not including, important phrases and protections in the bill. The fact that Inouye and Akaka initially chose not to include any of these protections, later reluctantly put them in under pressure, and have now stripped them out, clearly shows that they don't care at all about protecting us. Akaka and Inouye are arrogantly hell-bent on creating a racially exclusionary government to carve up our lands, resources, and people, regardless of the damage they clearly know they are inflicting on us.
The same can be said about Governor Linda Lingle and her personally appointed Attorney General Mark Bennett. Although they are not experts and lack the experience of Inouye and Akaka on tribal recognitions and Indian law, they have had six years in office to learn about the impact of the Akaka bill. They have seen the protections placed into the bill and now stripped away. They have recently seen the viciousness of sovereignty activism against them because they dared to take a case to the Supreme Court to nullify a ruling that forces the State of Hawaii to get permission from ethnic Hawaiians before any public lands can be sold. Nevertheless Lingle has pushed the Akaka bill for 6 years and will probably continue, because of her belief that self-determination or sovereignty for ethnic Hawaiians is somehow comparable to the struggles of Jewish people to create a nation of Israel. Although Bennett is also Jewish it's unclear whether he shares the same belief as Lingle that support for Israel is based on the same theories as support for Israel.
Lingle recently said she is worried that the Akaka bill has stripped out a provision prohibiting gambling by the the Akaka tribe. She said she's not sure if she would support the bill unless that provision is re-inserted. But Lingle fails to grasp an essential concept: sovereignty means the Akaka tribe can do pretty much whatever it wants regardless of restrictions the bill might seem to impose and regardless of a Governor's wishes. An Indian tribe has sovereignty comparable to a State. It is free to make its own laws, and it cannot be sued unless it gives permission. She might very well support the Akaka bill even without any protections because of her airy-fairy mystical belief that creating an Akaka nation is somehow morally righteous in the same way she believes the creation of the nation of Israel was morally righteous. In 1946, when Israel was being created by the United Nations, would Lingle have approved the U.N. placing restrictions on the sovereignty and internal affairs of Israel, comparable to Congress (or the State of Hawaii) imposing restrictions on the sovereignty and internal affairs of the future Akaka tribe (such as a ban on gambling)?
Perhaps the most damaging criticism of Lingle is that she seems to care only about gambling, but not about the far more devastating balkanization of Hawaii, conflicting racial jurisdictions, loss of tax base, and all the other issues where protections formerly included in the Akaka bill have now been stripped away.
Throughout their entire careers in the Senate, both Inouye and Akaka have served on the Indian Affairs Committee. Why have they done that, when there are no Indian tribes in Hawaii, and when they could have served on other committees more relevant to Hawaii's needs? Why has Hawaii been the only state to have both of its Senators sitting on that committee? Pork!
When bills came through the Indian Affairs committee to provide housing, education, healthcare, etc. to all the federally recognized Indian tribes, Akaka and Inouye inserted the words "and Native Hawaiians." This has been going on for more than 30 years (since the creation of Alu Like). Thus there have come to be, according to OHA, over 160 federally funded programs racially exclusionary for ethnic Hawaiians, even though it is clearly unconstitutional for government to do that.
The Rice v. Cayetano decision of February 2000 put the Supreme Court on record that "Native Hawaiian" is a racial category. Immediately there was a scramble to produce the Akaka bill (introduced in July 2000) to arbitrarily create a phony Native Hawaiian tribe in order to change a racial group into a political entity and thereby rescue the race-based programs.
How can Akaka/Inouye show that Native Hawaiians already exist as a political group eligible for federal recognition the same as any real tribe? The Akaka bill, and court pleadings, cite the existence of the wrongfully created 160 federally funded programs as evidence that there is already a federal trust relationship with Native Hawaiians which only awaits the mere technicality of passing the Akaka bill in order to be recognized! Here's an analogy. On Monday while walking to work I see a beggar and drop a dollar into his tin cup. On Tuesday I see the same beggar and drop another dollar into his cup. Same thing on Wednesday and Thursday. But on Friday I'm in a hurry, not feeling charitable, and simply walk by. Whereupon the beggar comes running after me, grabs me, spins me around and shouts "Hey! Where's my dollar! You have established a trust relationship with me and now you owe me every time you come by."
SOME IMPORTANT PROTECTIONS INSERTED INTO THE AKAKA BILL SINCE 2000 BUT NOW STRIPPED OUT
The first protection against gambling inserted into the Akaka bill several years ago said that the Akaka tribe could not make use of the Indian Gaming Regulatory Act to establish gambling. However, that would not have prevented the tribe from using other provisions of Indian law to create a casino. Therefore Senators from other states where gambling is a big part of their economy, who did not want competition from an Akaka tribal casino in their own states, forced a strengthening of the bill's language to go beyond IGRA. They knew what Inouye and Akaka also knew but Lingle has not yet learned. Even after the anti-gambling language was strengthened, Senator Ensign of Nevada (Las Vegas, Reno, Tahoe, etc.) said in July 2005 that it still was not strong enough to stop the Akaka tribe from having a casino in Nevada, and he placed a hold on the bill. Academic experts who oppose gambling have said that if an Akaka tribe is created, there's no way to stop gambling from coming to Hawaii regardless of language in the Akaka bill and regardless of state law.
There are many pathways for a tribe to get a casino. Even if it were true that the Akaka tribe could not have gambling in Hawaii so long as Hawaii prohibits all forms of gambling, the Akaka tribe can get around that by getting a compliant Legislature to pass a bill. A tribe can make campaign contributions to politicians who will do whatever the tribe wants; and because of tribal sovereignty, its contributions are not limited by state law. Thus the Akaka tribe would put Legislators "in its pocket" even more effectively than OHA and Kamehameha Schools have already done. Informants from other states say that even if the state allows church bingo games as the only legally approved form of gambling, a federally recognized tribe can then open a full-blown casino whose profits are tax free and can be given to politicians in unlimited amounts.
Here's the portion of S.310 from 2008 that provided strong protection against gambling (at least apparently)
"SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. (a) Indian Gaming Regulatory Act- (1) The Native Hawaiian governing entity and Native Hawaiians may not conduct gaming activities as a matter of claimed inherent authority or under the authority of any Federal law, including the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq.) or under any regulations thereunder promulgated by the Secretary or the National Indian Gaming Commission. (2) The foregoing prohibition in section 9(a)(1) on the use of Indian Gaming Regulatory Act and inherent authority to game apply regardless of whether gaming by Native Hawaiians or the Native Hawaiian governing entity would be located on land within the State of Hawaii or within any other State or Territory of the United States."
None of that language is contained in the new Akaka bill. Zero.
The February 10 issue of the widely read publication "Indian Country Today" reported: "The 2007 version [of the Akaka bill] explicitly banned a future Native Hawaiian government from taking private land or setting up casinos. The version introduced Wednesday doesn’t explicitly ban gambling, but Akaka aides said that since gambling already is illegal in Hawaii, such a provision is unnecessary." The Akaka/Inouye lobbyists have apparently been hard at work to persuade the real tribes on that point, and "Indian Country Today" reporters were gullible enough to believe it, or else are so deeply in the pocket of Inouye/Akaka that they knowingly lie about it. But if it were true, then why did knowledgeable Senators previously demand inclusion of the strong language quoted above from S.310 to prevent the Akaka tribe from setting up gambling operations?
TAKING LAND INTO TRUST
One of the ways real Indian tribes get the right to build a casino is by putting land "into trust" with the federal government -- either original tribal lands or lands newly purchased in fee simple. Putting land into trust also makes it "Indian Country" under federal law, meaning that the tribes can establish their own civil and criminal laws there, and pay no taxes on tribal businesses. S.310 from 2008 included this provision protecting Hawaii's people, now stripped out of the new Akaka bill:
"SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. (b) Taking Land Into Trust- Notwithstanding any other provision of law, including but not limited to part 151 of title 25, Code of Federal Regulations, the Secretary shall not take land into trust on behalf of individuals or groups claiming to be Native Hawaiian or on behalf of the native Hawaiian governing entity."
None of that language is contained in the new Akaka bill. Zero.
NEGOTIATIONS WITH STATE AND FEDERAL GOVERNMENTS FOR LANDS AND FOR THE RIGHT OF THE AKAKA TRIBE TO MAKE ITS OWN LAWS -- PROTECTIONS IN PREVIOUS VERSIONS OF THE AKAKA BILL, NOW STRIPPED OUT
Here is the entire text of the only portion of the new Akaka bill dealing with negotiations. It is astoundingly short and weak. "Upon the Federal recognition of the Native Hawaiian government pursuant to section 7(d)(2) of this Act, the United States is authorized to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian government regarding the transfer of lands, resources, and assets dedicated to Native Hawaiian use under existing law as in effect on the date of enactment of this Act to the Native Hawaiian government."
Take note of the last two paragraphs above regarding "taking land into trust" because they are relevant not only to gambling but to the broader topic of jurisdiction and lawmaking. The negotiations sentence immediately above merely says the U.S. government has authority to give things away to the Akaka tribe, and to enter into joint negotiations with the State and tribe to give more things away to the Akaka tribe; but it imposes zero limitations on what can be given nor for how long a time things can keep on being given.
Below are portions of the most recent previous version of the Akaka bill, S.310 from the 110th Congress. Note the lengthy and detailed protections which the new bill has completely removed but were previously considered so important they needed to be included.
The non-intercourse law cited below refers to federal legislation from two centuries ago that forbids Indian tribes from selling or giving away lands without specific Congressional approval. This law has been used successfully in recent years by tribes who claimed that huge pieces of land were illegally bought from them long ago and must now be given back (including about 1/3 of the entire State of Maine). Could such a thing happen in Hawaii regarding the ceded lands?
S.310 of the 110th Congress protected the State of Hawaii against such claims by the Akaka tribe. It said:
"SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. (c) Real Property Transfers- The Indian Trade and Intercourse Act (25 U.S.C. 177), does not, has never, and will not apply after enactment to lands or lands transfers present, past, or future, in the State of Hawaii. If despite the expression of this intent herein, a court were to construe the Trade and Intercourse Act to apply to lands or land transfers in Hawaii before the date of enactment of this Act, then any transfer of land or natural resources located within the State of Hawaii prior to the date of enactment of this Act, by or on behalf of the Native Hawaiian people, or individual Native Hawaiians, shall be deemed to have been made in accordance with the Indian Trade and Intercourse Act and any other provision of Federal law that specifically applies to transfers of land or natural resources from, by, or on behalf of an Indian tribe, Native Hawaiians, or Native Hawaiian entities."
None of that language is in the new Akaka bill.
JURISDICTION OF THE AKAKA TRIBE OVER LAND, LAWS, AND PEOPLE
The previous Akaka bill in 2008 included this provision: "SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. (e) Jurisdiction- Nothing in this Act alters the civil or criminal jurisdiction of the United States or the State of Hawaii over lands and persons within the State of Hawaii. The status quo of Federal and State jurisdiction can change only as a result of further legislation, if any, enacted after the conclusion, in relevant part, of the negotiation process established in section 8(b)."
Additional protections in old versions of the Akaka bill, now stripped away:
"Any governmental authority or power to be exercised by the Native Hawaiian governing entity which is currently exercised by the State or Federal Governments shall be exercised by the Native Hawaiian governing entity only as agreed to in negotiations pursuant to section 8(b)(1) of this Act and beginning on the date on which legislation to implement such agreement has been enacted by the United States Congress, when applicable, and by the State of Hawaii, when applicable. This includes any required modifications to the Hawaii State Constitution in accordance with the Hawaii Revised Statutes."
Without that protective language, the Akaka tribe will be able to seize jurisdiction without any need to negotiate with the State of Hawaii, because federal Indian policy says tribes have a right to do that on the aboriginal lands where they once held communal title before the coming of the white man.
None of that language is contained in the new Akaka bill. Zero. Without that protective language, the Akaka tribe will be able to seize jurisdiction without any need to negotiate with the State of Hawaii, because federal Indian policy says tribes have a right to do that on the aboriginal lands where they once held communal title before the coming of the white man.
S.310 in 2008 said: "DISCLAIMERS- Nothing in this Act-- (A) creates a cause of action against the United States or any other entity or person; (B) alters existing law, including existing case law, regarding obligations on the part of the United States or the State of Hawaii with regard to Native Hawaiians or any Native Hawaiian entity; (C) creates obligations that did not exist in any source of Federal law prior to the date of enactment of this Act; or (D) establishes authority for the recognition of Native Hawaiian groups other than the single Native Hawaiian Governing Entity."
That's important because without it the Akaka tribe, under federal Indian policy, can claim all sorts of special rights and privileges which only Congress could stop but which federal administrative agencies and the State of Hawaii will be powerless to stop.
JURISDICTION OF THE AKAKA TRIBE OVER NON-MEMBERS INCLUDING PEOPLE WITH NO HAWAIIAN BLOOD, AND ETHNIC HAWAIIANS WHO HATE THE TRIBAL CONCEPT AND REFUSE TO JOIN
According to the new Akaka bill, the tribal Constitution is required to specify "The proposed civil rights and protection of such rights of the citizens of a Native Hawaiian government and all persons subject to the authority of a Native Hawaiian government."
Note that the second half of that sentence envisions that there will be "persons subject to the authority of a Native Hawaiian government" who are not citizens of that government.
In other words, it is envisioned that members of the tribe will make laws governing all ethnic Hawaiians including those who choose not to join the tribe, and perhaps even governing people with no Hawaiian blood who live in or travel through any of the hundreds of parcels of Akaka tribal lands scattered throughout all neighborhoods and islands.
The issue of tribal jurisdiction over non-members has been the topic of major lawsuits in the federal courts, and is a growing problem since the majority of people living inside the borders of tribal reservations have no Indian blood. On one hand, any sovereign entity (nation, state, town, tribe) should have the authority to enforce its laws inside its boundaries, otherwise criminals can run rampant. On the other hand, tribal laws and tribal court procedures can be drastically different from the rest of America, and often violate civil rights and Constitutional rights which Americans have come to expect.
FEDERAL AND STATE SOVEREIGN IMMUNITY
The Akaka bill previously said:
"(2) FEDERAL SOVEREIGN IMMUNITY- (A) SPECIFIC PURPOSE- Nothing in this Act is intended to create or allow to be maintained in any court any potential breach-of-trust actions, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity for equitable, monetary, or Administrative Procedure Act-based relief against the United States or the State of Hawaii, whether or not such claims specifically assert an alleged breach of trust, call for an accounting, seek declaratory relief, or seek the recovery of or compensation for lands once held by Native Hawaiians. (B) ESTABLISHMENT AND RETENTION OF SOVEREIGN IMMUNITY- To effectuate the ends expressed in section 8(c)(1) and 8(c)(2)(A), and notwithstanding any other provision of Federal law, the United States retains its sovereign immunity to any claim that existed prior to the enactment of this Act (including, but not limited to, any claim based in whole or in part on past events), and which could be brought by Native Hawaiians or any Native Hawaiian governing entity. Nor shall any preexisting waiver of sovereign immunity (including, but not limited to, waivers set forth in chapter 7 of part I of title 5, United States Code, and sections 1505 and 2409a of title 28, United States Code) be applicable to any such claims. This complete retention or reclaiming of sovereign immunity also applies to every claim that might attempt to rely on this Act for support, without regard to the source of law under which any such claim might be asserted. (C) EFFECT- It is the general effect of section 8(c)(2)(B) that any claims that may already have accrued and might be brought against the United States, including any claims of the types specifically referred to in section 8(c)(2)(A), along with both claims of a similar nature and claims arising out of the same nucleus of operative facts as could give rise to claims of the specific types referred to in section 8(c)(2)(A), be rendered nonjusticiable in suits brought by plaintiffs other than the Federal Government."
"(3) STATE SOVEREIGNTY IMMUNITY- (A) Notwithstanding any other provision of Federal law, the State retains its sovereign immunity, unless waived in accord with State law, to any claim, established under any source of law, regarding Native Hawaiians, that existed prior to the enactment of this Act.
(B) Nothing in this Act shall be construed to constitute an override pursuant to section 5 of the Fourteenth Amendment of State sovereign immunity held under the Eleventh Amendment."
None of that language is contained in the new Akaka bill. Zero. It's obvious that the reason for placing such protections into earlier versions of the Akaka bill was to prevent the Akaka tribe from doing all those things listed above as being prohibited. So it must be assumed that without those protections the Akaka tribe can do those things.
Note the extremely technical nature of that language. There's no way Governor Lingle or Attorney General Bennett would even be aware of many of those issues unless someone raises them. Federal Indian policy is extremely complex. Yet the only thing Lingle seems to care about is gambling, when the Akaka bill is clearly an attack on all the lands, people, and laws of the State of Hawaii in ways so subtle but devastating that only experts can understand them.
TIME LIMIT FOR FINAL SETTLEMENT OF PAST GRIEVANCES -- ASSURANCE OF A FINAL GLOBAL SETTLEMENT
On April 7, 2004 Senator Akaka introduced major amendments to the Akaka bill, then known as S.344. Section 8(c)(2) provided a time limit of 20 years after enactment of the bill for any claims to be filed regarding things that happened at any time before enactment of the bill. Thus all claims related to the revolution of 1893, annexation of 1898, ceded lands, etc. would need to be filed by the tribe in the U.S. District Court in Honolulu within that time limit. Of course those claims might take many years to be settled or adjudicated.
There is no time limit in the new Akaka bill.
Many Hawaiian activists expressed outrage that there should be any time limit at all, prompting OHA Administrator Clyde Namu'o to issue a statement saying "this 20-year statute of limitation is considered by experts in the field of Indian Law to be extremely generous. In other federal recognition legislation, the statute of limitations has ranged from one year to six years." The new Akaka bill in 2009 has no time limit whatsoever, thereby allowing the Akaka tribe to keep coming back for more "reparations" forever. This ensures permanent racial strife and the constant drumbeat of "Gimme gimme gimme" which we have all seen in recent years.
PROTECTING THE REAL INDIAN TRIBES AGAINST THE DRAINING OF RESOURCES BY THE NATION'S LARGEST (AKAKA) TRIBE
Many versions of the Akaka bill over the years have included this sentence, now stripped away: "Nothing contained in this Act provides an authorization for eligibility to participate in any programs and services provided by the Bureau of Indian Affairs for any persons not otherwise eligible for the programs or services." See information later, providing Census data showing the Akaka tribe would be by far the largest in America, and thus would hog the resources that should go to the real tribes.
For example, S.310 in 2008 included the following strong protection for the real tribes: "SEC. 9. APPLICABILITY OF CERTAIN FEDERAL LAWS. (f) Indian Programs and Services- Notwithstanding section 7(c)(6), because of the eligibility of the Native Hawaiian governing entity and its citizens for Native Hawaiian programs and services in accordance with subsection (g), nothing in this Act provides an authorization for eligibility to participate in any Indian program or service to any individual or entity not otherwise eligible for the program or service under applicable Federal law."
On February 10, 2009 the widely-read publication "Indian Country Today" told the following lie in a news report about the Akaka bill: "Native Hawaiians would not gain new eligibility under the bill for programs and services now available to American Indians." But of course they would gain new eligibility for programs newly created in the future. And when current appropriations and programs specifically for "Native Hawaiians" expire and fail to be reauthorized because Senator Akaka and the very powerful Senator Inouye are no longer there, the behemoth Akaka tribe will demand its proportionate share from a dwindling pot of federal money through the general Indian programs.
It appears that lie is being told to the real Indian tribes by the Akaka/Inouye lobbyists to get the tribes to ignore the plain fact that the sentence has been stripped out of the new bill which previously said "Nothing contained in this Act provides an authorization for eligibility to participate in any programs and services provided by the Bureau of Indian Affairs for any persons not otherwise eligible for the programs or services." Dare we say it: Akaka/Inouye speak with forked tongue to the real Indian tribes.
One provision re-inserted into the new Akaka bill that has been missing from most versions since 2001 is the second clause of Section 10: "Nothing in this Act is intended ... to affect the rights of the Native Hawaiian people under international law."
There are at least two very dangerous consequences of enacting this provision.
(1) It encourages Hawaiian independence activists to pursue secession of Hawaii under the auspices of the United Nations or the World Court. Hawaiian activists have repeatedly and vigorously approached both of those institutions.
(2) It would seem to import into U.S. jurisprudence the recently passed United Nations Declaration on the Rights of Indigenous Peoples, by placing Congress on record as adopting that Declaration and authorizing its applicability to ethnic Hawaiians. The United States explicitly refused to sign the U.N. Declaration because of its potential for balkanization and secession, but this provision of the Akaka bill could serve as a subterfuge to commit the U.S. to that Declaration and to apply it to all the Indian tribes under a theory that the 14th Amendment requires that all federally recognized Indian tribes should be treated equally under the law.
SOME VERY IMPORTANT GENERAL ISSUES RELATED TO BALKANIZATION AND TRIBAL SIZE, OF CONCERN TO OTHER STATES AND TO HAWAII
Besides the specific protections stripped out the the Akaka bill, there are general issues that make the whole concept of the bill unconstitutional and immoral. This essay is already too lengthy to allow full discussion, but it's important to mention these points.
1. The Akaka bill is based on a BRAND NEW THEORY OF THE CONSTITUTION, claiming that Congress has the power to single out any racial or "indigenous" group and give it a racially exclusionary tribal government, regardless whether that group ever previously existed as a political entity.
There never was a unified nation of Hawaii that included all the islands and had only ethnic Hawaiians as members and high-ranking leaders. Beginning with Englishman John Young who was Governor of Hawaii Island under Kamehameha The Great, Caucasians had voting rights, comprised most cabinet ministers throughout the Kingdom, nearly all department heads and judges, and sometimes 1/4 to 1/3 of the Legislature.
The percentage of Hawaii's native-born or naturalized subjects (citizens) of the Hawaiian Kingdom who were Caucasian was higher than the percentage of Americans today who are black. At some future date, would it be proper to re-create the "ancient" nation of the United States but allowing only Caucasians to be citizens?
If this theory of the Constitution is enacted and withstands court challenge, then other groups will make similar demands. First would be all persons of Mexican ancestry living in the U.S. in those states that were formerly part of Mexico -- they can all claim to have a drop of Mayan or Aztec blood, and thus they are "indigenous" people whose lands were engulfed by the U.S. without their consent and without compensation (exactly what the apology resolution says happened to ethnic Hawaiians). Once the Nation of Aztlan gets established and carves out huge pieces of America, then what about a Nation of Amish, a Nation of Cajun, and even a Nation of New Africa? All people with a drop of Hawaiian native blood, no matter where they live in the world, would be eligible to join the Akaka tribe and move to Hawaii. By analogy, all Mexicans with a drop of Mayan or Aztec blood, including those now living in Mexico, would be eligible to join the Nation of Aztlan and move to its hundreds of millions of acres of tribal land in the American Southwest.
2. THE AKAKA TRIBE WOULD BE THE LARGEST TRIBE IN AMERICA. In Census 2000 there were more than 401,000 people who checked the box as having Hawaiian ancestry (Current estimates are much larger, but the Census Bureau groups ethnic Hawaiians with other Pacific islanders making it hard to separate them). By contrast, in 2005-2007 Census ACS, the three largest tribal groups are Cherokee tribal grouping (including several different tribes) at 298,510, Navajo tribal grouping 288,682, Chippewa tribal grouping 108,880. In the Bureau of Indian Affairs the phony Akaka tribe will be the elephant in the room, grabbing federal money that formerly went to the real tribes. That same "elephant" issue is also true for some of the states. According to Census 2000, more than 60,000 ethnic Hawaiians lived in California (more recent estimates say 65,000). The Akaka tribe would probably be the largest tribe in California! An additional 100,000 were living in the other 48 states outside Hawaii. Local branches of the Akaka tribe would be formed in every state and might buy land, put it into federal trust, operate tax exempt businesses, and build casinos competing against local gambling operations owned by states, local governments, private corporations, and Indian tribes.
3. IMPACT OF AKAKA TRIBE ON HAWAII IS 50% WORSE THAN IMPACT ON ALL OF AMERICA IF AN AFRICAN-AMERICAN TRIBE WERE CREATED
No other state has 20% of its population who are racially Indian, let alone 20% eligible to join a single tribe.
According to the U.S. Census American Community Survey for the most recent 3-year period (2005-2007), 13.1% of all the people of America are at least partly African-American, 4.9% are at least partly Asian, and 1.5% are at least partly American Indian or Alaska Native.
Would it be good for America, and for African-Americans, to create for them a government empowered to negotiate for land and jurisdictional authority; and to have them voting both for tribal leaders and also for the political leaders of the national and state governments they will be negotiating with?
Would it be helpful to harmonious race relations to have 40 million African-Americans belonging to a single "tribe" demanding money, land, and different laws for themselves to live by?
The impact the Akaka tribe would have on Hawaii is 50% more devastating and divisive than the impact on America of creating an African-American tribe, because the percentage of Hawaii's people who are ethnic Hawaiian is 50% larger than the percentage the U.S. population who are African-Americans, all according to the same one-drop rule.
4. AKAKA TRIBAL LANDS SCATTERED EVERYWHERE
When an Indian tribe has only a small percentage of a state's population and has its tribal lands in one or two remote areas, it does not impose much jurisdictional conflict on the rest of the state. However, in Hawaii the tribal membership could be 20% of the state's entire population and the tribal lands (including ceded lands and Kamehameha lands) would comprise perhaps half of all the state's land distributed in hundreds of widely scattered enclaves, some of which would be in densely populated urban areas. The state's tax base would be drastically reduced, and there would be horrendous jurisdictional disputes over taxation, zoning, civil and criminal law, etc. There are reasons why nearly all people eligible to join the Akaka tribe would be likely to do so (see below).
5. There is NO QUORUM REQUIRED for ethnic Hawaiians to establish the Akaka tribe or ratify its governing document. Those ethnic Hawaiians who choose to enroll in the tribe can then participate in choosing their leaders, writing a governing document, and ratifying it. Those who reject the idea are simply left out of membership even though the tribal government might have legal jurisdiction over them and will certainly appear to be speaking on their behalf in the eyes of everyone else.
It seems likely that far fewer than half of those eligible will actually participate initially, even though the tribe will receive and disburse only to its members all the benefits currently going to all ethnic Hawaiians. After 5 years and millions of dollars in advertising and nationwide outreach, fewer than 25% of those eligible have signed up for the "Kau Inoa" racial registry. These are the activists who joined voluntarily, including teenagers who join just to get the spiffy-looking Kau Inoa T-shirt and babies enrolled while being burped by their parents. It appears 75% of ethnic Hawaiians are "voting with their feet" to reject the whole process. The minority who do sign up will set the tribe in motion even though the vast majority reject the idea. But once the tribe is established, there will be enormous pressure to join. Hawaiians currently receiving benefits will be forced to join the tribe or else lose their benefits. Some obscure language buried in the Akaka bill envisions that all ethnic Hawaiians will be subject to tribal laws regardless whether they actually join (see item #7 below).
6. DEMOCRATIC PROCESS NOT REQUIRED
The Akaka tribe is not required to make its decisions by democratic processes required by law for federal and state governments. The tribal "organic governing document" (i.e., Constitution) must be "adopted by a majority vote of the adult members listed on the roll" [membership list]. However, there is no requirement for that vote to be conducted by secret ballot. Many leaders of the ethnic Hawaiian community have claimed that it is culturally appropriate for ethnic Hawaiians to make decisions by "consensus" (i.e., informal agreement in a group setting where everyone feels intimidated to go along with the leaders). Several of those leaders have actually conducted decision-making sessions known as "puwalu" where all interested Hawaiians are invited to attend a mass meeting in a huge tent in a public park.
And of course the decision whether to create an Akaka tribe is not being made democratically. The 25% of ethnic Hawaiians who have joined Kau Inoa will decide on behalf of the 75% of ethnic Hawaiians who refuse to join. The people of Hawaii are not being allowed to vote on whether to carve up our people and resources along racial lines.
Full text of the current Akaka bill, S.381 and H.R.862 in the 111th Congress, introduced on February 4, 2009:
The history of the Akaka bill in the current 111th Congress is being tracked in a webpage that includes news reports, commentaries, and links to the bill's history in all previous years:
Why all America should oppose the Akaka bill -- 5-paragraph summary with extensive references:
The Akaka bill is the biggest threat to establish "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" Read portions of the book by that title at:
A cloture motion on the Akaka bill in June 2006 included substantive debate about the bill itself on the U.S. Senate floor for about 5 hours over a two day period. The transcripts of those debates have been copied from the Library of Congress website and are available in a more user-friendly format here:
Lies told on the U.S. Senate Floor by Senators Inouye and Dorgan regarding Hawaiian history:
Evidence showing most Hawaii people and most ethnic Hawaiians oppose the Akaka bill:
An older version of the Native Hawaiian Recognition bill was introduced in the Senate of the 107th Congress as S.81 on January 22, 2001. This was the same bill that previously died in the 106th Congress, which was then known as S.2899 and H.R.4904. Attorney Paul Sullivan's point-by-point analysis of S.81 can now be resurrected as a point-by-point analysis of the newest version of the Akaka bill, because all the contents and section numbers of the bills are identical. Groundhog Day!
The Akaka bill had only one Congressional hearing in Hawaii, allowing ordinary citizens of Hawaii to testify. It was held at the Blaisdell auditorium Monday through Friday, August 28 through September 1, 2000, during the regular Congressional August recess. The only members of Congress who attended were Hawaii's two Senators and two Representatives (Akaka, Inouye, Abercrombie, Mink) plus the Territorial Delegate from Samoa (Faleomavaega), all of whom were co-sponsors. It was rigged! Since the current version of the bill goes back to the version at that time, we can presume that the testimony given then applies to the current version. Independent reporter Bob Rees attended all five days, reporting for the Honolulu Weekly (rather than the two Honolulu daily newspapers who have always been "in the tank" for the Akaka bill). On September 6, 2000 his article was entitled "Hearings Theft." He said that "If the U.S. Congress gets accurate reports about the Aug. 28-Sept. 1 Akaka Bill hearings -- that Hawaiians who testified seemed mostly opposed, by 9 to 1 according to some accounts, to federal recognition -- it could damage the bill's chances." For the full article see:
On January 17, 2001 Rees wrote an article entitled "Road to Nowhere." He said "During the Aug. 28-Sept. 1 hearings, based on testimony actually delivered, opponents outnumbered proponents by 9 to 1. Even the testimony in favor came hedged with pleas for substantial changes in the bill. However, the official version of the hearings, as Rep. Neal Abercrombie spun it after just the first day of hearings, was that 'Phone calls and letters to the delegation are overwhelmingly supportive.' The report taken back to Congress indicated there had been almost no opposition." For the full article see:
Demographic data from the most recent 3-year period of the U.S. Census Bureau American Community Survey covering 2005-2007:
Regarding Governor Lingle's support for the Akaka bill being motivated by her belief that ethnic Hawaiians are entitled to self-determination and sovereignty in the same way as Jewish people are entitled to a nation of Israel:
A letter to editor that appeared in the Honolulu Star-Bulletin of November 29, 2008 and also in the Honolulu Advertiser of December 1, provided valuable information from inside the racial supremacist movement. Bob and Paulette Moore, Kamehameha Schools '53/'52, were writing to complain about Lingle's support for the State of Hawaii's appeal to the U.S. Supreme Court, of a decision by the Hawaii Supreme Court, that had ruled that the state is prohibited from selling ceded lands until a settlement has been achieved between the state and ethnic Hawaiians. Among other things the Moores wrote:
"In 2002 when Linda Lingle first aspired to governorship, she met with the I Mua group [Kamehameha alumni] to stress her inherent kinship with Hawaiian causes. Lingle made clear the unique value that the Israel homeland represents to world Jewry, with bindings of history, culture, ancestry and genealogy, a profound relationship beyond simple geography or real estate. She articulated clearly her parallel appreciation of the singular reverence that the aina invokes in kanaka maoli, whence is imbedded their connections of culture, religion, common beliefs, customs and mores."
A webpage provides evidence of Lingle's zealous support for Zionism, how a major Israeli newspaper called her "Hawaii's Jewish Queen", and whether Lingle's reasons for supporting the existence of a nation of Israel are also valid as reasons for supporting a race-based tribal nation of Hawaii. See: "Hawaiian Sovereignty, Zionism, and Governor Lingle" at:
"Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations -- Akaka Bill Sets a Precedent for the Balkanization of America"
"Hawai'i's Fifth Column: Anti-Americanism in the Hawaiian Sovereignty Movement"
"The Economic Impact of the Akaka Bill: Unintended Consequences for Hawaii" (report of a major study by the Beacon Hill Institute, Dept. of Economics, Suffolk University, Boston, Mass.) The Akaka bill could cost the State of Hawaii $690 Million per year in lost revenues due to a shrunken tax base.
A series of hard-hitting one-minute audio messages oppose the Akaka bill, accompanied by corresponding YouTube videos and transcripts. Each item focuses on one historical figure who is of major importance in Hawaiian history or culture but would not be recognized as Hawaiian according to the Akaka bill; or one aspect of the Akaka bill that is contrary to the ideals of unity, equality, and aloha. The webpage offering the audios and videos was launched in February 2009 with 10 audios and 5 accompanying videos. More will be added from time to time. Please visit
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GO TO THE INDEX OF TOPICS FOR THE HISTORY OF THE AKAKA BILL FOR THE ENTIRE 111TH CONGRESS, JANUARY 1, 2009 THROUGH DECEMBER 31, 2010, WITH LINKS TO SUBPAGES COVERING EACH PERIOD OF TIME
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(c) Copyright 2009 Kenneth R. Conklin, Ph.D. All rights reserved