Bush Administration Actions and Statements on Akaka Bill, 2001-2008 (Native Hawaiian Recognition Bill, or Hawaiian Government Reorganization Bill)


** THE MOST IMPORTANT INTERVENTION BY THE BUSH ADMINISTRATION OCCURRED ON JUNE 7, 2006. A LETTER WAS SENT BY ASSISTANT ATTORNEY GENERAL WILLIAM MOSCHELLA TO SENATE MAJORITY LEADER BILL FRIST. FOLLOWING THREE HOURS OF FLOOR DEBATE ON A CLOTURE MOTION TO BRING THE AKAKA BILL TO THE FLOOR, AND IN THE EVENING HOURS JUST BEFORE ADJOURNMENT UNTIL THE NEXT DAY, ALABAMA SENATOR JEFF SESSIONS READ THIS LETTER INTO THE RECORD. THE FIRST SENTENCE OF THE LETTER SAID: "The Administration strongly opposes passage of S.147."

THE FOLLOWING DAY THERE WAS ADDITIONAL DEBATE ON THE CLOTURE MOTION, AND THEN CLOTURE WAS DEFEATED. MOST POLITICAL COMMENTATORS CREDIT THIS LETTER FOR PERSUADING SEVERAL REPUBLICAN SENATORS TO VOTE AGAINST CLOTURE WHO MIGHT OTHERWISE HAVE VOTED FOR IT. WHY DID THE BUSH ADMINISTRATION WAIT FOR FIVE AND A HALF YEARS BEFORE MAKING SUCH A CLEAR-CUT STATEMENT IN OPPOSITION TO THE AKAKA BILL? WHY DID THE SECRETARY OF INTERIOR ON EARLIER OCCASIONS GIVE ENCOURAGING SIGNALS TO HAWAI'I GOVERNOR LINGLE, AND WHY DID THE DEPARTMENT OF JUSTICE ENGAGE IN NEGOTIATIONS GIVING THE IMPRESSION THAT THE BASIC PRINCIPLE OF THE AKAKA BILL MIGHT BE ACCEPTABLE IF TECHNICAL LANGUAGE COULD BE AGREED UPON? NOBODY KNOWS. SUCH AMBIVALENCE AND DELAYS CAUSED A WASTE OF MILLIONS OF DOLLARS AND THOUSANDS OF HOURS OF TIME ON BOTH SIDES.

ANOTHER IMPORTANT INTERVENTION BY THE BUSH ADMINISTRATION HAPPENED ON OCTOBER 22, 2007 WHEN PRESIDENT BUSH ISSUED A FORMAL STATEMENT OF THREE PARAGRAPHS ON OFFICIAL STATIONERY STRONGLY OPPOSING THE AKAKA BILL AND THREATENING TO VETO IT IF IT REACHES HIS DESK. THE LETTER WAS SENT TO THE HOUSE RULES COMMITTEE AT A TIME WHEN IT WAS CONSIDERING PLACING THE BILL ON THE SUSPENSION CALENDAR OF NON-CONTROVERSIAL BILLS. NEVERTHELESS, TWO DAYS LATER THE HOUSE PASSED THE BILL FOLLOWING THREE HOURS OF FLOOR DEBATE.

NOTE: A major event happened on July 13, 2005 when the Bush administration Department of Justice notified the Senate Indian Affairs committee that DOJ has major objections to the Akaka bill. Also, on October 1 2005 it was reported that the White House objected to a portion of a Pentagon spending bill because it treats "Native Hawaiians" like the Indian tribes in preferential awarding of contracts. See addendum at end of this webpage. On October 28, 2005 it was reported that Supreme Court nominee Harriet Miers (nomination withdrawn) had given advice to President Bush regarding whether the Akaka bill is constitutional under the 5th Amendment Due Process Clause, as revealed in documents she filed with the Senate Judiciary Committee considering her nomination.

** FOLLOWING IS A CHRONOLOGY OF BUSH ADMINISTRATION SIGNALS AND STATEMENTS ON THE AKAKA BILL **

There were three occasions during the years 2001-2002 when the administration of President George W. Bush publicly took action or made statements regarding the Native Hawaiian recognition bill, S.746/H.R.617. On all these occasions it was the Department of Interior which seemed wobbly on the issues. The DOI actions can be interpreted in various ways, but have already been interpreted by supporters of the bill as a green light to move forward. This webpage provides (1) full text of the DOI markup of S.746 released December 6, 2001; and (2) a newspaper report of public statements made by Interior Secretary Gail Norton on September 10, 2002; and (3) a newspaper report on October 29, 2002 in which close Bush advisor Karen Hughes says that Interior Secretary Gail Norton was already corresponding with Republican candidate for governor Linda Lingle about the Native Hawaiian Recognition bill, even before Lingle won the election. Published editorials and letters to editor are also provided, showing that the DOI actions are being interpreted as favorable to the bill.

In 2003 there was a sudden revelation that the Bush administration, through its Department of Justice, has warned two different Senate committees that pending legislation to provide benefits to Native Hawaiians might be unconstitutional racial discrimination because the Supreme Court in Rice v. Cayetano identified Native Hawaiians as a racial group and not a federally recognized Indian tribe. This sudden revelation provoked a storm of propaganda and lobbying by the Office of Hawaiian affairs and other race-based groups, urging that the Akaka bill must be passed quickly to avoid loss of hundreds of millions of dollars in current race-based programs. On June 4, 5, and 6, 2003 three different daily newspapers in Hawai'i published four articles on various recent policy statements of the Bush administration regarding the probable unconstitutionality of several race-based Hawaiian programs. The newspaper articles are provided, and give details about the Hawaiian programs and the administration statements about them. A brief timeline is provided to show the sequence of events linking Bush administration challenges, legislation in Congress, lobbying, local propaganda in Hawai'i, and a court challenge to OHA. An attempt is made to reconstruct the language of the letter, from the federal Department of Justice to Senator Snowe about pending legislation, that provided the excuse for massive lobbying activity:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBushThreatenHawnProgs2003.html

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ON OCTOBER 23, 2003 PRESIDENT BUSH SPENT MOST OF A DAY IN HONOLULU on a stopover returning from Asia to Washington D.C. There were many newspaper articles published during the days before and after his visit, and coverage of Governor Lingle's intensive efforts to lobby President Bush to support the Akaka bill. But apparently, Lingle's efforts fell on deaf ears. A lengthy webpage includes all published materials related to President Bush's visit of October 23, 2003, including a full-page newspaper advertisement asking President Bush to "just say no." See:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaAskBushOppose102303.html

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In January 2004 the Honolulu Advertiser reported that Secretary of the Interior Gail Norton was in Honolulu and was discussing (negotiating?) the Akaka bill with Governor Lingle and others. Once again, it is troubling and distressing to think that the Bush administration might be willing to accept the basic concept of a race-based apartheid government, and might be actually negotiating the details of how to make that happen. Let's hope that's not true. That article is copied in its entirety near the bottom of this webpage, and is also available fron the Advertiser website at:
http://the.honoluluadvertiser.com/article/2004/Jan/12/ln/ln12a.html

On Sunday February 22, 2004 the Hilo Hawaii Tribune published an article describing the status of Akaka bill negotiations among the Department of Justice, Department of Interior, Hawai'i Senators Inouye and Akaka, and Governor Lingle. The article suggests that Both DOI and DOJ might be coming to understand that the whole concept of this bill is both bad public policy and also unconstitutional. That article is copied in its entirety near the bottom of this webpage, and is also available fron the Hawaii Tribune website at:
http://www.hilohawaiitribune.com/daily/2004/Feb-22-Sun-2004/news/news1.html

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The Native Hawaiian Recognition bill would provide federal recognition to a phony Indian tribe invented for the sole purpose of defending racial entitlement programs against legal challenges under the 14th Amendment. On a scale of (il)legally enforced racial discrimination ranging from 1 to 10, affirmative action might get a 3, racial entitlement programs of the kind currently operating in Hawai'i might get a 6, and political recognition of a racially exclusionary sovereign "nation" goes all the way to 10. Legitimate Indian tribes have a measure of political sovereignty because they existed as tribes prior to the creation of the United States; and because their members live separate and apart from the surrounding population; and because they have a tribal government that has exercised substantial authority over them from historical times to the present. But if a fully integrated and assimilated racial minority can separate itself out and get recognition as a government, it will set a precedent for further balkanization of the United States and for entrenchment of affirmative action and racial entitlement programs.

When DOI marked up the language of S.746 and sent the markup to Senators Inouye and Akaka, it gave the impression that DOI might be accepting the basic concept of Hawaiian apartheid and was negotiating over the details of how to arrange it. When Secretary Norton said that the biggest impediment to passing the bill is the failure of ethnic Hawaiians to agree on what they want, she seemed to imply that if Hawaiians could agree among themselves on language for the bill she might recommend in favor of President Bush signing it. The DOI actions might merely indicate DOI is being respectful by engaging in a dialogue with the bill's sponsors, asking questions and considering alternatives. But the possibility cannot be dismissed that well-meaning DOI personnel might ultimately recommend approval of recognition legislation that would produce racial apartheid in Hawai'i. A massive propaganda and lobbying campaign is gearing up as supporters of this bill imagine that some negotiated version of it will receive the blessing of the Bush administration. Clarification of the Bush administration position is urgently needed. Perhaps the Department of Justice, with its expertise on Constitutional issues, can help DOI and President Bush make a wise decision.

The reason for the difference between DOI and DOJ is obvious. The overall attitude, or culture, at DOI is to recognize the special rights and needs of Indians and to administer benefit programs for Indian tribes. DOI officials naturally tend to view ambiguous cases through a lens that assumes that a group seeking help is probably legitimate and probably should be given at least some of what they want. DOI constantly deals with Indian tribes, and sees things from that perspective. DOI looks at the Native Hawaiian Recognition bill and sees allegedly poor, downtrodden "Native Hawaiians" seeking to be treated like other "indigenous" people; so DOI wants to help. The Office of Hawaiian Affairs pleads that "Native Hawaiians" are just like the other "indigenous" peoples of America, and should be treated the same way; and DOI officials in a spirit of compassion might want to help.

But "Native Hawaiians" are nothing like an Indian tribe. Even the supporters of the Native Hawaiian Recognition bill acknowledge that ethnic Hawaiians could not possibly meet the seven criteria used by the BIA for tribal recognition. Ethnic Hawaiians were never organized like an Indian tribe, and during the last 53 years of the Hawaiian Kingdom the monarchs exercised self-determination for their Native Hawaiian people by making full partners out of white newcomers from Europe and America. Substantial numbers of whites were elected and appointed members of the legislature, and nearly all the cabinet officers (the "chiefs" of the alleged tribe) were white. Today's ethnic Hawaiians live, work, and pray side by side with all other citizens of Hawai'i; there are high rates of intermarriage; and the only "tribal" entity that has exercised substantial authority over ethnic Hawaiians since 1840 has been the multiracial governments of the Kingdom, Republic, Territory, and State of Hawai'i.

The real issue with the Native Hawaiian Recognition bill is whether a fully integrated and assimilated racial minority alleged to be "indigenous" should be allowed to separate itself from the general population and form a race-based autonomous government entity. Placing this issue into the hands of the Department of Interior alone, or the Senate Indian Affairs Committee, or the House Resources Committee, already tends to pre-judge the issue.

But the Department of Justice has a broader perspective that focuses on the Constitution and the laws. DOJ can be expected to take a skeptical view of a racial group trying to defend unconstitutional racial entitlement programs by seeking recognition as a (phony) Indian tribe. DOJ can be expected to understand the importance of preserving the unity of the United States, and the dangers of racial balkanization. DOJ can be expected to defend the principle of equality under the law. Solicitor General Theodore Olson was the attorney who represented Mr. Rice before the Supreme Court in the Rice v. Cayetano case, so he is thoroughly familiar with the reasons why the Native Hawaiian Recognition bill is reprehensible and probably unconstitutional. Furthermore, Tom Sansonetti, who is currently an Assistant Attorney General, issued a formal Opinion on January 19, 1993, when he was Solicitor of the Department of Interior, clearly stating that there is no U.S. trust relationship with Native Hawaiians (Memorandum number M-36978).

During the Clinton administration a politicized DOJ and DOI both strongly supported race-based entitlements for ethnic Hawaiians, in the context of an administration which strongly supported "affirmative action" nationwide and which opposed the Supreme Court ruling in Adarand Constructors v. Pena. Solicitor General Seth Waxman filed an amicus brief opposing Mr. Rice in the Rice v. Cayetano case (the Supreme Court ruled 7-2 against Waxman's views). Representatives from DOI and DOJ appeared jointly at the "reconciliation" hearings in Hawai'i, urging the adoption of legislation such as the Native Hawaiian Recognition bill as a way of circumventing the Supreme Court decision. But "affirmative action" and racial quotas are increasingly being relegated to the dustbin of history. Racial entitlement programs are now being seen as anathema to our nation's fundamental principle of equal rights under the law. If DOJ looks at the Native Hawaiian Recognition bill from the perspective of the U.S. Constitution and the Supreme Court Decision in Rice v. Cayetano, the Bush administration will strongly oppose this legislation.

The difference in culture and viewpoint between DOI and DOJ is mirrored in the way Congress has handled the Native Hawaiian Recognition bill. This bill was introduced in both the 106th and 107th Congresses, and in both the House and Senate it was immediately referred to the committees which handle Indian issues -- the House Resources Committee and the Senate Indian Affairs Commnittee. Not surprisingly, the bill passed both committees unanimously. There was no serious examination of the issues during the 107th Congress; and in the 106th Congress there was a so-called joint committee hearing in Honolulu where the only members of Congress present were Hawai'i's two Senators, Hawai'i's two Representatives, and the delegate from American Samoa. But when the bill came to the attention of the House Judiciary Committee, Chairman Sensenbrenner sent a blistering letter to the Speaker of the House demanding the bill be killed because it is unconstitutional (see below for details). Likewise, Senators with a broader perspective outside the Indian Affairs Committee strongly resisted the legislation.

This webpage focuses on the circumstances surrounding the three occasions when the Department of Interior under President Bush has taken action or made public statements about the Native Hawaiian Recognition bill. It can be hoped that the Department of Justice will play a more active role in the future, and that officials at DOI will come to understand that trying to apply the model of an Indian tribe to "Native Hawaiians" is like trying to force a square peg into a round hole.

(1) The Department of Interior on December 6, 2001, apparently following the failure of negotiations with the Hawai'i delegation, released a memorandum consisting of proposed changes in the language of the Native Hawaiian Recognition bill; and (2) On September 10, 2002 Secretary of Interior, Gail Norton, made a public statement reported in the newspapers which some commentators interpret to indicate that a sympathetic Bush administration says the main reason why the Native Hawaiian Recognition bill was stalled is not because of administrative opposition but (merely) because the Native Hawaiians cannot agree among themselves on what they want; and (3) a newspaper report on October 29, 2002 in which close Bush advisor Karen Hughes says that Interior Secretary Gail Norton was already corresponding with Republican candidate for governor Linda Lingle about the Native Hawaiian Recognition bill, even before Lingle won the election.

These three Bush administration actions/statements are somewhat ambiguous, but can be interpreted in a way that causes grave concern. Opponents of race-based political sovereignty, including the author of this website, are concerned that members of the Department of Interior seem to be accepting a fundamentally unacceptable concept and negotiating over mere details of its implementation. Native Hawaiian ethnic nationalists who seek a nation of Hawai'i independent from the United States are also deeply concerned, because they see Native Hawaiians getting turned into a domestic dependent Indian tribe under the plenary power of the United States, and in the process relinquishing any claim to land and independence under "international law."

Following are details of the three occasions when the Department of Interior has taken action or made public statements about the Native Hawaiian Recognition bill.


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(1)

The Department of Interior on December 6, 2001, apparently following the failure of negotiations with the Hawai'i delegation, released a memorandum consisting of proposed changes in the language of the Native Hawaiian Recognition bill. Following are some of the events leading up to the release of that memorandum, and the complete text of the memorandum itself.

Throughout 2001 there were rumors that officials of the DOI (Department of Interior) were holding meetings with staffers for Senators Inouye and Akaka, SIAC (the Senate Indian Affairs Committee), and representatives from OHA (the Office of Hawaiian Affairs of the State of Hawai'i). It appeared that negotiations were underway to produce language for a bill that President Bush would be willing to sign.

On December 6, 2001 those negotiations apparently broke down. A statement was released from the Office of Congressional and Legislative Affairs of the Department of Interior. The statement included proposed language for the Native Hawaiian Recognition bill. Language from S.746 was revised, by drawing lines through phrases to be deleted and providing new language written in italics. This amazing document is not available in html, but can be downloaded in pdf format by clicking on this link:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaDOI120601.pdf

The most disturbing aspect of this DOI proposal is that it exists at all. There is no historical, legal, or moral justification for race-based political sovereignty for ethnic Hawaiians. One would expect the federal government, particularly under a Republican administration, to defend the unity of the United States and the principle of equality under law. Instead we find members of the DOI apparently willing to carve up Hawai'i along racial lines, setting a precedent for the further balkanization of the United States. The fundamental principles of unity and equality should be non-negotiable. If the Native Hawaiian Recognition bill were ever passed by Congress, it should be vetoed. A clear indication from the President that he will veto such a bill would go a long way toward stopping its progress through Congress.

Some hope resides in the fact that the DOI proposal contains factual errors whose presence indicates that it was not carefully crafted. Perhaps it was the work of low-ranking staffers. For example, on several occasions the date 1893 is given (the date of the overthrow of the monarchy) when the subject matter is clearly referring to the annexation (which took place in 1898).

Some hope also resides in the fact that this DOI proposal does not include any approval from DOJ (Department of Justice). Solicitor General Theodore Olson was the attorney who represented Mr. Rice before the Supreme Court in the Rice v. Cayetano case, so he is thoroughly familiar with the reasons why the Native Hawaiian Recognition bill is reprehensible and probably unconstitutional. Furthermore, Tom Sansonetti, who is currently an Assistant Attorney General, issued a formal Opinion on January 19, 1993, when he was Solicitor of the Department of Interior, clearly stating that there is no U.S. trust relationship with Native Hawaiians. Perhaps DOJ will pay attention to the Chairman of the House Judiciary Committee, James Sensenbrenner, who wrote a letter to Speaker of the House Dennis Hastert asking him to kill the bill because it is unconstitutional.
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSensenbrenner071901.html

Additional hope resides in the fact that almost all the deletions and additions proposed by DOI were rejected by the Hawai'i Congressional delegation and by SIAC. Native Hawaiian activists loudly protested against the DOI proposal, and Senators Inouye and Akaka were rumored to be quite upset with it.

The collapse of negotiations a few days before December 6 produced a very loud explosion on December 6 and 7, 2001. Here are some individual pieces of a jigsaw puzzle. The pieces will be put together in a paragraph at the end of this section.

DOI released its statement on December 6. http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaDOI120601.pdf

On that same day, December 6, 2001, an important memo was sent from the chairman of the U.S. Senate Republican Policy Committee to all Republican Senators, and to the Democrat leadership. The memo was written by committee counsel Mr. Lincoln Oliphant at the request of the chairman, Senator Larry Craig. This memo makes clear why the Native Hawaiian Recognition bill would be bad public policy and is unconstitutional. The memo also severely criticizes the stealth tactics used by Senator Inouye two years in a row. The full text of this important memo can be seen at http://www.angelfire.com/hi2/hawaiiansovereignty/oliphantcraig120601.html

Senator Inouye's colleagues expected him to try to pursue the same sort of stealth strategy he had used the previous year. For details of that strategy, which was finally defeated on the last day of the 106th Congress on December 15, 2000, see the following three webpages:
September 27-December 13 2000
http://www.angelfire.com/hi2/hawaiiansovereignty/Senate0927To1213.html
December 13-15 2000
http://www.angelfire.com/hi2/hawaiiansovereignty/Senate1213To1215.html
December 15, 2000 final cliffhanger
http://www.angelfire.com/hi2/hawaiiansovereignty/Senate1213To1215.html

On December 7, 2001, having been warned by the Oliphant/Craig memo, Republican Senators discovered the Native Hawaiian Recognition bill deep inside a massive must-pass military appropriations bill, hidden in the form of a single sentence. The Senate ground to a halt while the offending sentence was surgically removed. Here is that sentence, buried in section 8,132 of the huge Defense Appropriations bill HR.3338:

"SEC. 8132. The provisions of S. 746 of the 107th Congress, as reported to the Senate on September 21, 2001, are hereby enacted into law."

For further details of the stealth strategy of December 2001, see http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaStealth2001.html

Immediately following this procedural defeat of S.746, Senators Inouye and Akaka introduced S.1783 which is a new version of the Native Hawaiian Recognition bill. S.1783 has major differences from S.746, and clearly incorporates some of the concepts contained in the DOI memo released December 6. The new S.1783 was obviously written long before it was formally introduced in the Senate on December 7, and was probably written as a Hawai'i delegation response to DOI demands contained in the DOI memo released on December 6. S.1783 also contains provisions which would make it easier for wealthy Native Hawaiians to enrich themselves through nepotism and sole-source contracting. Senators Inouye and Akaka immediately made public statements that S.1783 is only a trial balloon, and the "real" bill remains S.746. But it is difficult to know for sure. For details about S.1783 see
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaS1783.html
and for information about big-business and nepotism folded into S.1783 see
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaNepotismCorruption.html

In hindsight, it now appears that confidential negotiations between DOI and the Hawai'i delegation reached an impasse, with both sides then "going public." The Republican Senators strongly opposed to any racial balkanization issued the Oliphant/Craig memo, the DOI published its memo, the Hawai'i delegation made a last-ditch effort to pass S.746 by hiding it in the Defense Appropriations bill, the Republican Senators exposed the deception and forced the removal of the offending sentence, and the Hawai'i delegation then formally (but unhappily) introduced the new version of the bill, S.1783, incorporating a few elements of the DOI proposal.


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(2)

On September 10, 2002 Secretary of Interior, Gail Norton, made a public statement reported in the newspapers on September 11.

Here is the text of an article from the Honolulu Advertiser of September 11, 2002 reporting Secretary Norton's public statement:
http://the.honoluluadvertiser.com/article/2002/Sep/11/ln/ln05a.html

TITLE: Hawaiians advised to 'define' their goals

By Derrick DePledge
Advertiser Washington Bureau

WASHINGTON — Hawaiians need to better define the type of government they envision before being officially recognized by the United States, Interior Secretary Gale Norton said yesterday.

Hawaiians have sought federal recognition as an indigenous people — similar to American Indians — and the right to form a government that would oversee land and other resources. Federal legislation granting recognition has been stalled in Congress over concerns by Republicans that it would create racial preferences for Hawaiians.

The legislation also would establish an Office for Native Hawaiian Relations within the Interior Department. The Bush administration has not taken a position on the legislation but is concerned about its racial and political implications.

Norton, in a morning talk with reporters, said all sides should give more thought to what federal recognition would mean for Hawaiians and Hawai'i.

"I'm not sure they've really defined yet what their expectations are," she said. "I would urge people in Hawai'i to really define what they think the relationship should be in terms of jurisdiction for law enforcement, for land planning, for social services, whether this is to be a separate government from the (Hawai'i) government. If so, what are its geographic boundaries?"

The House approved a bill two years ago that would federally recognize Native Hawaiians, but the measure failed to clear the Senate. Hawai'i lawmakers proposed the bill again this session. Some are frustrated it has taken Congress so long to act on what they see as an issue of self-determination.

The legislation would empower Hawaiians to form a government, elect officers and engage in government-to-government relations with the United States. A Hawaiian government could negotiate with the Interior Department and the state over potential transfers of land or other assets.

Congress set 1.8 million acres of land in trust when Hawai'i became a state in 1959. Another 200,000 acres are intended for Hawaiian homesteads and farms.

Sen. Daniel Akaka, D-Hawai'i, and other bill sponsors wanted to let Hawaiians decide the details of how a new government would operate. He said those details should not be a pre-condition of the Bush administration's support.

Two recent developments have pushed the issue of sovereignty.

The Supreme Court ruled in 2000 that trustee elections for the state Office of Hawaiian Affairs must be open to all residents of Hawai'i, not just Hawaiians. And the Kamehameha Schools this year admitted a non-Hawaiian student.

Haunani Apoliona, OHA chairwoman, agreed with Norton that Hawaiians should define their government. She said the legislation would set in motion a process to achieve the beginnings of self-governance, not the final result. "I don't think it's up to the Department of Interior to fit us into a box," she said.

Ray Soon, chairman of the Hawaiian Homes Commission, said he was encouraged by Norton's comments. The secretary, he said, could have questioned the philosophy behind federal recognition or opposed the idea outright.

"What I appreciate is she's not closing the door," he said. "She's saying get on with it."


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(3)

Linda Lingle has consistently, over a long period of time, vigorously proclaimed her support for Hawaiian racial entitlement programs and for the Native Hawaiian Recognition bill. She repeatedly stated that as a Republican governor she will have access to those Republican Senators and Representatives who have blocked the bill in Congress, and to the Republican administration of President Bush. She has pledged that if elected she would go personally to Washington to lobby in support of the bill. And now, she has been elected. Toward the end of the campaign, Lingle invited Karen Hughes (close advisor to President Bush) to come to Hawai'i to help campaign. While in Hawai'i Hughes publicly stated that Lingle has already been lobbying her and the Bush administration to support the bill. Hughes stated that Lingle and Interior Secretary Gail Norton have already corresponded about the bill.

Here are excerpts from an article published in the Honolulu Star-Bulletin on October 29, 2002:
http://starbulletin.com/2002/10/29/news/story8.html

"Karen Hughes, described as the most powerful woman ever to serve as a White House adviser, spent yesterday in Honolulu, promoting Republican Linda Lingle and raising funds for the GOP campaign. Hughes supported Lingle's candidacy, including the former GOP Maui mayor's ability to move forward native Hawaiian recognition legislation in Congress. She said native Hawaiians would have better representation in Washington with a governor of the same political party as the president.

'I think Linda Lingle is a very articulate spokesman who will be very effective in raising attention to native Hawaiian issues. I know that Secretary of Interior Gail Norton has written Linda and indicated she is more than willing to discuss these issues with her.'

Republicans like Duke Aiona, GOP lieutenant gubernatorial candidate [and himself an ethnic Hawaiian], said this is a time for all Hawaiians to unite. 'It is important to note the Akaka bill does not enjoy unanimous support from the native Hawaiian community,' Aiona said. 'However, if indeed it is a Republican president, or senators or representatives who are blocking the Akaka bill, do you really think that Mazie Hirono and Matt Matsunaga are the people to convince them to change their position?'"


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It would be comforting to hope that Secretary Norton's public statement (item #2 above) has given an ultimatum consisting of a list of conditions that it would be impossible for Senators Akaka and Inouye to achieve, and that she did that deliberately to sink the bill. It would be comforting to think that Secretary Norton issued her statement as a political ploy to throw sand in the eyes of the sovereignty activists to confuse them and turn them against each other. It would be comforting to think that Secretary Norton's statement was designed to scare the politicians in Hawai'i by making them realize just how complex and awful it would be to actually implement an Akakakanaka tribe. Those things would be comforting, but probably false.

Some commentators interpret Secretary Norton's statement to indicate that a sympathetic Bush administration says the main reason why the Native Hawaiian Recognition bill was stalled is not because of administrative opposition but (merely) because the Native Hawaiians cannot agree among themselves on what they want. Some supporters of the bill see this statement as a green light from the Bush administration -- if you get your act together and produce a bill which your own people overwhelmingly support, the President will sign it.


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On September 12, 2002, day after reporting Secretary Norton's comments, the Honolulu Advertiser published an editorial interpreting Secretary Norton's statement as a green light for a Native Hawaiian Recognition bill. However, the editorial paradoxically gives important reasons why such a bill should not be passed; and a Native Hawaiian opposed to the bill pointed that out in a subsequent letter to editor.
http://the.honoluluadvertiser.com/article/2002/Sep/12/op/op01a.html

EDITORIAL title: Hawaiian government easier said than done

U.S. Interior Secretary Gale Norton wants a clearer definition of the type of government Hawaiians envision before the federal government recognizes an indigenous Hawaiian people's nation.

"I would urge people in Hawai'i to really define what they think the relationship should be in terms of jurisdiction for law enforcement, for land planning, for social services, whether this is to be a separate government from the (Hawai'i state) government. If so, what are its geographic boundaries?" Norton said.

That sounds reasonable enough. But on closer analysis, it's a heck of a lot easier said than done.

In fact, her questions may suggest less a desire for more details than the reluctance of this particular administration to recognize Hawaiians as a nation in the first place.

First of all, Norton should consider the fact that Hawaiians are not organized as a tribe, nor is there a tribal council or other governing entity that represents a Native Hawaiian "nation." That opens the question of how they can reach consensus on a type of government, let alone demonstrate that to the federal government.

Should the state or federal government sponsor a referendum for Hawaiian voters asking what form of government they support? And if not, then how should Hawaiians proceed with this daunting task?

Earlier versions of the Akaka Bill, which provides a mechanism for Native Hawaiians to achieve federal recognition, spelled out one process under which Hawaiians could eventually form a government. Although that language was removed from the draft legislation, federal recognition nonetheless requires an indigenous group to form a governing entity and decide on a model of government.

Otherwise, with whom will the United States negotiate?

The Office of Hawaiian Affairs and the Department of Hawaiian Home Lands are state, not sovereign, entities. And self-proclaimed nations, such as Ka Lahui Hawai'i, certainly don't yet have the support of the majority of Hawaiians.

So how do hundreds of thousands of people of Hawaiian ancestry get together and reach a consensus on leadership and model of government?

And consider the results of past attempts: In 1996, the state appointed a Hawaiian Sovereignty Elections Council that launched the 1996 Native Hawaiian Vote, in which voters were asked if they favored a plan to elect delegates to a Native Hawaiian convention.

About 70 percent of Hawaiians either voted against the referendum or didn't vote at all. Critics charged that the process was too closely tied to the state. Nonetheless, a nonprofit organization, Ha Hawai'i, held the referendum in 1999. This time, only 9 percent of eligible Hawaiian voters participated. Again, the criticism was that the referendum was too closely linked to the state.

The delegates met, but their lack of broad support in the Hawaiian community didn't help.

Today, there's no clear indication of whether Hawaiians have come to a consensus on what model of government they favor — independence, a nation-to-nation relationship with the United States or some other model.

And there are undoubtedly many Hawaiians who favor maintaining the status quo, but would like to see a fair settlement from the state for its use of ceded lands.

It would be a breakthrough if Hawaiians could clear the high hurdle Norton placed in front of federal recognition. We'd like that goal met, but we're not holding our breath.


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The following letter to editor from a Native Hawaiian opposed to the recognition bill shows why the Advertiser editorial is actually an indictment of the bill!
http://the.honoluluadvertiser.com/article/2002/Sep/17/op/op02aletters.html

Posted on: Tuesday, September 17, 2002
Letters to the Editor

Title: Hawaiian government was never exclusive

Congratulations! Your Sept. 12 editorial "Hawaiian government easier said than done" pinpoints precisely the reason the Akaka Bill and any other "recognition" bill will not and cannot succeed. You said, "Hawaiians are not organized as a tribe, nor is there a tribal council or other governing entity that represents a Native Hawaiian 'nation.' "

Congress can only recognize Indian tribes that exist now and have existed continuously from historic times to the present. It cannot create tribes out of thin air.

Long before annexation, the people of Hawai'i adopted a Western form of government that was of the people, by the people and for the people without regard to ancestry. Since 1810, when Kamehameha the Great unified the Islands and established the Kingdom of Hawai'i, there has never been a government exclusively of, by and for Hawaiians. The "nation" the Akaka Bill proposes to "recognize" has never existed.

I'm ashamed of our politicians who pander to Hawaiian separatists. Dividing our state into racial enclaves wouldn't help me or my Hawaiian cousins or my Chinese cousins or my Filipino cousins or my Irish-English husband. A state divided against itself cannot stand.

The best hope for all of us is to thank our lucky stars we live in Hawai'i with the freedom, security, equal opportunity and aloha for all that comes with being citizens of the United States. E pluribus unum. In one there are many. [Note: the newspaper editor rewrote incorrectly what the letter's author had originally written correctly: E pluribus unum. Out of diversity comes unity.]

Sandra Puanani Burgess


-------------------------------------

On October 14, 2002 the Honolulu Advertiser reported that the Office of Hawaiian Affairs has decided to launch a major campaign for "nationhood" for ethnic Hawaiians. Clearly, OHA interprets Secretary Norton's comments as a green light.
http://the.honoluluadvertiser.com/article/2002/Oct/14/ln/ln30a.html

Title: OHA plans sovereignty campaign

By Vicki Viotti
Advertiser Staff Writer

The Office of Hawaiian Affairs is gearing up to start planning its first initiative since assuming "the lead role" in the drive for sovereignty: a campaign to educate Native Hawaiians about their nationhood options.

Clyde Namuo, OHA administrator, said the office has been concentrating on its push to restore state payments owed to Hawaiians for the use of ceded lands, but he said he hopes community discussions about sovereignty will begin by the end of the year.

The OHA board of trustees attempted to jump-start the sovereignty process last week when they officially claimed a "lead role in guiding self-determination, federal recognition and nationhood for Hawaiians."

That claim drew criticism from some sovereignty advocates who said the push should arise from the grass-roots level, not a state agency.

The measure approved unanimously Thursday by the board of trustees was an endorsement of the OHA administration's strategic plan to carry out an education campaign on issues of self-determination, federal recognition and nationhood for Hawaiians.

Trustees adopted the strategic plan in April, but the endorsement was intended to send a signal to the Bush administration that Hawaiians will decide on the form of nationhood they seek, Namuo said. That signal was designed as an answer to Interior Secretary Gale Norton, who last month said the federal government wants such a decision before it will recognize a sovereign Hawaiian nation.

The OHA strategic plan includes a series of forums on Hawaiian rights, entitlements and self-determination and with lobbying efforts at both the federal and state levels.

The trustees' endorsement, which acknowledges the need for assistance by Hawaiian civic clubs and other Native Hawaiian organizations, was not echoed by sovereignty advocates H.K. Bruss Keppeler and Lela Hubbard, who questioned the wisdom of casting a state agency in a lead role.

Keppeler, who represented the Association of Hawaiian Civic Clubs at the meeting, said some interpretations of federal law suggest a sovereignty move must come from an established tribal leadership or, if that is lacking, from the grass roots.

"Nation building should be a people process," he said. Then he suggested the proper OHA role should be as financial backer.

"If 'lead role' means in Hawaiian 'kala' (money), we have no problem," Keppeler said.

Hubbard, speaking for the group Na Koa Ikaika, said some of the grass-roots discussion will take place next month at a convention of the Hawaiian civic clubs in Las Vegas.

"OHA needs to build a community of Hawaiians, rather than being 'the lead,'" Hubbard said.


======================

On the same day it published the above article (October 14, 2002), the Honolulu Advertiser also published the following editorial:
http://the.honoluluadvertiser.com/article/2002/Oct/14/op/op02a.html

EDITORIAL title: Let OHA take a stab at Hawaiian nation

The Hawaiian sovereignty movement could pose a formidable force in the Islands. But fragmentation over the last decade has weakened it to the point that there's little or no leadership or direction.

Typically, those who try to formulate a plan for self-determination are mistrusted and discredited. The result is that nothing changes.

In light of that predicament, we commend the state Office of Hawaiian Affairs for attempting to take the lead in nation building. We believe the agency is independent enough to facilitate such an effort without pushing itself as the Hawaiian government.

OHA Chairwoman Haunani Apoliona insists OHA's role would be to assist the Native Hawaiian effort to determine a process to define a native governing entity. This isn't coming out of nowhere.

You might recall that last month, U.S. Interior Secretary Gale Norton said she needed a clearer definition of the type of government Hawaiians envision before the federal government recognizes an indigenous Hawaiian nation.

The bottom line is, somebody has to launch this effort, and OHA has the financial and administrative means to move ahead. Sure, the effort could dissolve in suspicion and accusations, but at least it would have given it its best shot.

For our part, we'd be interested in a poll of all OHA-registered voters to see what kind of model of self-determination Hawaiians want. Such a referendum would give all of us in Hawai'i an indication of which way Hawaiians are leaning. It's time to put an end to the mistrust, fear and inertia that have been built up around self-determination. A truly democratic process, facilitated by OHA, could bring some answers and get the movement on track.


-------------------------------

The following letter to editor opposes the editorial:
http://the.honoluluadvertiser.com/article/2002/Oct/15/op/op03aletters.html

Title: Demands by OHA must be rejected

Your Oct. 14 editorial "Let OHA take a stab at Hawaiian nation" says OHA can give Hawaiian racial nationhood "its best shot." Stabbing and shooting are good names for what you're suggesting.

When OHA demands ceded land revenue from the Legislature in January, let's not shoot ourselves in the foot by giving money to help OHA stab us in the back. Who wants to make Hawai'i look like Bosnia, Rwanda, Zimbabwe or Fiji?

Your editorial suggests "a poll of all OHA-registered voters." Well, thanks to the Rice decision, we ended segregated voting in Hawai'i. All registered voters of Hawai'i are now OHA-registered voters. A proposal to carve up Hawai'i into racial enclaves should be rejected by all of Hawai'i's people in a show of unity, equality and patriotism.

In 2001-2002, OHA held a series of public meetings and telephone interviews asking "the community" to set priorities for an OHA strategic plan. Education was by far the top priority demanded by ethnic Hawaiians, then economic development, social services and Hawaiian culture. "Nationhood" ranked dead last. Yet now OHA unanimously adopts nationhood as its top priority, plus the Akaka Bill, ceded lands, native rights and international law.

Get real! Don't give OHA another penny. Abolish it.

Ken Conklin
Kane'ohe


-----------------------------------

On October 13 the Maui News published an editorial similar to the one in the Advertiser, praising OHA's plan to take the lead in a quest for ethnic Hawaiian "nationhood." Honolulu attorney H. William Burgess responded to both editorials. Burgess' response to the Maui News editorial was published as a letter to editor in the Maui News on October 19, 2002. That letter is copied below, since Maui News does not provide permanent URLs for letters to editor. Mr. Burgess' closely similar letter to the Honolulu Advertiser editorial was published in the Advertiser on October 23, 2002 and can be seen among the letters to editor at
http://the.honoluluadvertiser.com/article/2002/Oct/23/op/op03aletters.html

The following opposition letter to editor by attorney H. William Burgess was published in the Maui News on October 19, 2002.

Title: There can be no favored race in a democracy

The Oct. 13 editorial "OHA action appropriate" forgets that in a democracy there can be no favored race and that a state agency may not use public money and resources to "forge" a new nation whose organic law would be determined exclusively by members of one race.

The editorial seems to suggest that carving up the state and removing it in part or entirely from the reach of the U.S. Constitution is somehow justified because of "how little control Native Hawaiians have had over the use of the islands." Before Captain Cook arrived in 1778, ordinary people in Hawaii had little control over land or their own destinies. The land and people on it were the spoils of conquest. Under the kapu system, workers, women and children were harshly oppressed, subject to forced labor, dispossession and death at the whim of the alii.

By 1840, Hawaiians themselves had rejected the kapu system and adopted Western culture and forms of government in which persons of all ancestries had certain inalienable rights. As a result of those wise decisions by their ancestors, people of Hawaiian ancestry in Hawaii today have more individual sovereignty and opportunity to achieve prosperity and better lives than they ever had under the kapu system.

OHA was a bad idea, badly carried out. It should be consigned to the dustbin of history like apartheid, white supremacy, the kapu system and other governmental schemes based on racial discrimination.

H. William Burgess
Honolulu

---------------------

In 2003 there was a sudden revelation that the Bush administration, through its Department of Justice, has warned two different Senate committees that pending legislation to provide benefits to Native Hawaiians might be unconstitutional racial discrimination because the Supreme Court in Rice v. Cayetano identified Native Hawaiians as a racial group and not a federally recognized Indian tribe. This sudden revelation provoked a storm of propaganda and lobbying by the Office of Hawaiian affairs and other race-based groups, urging that the Akaka bill must be passed quickly to avoid loss of hundreds of millions of dollars in current race-based programs. On June 4, 5, and 6, 2003 three different daily newspapers in Hawai'i published four articles on various recent policy statements of the Bush administration regarding the probable unconstitutionality of several race-based Hawaiian programs. The newspaper articles are provided, and give details about the Hawaiian programs and the administration statements about them. A brief timeline is provided to show the sequence of events linking Bush administration challenges, legislation in Congress, lobbying, local propaganda in Hawai'i, and a court challenge to OHA. An attempt is made to reconstruct the language of the letter, from the federal Department of Justice to Senator Snowe about pending legislation, that provided the excuse for massive lobbying activity:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBushThreatenHawnProgs2003.html

----------------

In January 2004 the Honolulu Advertiser reported that Secretary of the Interior Gail Norton was in Honolulu and was discussing (negotiating?) the Akaka bill with Governor Lingle and others. Once again, it is troubling and distressing to think that the Bush administration might be willing to accept the basic concept of a race-based apartheid government, and might be actually negotiating the details of how to make that happen. Let's hope that's not true. Here's the article:

http://the.honoluluadvertiser.com/article/2004/Jan/12/ln/ln12a.html
The Honolulu Advertiser, Monday, January 12, 2004

Akaka bill could face revision, Norton says

By Vicki Viotti

U.S. Interior Secretary Gale Norton said yesterday that her staff is reviewing the bill that would give Hawaiians federal recognition in hopes that revisions might avert some of the legal conflicts and other "pitfalls" faced by Native American nations. Norton, taking media questions following remarks to the American Farm Bureau Federation convention in Honolulu, acknowledged that the so-called Akaka bill is the subject of discussions involving Hawai'i's congressional delegation and officials of the U.S. Interior and Justice departments. The latest form of the bill, sponsored by Sen. Daniel Akaka, D-Hawai'i, and known also by the label "S. 344," has passed through the Indian Affairs Committee but has stalled en route to a vote by the full Senate. A week ago, the delegation, in Honolulu for the holiday break, met with Gov. Linda Lingle, Attorney General Mark Bennett and trustees of the Office of Hawaiian Affairs for a status report on the bill. Akaka was not available for comment last week, but U.S. Rep. Ed Case, D-Hawai'i, said "issues are being hashed out" in the effort to get the administration on board. "The goal is to obtain concurrence on 344, to consider any proposed changes by the administration," he said. "The intention is to pass S. 344 through Congress as it was passed out of committee. It may or may not turn out to be that way." Paul Cardus, a spokesman for Akaka, said no specific amendments have been hammered out yet. Some OHA members expressed worry over what the possible changes might include. Trustee Rowena Akana said OHA, which has been lobbying for passage of the bill, should get on record via a state resolution as supporting the legislation as written. Akana said her chief concern is that the revised bill could end up restricting membership in a Hawaiian nation in some way, but Case said no such curtailment is evident. Yesterday, Norton acknowledged that the administration has had concerns about the constitutionality of the bill, but she said her department's focus has been on passing on lessons learned from experience with Native American tribes. "My concern is a practical one," she said. "We deal with our Native American tribes. What we would like to do is help Hawaiians avoid pitfalls that we have seen. "I think it's important for everyone to think through how they want the system to operate when they establish it." For example, she said, the bill needs to clarify specific relationships between the state and the Native Hawaiian governing entity. She said some tribes have run into conflict over land use when there are overlapping tribal and local regulations. Other conflicts have arisen over taxation questions and over whether crimes should be adjudicated by the native entity or the state jurisdiction. Norton, who also yesterday presided over the presentation of honors to volunteers at the Arizona Memorial, spoke to the convention about the need for endangered species legislation that promotes cooperative solutions over litigation.

-----------------------

On Sunday February 22, 2004 the Hilo Hawaii Tribune published an article describing the status of Akaka bill negotiations among the Department of Justice, Department of Interior, Hawai'i Senators Inouye and Akaka, and Governor Lingle. The article suggests that Both DOI and DOJ might be coming to understand that the whole concept of this bill is both bad public policy and also unconstitutional. Here is that article in its entirety.

http://www.hilohawaiitribune.com/daily/2004/Feb-22-Sun-2004/news/news1.html

Hawaiian bill questioned

By Samantha Young/ Stephens Washington Bureau

WASHINGTON - After almost two years of negotiations, representatives of President Bush continue to challenge efforts to grant Native Hawaiians the right to seek formal recognition from the United States government.

Interior Secretary Gale Norton said in an interview that Hawaiians need to go back to the drawing board to "clarify" their bid.

Meanwhile, Justice Department leaders continue to question whether Congress has the constitutional authority to recognize the group as an independent political entity.

Taken together, the Bush administration officials have raised questions that are frustrating Hawaii leaders and advocates for natives who say they long for progress.

Norton, who has authority to recognize native governments, said a Hawaiian recognition bill as written by Sen. Daniel Akaka, D - Hawaii could lead to more court battles over native rights. "When you look at the history of Native Americans across the United States there have been conflicts about taxation, land use, courts and criminal jurisdiction that sour relations between Native Americans and others," Norton said in a Feb. 3 interview. "Hawaii has the opportunity to learn by looking at the experience of other places and make a choice about what the rules are up front by clarifying who has jurisdiction over what question," she added.

Norton's comments were the most extensive to date on the matter that has been of great concern to Hawaii leaders in Washington and in the state. Her assessment, however, does not sit well with Hawaii lawmakers, who have been meeting with Interior officials since September of 2001 and lobbying Senate Republicans to allow a Native Hawaiian federal recognition bill to come to a vote.

Akaka said Norton misses the point. He said she is raising questions about the structure of native government that he does not believe need to be answered right away. His bill, which has the backing of the state delegation and Republican Gov. Linda Lingle, was crafted to simply establish a process for federal recognition, he said. "A lot of the issues she's concerned about occur post - recognition," Akaka said. "Perhaps other legislation after that could deal with her concerns." Even if progress could be made, however, Sen. Daniel Inouye, D - Hawaii, predicted the bill would stall again this year because the congressional session will be short and many other issues will be competing for attention. "I want to see the Native Hawaiian bill become law. I'm hoping we can do that," Inouye said. "I'm also a realist, and this is an election year."

Akaka said he asked Senate Majority Leader Bill Frist, R - Tenn., to schedule his bill for Senate floor votes, but Frist has not committed. Hawaii lawmakers maintain the bill could garner the needed 60 votes to overcome procedural blockades and eventually pass the Senate.

Republican Gov. Linda Lingle plans to lobby senators on behalf of Native Hawaiians while in Washington this week for a National Governors Association conference, her spokesman Russell Pang said.

Hashing out the details

Norton's latest comments reflect concerns she and her staff have expressed to Hawaii lawmakers over the years, according to congressional aides. Norton, who has been embroiled in lawsuits over Indian trust issues, said she is looking for legislation from Hawaiians that will spare the government and the natives any legal headaches. "I'm an attorney and you see time after time people who launch into new business ventures and say I'm going into business with my brother - in - law and we don't need to have a contract," Norton said. "That's when you get into your most bitter conflicts." She said she also wants to ensure that state and local governments, and non - Native Hawaiians, have a "meaningful" role in discussions of a native political entity before one is "locked in."

Rep. Ed Case, D - Hawaii, who is a lawyer by training, said Norton is being "a careful attorney." "At least we're talking details and not whether to do it," Case said. "I think we all want to pass this bill this session and we are all pushing the federal administration to get its questions answered in time." He noted that the administration has yet to take an official position on the bill.

Lorretta Tuell, who headed up the Office of American Indian Trust at the Department of Interior under the Clinton administration, called Norton's arguments "death blows" to Hawaiian sovereignty because they seek to drag out the legislative process. "Courts are the last thing you need to be worried about," said Tuell, a partner at Monteau & Peebles LLP in Washington which specializes in federal Indian law. "To say you need a cookie cutter framework, what they are really saying is we want to limit the trust responsibility and limit the role of the U.S. in the government to government relationship so it dies and goes away," Tuell said. Tuell said Akaka's legislation simply offers an opportunity for the Native Hawaiians to move forward and Norton's concerns could be answered in the future.

Lingle said Norton has "legitimate concerns," and that she and the Hawaii delegation will continue to negotiate the differences. Lingle is slated to discuss the bill in a private meeting with Norton on Wednesday, Pang said.

Concerns about Hawaiian political status

Before any jurisdictional issues are answered, Norton said the Justice Department first must resolve constitutional concerns about the bill.

Attorneys at the Justice Department are reviewing interpretations of the Indian Commerce Clause and the Equal Protection Clause, according to sources familiar with the bill. Although both issues were settled in favor of Native Hawaiians during the Clinton administration, Bush appointees have reopened the question of whether Congress has the authority to enact legislation regarding Native Hawaiians. Depending on the answer, that could throw in jeopardy more than 150 statutes that Congress has passed over the years dealing with Native Hawaiians, officials say.

At issue specifically is whether Native Hawaiians should be considered Native Americans, and therefore encompassed under the Indian Commerce Clause which recognized Native Americans as sovereign entities in the Constitution. "It was determined when native people are occupying native lands in a territory acquired by the United States they are Native Americans," said a former Clinton Justice Department lawyer who asked not to be named. Now, the lawyer said, "There is an argument about whether they are a native group or a racial group."

Inouye said a recognition bill would easier to move if a Democrat were president. During the Clinton administration though, Hawaiians were largely split on what course to take on sovereignty, and differences exist even today. "We have tried our best to be accommodating but I think from the standpoint of the law and constitution, the facts are on our side," Inouye said. "Hawaiians were here before any European or American got here."

Department of Justice spokesman Blaine Rethmeier said the Bush administration's position on the bill "has not yet been finalized." He declined to comment further, but he pointed to a May 2003 letter written by Assistant Attorney General William E. Moschella to Sen. Olympia Snowe, R - Maine, that questions whether Hawaiians should be awarded federal funding because they are not a federally recognized tribe.

==============

ADDENDUM FOR 2005

*** U.S. JUSTICE DEPARTMENT PUBLISHES OBJECTIONS TO AKAKA BILL ***

On July 13, 2005, U.S. Assistant Attorney General William Moschella released a letter to Senator John McCain, Chairman of the Senate Select Committee on Indian Affairs, identifying several important objections to the Akaka bill on behalf of the U.S. Department of Justice. Mr. Moschella's letter came only a few days before the full Senate was scheduled to debate and vote on the bill, S.147. The letter, on official stationery, can be downloaded in pdf format from:
http://www.angelfire.com/hi5/bigfiles3/AkakaMoschellaDOJ071305.pdf

----------------

Review of Bush Administration Actions and Statements on Native Hawaiian Recognition Bill, 2000-2004
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBush20002004.html

In addition: In June 2003 Newspaper Articles Describe Bush Administration Policy Memos Issued Weeks or Months Previously, Questioning the Constitutionality of Race-Based Hawaiian Programs -- OHA Intensifies Local Propaganda and Washington Lobbying For Akaka Bill, Citing Threat Posed By Memos. Probable contents of letter from DOJ attorney Will Moschella to Senator Olympia Snowe in 2003, cobbled together from published sources (note: Will Moschella is the same person who authored the new memo of objections to the Akaka bill released July 13, 2005).
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBushThreatenHawnProgs2003.html

-----------------------

*** LOCAL REACTION IN HAWAI'I TO THE DEPARTMENT OF JUSTICE LETTER OF JULY 13, 2005 **

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050714/NEWS23/507140335
Honolulu Advertiser, Thursday, July 14, 2005

Justice Dept. wants Akaka bill altered

By Gordon Y.K. Pang

The Department of Justice yesterday raised "serious policy concerns" about the Akaka bill. Among other issues, the department wants to shorten or eliminate the time allowed for monetary claims by Hawaiians; add language that explicitly prohibits gambling; and allow non-Hawaiians to sit on the panel that would chart the course of a sovereign Hawaiian entity.

The department issued a two-page letter stating those concerns about the Native Hawaiian federal recognition bill to U.S. Sen. John McCain, R-Ariz., chairman of the Senate Indian Affairs Committee, just days before a crucial Senate vote is expected.

Opinions were mixed yesterday on what impact the letter might have on the bill's chances.

The Justice Department wants:

* Explicit language precluding future claims for land once held by Native Hawaiians and, if not, shortening the statute of limitations for claims from the proposed 20 years.

* Lawmakers to ensure that the bill would in no way interfere with U.S. military operations.

* Further clarification that the governing entity would not have gambling rights.

* Clarification on who would have jurisdiction to enforce criminal laws on Hawaiian land.

* Non-Hawaiians to be eligible to serve on a commission that would certify who would be part of a Native Hawaiian government.

The department also raised the issue of whether recognizing Native Hawaiians would be constitutional, but suggested several changes that may resolve the Bush administration's concerns.

The administration had not taken a position on the bill, known as the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, but Republicans have blocked it since 2000 over objections that it is racially based.

The bill would establish a process for the United States to formally recognize the nation's 400,000 Native Hawaiians as an indigenous people similar to American Indians and Alaska Natives. Native Hawaiians would then decide whether to pursue a sovereign government that could negotiate with the U.S. and the state of Hawai'i over land use and other rights.

The Justice Department letter was signed by William Moschella, an assistant attorney general who had previously raised constitutional concerns over separate legislation aimed at helping Native Hawaiians.

Hawai'i Attorney General Mark Bennett, who has been lobbying senators to support the bill on behalf of Gov. Linda Lingle, said he views the letter as "an extremely positive development."

But Bennett acknowledged the Justice Department again raised the question of whether the bill was constitutional, specifically whether a Native Hawaiian government would conflict with the Supreme Court ruling in Rice v. Cayetano in 2000. The court ruled it was unconstitutional to prohibit non-Hawaiians from voting for trustees to the state Office of Hawaiian Affairs.

But Bennett does not view that as a problem. "I feel very confident that the Supreme Court would uphold the Akaka bill," he said. "I think it's quite significant that the Department of Justice didn't express an opinion that the bill was unconstitutional, but rather simply said the Supreme Court had left this as an open question, which indeed the Supreme Court did."

Hawai'i's senators were cautiously optimistic.

Mike Yuen, a spokesman for U.S. Sen. Dan Inouye, D-Hawai'i, said: "The senator is pleased that the administration has now provided its views on the Native Hawaiian Government Reorganization Act. He looks forward to working with the administration to ensure that the legislation continues to have bipartisan support that would lead to its passage."

Akaka also expressed hope. "I welcome the administration's suggestions and am working with administration officials to address the issues expressed in their letter," he said in a statement. "I am confident we can reach common ground on the identified issues. I am even more optimistic about our efforts to enact this legislation."

Haunani Apoliona, the chairwoman of the OHA board of trustees, and OHA administrator Clyde Namu'o said they believe some of the issues raised in the letter can be easily addressed while others may not. "I don't think our senators and the governors are going to rewrite everything," Apoliona said. "What this provides is a point of discussion." Namu'o said OHA would not have any problems with the bill being amended to include the Justice Department's language pertaining to gambling and criminal jurisdiction. "They're pretty innocuous," he said.

The issue of federal military bases is something that would have to be agreed to between the federal government, the state and the new government entity down the line and is not something that can be resolved immediately, Apoliona said. On the issue of a shorter time frame for Native Hawaiians to make claims, Apoliona said, "20 years is good. ... It's very generous from what I understand, but we're not advocating shortening it."

William Burgess of Aloha for All, which opposes the Akaka bill, said the letter points out to senators that "there are some absurd features to this law and if you really want to pass it, then you've got to get rid of these things." Burgess said he is pleased the letter made a reference to the bill's constitutionality. "Is the whole damn thing constitutional? I think this is a message from the administration saying that if you want us to even seriously consider that, then you've got to clean up these other five things," he said. "I think it's a good letter," he said. "It's realistic. It doesn't preclude the proponents of the bill from doing something." Burgess said Aloha for All would still oppose the bill if the issues raised in the letter were addressed because his group's basic premise is that the legislation is race-based. But, he said, "it would make it harder to convince people that it's absurd."

Lilikala Kame'eleihiwa, former director of the University of Hawai'i at Manoa's Center for Hawaiian Studies, said she was appalled by the suggestion in the letter that future claims for reparations be eliminated, or the time frame reduced. "The Department of Justice shows that it has no justice for the native people by this letter," she said. "Precluding us from gaining any land while having a government and federal recognition is unacceptable to all Hawaiians." Rather than shortening the time frame for making claims, she said, "we thought 20 years was too short. We had over 100 years of America's government taking our land illegally and we're supposed to fix it all in 20 years? I don't think so."

Richard Rowland, president of the Grassroot Institute of Hawai'i, said he's happy the Bush administration has begun to voice its concerns, but noted the letter does not address the institute's main concern that a state vote should be held on the bill. "Our position is we've got to have a vote of the Hawai'i people," Rowland said. While he and other members of the institute "think this bill stands democracy on its head," it would be more palatable if a majority of the state's voters supported it in a referendum, Rowland said.

Lingle announced yesterday that she will go to Washington, D.C., next week to talk to key senators about the Akaka bill. Lingle will join Bennett, Namu'o and eight of the nine OHA board members who are also scheduled to be in the capital when the Akaka bill is debated on the Senate floor.

CRITICISM BY JUSTICE DEPARTMENT

The major criticisms of the Akaka bill raised in a letter from the U.S. Department of Justice:

• The provision for claims by Native Hawaiians against the federal government is too open-ended. The current draft of the bill sets a statute of limitations allowing a 20-year time span for claims — starting the clock from when the new government gains federal recognition. More typically, the window for federal claims remains open for two years.

• Amendments should clarify that negotiations among the federal, state and Native Hawaiian governments must not lead to concessions that would interfere with military operations. This concern arises from the fact that military installations at Pearl Harbor, Hickam and Lualualei sit on Hawaiian kingdom lands ceded to the federal government. Some have asserted that this land, or at least compensation for it, should go to Hawaiians.

• The bill should state clearly which government would enforce criminal laws on Native Hawaiian lands. Officials of the U.S. Department of Interior have said they don't want a repeat of the clashes that have arisen with Native American tribes over this issue.

• The legislation should specifically bar gambling rights for a Native Hawaiian government. Language in the current draft already indicates that the new law would not extend existing native gaming authorization to Hawaiians; it was inserted to assuage concerns among some tribes about casino competition. The Justice Department seeks a clearer prohibition.

• The fifth request deals not with questions of government policy but with constitutional concerns over racial provisions of the bill that may conflict with the U.S. Supreme Court ruling in Rice v. Cayetano. The department suggests one remedy: The commissioners named to certify the Native Hawaiian membership rolls should be required to have expertise with Native Hawaiian issues but not to be Hawaiian themselves.

----------------

http://the.honoluluadvertiser.com/article/2005/Jul/14/op/507140309.html/?print=on
The Honolulu Advertiser, Thursday, July 14, 2005, EDITORIAL

Feds draw the lines in Akaka bill debate

The president himself has not commented specifically on the idea of federal recognition to Native Hawaiians, but this week more light was shed on how the Bush administration views the measure known as the Akaka bill, which would grant this political status for Hawai'i's indigenous people.

For both supporters and opponents of the Akaka bill, the letter from William E. Moschella, assistant attorney general for the U.S. Department of Justice, provides important insight. It identifies some of what the administration sees as fault lines in the legislation, although some concerns are left unclear.

The Justice position on the issue of claims seems foggy. In one sentence, Moschella writes that language should preclude potential native claims - clearly, the federal government can't bar the doors of the federal courthouse. Then he asserts that the 20-year statute of limitations is too long, which suggests that claims could be entertained but that the period they'll be accepted should be curtailed.

On the other points, the administration makes more straightforward complaints. While open to debate, none of these objections seem to be deal-breakers. First, Justice wants certainty that negotiations would not result in any impediment to U.S. military operations. Notwithstanding the more radical assertions by some Hawaiians that Pearl Harbor by rights belongs to them, there's no evidence that this position enjoys broad support.

Second, the current bill already states that it does not authorize native gaming provisions, but perhaps this can be stated more strongly.

Third, Justice makes a strong case that jurisdictional questions, especially over criminal law enforcement, should be answered. In a state as unsegregated as Hawai'i, such conflicts would be insurmountable.

Finally, Justice wants the commissioners who will certify the membership rolls be required only to show expertise on Native Hawaiian issues and not necessarily be Native Hawaiians themselves. It's wise to remove provisions that unnecessarily test constitutional boundaries set out in the landmark Rice v. Cayetano case.

With a vote on the bill expected within about one week, it's important for those on either side of the fence to craft a response that addresses these points - either by crystallizing objections overlooked here, or by clarifying how the concerns either are unwarranted or can be resolved in a final draft.

In either case, the next few days demand timely, thoughtful responses.

The president himself has not commented specifically on the idea of federal recognition to Native Hawaiians, but this week more light was shed on how the Bush administration views the measure known as the Akaka bill, which would grant this political status for Hawai'i's indigenous people.

---------------

All the talk about Republican Senators planning to offer and debate multiple amendments to the Akaka bill, and Department of Justice objections to the bill that would require substantial amendments to remedy, prompted an editorial cartoon from Corky at the Honolulu Star-Bulletin. The cartoon was published at
http://starbulletin.com/2005/07/15/news/corky.jpg


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http://starbulletin.com/2005/08/24/news/story5.html
Honolulu Star-Bulletin, Wednesday, August 24, 2005

"I am firmly convinced that many of the bill's opponents are resorting to such tactics because they recognize that their policy arguments are unconvincing and cannot carry the day." -- Gov. Linda Lingle, Responding to critics of the Akaka Bill

Proposed Akaka Bill changes get federal OK, Lingle says

By Richard Borreca

The Bush administration agrees with proposed amendments to a native Hawaiian recognition bill, clearing objections to the measure, Gov. Linda Lingle says.

In a letter written yesterday to all GOP senators, Lingle said, "Agreement has been reached with the administration regarding the four policy concerns they raised about the bill."

Since July 13, Lingle said, the staff of Hawaii's two senators, Daniel Inouye and Daniel Akaka, and Sen. John McCain, R-Ariz., and representatives of the White House, Department of Justice, Office of Management and Budget, and the Defense Department have been meeting to come up with a compromise.

Here are the four concerns that Lingle says will be answered with amendments to the bill:

» Potential claims or lawsuits against the United States: "The agreement makes clear that no claims are created and will include language making it absolutely clear the comprehensive extent of the sovereign immunity of the United States."

» Military readiness: An amendment by the Department of Defense will be offered so that "it is clear that passage of the legislation can have no impact on military readiness."

» Criminal jurisdiction and trust land questions: "The status quo with regard to criminal law will be maintained and no land will be taken into trust under the Indian Reorganization Act."

» Gambling: "The agreed-upon amendment makes even clearer that gambling will not be permitted at all by the new native Hawaiian entity. The language will be definitive, plain and unambiguous."

The Bush administration, Lingle said, also offered "many valuable suggestions as to how the bill could be clarified and improved" and many of the suggestions will be included in the new version of the bill.

In her letter, Lingle also took a swipe at the bill's critics, saying, "The rhetoric on this bill has ratcheted skyward ... insulting to both the integrity and honesty of Sen. Inouye and Akaka, as well as me and members of my administration.

"I am firmly convinced that many of the bill's opponents are resorting to such tactics because they recognize that their policy arguments are unconvincing and cannot carry the day," she said.

Lingle, Hawaii's first GOP governor since 1959, will also go to Washington next month to lobby fellow Republicans for the bill.

The bill is now scheduled for a vote on whether to force a vote on the measure Sept. 6, when the U.S. Senate reconvenes. The bill is designed to "provide a process for the recognition by the United States of the native Hawaiian governing entity."

If the bill passes, a Congressional Budget Office estimate shows that implementation would cost about $1 million a year for the first few years.

The budget estimate also calculates that it would take three years to accomplish the first step of creating and certifying a roll of adult native Hawaiians who would then vote to establish a native Hawaiian governing council.

The CBO cost estimate was prepared March 25.

"CBO estimates that implementing S. 147 (the Akaka Bill) would cost nearly $1 million annually in fiscal years 2006-2008 and less than $500,000 in each subsequent year," the report stated.

The money would establish a U.S. Office for Native Hawaiian Relations with the federal Department of the Interior. The office would be responsible for developing and overseeing the federal relationship with the native Hawaii governing entity.

"The bill would create a nine-member commission responsible for creating and certifying a roll of adult native Hawaiians," the report said. "Based upon information from the Interior Department, CBO expects that this commission would need three years and three full-time staff members to complete its work."

The CBO report notes that the Akaka Bill "could lead to a new government to represent native Hawaiians."

"The transfer of any land or other assets to this new government, including land now controlled by the state of Hawaii, would be the subject of future negotiations."

If the bill clears the Senate, it would then move to the House.

But a group of 16 Republican critics in the U.S. House have written to House Speaker J. Dennis Hastert, R-Ill., and Majority Leader Tom DeLay, R-Texas, saying the Akaka Bill "would set a dangerous precedent for our nation."

Arguing that the native Hawaiian governing entity would be "a race-based government exempt from the protections our Constitution affords," the 16 Republicans claimed that it would be impossible to fit native Hawaiians into the constitutional category of American Indians.

"Only people who have long operated as an Indian tribe, live as a separate and distinct community based on their geography and culture, and have a pre-existing political structure can be recognized as a tribe," the 16 House members said.

"Native Hawaiians do not meet this criteria," they added.

Robert Klein, former Hawaii state Supreme Court associate justice, who represents the Office of Hawaiian Affairs in lobbying for the Akaka Bill, says the measure will prevent hundreds of federal programs that benefit native Hawaiians from being struck down as being unconstitutional.

"Our opponents, Hawaiian and non-Hawaiian, have no answer to what would happen to these important programs without Akaka," Klein said.

"Without this bill, Hawaii stands to lose the major Hawaiian assets we now enjoy, as well as any further federal health, education and welfare benefits that now flow to our state. That is the urgency and the bill provides the only solution to the demise of those programs," Klein said.

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On October 1, Stephens Media group reported that the White House "objected to a Pentagon spending bill in part because it provides benefits to Native Hawaiians. ... The White House objected to a provision in the bill that bestows special benefits on businesses owned by American Indian tribes or Native Hawaiian organizations. 'To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts,' according to the statement."

http://www.westhawaiitoday.com/articles/2005/10/01/local/local02.txt
West Hawaii Today (Kona), Saturday October 1, 2005

Akaka Bill questioned -- white house argues benefit status

by Samantha Young
Stephens Washington Bureau

WASHINGTON -- The White House on Friday objected to a Pentagon spending bill in part because it provides benefits to Native Hawaiians.

White House officials questioned whether Congress can give benefits to Hawaiian-owned businesses, echoing concerns that have been expressed about other Native initiatives -- most notably a sovereignty bill sponsored by Sen. Daniel Akaka, D-Hawaii.

"The Department of Justice advises that there is a substantial, unresolved question whether Congress has authority to deal with Native Hawaiians as it does Indian tribes," White House officials wrote in a five-page statement on a Defense Department spending bill the Senate is considering.

The White House objected to a provision in the bill that bestows special benefits on businesses owned by American Indian tribes or Native Hawaiian organizations.

"To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts," according to the statement.

The Bush Justice Department has consistently questioned whether Congress can recognize Native Hawaiians as an indigenous people similar to Indian tribes and Alaska Natives. That position is the foundation of the Akaka sovereignty bill awaiting Senate debate. The bill would establish legal guidelines for roughly 400,000 Native Hawaiians to organize and negotiate for self-rule from the state and federal governments.

Hawaii's four Democratic lawmakers and Republican Gov. Linda Lingle have lobbied the Bush administration to support their effort. Earlier this month, the congressional delegation rewrote the bill in hopes of satisfying Justice Department concerns over gaming, settlement claims and the legal jurisdictions of any new Hawaiian entity.

Despite the revisions, Justice attorneys continue to question whether the bill would pass Constitutional muster.

According to critics, the bill would establish a Hawaiian-only government based on bloodlines, a standard the Supreme Court rejected in 2000 regarding exclusive state elections for Hawaiians.

Akaka said Friday his bill would address the White House's concerns by clarifying the political and legal relationship between Native Hawaiians and the United States. "The time has come for Native Hawaiians to be recognized by the federal government and I am committed to getting passage of my bill by Congress to ensure that takes place," Akaka said in a statement.

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http://www.hawaiireporter.com/story.aspx?bc5d986b-d072-4eb5-b43f-c251f70a63d6
Hawaii Reporter, October 28, 2005

Former U.S. Supreme Court Nominee Harriet Miers Advised President Bush on Akaka Bill
Her Senate Questionnaire Confirms She Reviewed the Bill With the President, But Miers Would Not Disclose Her Advice on Whether or Not to Support the Controversial Measure

By Malia Zimmerman

Before she withdrew her nomination on Oct. 27, 2005 to the U.S. Supreme Court, Bush's Chief Legal Advisor Harriet Miers acknowledged to a Senate Judiciary Panel that she advised President George W. Bush on the Native Hawaiian Recognition bill, known as the Akaka Bill, now pending before the U.S. Senate.

However, she would not discuss whether she recommended that the president support or oppose the bill, nor would she disclose her personal views on Native Hawaiian recognition.

In fact, a review of her questionnaire shows that when first asked by Senate Judiciary Committee members about her position on the bill, now pending before the U.S. Senate, Miers did not respond and left the question blank.

This prompted Senators to follow up with Miers saying, "This question was designed to help the committee learn more about your experience with constitutional law, and if most of it was gained during your years in the White House, it is important that we know more about the specifics of that experience."

Miers later confirmed that she dealt with "Issues concerning whether Congress may treat Native Hawaiians as an Indian Tribe, and therefore afford them special benefits without running afoul of the equal protection component of the Fifth Amendment's Due Process Clause."

When pressed on the issue she would not discuss it further and in fact when she resigned, both she and Bush blamed her withdrawal on calls in the Senate for the release of internal White House documents.

"As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me," Miers wrote in her letter to the President. "I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy."

In the President's statement announcing the withdrawal, he said, "I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House – disclosures that would undermine a President's ability to receive candid counsel."

But just Miers' admission that she discussed the Akaka Bill with the president is significant because while the White House has maintained publicly it is remaining neutral on the controversial measure, Miers response shows the president was serious enough about considering the bill's passage that he consulted extensively about it with Miers, his top legal advisor.

Though the president's administrators were reportedly quietly pushing for the Akaka Bill, primarily at the request of Hawaii's Republican Gov. Linda Lingle who aggressively lobbied him for his support on several occasions, Department of Justice officials and conservative Congressman have raised a number of concerns about the constitutionality of the bill. Those concerns are detailed in Hawaii Reporter here:

"U.S. Department of Justice on the Akaka Bill"
http://www.hawaiireporter.com/story.aspx?title=U.S.+Department+of+Justice+on+the+Akaka+Bill

In response to the Justice Department, Gov. Linda Lingle, state Attorney General Mark Bennett and U.S. Senator Daniel Akaka said they would work with the Justice Department to revise the Akaka Bill to make it more palatable, however, no changes have been formally recorded in the Senate record.

Named after its sponsor, U.S. Sen. Daniel Akaka, the bill would enable native Hawaiians to have federal recognition similar to native Americans and Native Alaskans, but with even more benefits and rights.

A cloture vote on the bill was set for Sept. 6, 2005, in the U.S. Senate but was delayed by Senate Republican leadership after a series of Hurricanes hit the Gulf Coast causing massive devastation, and two U.S. Supreme Court Justices needed to be replaced.

The bill has caused a huge racial and emotional divide in Hawaii. Proponents say native Hawaiians deserve federal recognition while opponents say the bill would entitle native Hawaiians to additional lands and funds, create a separate class system in the state based on race, create a separate tax system, and potentially bring legalized gambling to the state.

Bush's most recent nominee to the Supreme Court, Chief Justice John G. Roberts Jr., also had a tie to the Native Hawaiian Recognition issue. He argued before the U.S. Supreme Court on behalf of the state of Hawaii in Rice v. Cayetano. He lost the case by a 7-2 vote in February 2000 and all registered voters in Hawaii were then subsequently allowed to vote for Office of Hawaiian Affairs trustees and run for that office, regardless of whether they had native Hawaiian blood.

Reach Malia Zimmerman, president and editor of Hawaii Reporter, via email at Malia@hawaiireporter.com

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The November 28, 2005 issue of "Newsweek" contains an article linking White House chief of staff Karl Rove to the Washington lobbying firm Patton Boggs and the payment of $400,000 by the Office of Hawaiian Affairs to Patton Boggs to lobby for the Akaka bill. The implication is that Rove may be improperly using his influence with the President to lobby on behalf of Patton Boggs clients, including lobbying for the Akaka bill, in return for money and legal representation for himself regarding the investigation of CIA leaks involving Lewis "Scooter" Libby. The "Newsweek" article, and Ken Conklin's comments about it, are on the following webpage:
http://www.angelfire.com/hi5/bigfiles3/AkakaRovePattonBoggsNewsweek112805.html

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** THE MOST IMPORTANT INTERVENTION BY THE BUSH ADMINISTRATION OCCURRED ON JUNE 7, 2006. A LETTER WAS SENT BY ASSISTANT ATTORNEY GENERAL WILLIAM MOSCHELLA TO SENATE MAJORITY LEADER BILL FRIST. FOLLOWING THREE HOURS OF FLOOR DEBATE ON A CLOTURE MOTION TO BRING THE AKAKA BILL TO THE FLOOR, AND IN THE EVENING HOURS JUST BEFORE ADJOURNMENT UNTIL THE NEXT DAY, ALABAMA SENATOR JEFF SESSIONS READ THIS LETTER INTO THE RECORD. THE FOLLOWING DAY THERE WAS ADDITIONAL DEBATE ON THE CLOTURE MOTION, AND THEN CLOTURE WAS DEFEATED. MOST POLITICAL COMMENTATORS CREDIT THIS LETTER FOR PERSUADING SEVERAL REPUBLICAN SENATORS TO VOTE AGAINST CLOTURE WHO MIGHT OTHERWISE HAVE VOTED FOR IT. WHY DID THE BUSH ADMINISTRATION WAIT FOR FIVE AND A HALF YEARS BEFORE MAKING SUCH A CLEAR-CUT STATEMENT IN OPPOSITION TO THE AKAKA BILL? WHY DID THE SECRETARY OF INTERIOR ON EARLIER OCCASIONS GIVE ENCOURAGING SIGNALS TO HAWAI'I GOVERNOR LINGLE, AND WHY DID THE DEPARTMENT OF JUSTICE ENGAGE IN NEGOTIATIONS GIVING THE IMPRESSION THAT THE BASIC PRINCIPLE OF THE AKAKA BILL MIGHT BE ACCEPTABLE IF TECHNICAL LANGUAGE COULD BE AGREED UPON? NOBODY KNOWS. SUCH AMBIVALENCE AND DELAYS CAUSED A WASTE OF MILLIONS OF DOLLARS AND THOUSANDS OF HOURS OF TIME ON BOTH SIDES.

A new letter from the Bush administration on June 7, 2006 strongly opposes the Akaka bill. The opening sentence says:

"The Administration strongly opposes passage of S.147"

The letter is from William E. Moschella, Assistant Attorney General of the United States, addressed to Senator Bill Frist, Majority Leader of the Senate. Some or all of the Moschella letter was read on the floor of the U.S. Senate by Senator Jeff Sessions (R,AL) during an unusual out-of-sequence ten-minute speech approximately 7:15 to 7:25 PM Eastern Daylight Time on Wednesday June 7. Senator Sessions clearly believed it was important to circulate this letter among all the Senators and their constituencies before the crucial cloture vote scheduled for 12:45 PM on June 8.

(1) Attorney General Moschella's letter to Senator Frist; (2) political analysis

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(1) Attorney General Moschella's letter to Senator Frist

June 7, 2006

The Honorable Bill Frist
Majority Leader
United States Senate
Washington, D.C. 205 10

Dear Mr. Leader:

The Administration strongly opposes passage of S.147. As noted recently by the U.S. Civil Rights Commission, this bill risks "further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege." As the President has said, "we must ... honor the great American tradition of the melting pot, which has made us one nation out of many peoples." This bill would reverse that great American tradition and divide people by their race. Closely related to that policy concern, this bill raises the serious threshold constitutional issues that arise anytime legislation seeks to separate American citizens into race-related classifications rather than "according to [their] own merit[s] and essential qualities." Indeed, in the particular context of native Hawaiians, the Supreme Court and lower Federal courts have invalidated state legislation containing similar race-based qualifications for participation in government entities and programs.

While this legislation seeks to address this issue by affording federal tribal recognition to native Hawaiians, the Supreme Court has noted that whether native Hawaiians are eligible for tribal status is a "matter of dispute" and "of considerable moment and difficulty." Given the substantial historical, structural and cultural differences between native Hawaiians as a group and recognized federal Indian tribes, tribal recognition is inappropriate for native Hawaiians and would still raise difficult constitutional issues.

Sincerely,

William E. Moschella
Assistant Attorney General

CC: The Honorable Harry Reid
Minority Leader

Here is a photograph of the letter on official stationery, with Mr. Moschella's signature. In case there's any difficulty seeing the letter here, it can also be seen at
http://wiki.grassrootinstitute.org/mediawiki/index.php?title=2006-06-07_DOJ_to_Frist

** Additional note: Transcripts of the three-hour Senate debate from Wednesday June 7, plus all further transcripts related to the cloture motion and possible further debate on the Akaka bill, are placed on this website as soon as they become available from the Library of Congress (24-48 hours). See:
http://www.angelfire.com/planet/bigfiles40/AkakaHistJune2006SenateActionCongRec.html
The history of the Akaka bill for 2005-2006, including news reports and commentaries, can be followed at
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist109thCong.html

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(2) Political analysis

The letter from the Department of Justice to the Senate Majority Leader clearly shows that Senators Inouye and Akaka were trying to mislead their colleagues to have them believe that the Akaka bill has been approved by DOJ.

Senator Inouye, apparently referring to the new S.3064, said in Wednesday's debate that the bill is the result of successful negotiations with DOJ. However: (a) The bill under consideration for the cloture petition and being debated for over three hours on the floor of the Senate was S.147, not S.3064; and (b) as the new letter from Mr. Moschella shows, DOJ most certainly does NOT approve of even the newer version S.3064. For DOJ to issue such a letter in the evening hours is quite unusual. For Senator Sessions to quote from that letter as soon as possible, and at 7:15 PM local time on the floor of the Senate, shows the urgency of this matter.

On May 25 Senator Akaka finally introduced in the Senate the bill now numbered S.3064, which is the bill he placed on his Senate website in mid-September 2005. At that time the entire Hawai'i delegation made a great noise that this new Akaka bill was the product of negotiations with the Department of Justice which had successfully resolved all concerns. A few days thereafter the DOJ issued a statement saying that there were still major concerns about both the appropriateness of such a policy and the (un)constitutionality of the bill.

Senator Akaka then allowed that alleged amended bill to sit dormant without ever introducing it, until May 25 when it had a "first reading" and received bill number S.3064. That created the impression that S.3064 was now the active version of the bill.

However, on June 6 a cloture motion was made for the older version, S.147. That seemed very strange. It was not an accident. Every reference to the Akaka bill in the cloture motion and the unanimous consent scheduling for the following days referred to S.147.

A logical explanation would be that the alleged amendment S.3064 was simply a decoy posted by Senator Akaka last September for the purpose of fooling DOJ and the Bush administration into thinking that it would become the real Akaka bill. By fooling DOJ with this decoy, the Hawai'i delegation successfully avoided having the Bush administration make any public statement opposing the bill, thereby giving the public the impression that the bill had the President's blessing or at least acquiescence. S.3064 remained a decoy even after being formally introduced on May 25, as shown by the fact that the subject of the cloture petition was S.147, not S.3064.

Let's also recall that the U.S. Commission on Civil Rights reported on S.147; and when their scathing report was issued, the Hawai'i delegation bitterly complained that USCCR had not taken note of the (allegedly) "amended bill." As though anyone should make a determination based on a bill that was never (yet) introduced! Furthermore, the new S.3064 in no way addresses the policy and Constitutional concerns which the DOJ has consistently expressed all along and continues to express in the Moschella letter of June 7.

It now appears that the Hawai'i delegation has been playing fast and loose for several years, trying to deceive both the Bush administration and the general public regarding what the Akaka bill is really all about. The chickens have now, at long last, come home to roost. May this bill now finally get the cremation and burial it so richly deserves.

Shame on Governor Linda Lingle for squandering her political capital in Washington on the Akaka bill when there are so many productive things she might have used it for.

Shame on Attorney General Bennett whose title tells us he surely knew (or should have known) all along that this bill is bad policy and worse law.

Shame on our Legislators for repeatedly voting in favor of resolutions supporting the Akaka bill even when some of them privately said they think it's disgusting. They are cowards, and they also refused to place the issue on the ballot for Hawai'i's people to vote.

Shame on them all, plus the OHA trustees, for spending many millions of dollars of our government money on lobbying, advertising, consultants' fees, postage, first-class travel, etc. Shame on them all for putting us through this wringer for so many years, causing divisiveness in this land of Aloha.

It's time for the people of Hawai'i to stand up and be counted. E ku'e kakou i ka palapala a Akaka, a me na po'e kako'o ana kela. (Let's all stand opposed to the Akaka bill and to the people supporting it).

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President George W. Bush issued a formal statement on October 22, 2007 on official stationery strongly opposing the Akaka bill and saying that his senior advisors recommend he should veto it if it reaches his desk.

The House Rules Committee met on Monday October 22 at 5 PM to consider what procedural rule should be applied to the Akaka bill, H.R.505, expected to come to the House floor in the next couple of days. The Republican whip report last Friday indicated this bill would probably be placed on the "suspension calendar" of non-controversial bills to be passed on voice vote under suspension of the rules at the dinner hour with only a few Representatives present on the floor -- the same stealth tactic used successfully in September 2000.

The President sent his statement to the Rules Committee on Monday, before the meeting. Perhaps one of his reasons for doing that might have been to make sure the committee knows this is a highly controversial bill which should not be placed on the suspension calendar. The statement can be seen on official letterhead bearing the seal of the Executive Office of the President of the United States, and was released through the Office of Management and Budget.

See the official letterhead statement in pdf format at

http://www.angelfire.com/planet/big60/AkakaPresidentStatemntHse102207.pdf

Following is the statement in simple text (minus the letterhead and Presidential seal).

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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
October 22, 2007
STATEMENT OF ADMINISTRATION POLICY
[sent to the House Rules Committee]
[regarding]

H.R. 505 – Native Hawaiian Government Reorganization Act of 2007 (Rep. Abercrombie (D) Hawaii and 7 cosponsors)

The Administration strongly opposes passage of H.R. 505. As the U.S. Civil Rights Commission recently noted, this legislation “would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.” The President has eschewed such divisive legislation as a matter of policy, noting that “we must . . . honor the great American tradition of the melting pot, which has made us one nation out of many peoples.” This bill would reverse this great American tradition and divide the governing institutions of this country by race. If H.R. 505 were presented to the President, his senior advisors would recommend that he veto the bill.

H.R. 505 would grant broad governmental powers to a racially-defined group of “Native Hawaiians” to include all living descendents of the original, Polynesian inhabitants of what is now modern-day Hawaii. Members of this class need not have any geographic, political, or cultural connection to Hawaii, much less to some discrete Native Hawaiian community. Proponents of the bill seek to analogize Native Hawaiians to members of existing Indian tribes. As one Federal court recently explained, however, “the history of the indigenous Hawaiians...is fundamentally different from that of indigenous groups and federally-recognized Indian Tribes in the continental United States.”

Closely related to those policy concerns, H.R. 505 raises significant constitutional concerns that arise anytime legislation seeks to separate American citizens into race-related classifications rather than according to their own merits and essential qualities. In the particular context of Native Hawaiians, the Supreme Court has invalidated state legislation containing similar race-based qualifications for participation in Native Hawaiian governing entities and programs. Given the substantial historical and cultural differences between Native Hawaiians as a group and members of federally recognized Indian tribes, the Administration believes that tribal recognition is inappropriate and unwise for Native Hawaiians and would raise serious constitutional concerns. The Administration strongly opposes any bill that would formally divide sovereign United States power along suspect lines of race and ethnicity.


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