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Feds to Hawaii: We did the crime, now you do the time. Two unfunded federal mandates single out Hawaii: Micronesian healthcare and Akaka bill.

State and local politicians have complained for many years about unfunded federal mandates. That means that Congress passes laws, or bureaucrats in the administrative branch adopt regulations by posting them in the Federal Register, which impose obligations on state and local governments but do not provide the money needed to carry out those obligations.

This essay examines two such federal mandates that single out Hawaii. (1) Treaties allow Micronesians to enter the U.S. without visas, and to live and work wherever they wish. In actual practice, the impact falls primarily on Hawaii. The failure of the federal government to provide funding for welfare benefits for the Micronesians forces the taxpayers of Hawaii to pay the bills. (2) The Akaka bill relies heavily on the 1993 apology resolution as a justification. That resolution is an apology from the U.S. government to Native Hawaiians for U.S. action in sending 162 peacekeepers ashore in 1893, whose presence might have caused the Queen to surrender to the local revolutionaries without a fight. But the impact of the Akaka bill falls most heavily on the people of Hawaii, not the U.S. government which issued the apology. It is the public lands of Hawaii which the Akaka bill encourages the Akaka tribe to grab. If the U.S. apologized for what the U.S. did to the people of Hawaii, why should the people of Hawaii have to pay the restitution?


We've all seen stories about the plight of citizens of Micronesian nations, recently arrived in Hawaii, who are receiving welfare benefits at the expense of Hawaii taxpayers. The particular welfare benefit that got the most attention is free healthcare -- especially kidney dialysis.

A patient whose kidney does not function properly needs to be hooked up to a machine three days per week, for several hours each time, to circulate his blood through a filtration system that removes toxic wastes which a properly functioning kidney would normally remove from the blood and then excrete. Once someone's kidney has failed, he must have dialysis treatments for the rest of his life, unless he gets a kidney transplant. Either way the costs are huge. Failure to get dialysis treatments would probably result in death after about a week.

Hawaii is facing enormous budget deficits. State employee unions will be suffering layoffs and/or pay reductions through mandatory furloughs, while the public will suffer reduced services and probably higher taxes.

Governor Lingle's administration, looking for ways to cut the budget, announced that dialysis treatments would no longer be given to the Micronesians, who are flooding into Hawaii in large numbers to get them. That announcement was greeted by a loud and growing outcry from welfare agencies and especially from the Micronesian community. A crowd of Micronesians staged a sit-in in the Governor's office. Finally the Lingle administration caved in to the pressure and agreed to continue the dialysis treatments for the next two years. Presumably the money will be taken away from other programs that serve needy citizens of Hawaii. Ethnic Hawaiians suffer much less of an impact than other ethnic groups from having state money given to the Micronesians, because Hawaiians have numerous federally funded programs that are racially exclusionary for their benefit, such as Papa Ola Lokahi (Native Hawaiian healthcare system).

Why are foreigners allowed to come to Hawaii and immediately receive welfare benefits? These particular foreigners are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. The U.S. conducted numerous tests of atomic and hydrogen bombs on various islands, resulting in the total destruction of several of them, including Bikini. There was massive radioactive fallout which poisoned the land and water on many islands forcing evacuations; and caused cancer and other diseases on islands that were not evacuated. Treaties between the U.S. and those island nations, known as the Compacts of Free Association, allow the U.S. to control military bases and foreign affairs there in return for large amounts of money and the right of citizens of those nations to enter the U.S. at any time, to live and work anywhere they wish without the need for a visa or green card.

However, the treaties do not say the U.S. will pay welfare benefits or provide healthcare for the Micronesians who come to America.

The result is an unfunded federal mandate for Hawaii to give welfare, including free medical care and kidney dialysis, to hundreds and perhaps thousands of Micronesians -- as many as choose to come here, for as long as the treaties remain in force.

Of course there's nothing in the treaties that says the Micronesians must come to Hawaii. But they're not likely to go to Minnesota, where the climate is inhospitable. And they're not likely to go to California, where the culture is so different because the number of Pacific islanders is very small compared to the population. And they're not likely to go to Guam because medical facilities there are much less sophisticated. Those who need specialized, sophisticated, or expensive medical care will come to Hawaii because the weather, culture, and medical facilities are exactly what they want.

Of course there's nothing in the treaties that says Hawaii must provide such benefits -- that's up to the State of Hawaii. But presumably the laws of Hawaii require our state government to provide welfare benefits based on need to all persons legally living here. And even if the law did not require us to provide benefits to the Micronesians, would we really be so hard-hearted to allow them to die in the streets from blood poisoning caused by our refusal to give them the kidney dialysis they need? We've all seen signs in town saying "Do not feed the birds." Because so long as we feed the birds, more and more of them will keep coming for the free food even while they leave their droppings all over the place and drive out the birds who would normally live there. Perhaps the only way to stop more Micronesians from coming is to stop giving them any welfare or healthcare, and cold-heartedly allow them to die in the streets. But doing such a thing is unimaginable for generous Hawaii people filled with the Aloha Spirit.

Who put this economic and spiritual burden on us Hawaiians? The Senate years ago ratified treaties allowing Micronesians to freely enter the U.S. and live and work wherever they wish. The treaties included hundreds of millions of dollars for the Micronesian governments, but not one penny for the State of Hawaii to provide the welfare benefits and healthcare that were obviously going to be inflicted upon us. And the Micronesian governments show absolutely no desire to pay for the benefits needed by their citizens. From time to time our Senators and Representatives might attach to federal legislation some earmarks to provide money for Micronesian impacts on Hawaii. But getting those earmarks uses up the good will and political capital of our Congressional delegation, which otherwise might be used for other good purposes.

When the controversy blew up a few weeks ago over cutting off dialysis for Micronesians, the U.S. government washed its hands of the whole affair, issuing a news release at the U.S. embassy in Majuro, the Marshall Islands, telling people to look to Hawaii and other states for help, but not to the U.S. government. Here's the complete news release of September 3. Hawaii's politicians have allowed Hawaii's people to be placed in this terrible position.

"U.S. clarifies compact: No medical benefits.

"Under the Compacts of Free Association between the United States and the Freely Associated States (FAS), citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau may generally be admitted to the United States, its territories, and possessions to lawfully engage in occupations and establish residence as non-immigrants without visas.

"There are no commitments in the Compacts to provide medical care for FAS citizens who take advantage of this Compact benefit.

"Availability of medical care for nonimmigrant residents in the United States depends on federal and state laws and regulations. Each of the U.S. states, territories, and possessions has its own system for determining availability of those services.

"Recent news coverage of the State of Hawaii's decision to restrict certain advanced healthcare services to citizens of the FAS has included misstatements about Compact obligations to provide such care.

"We urge the FAS governments to inform their citizens that, though their citizens may decide to take advantage of Compact rights to enter the United States, the availability of health services is not guaranteed and will depend on federal, state, and local law."

** Note added December 24, 2009: See addendum at end of this webpage regarding a court decision mandating continued healthcare coverage for Micronesians at the full level provided to Hawaii citizens receiving welfare benefits. The news report estimates $120 million in state funds are spent annually on health care, education and other services for the Micronesians.


The Akaka bill, S.1011 and H.R.2314, is federal legislation now pending in Congress. It includes strong language in its preambles justifying the bill as a step toward the reconciliation called for in the 1993 apology resolution, which was also federal legislation. The apology resolution says the U.S. is to blame for the fact that the Hawaiian monarchy was overthrown in 1893, and that the U.S. should begin a process of reconciliation to make things right with Native Hawaiians. But the Akaka bill places nearly all the burden of restitution on the people of Hawaii, not the government of the United States. It is the lands of Hawaii which are to be taken away from the multiracial population of Hawaii to be given to the racially exclusionary Akaka tribe. Thus, in passing the Akaka bill, the federal government would lay a huge unfunded mandate on the state and the people of Hawaii. Why should Hawaii be forced to pay for alleged wrongs committed against Hawaii by the U.S. government?

Here is some of the relevant language from the apology resolution and the Akaka bill, clearly giving the blame to the U.S. and placing the burden on Hawaii to pay restitution.

Apology resolution:

"Congress ... apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination; expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people ..."

Akaka bill portion citing the apology resolution as justification and laying the blame on the U.S.:

Sec 2, Findings:
"(12) on November 23, 1993, Public Law 103-150 (107 Stat. 1510) (commonly known as the `Apology Resolution') was enacted into law, extending an apology on behalf of the United States to the native people of Hawaii for the United States role in the overthrow of the Kingdom of Hawaii;
(13) the Apology Resolution acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum;
(14) the Apology Resolution expresses the commitment of Congress and the President--
(A) to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii;
(B) to support reconciliation efforts between the United States and Native Hawaiians; and
(C) to consult with Native Hawaiians on the reconciliation process as called for in the Apology Resolution"

Akaka bill portion placing the burden on Hawaii to pay restitution:

Sec 8(b)(1):
"... the United States and the State of Hawaii may enter into negotiations with the Native Hawaiian governing entity designed to lead to an agreement addressing such matters as--
(A) the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources;
(B) the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use;
(C) the exercise of civil and criminal jurisdiction;
(D) the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii;
(E) any residual responsibilities of the United States and the State of Hawaii; and
(F) grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii."

Certainly there would be some federal lands which the Akaka tribe would demand, so some of the burden would fall on the federal government. For example, national parks might be turned over to the Akaka tribe: Pu'ukohola Heiau; Pu'uhonua O Honaunau (place of refuge); Volcano National Park (home of the goddess Pele); and the 1200-mile-long Papahanumokuakea (Northwest Hawaiian Islands National Monument). Military bases might be turned over to the Akaka tribe when they are no longer needed.

But most of the lands and resources demanded by the Akaka tribe would come from approximately 1.4 million acres of the "ceded lands" which comprise about 95% of all the public lands of the State of Hawaii; plus streams, underground water, lakes, airports, harbors, reefs, fishing grounds, etc.

The federal government's attitude in imposing the unfunded mandates in the cases of both the Micronesian kidney dialysis and the Akaka bill is: "We did the crime; now you, Hawaii, do the time."


** Addendum December 24, 2009
Pacific Business news, Thursday, December 24, 2009

Judge says new Hawaii health plan illegal

A 1st Circuit Court judge in Honolulu ruled this week that the Hawaii Department of Human Services illegally cut immigrants’ access to state-funded medical benefits by trying to launch a new basic health plan for low-income noncitizens.

As a result of Judge Gary Chang’s ruling this week, the state now has to adopt rules governing implementation of the new plan — a lengthy process that will require public comment and hearings.

The first public hearing is scheduled for Jan. 25.

The plan, called Basic Health Hawaii, was an attempt by the state to transfer immigrants from Pacific Island nations, who live legally in Hawaii but aren’t eligible for federal medical assistance programs, to a less-costly, less-comprehensive health insurance program.

Basic Health Hawaii was supposed to launch this past September but was delayed by a federal court-issued temporary restraining order following legal challenges by immigrant and patient advocates.

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 in an attempt to save $15 million annually.

But patient advocates, represented by the Honolulu law firm Alston Hunt Floyd and Ing and Lawyers for Equal Justice, sued the state, arguing that it was shortchanging the immigrants and denying them access to quality medical care, including kidney dialysis and chemotherapy.

Department of Human Services Director Lillian Koller has said the state has since expanded the coverage to include 12 outpatient doctor visits, 10 hospital days, six mental health visits, three procedures, emergency medical and dental care, and four medications monthly — chemotherapy drugs included.

Immigrants from the Federated States of Micronesia, the Republic of the Marshall Islands and the Republic of Palau are parties to Compacts of Free Association with the U.S. government. Under the compacts, residents of the Pacific island nations are allowed to travel freely and reside, work and attend school in the United States without time limits.

Koller estimates that more than $120 million in state funds are spent annually on health care, education and other services for the immigrants, but the federal government provides the state with just $11 million to defray the costs.


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