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The Akaka bill can be rejected for reasons that do not attack the legitimacy of the genuine Indian tribes.


** Note: This essay was published in Hawaii Reporter (online) on July 8, 2009, at
http://www.hawaiireporter.com/story.aspx?6e2913d9-8a24-4025-87cb-76c6e88194ec

It is also part of a "dialog" with two articles published in 2007 and 2009 in "Indian Country Today." For the dialog see
http://www.angelfire.com/big09a/DialogOpposeAkakaMeansOpposeTribes.html

(c) Copyright July 6, 2009 Kenneth R. Conklin, Ph.D. All rights reserved

SUMMARY

The "Native Hawaiian Government Reorganization" bill, informally known as the Akaka bill, has had many versions since it was first introduced in July 2000. Three versions have already been introduced in six bills in the House and Senate during 2009 alone. The version that seems to be moving forward is H.R.2314 and its Senate companion S.1011.

From 2000 to 2009 there have been numerous attacks on all versions of the Akaka bill, arguing that the basic concept of the bill is both unconstitutional and immoral. Most of those attacks would apply not only to the Akaka bill but also to several hundred federally recognized Indian tribes. For example, the Akaka bill is attacked on the grounds that it violates the Constitution's 14th Amendment equal protection clause prohibiting racial discrimination; the 15th Amendment clause prohibiting the denial or abridgment of the right to vote on account of race; the guarantee that every state shall have a republican form of government; the prohibition against titles of nobility; etc.

The Indian tribes consider it important to support the Akaka bill in order to protect their own existence, because federal recognition of an Indian tribe carries with it permission to exercise sovereignty based on racially exclusive membership and voting rights, racial discrimination, tribal governments that need not be democratic, etc. Tribes are allowed to engage in racial discrimination in ways that are prohibited to states and local governments, for reasons described in section 4 below. However, the tribes run a great risk by allying themselves too closely to the Akaka bill. If Congress or the courts reject the Akaka bill for the broad Constitutional or policy reasons described above, then the tribes will thereby also suffer Congressional disfavor or come under attack in the courts. If the tribes insist that the reasons justifying their own existence are the same as the reasons why the Akaka bill is legitimate, then the inevitable defeat of the Akaka bill in Congress or the courts will take down the tribes as well.

There are important reasons why the Akaka bill is wrong historically, legally, and morally. Some of those reasons are unique to the proposed Akaka tribe. Therefore there will be no consequences to the genuine tribes if the Akaka bill is rejected by Congress or ruled unconstitutional by the courts for reasons that are unique. It's safer for the tribes if the Akaka bill is rejected by Congress, because a vote can be cast without giving any reason for it, or giving only reasons that are unique to the Akaka bill. The greatest danger for the tribes is if the bill passes Congress and then comes under scutiny by the courts, because courts might very well overturn the Akaka bill for broader reasons that would also affect the tribes.

Hopefully Congress, the judiciary, media commentators, and tribal leaders will go through the door this essay opens for them to reject the Akaka bill for reasons that do not attack the legality or morality of the genuine tribes. Politicians and pundits will now have a valid explanation for truthfully saying that they oppose the Akaka bill but do not oppose the existence of the tribes.

1. WHY RACIAL IDENTITY GROUPS FAVOR THE AKAKA BILL

Groups focused on racial grievance or racial entitlements have always supported the Akaka bill. For example: JACL (Japanese American Citizens League), La Raza, LULAC (League of United Latin American Citizens), MALDEF (Mexican American Legal Defense and Educational Fund), NAACP (National Association for the Advancement of Colored People), and numerous less-known groups including National Coalition of Asian Pacific Americans, National Organization of Pacific Islanders in America, Organization of Chinese Americans.

It's no surprise that such groups favor the Akaka bill. They desperately need to defend government programs that provide money to racial groups; and laws or policies giving racial preferences or affirmative action in hiring, college admissions, contracting, etc. These groups realize that passing the Akaka bill will undermine the 14th Amendment equal protection clause, which has been used successfully in recent years to challenge race-based programs. Congressional passage of the Akaka bill could be cited in future court cases as establishing a precedent that racial entitlement programs are "political questions" requiring the courts to give deference to the legislative branch of government.

African-American organizations observe the favors granted by Congress to ethnic Hawaiians, and hope for similar treatment. In 1993 Congress passed a resolution apologizing to ethnic Hawaiians (alone) for the alleged U.S. role in overthrowing the Hawaiian monarchy (despite the fact that the Kingdom government and voter list were thoroughly multiracial). Now comes the Akaka bill, proposed as a step toward the "reconciliation" (and perhaps reparations) called for in that apology. The Akaka bill cites not only the apology resolution but also racial victimhood statistics portraying ethnic Hawaiians as disproportionately afflicted by poverty, heart disease, diabetes, drug abuse, incarceration, etc. (the same afflictions suffered by blacks). Now the time has come when black leaders see a chance to jump on the same bandwagon. Both the Senate and House passed resolutions in June 2009 apologizing to African-Americans for slavery, and blaming slavery for today's negative statistics. So black leaders might reasonably hope that passing the Akaka bill will set the stage for their own organizations to be granted governmental powers, or at least massive reparations. Focusing on short-term gains from government handouts, black leaders seem ready to ignore the long-term injustice and devastation of using governmental power to treat people differently based solely on race.

The radical group MEChA (Moviemento Estudiantil Chicano de Aztlan) also supports the Akaka bill, because it would establish the principle that Congress has the power to create a government for any group of so-called "indigenous" people (such as Mexican-Americans, who nearly all have at least one Aztec or Mayan ancestor) and then to grant them money, land, and political power facilitating eventual secession. See "Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations -- Akaka Bill Sets a Precedent for the Balkanization of America" at
http://tinyurl.com/722l4

2. WHY INDIAN TRIBES FAVOR THE AKAKA BILL

Indian tribes, and organizations representing them, have also supported the Akaka bill. For example: NCAI (National Congress of American Indians), AFN (Alaska Federation of Natives), and numerous less-known groups including the Governors' Interstate Indian Council, Inter Tribal Council of Arizona, Affiliated Tribes of Northwest Indians, National Indian Education Association, Tribal Education Departments National Assembly, Virginia Indian Tribal Alliance for Life.

But it's surprising that Indian tribes support the Akaka bill, in view of the fact that the Akaka tribe would be the largest one, with over 400,000 members. Why would existing tribes, many of which are quite small, support the creation of a monstrously huge competitor for government handouts?

To avoid opposition from existing tribes, the Hawaii delegation has amended the Akaka bill to include several provisions that appear to insulate the tribes from competition. The bill now prohibits the Akaka tribe from operating casinos, not only in Hawaii but in any other state. It also prohibits members of the Akaka tribe from benefitting from any programs of the Bureau of Indian Affairs; and instead provides that benefits will be funded through special legislation and coordinated by a new federal agency working exclusively for ethnic Hawaiians. Nevertheless, it's easy to foresee that in future years such restrictions on gambling, and institutional segregation of tribal benefits, will be nullified either through lawsuits brought by the Akaka tribe or through new legislation purportedly for the purpose of consolidating programs or streamlining government bureaucracy.

So why do the genuine Indian tribes so strongly support the Akaka bill, when the bill seems at present to be neutral to their economic interests and opens the possibility of future detrimental competition? For the same reason that battlefield commanders build outposts, send scouting parties, launch diversionary attacks, and are willing to sacrifice a company of soldiers to save an entire regiment.

Challenges to federal Indian policy are growing in number and strength. The great majority of Supreme Court Indian-law decisions in recent years have ruled against tribal interests and sovereignty. Tribes are beginning to fear a possible return to the historical period of termination, or even the allotment and assimilation era.

The Akaka bill grossly expands Congressional power under the Indian commerce clause of the U.S. Constitution, and violates the 14th Amendment equal protection clause. The legal and political foundations of the Akaka tribe would be far weaker than the foundations of the genuine Indian tribes. The Akaka tribe would be a freakish mutation of what a real tribe should be.

Thus the Akaka tribe will become the biggest target of lawsuits and political activity, diverting challenges to the current concept of tribal self-determination and especially tribal sovereignty. Existing tribes consider it a worthwhile gamble to risk future competition from a huge phony new tribe, in return for a long period when attacks on overall federal Indian policy are diverted. The Akaka bill contains a provision putting Congress on record that ethnic Hawaiians never relinquished their right to sovereignty or to their communal lands; thus the Akaka bill would not be seen as a granting of powers by Congress but rather as a Congressional acknowledgment that the Akaka tribe is beyond the authority of Congress. Such a provision would set a precedent greatly expanding the powers of existing tribes -- especially those who merely acquiesced to U.S. authority in the 1800s but did not sign a treaty giving up their lands or sovereignty.

3. WHY THE GENUINE TRIBES HAVE NOTHING TO LOSE IF THE AKAKA BILL IS DEFEATED IN CONGRESS; AND WHY THE TRIBES HAVE EVERYTHING TO LOSE IF THEY CLAIM THAT "NATIVE HAWAIIANS" ARE ENTITLED TO FEDERAL RECOGNITION ON THE SAME BASIS AND FOR THE SAME REASONS AS NATIVE AMERICANS AND NATIVE ALASKANS

There are two primary reasons unique to "Native Hawaiians" for persuading Congress to defeat the Akaka bill, or persuading the courts to overturn it. These reasons do not in any way impinge on the usual arguments for or against the existence of Indian tribes. The legal reason is focused on the fact that the proposed Akaka tribe is historically, legally, and morally unjustifiable and unconstitutional by contrast to the genuine tribes. The policy reason is focused on the fact that the Akaka tribe would have an enormous negative impact on the State of Hawaii, unlike the much smaller impact the real tribes have on the states where they are located.

The fact that the Akaka tribe is radically different from the genuine tribes, in both foundational principles and practical effects, means that defeating or overturning the Akaka tribe on account of those differences will have no effect on federal Indian policy and will not damage the genuine tribes. It also means that it is dangerous for the genuine tribes to assert that the Akaka tribe is entitled to federal recognition and sovereignty for the same reasons that they themselves are so entitled. Because if such an assertion is believed by policymakers or by the courts, then the inevitable defeat or destruction of the Akaka tribe will drag down the genuine tribes and bring an end to the modern era of federal Indian policy. The Akaka bill is a tar baby which the tribes would do well to avoid.

4. WHAT ARE THE HISTORICAL, LEGAL, AND MORAL DIFFERENCES THAT MAKE THE PROPOSED AKAKA TRIBE PHONY BY COMPARISON WITH THE GENUINE TRIBES?

The Akaka bill uses race as the sole criterion for deciding who can belong to the Akaka tribe. Every person who has at least one drop of Hawaiian native blood can belong, and nobody else can belong. There are no other requirements.

By contrast, the genuine tribes must meet many requirements before they can be granted acknowledgment (recognition) by the Bureau of Indian Affairs; and Congressional bills to recognize tribes generally follow those requirements. The basic concept is that a tribe is recognized when it has a government which has exercised substantial authority over its members from before Western contact continuously until the present; and when its members mostly live separate and apart from surrounding populations and maintain distinctive culture, language, and religion. The seven mandatory criteria are spelled out in 25 CFR 83.7. A list of the criteria and discussion of how ethnic Hawaiians fail to satisfy them can be found at
http://tinyurl.com/74496

The "Native Hawaiian Government Reorganization" bill claims to be reorganizing something that, in fact, never existed. There was never a native Hawaiian government that exercised sovereignty over a unified archipelago of the Hawaiian islands and whose leaders were exclusively native Hawaiian, as the Akaka bill seeks to reinvent.

Kamehameha The Great was the first person who ever succeeded in unifying the Hawaiian islands under a single government; and two of the highest ranking members of his governing council were Englishmen with no Hawaiian native blood. Isaac Davis was appointed Governor of Oahu. John Young was so important to Kamehameha's success in unifying the islands that he was appointed Governor of Kamehameha's home island (Hawaii Island), was given land and a house immediately next to the great sacred heiau (stone temple) Puukohola, was given one of Kamehameha's daughters in marriage, fathered a son who became the highest ranking member of the government except for the King himself, and had a granddaughter who grew up to become Queen Emma. John Young's tomb is in Mauna Ala (the Royal Mausoleum) along with 6 of the 8 monarchs, and is the only tomb built to resemble a heiau and guarded by a pair of puloulou (sacred taboo sticks).

As the Kingdom continued, more and more non-natives became high government officials. Most cabinet ministers, department heads, and judges had no native blood; large numbers of non-natives were born in Hawaii, or became naturalized Kingdom subjects, with full voting rights; and at various times between 1/4 and 1/3 of the Legislators had no native blood. By the time the monarchy was overthrown in the revolution of 1893, only 40% of Hawaii's people had even one drop of native blood. No Indian tribe has such a history of overwhelming non-native membership as both members and leaders. There has never been an Indian tribe where most of the chiefs are not Indians.

This is not to say that ethnic Hawaiians were so generous and welcoming but now are to be punished for such inclusiveness by denying them race-based sovereignty on account of it. What it does mean is that the Kingdom was founded and prospered as a multiracial nation with full partnership by non-natives, and it would be wrong to now exclude non-natives from a "reorganized" Hawaiian government.

Federal Indian policy is based on the theory that tribes rightfully possess a remnant of the sovereignty they enjoyed before the United States came into existence. Each tribe had its own clearly defined membership, lived apart from other tribes, and had its own system of governance that exercised great authority over the lives and property of individual members. When tribes were defeated by the U.S. military, or made treaties, and moved onto reservations, their sovereignty was subjected to the plenary power of Congress. But tribal members continued to be governed inside the reservations by their own laws, customs, and leaders. Tribal members are free to leave the reservation and live as assimilated Americans, or can stay on the reservation living a native lifestyle under the authority of tribal laws, which may be very different from the laws of surrounding communities. Tribal sovereignty includes the right to give special benefits (and detriments) to members and to discriminate against outsiders. Thus many elements of the U.S. Constitution do not apply to Indian tribes. The benefits they distribute are for members only, their election laws allow only members to vote, and they enjoy sovereign immunity from lawsuits by members or outsiders. In other words, the tribes and their businesses have a license to practice racial discrimination, tax evasion, etc.

As described above, tribes are allowed to engage in racial discrimination and other violations of the U.S. Constitution because those are logical and natural outgrowths of the tribes' residual sovereignty continuing from before the Constitution was written. But the Akaka bill runs that historical scenario in reverse. The (il)logic of the Akaka bill goes like this: All Indian tribes are authorized to engage in racial discrimination; ethnic Hawaiians are engaging in racial discrimination; therefore ethnic Hawaiians should be recognized as an Indian tribe. Any student in Logic 101 can recognize that syllogism as not valid.

The Kingdom of Hawaii was multiracial with full partnership and voting rights for many residents and leaders with no native blood. The first sentence of the first Kingdom Constitution (1840) said "God has made of one blood all races of people, to dwell upon this Earth in unity and blessedness." The modern State of Hawaii, by contrast, has established a plethora of government programs and private institutions that are racially exclusionary for the benefit of ethnic Hawaiians alone. The primary purpose of the Akaka bill is to rescue those programs and institutions from court challenges, by creating a phony Indian tribe out of thin air to legitimize them. So the Akaka bill begins with blatant racial discrimination in a fully integrated modern multiracial society, and backtracks a justification for it by inventing an Indian tribe where none ever existed. The genuine tribes have nothing to fear when this bass-ackwards scenario is exposed and defeated.

Supporters of the Akaka bill say that the U.S. has three groups of indigenous people: Native Americans, Native Alaskans, and Native Hawaiians; and only the third group lacks federal recognition and is therefore entitled to it. But that statement glosses over a fundamental fact. The U.S. does not give recognition to "indigenous people." The U.S. does not give recognition to either Native Americans or Native Alaskans. Instead it gives recognition only to several hundred individual tribes each defined by a unique history, culture, and language. Most people who are racially Indian are not members of any tribe and would not be eligible to join one. The Akaka bill uses race as the sole requirement for membership, and allows everyone having a drop of that race's blood to belong. If such a definition were applied to Native Americans, there would be just one huge tribe of nearly 5 million spanning the lower 48 states, and one tribe including all Eskimos in Alaska.

The Akaka bill can be passed only by adopting a new theory of the Constitution, that Congress has the power to arbitrarily single out a fully integrated and widely dispersed racial group with no tribal history and create a "tribal" government for it. If that principle were adopted in its most general form, then the U.S. could create a tribal Nation of New Africa for 40 million African-Americans; or a tribe of Cajuns, or a tribe of Amish spanning several states. If the principle is restricted to so-called "indigenous" people, then Mexican-Americans could have their own tribal Nation of Aztlan because nearly every Mexican-American has at least one drop of indigenous Aztec or Mayan blood, with ancestors who exercised sovereignty in most portions of the U.S. that formerly belonged to Mexico and were subsequently swallowed up by the U.S. (just as Hawaii was swallowed up by the U.S.). Interestingly, "Indian Country Today" ran a commentary on June 16, 2009 pointing out close similarities between the Aztlan proposal and the Akaka bill, claiming that both are based on indigenous status whereas Cajuns would be less entitled to tribal status because they are not indigenous.
http://tinyurl.com/ph8fq3

5. SIZE REALLY MATTERS. MOST TRIBES ARE SMALL COMPARED TO THE SIZE OF THE STATES THAT HOST THEM, BUT THE AKAKA TRIBE WOULD BE HUGE AND THREATENS TO TAKE OVER THE ENTIRE STATE OF HAWAII.

Sheer size can change a difference of degree to a difference of kind. The Akaka bill would create America's largest Indian tribe. According to Census 2000, 60% of America's 401,000 ethnic Hawaiians live in Hawaii and comprise 20% of the entire population of Hawaii. No other state has such a large percentage of its population who are racially "Indians", and especially who would be eligible to joint a single "tribe."

The lands described by ethnic Hawaiian activists as belonging collectively to them include the "ceded lands" comprising 95% of all the public lands of the state. Hawaii's largest private landowner, Kamehameha Schools, is worth between $9-15 Billion and owns about 9% of all the land in Hawaii; and would undoubtedly choose to place itself inside the newly recognized Akaka tribe. With 20% of the population belonging to the "tribe", and claiming more than half the land area of the state as "tribal lands," dividing up the lands and people of Hawaii along racial lines would resemble an apartheid regime. By contrast, the genuine tribes and their lands are nearly all very small as a percentage of state population and land.

Furthermore, the Akaka tribe's likely lands are widely dispersed throughout all islands and most neighborhoods, causing a nightmare of jurisdictional disputes and conflicting laws. By contrast the genuine tribes usually each have their lands concentrated in one area, which is often remote from the non-tribal population.

The primary justification for the Akaka bill is the 1993 apology resolution, in which the U.S. apologized to ethnic Hawaiians alone for its alleged role in overthrowing a multiracial Kingdom government. But it is expected that the lands to be transferred to the Akaka tribe will come almost entirely from the public lands of the State of Hawaii. By contrast, when genuine tribes were recognized, most of the lands they were given were federal lands or, more recently, lands purchased by the tribe. The Akaka bill places the burden on the people of Hawaii to pay reparations to fulfill the federal government's apology to ethnic Hawaiians -- an apology that should have been directed to all the people of Hawaii (if indeed any apology were owed in the first place). That's one reason Congress likes the Akaka bill -- it makes the people of Hawaii pay for the alleged misdeeds of the federal government against Hawaiians. Blame the victim and make him pay!

In all cases where the federal government recognizes an Indian tribe either through the Bureau of Indian Affairs or through Congressional action, the question whether to grant recognition is never placed on the ballot for a vote by the citizens of the affected state. But in Hawaii it's important to place the issue of creating the Akaka tribe on the ballot, because of the enormous size of the proposed tribe as a percentage of population and percentage of lands; and because the burden of paying for it will fall heavily upon the people of Hawaii. The supporters of the bill adamantly refuse to place it on the ballot (they realize the voters would defeat it).

Consider this analogy.

Would it be good to round up all 40 million African-Americans, defined by the one-drop rule, and declare that they are a tribe with the power to create a racially exclusionary government and negotiate for money, land, and legal jurisdiction? Would that be good for America? Would it be good for African-Americans? Would it be consistent with the dream of Martin Luther King? Or does it sound more like a nightmare? Should we undo our hard-won racial integration and allow creation of different laws for different races, including conflicting jurisdictions between adjoining neighborhoods scattered throughout a city? Should those African-Americans who wish to create a tribe of New Africa with lands and governmental powers be allowed to do so, even if most African-Americans and/or most of the American people oppose the idea?

The racial divisiveness of the Akaka bill would be 50% more devastating for Hawaii than the creation of the African-American tribe would be for all of America. Here's why. 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. And about 20% of the people of Hawaii are at least partly native Hawaiian. Thus 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 of the U.S. population who are African-Americans, all according to the same one-drop rule used in the Akaka bill.

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 (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 and California. 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 competing against private corporations and genuine Indian tribes, and open casinos when the Akaka bill prohibition against that is overturned by the courts or future legislation.

There is one policy issue that far outweighs all others in opposing creation of an Akaka tribe. This issue simply does not arise in regard to any of the genuine tribes. The Akaka tribe threatens to take over the entire State of Hawaii and perhaps remove it from the United States.

There are already two branches of state government providing benefits exclusively to ethnic Hawaiians, plus one of the eight major islands that is destined by existing law to be turned over to the Akaka tribe upon the event of recognition. There are over 160 federally funded programs exclusively for ethnic Hawaiians. Kamehameha Schools, which will certainly place itself under jurisdiction of the Akaka tribe, is worth $8-15 Billion and is the largest private landowner in Hawaii. The Office of Hawaiian Affairs already owns an entire valley on Oahu plus 40 square miles on Hawaii Island plus numerous other parcels and businesses; and OHA receives 20% of all government revenue from the public lands (which is more than 100% of net income after expenses are paid by the state). A compliant state legislature, elected by a population that includes a 20% ethnic Hawaiian swing voting bloc, seems eager to turn over to the Akaka tribe nearly all of the public lands.

Passing the Akaka bill would give economic and political power to a group of leaders who seem favorable to eventual secession of Hawaii to become once again an independent nation. For details see the book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" at
http://tinyurl.com/2a9fqa
and the webpage "The Akaka Bill And Secession: The Hawaiian Government Reorganization bill (Akaka bill) is seen by its supporters as a step toward total independence for all of Hawaii" at
http://tinyurl.com/4cho6

CONCLUSION

Among the historical, legal, and moral reasons for Congress to defeat the Akaka bill and for the courts to overturn it if it passes, there are many reasons which are unique to Hawaii and to the Akaka bill. Those reasons do not in any way threaten the genuine Indian tribes. Hopefully Congress, the judiciary, media commentators, and tribal leaders will go through the door this essay opens for them to reject the Akaka bill for reasons that are unique and do not attack the legality or morality of the sovereignty of the genuine tribes.

It's safer for the tribes if the Akaka bill is rejected by Congress, because a vote can be cast without giving any reason for it, or giving only reasons that are unique to the Akaka bill. The greatest danger for the tribes is if the bill passes Congress and then comes under scutiny by the courts, because courts might very well overturn the Akaka bill for broader reasons that would also affect the tribes. Opponents of the Akaka bill seeking to overturn it in court would certainly use all the arrows in their quiver, including general attacks on the legal foundations of tribal sovereignty.


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(c) Copyright July 6, 2009 Kenneth R. Conklin, Ph.D. All rights reserved