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Akaka Bill Stealth Tactics During the 108th Congress, 2003-2004


(c) Copyright 2004, Kenneth R. Conklin, Ph.D. All rights reserved


Political insiders know that passing legislation can be a very messy, ugly process. In the “old boys’ club” of the Senate and House, secret meetings are held and deals are made “behind closed doors in smoke-filled rooms.” Individuals and corporations make huge political campaign contributions to legislators in return for their votes. Legislators trade votes with each other -- “I’ll support your ugly bill if you’ll support mine.” Stealth tactics are used, in which unpopular or controversial legislation is kept hidden from view but gets passed by referring to it in the form of a single sentence buried deep inside a huge piece of “must-pass” legislation on a totally different topic.

Since legislators use stealth tactics frequently, they consider such tactics normal. They hide things from colleagues they publicly call “my honorable friend” even while behaving secretly in very dishonorable ways toward each other. It’s all part of the “game.” Meanwhile, important matters of public policy are being decided while the public is shut out of the process. Occasionally some extremely dirty or sleazy decision-making process gets exposed to public view, producing expressions of outrage; but politicians usually weather the storm and are only temporarily shamed or inconvenienced.

The Native Hawaiian Recognition Bill, now re-named the “Native Hawaiian Government Reorganization Bill” (the new name is itself a stealth tactic), is also informally called the Akaka bill. It is the most important piece of legislation to Hawai’i since the Statehood Act of 1959. Creating a race-based apartheid government for Hawai’i has comparable importance for Hawai’i as the Civil War had for the United States. And it has repurcussions for the entire U.S., setting a precedent for racial balkanization through the creation of a phony Indian tribe to protect racial entitlement programs. This bill deserves to be debated vigorously both in Hawai’i and throughout the United States. It needs to have lengthy open hearings before Congressional committees where opponents as well as supporters can be heard. It needs to be debated on the floor of the Senate. But instead, the bill is drafted in secret by a small group of insiders. New versions roll off the assembly line with startling frequency and are railroaded through “friendly” committees where only high-profile supporters are allowed to testify. The committees then pass the bill “unanimously” by “voice vote” when only the bill’s supporters are present. Eventually the Akaka bill gets hidden inside another very important bill at the last possible moment, when (it is hoped) the bill will be passed without anyone knowing about it until too late.

Following are excerpts taken from another webpage which contains the entire history of the Akaka bill in the 108th Congress (2003-2004). That webpage contains the full text of newspaper articles mentioned in this summary, as well as other news related to the Akaka bill. Following is only a summary of stealth-related news. For the full story, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist108thCong.html

During December 2002 and January 2003 the usual small groups of insiders met to draft the “new” bill for the 108th Congress. There was talk that the bill might be broken into smaller pieces to be passed separately, on the theory that each piece might attract less opposition and be able to fly below the radar. For example, one small bill might establish an interagency task force in Washington to coordinate and manage the various federal entitlement programs already in place for “Native Hawaiians.” No apparent harm in that. Then another small bill might provide federal funds to establish a roll of people with native Hawaiian ancestry. After all, Native Hawaiians are (allegedly) a dying race, so we should assist them by ensuring that all their scattered remnants can be identified and helped. Later, another bill might provide funds to hold an election among all persons on the roll, to establish a leadership group. After all, a leadership group could keep track of them all and raise morale. Then later, it would seem a perfectly reasonable, logical next step to pass another bill to give federal recognition to that leadership group as being the tribal council for a recognized tribe, just to be sure the entitlement programs can’t be challenged in court by mean-spirited people who hate those poor, downtrodden Native Hawaiians. But there was great concern that such a step by step process would take too long, and lawsuits against the entitlement programs might succeed in dismantling them before the final step of legal recognition could be accomplished.

Meanwhile, the Senate Indian Affairs Committee made special arrangements to hold a carefully scripted “hearing” on Tuesday, February 25, 2003. That hearing date was kept secret as long as possible. Only supporters of the bill were invited to testify. After word leaked out on the internet, an opponent of the bill called the Indian Affairs Committee offices to verify the date and seek information about how to testify, and was told there were no definite arrangements. Governor Linda Lingle made a personal appearance to testify in support, along with trustees of the Office of Hawaiian Affairs, the head of the Department of Hawaiian Homelands, and other representatives of institutions that profit from racial entitlement programs. Although no opponent of the bill was allowed to testify in person, written testimony was allowed to be submitted by e-mail to: testimony@indian.senate.gov

Holding this phony "hearing" made it possible under Senate rules for the committee to pass the bill and send it to the Senate floor. But first, the committee would need to hold a meeting for "markup," where changes could be made. Two years previously, the "markup" meeting attracted only three Senators -- Akaka and Inouye, plus Republican ranking member Ben Nighthorse Campbell, who rubber-stamped the bill. In 2003 the markup meeting was delayed, in hopes the ethnic Hawaiian community could reach agreement on amendments. Finally, a newspaper article was published in the Honolulu Advertiser on May 14, 2003 indicating that markup was imminent:
http://the.honoluluadvertiser.com/article/2003/May/14/ln/ln01a.html

The Senate Indian Affairs Committee did indeed do its markup on May 14, as reported in the Honolulu Advertiser on May 15, 2003:
http://the.honoluluadvertiser.com/article/2003/May/15/ln/ln03a.html

Although the Senate Indian Affairs committee approved the new language of S.344 at its markup meeting of May 14, the actual language of the revised bill was unavailable to the public for 6 weeks while a lengthy report was written to accompany the bill. Finally the bill and its accompanying report were sent to the floor of the Senate and to the Government Printing Office on June 27, 2003 and became available on the Library of Congress website a few days later.

On July 3, 2003 both Honolulu newspapers reported that Governor Lingle held a meeting July 2 that included her senior policy advisers and other Cabinet members, nearly all Office of Hawaiian Affairs trustees, Sens. Inouye and Daniel Akaka, and U.S. Reps. Neil Abercrombie and Ed Case. Everyone agreed to push hard to pass the Akaka bill in the Senate during July or early August, before the Labor Day recess. Lingle and the OHA trustees will go to Washington yet again to lobby Congress and Bush administration officials.

On July 25, 2003 both Honolulu newspapers reported that the Hawai'i Congressional delegation, the governor, and OHA officials were intensively lobbying the Department of Justice to overcome objections that the Akaka bill is unconstitutional; meanwhile, a Senate Republican has placed a hold on the bill that makes it extremely unlikely the bill would be heard on the Senate floor before the summer recess.

The Hawaii Island Journal for October 16-31, 2003 published an exposee of THE ALASKA OIL CONNECTION. The Hawaiian recognition bill is being supported by the Alaska oil industry, by the Republican delegation from Alaska, and by Alaska native corporations. The Alaska North Slope Corporation has provided large donations to the Council for Native Hawaiian Advancement, and financial support for the sisters Jade Danner and Robin Danner, who are leading the CHNA propaganda efforts to convince Hawaiian Homestead residents and others to support the Akaka bill for fear of losing their homes and benefit programs if they don't. Alaska oil companies and corporations clearly believe they can make huge profits in Hawai'i if the Akaka bill passes, perhaps by using the preference given to Indian tribes in bidding for federal construction and services contracts. To download an exposee of the Alaska oil connection to the Native Hawaiian Recognition bill, taken from the Hawaii Island Journal of October 16-31, 2003 click here:
http://www.angelfire.com/hi5/bigfiles/AkakaKealaKellyAlaskaOil.pdf

On Thursday October 23, 2003 President Bush visited Honolulu for a full day on his way back to Washington following a week-long Asian trip. As noted above, Governor Lingle lobbied him very hard to support the Akaka bill. OHA also timed the release of a poll to coincide with the President’s visit. OHA had conducted the survey in private three months beforehand, clearly intending to keep the results secret if they were not supportive of the Akaka bill. But the results were supportive, so OHA released the results at the most advantageous time. The results are of doubtful validity, because OHA ordered Ward Research not to release ALL the results, and also not to release the wording of the questions or the method whereby the respondents were chosen.

Throughout 2003, the first half of the 108th Congress, opposition to the Akaka bill was so strong there was no attempt to pass it in its entirety. The bill as amended was passed out of the Senate Indian Affairs Committee but had no further action since then. In the House the original unamended bill was stalled without even a committee hearing inside the Resources Committee.

But on January 23, 2004 the Hawai'i newspapers suddenly and unexpectedly announced that a portion of the Akaka bill had been included in the omnibus appropriations bill which passed both houses of Congress and was then signed by President Bush the following day.

This event signals a new strategy of breaking up the Akaka bill into smaller pieces which make smaller targets and draw little attention. Each piece by itself might seem fairly harmless; but if all the pieces are passed then the mission will have been accomplished. This strategy emulates a terrorist who might be able to smuggle small pieces of a bomb undetected, and then reassemble the complete bomb at the target location. The strategy is also like what a magician does by using large gestures and waving colorful cloths to divert the audience's attention from what he's actually doing. Thus the complete Akaka bill might now be used as a camouflage cardboard decoy to attract the opponents' attention, while the real weapon sneaks through piece by piece, almost undetected. As Governor Lingle and the Hawai’i delegation lobby Senators and Representatives to support the Akaka bill, they will undoubtedly be whispering in their ears that if they cannot support the bill in its entirety, please at least allow the bits and pieces of it to pass embedded in other legislation like tiny bitter pills in gallons of ice cream.

The way the U.S. Office of Native Hawaiian Relations was created indicates a new strategy of trying to pass the Akaka bill piece by piece, by hiding small pieces of it inside huge must-pass bills on unrelated topics. A new webpage was created to describe exactly how that strategy is illustrated by the creation of the new U.S. office. This webpage includes the complete text of the 4 paragraphs establishing the U.S. office, along with the context of the language immediately before and after the Hawaiian office, showing the hodgepodge of unrelated topics in which the Hawaiian office was hidden. This webpage is at:
http://www.angelfire.com/hi2/hawaiiansovereignty/usoffice012604.html

On Tuesday February 24, 2004 the Honolulu Advertiser published an article indicating that some sort of deal is in the works whereby Senate Republicans might be willing to include the Akaka bill inside the omnibus energy bill soon to be passed, in return for Hawai’i’s two Democrat Senators Inouye and Akaka voting in favor of the energy bill. In addition the deal apparently would involve some new kind of federal recognition uniquely designed for “Native Hawaiians” that would allow them to keep receiving federal money for racial entitlement programs as though they were an Indian tribe, but would stop short of conferring full tribal status. It is difficult to imagine how such an unprecedented concept could be constitutionally permissible, but here’s the newspaper article reporting the rumors.
http://the.honoluluadvertiser.com/article/2004/Feb/24/ln/ln27a.html

On Sunday February 29, 2004 the Honolulu Advertiser published a strange article which is a curious mixture of disinformation intended to lull Akaka bill opponents into thinking the bill is going nowhere ("time is running out" and "anonymous hold" and Akaka "has all but ruled out attaching his bill to another measure, fearing it may be killed.") while at the same time cheering on the bill's supporters by reading positive conclusions into negative events (Frist did not schedule a debate, but neither did he make any objection to the bill's contents; Dept. of Interior did not express any opinion on the bill, but also did not identify any problems with it). Time is clearly NOT running out. Plenty of new bills continue to be introduced into Congress every day, some of which will get time on the calendar and be passed. And as other recent articles have pointed out, attaching the Akaka bill to other must-pass legislation is a favorite tactic and is under active consideration with regard to the omnibus energy bill. Here’s the Advertiser article.
http://the.honoluluadvertiser.com/article/2004/Feb/29/ln/ln13a.html

On April 6, 2004 the Honolulu Advertiser reported in a"breaking news" article from its Washington correspondent Frank Oliveri that the Akaka bill is being amended. On April 7 that article was somewhat expanded, but also some information was lost or downplayed with the addition to the by-line of local Hawaiian affairs reporter (and partisan) Vicky Viotti. Viotti's version eliminates some of the quote from Senator Akaka describing the intensity of Senate opposition to the bill; and Viotti's version adds the valuable information that the revised version of the bill will be introduced in the House on April 21 (possibly indicating an intention to start moving the bill through the House instead of waiting for Senate action).
http://the.honoluluadvertiser.com/article/2004/Apr/06/br/br03p.html

On Thursday April 22, 2004 the Hilo Hawai’i Tribune published an article describing a Wednesday April 21 meeting of the Senate Select Committee on Indian Affairs that approved the newest version of the Akaka bill. The article also describes behind-the-scenes negotiations among the Department of Interior, Department of Justice, the Hawai’i delegation, and other Senators.
http://www.hilohawaiitribune.com/archive/2004/04/22/LocalNews/186990.html

A somewhat open, somewhat stealthy tactic for passing the Akaka bill was attempted in the Senate on Wednesday July 7, 2000, and Thursday. Hawai'i's Senators Akaka and Inouye tried to attach the Akaka bill as a completely irrelevant amendment to a major bill to regulate class-action lawsuits. Several other Senators were trying to attach their own pet bills in the same way. The Republican leadership insisted that only amendments relevant to the class-action topic would be considered. Eventually the Senate voted 44-43 in favor of the leadership's restriction on amendments; but 60 votes would have been required to pass such a measure. The leadership then removed the class-action bill from consideration in order to free up the Senate's time to consider other important legislation. But as this wrangling unfolded, many statements were made about the Akaka bill, both on the Senate floor and in the Hawai'i newpapers. Since this was the only actual "floor action" on the Akaka bill in either the Senate or the House during the 108th Congress (2003-2004), what happened was important. Four newspaper articles are provides, along with one editorial, and the portions of the Congressional Record specifically pertaining to the Akaka bill. It is interesting that Haunani Apoliona, Chair of the Office of Hawaiian Affairs, knew about the attempted stealth maneuver before it took place; and apparently press releases were prepared for immediate distribution as the maneuver unfolded. But the media, and Hawai'i's people, were kept in the dark until after the dust had settled. It is likely that other, more stealthy maneuvers, will be attempted later in the remaining months of the 108th Congress (as happened also at the last possible moment in the 106th and 107th Congresses).


WHILE VISITING MAUI DURING THE SENATE’S SUMMER RECESS IN AUGUST, SENATOR INOUYE SAID HE IS ONCE AGAIN PLANNING TO USE STEALTH STRATEGIES TO PASS THE AKAKA BILL, LIKE HE TRIED IN 2000 AND 2001. Here is the Maui News article of August 22 reporting Inouye’s plans for stealth tactics in the remaining months of year 2004, entitled: “Backdoor approach eyed on Native Hawaiian bill”:
http://www.mauinews.com/news/story/0822202004_new03.asp

A similar (although very tardy) article was published on September 7 by the Honolulu Advertiser: http://the.honoluluadvertiser.com/article/2004/Sep/07/ln/ln17a.html

When Congress came back into session after Labor Day, the Hawai'i delegation moved forward with a sense of urgency. The Congressional Record of September 7, 2004, for the Senate, page S8916, contains the following entry:

SA 3576. Mr. INOUYE submitted an amendment intended to be proposed by him to the bill S. 344, expressing the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by the United States of the Native Hawaiian governing entity, and for other purposes; which was ordered to lie on the table; as follows: Strike all after the enacting clause and insert the following:

and then the entire text of the Akaka bill was newly inserted, with negligible changes, probably to make it conform exactly with the text of the House version H.R.4282.

Then, on Tuesday September 14 the Honolulu Advertiser reported that the House Resources Committee had placed H.R.4282 on the committee's agenda for Wednesday morning, and the bill is expected to be passed by the committee.
http://the.honoluluadvertiser.com/article/2004/Sep/14/ln/ln07a.html

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On September 16, 2004 Ken Conklin published an article in The Hawaii Reporter comparing the stealth tactics expected during the remainder of 2004 with the stealth tactics actually used in Fall, 2000.

http://www.hawaiireporter.com/story.aspx?ccf00674-54dc-4f91-86f3-0a5187500539
Hawaii Reporter, September 16, 2004

Akaka Rollercoaster - All Aboard

By Kenneth R. Conklin

At about noon Wednesday, Sept. 15, 2004, both Honolulu newspapers reported that H.R.4282, the "Native Hawaiian Government Reorganization Act" (also known as the Akaka bill) passed the House Resources Committee "unanimously."

Honolulu Advertiser: http://tinyurl.com/48eo2

Honolulu Star-Bulletin: http://tinyurl.com/5fzmo

Will we ever find out how many members of the House committee were present for that "unanimous" vote? On at least one previous occasion (year 2000), the Senate Indian Affairs Committee "unanimously" approved its version of the bill after "considering" it for 5 minutes with only three Senators present. Two of those three present were the bill's sponsors, Hawaii Sen. Dan Inouye (then chairman of the committee), and Hawaii Sen. Dan Akaka (who is Native Hawaiian and allegedly wrote the bill). Also in attendance was Colorado Senator Ben Nighthorse Campbell, ranking Republican (an Indian who was formerly a Democrat and was chairman of the committee as a Republican before Senator Jeffords switched parties and gave the Democrats control of the chairmanship). Just three guys sitting at a table. Campbell: "Shall we pass it? Waddya say?" Akaka: "Yeah!" Inouye: "Sure." Campbell: "Whatever."

Ever wonder why Hawaii's two Senators have spent their careers on the Indian Affairs Committee when there are no Indian tribes in Hawaii? There's just one reason -- so they can put the words "Native Hawaiian" into the bills intended to provide health, education, and housing benefits to real Indians, and bring back heap big wampum to Hawaii from the Great White Father. Like cuckoo birds secretly put their oversized eggs into the nests of other birds who then keep them warm and feed the chicks when they hatch.

The Akaka bill came so close to passing in 2000 that President Clinton already had his pen poised to squirt his stain onto the paper.

Perhaps we will soon have deja vu all over again as Congress lurches toward adjournment. Let's take a ride in the way-back machine.

Year 2000 in Congress was similar to year 2004: it was a Presidential election year. Congress was supposed to adjourn in October, but important legislation was backed up and so a lame-duck session was held after the election. Sen. Akaka was recuperating from surgery in September 2000, just as in September 2004.

Four years ago, on Sept. 26, 2000 the Akaka bill passed the "full House" by "unanimous consent" on a voice vote under suspension of the rules at dinner time. About ten of the four-hundred thirty-five Members of Congress were present, waiting in line to pass their pet bills on the calendar of non-controversial legislation. "Psssst. I've got a minor little bill. Won't take but a moment of your time. I'll vote for yours if you'll vote for mine."

For details, including Congressman Abercrombie's "keep it quiet" strategy and his crowing with delight afterwards, see: http://tinyurl.com/7yclb Perhaps Abercrombie will try a similar tactic again this year.

Four years ago the Akaka Bill languished in the Senate Sept. 27 to Dec. 13, 2000. Senators Inouye and Akaka hoped to use the same "unanimous consent" stealth strategy that worked in the House, but admitted publicly that they might try to attach the Akaka bill to a major appropriations bill. On Dec. 12, 2000, the Honolulu newspapers published "disinformation" articles saying the bill had died in the Senate. There were post-mortems, crocodile tears, and public "wait 'til next year" pledges.

But wait. Three days later, on Dec. 15, 2000, the final day of the 106th Congress, the Akaka bill was suddenly discovered to have been passed! It was buried (but very much alive) in the form of a single sentence deep inside an appropriations bill. Senator Inouye, as chairman of the Defense Appropriations subcommittee, had abused his power to ... well ... just sort of stick it in there while nobody was looking. The Hawaii delegation was keeping it a secret. As soon as Congress adjourned forever, the bill would suddenly be discovered to have passed, and nothing could be done about it! Having passed both houses with identical language, the bill would have then gone to President Clinton who had already announced he would sign it. But fortunately the subterfuge was discovered in the nick of time. Both houses passed an emergency concurrent resolution in the closing moments of Congress to delete the offending language from the omnibus appropriations bill, and the 106th Congress then came to an end. Whew!

Similar stealth tactics were used in the Senate a year later, during the run-up to adjournment of the extended session in December 2001. Once again an eagle-eyed staffer discovered the Akaka bill hidden in the form of a single sentence. Buried in section 8,132 of the massive Defense Appropriations bill HR.3338, the sentence said: "SEC. 8132. The provisions of S. 746 of the 107th Congress, as reported to the Senate on Sept. 21, 2001, are hereby enacted into law."

The Senate stopped dead in its tracks for a short recess. Senators Craig, Gramm, and McCain dragged Senator Inouye to the cloakroom where they twisted his arm to withdraw the offending language. Putting substantive legislation in an appropriations bill violates a Senate rule. Sen. Inouye knew that; but he later offered a half-apology, saying he had done it just to find out which Senator was holding up his bill. When the Senators came back from the cloakroom and the session was called back to order, Sen. Inouye sheepishly withdrew the offending sentence. A strange new version of the bill was then pulled out of Senator Akaka's pocket and promptly introduced on the Senate floor. This sneak attack on the people of Hawaii occurred on Dec. 7, 2001 -- the 60th anniversary of another sneak attack on Hawaii -- a "day that shall live in infamy." December was dangerous for Hawaii in 1941, 2000, and 2001. It looks like the Congress will have another lame-duck session until mid-December again this year. Be afraid.

The complete history of Akaka-bill stealth and deception (or as much as has been ferreted out) can be read at http://tinyurl.com/57tsj

The rollercoaster passengers are now seated. The lap bar is snapped into place and locked. The stationmaster blows his whistle. Click-click-click the cogs snap into place as the train goes up the incline. Then over the top, hands in the air, and screeeeeeeeam!

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ACTUAL STEALTH MANEUVER UNDERWAY ON SEPTEMBER 15, 2004

On September 15, 2004, the bill number S.2810, the Dept of Labor, Health and human Services, and Education, and related agencies Appropriations Act (providing funding for fiscal year 2005) was reported out of the Senate Appropriations Committee by Senate Report 108-345, read twice and placed on the calendar. Toward the very end of the bill there appears the following provision:

“SEC. 516. The course of dealings between the United States and the Native Hawaiian people, and the enactment of Public Law 67-34 (the Hawaiian Homes Commission Act), Public Law 83-3 (the Hawaii Admissions Act), Public Law 89-10 (the Native Hawaiian Education Act), Public Law 100-579 (the Native Hawaiian Health Care Improvement Act), Public Law 103-150 (the Native Hawaiian Apology Resolution), Public Law 104-42 (the Hawaiian Homelands Recovery Act), and Public Law 106-569 (the Native American Housing Assistance and Self-Determination Act) have established a special relationship between the United States and the Native Hawaiian people, and accordingly, pursuant to the terms and conditions of S. 344, Senate Calendar No. 185, amendment 3576, upon the election of the officers of the Native Hawaiian governing entity and the certifications by the Secretary of the Interior, the United States shall extend Federal recognition to the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people.”

The reference in Sec. 516 to "amendment 3572" is to the amendment to S. 344 proposed by Sen. Inouye on September 7, 2004 at Cong. Rec. page S8916 to update that bill to match the new House version (HR 4282).

Since this appropriations bill has been placed on the Senate Calendar, it apparently can be brought up for vote at at any time.

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

** NEWSPAPER ARTICLE OF SEPTEMBER 29 DESCRIBES A FEW STEALTH SCENARIOS **

http://the.honoluluadvertiser.com/article/2004/Sep/29/ln/ln02a.html
The Honolulu Advertiser, Wednesday, September 29, 2004

Akaka bill voting relies on logistics

By Frank Oliveri
Advertiser Washington Bureau

WASHINGTON — The success or failure of Native Hawaiian recognition this year has been reduced to three or four parliamentary maneuvers available to the Hawai'i congressional delegation at the end of this session.

"We are now at a stage that has less to do with substance and more with moving legislation," said Rep. Neil Abercrombie, D-Hawai'i. "It has less to do with the substance of the bill and more about the means available to you. That is what we are working on right now."

The so-called Akaka bill would create a framework for Native Hawaiian sovereignty to blossom. But should the measure fail, or fail to be considered, lawmakers would be forced to begin the debate and lengthy legislative process anew next year.

Hawai'i lawmakers in Congress met with Native Hawaiian leaders in Washington last week during festivities surrounding the opening of the National Museum of the American Indian. They discussed legislative procedures that might be used to introduce the Akaka bill for a vote.

Paul Cardus, spokesman for Sen. Daniel Akaka, D-Hawai'i, said Akaka would not discuss strategy. He said Akaka was unwilling to give insight to those who might oppose his bill. Cardus said, however, that there are a number of ways to get the bill to the Senate floor.

Abercrombie said: "The reason there is urgency now is that this bill has been probably the most thoroughly discussed, thoroughly analyzed, most widely considered piece of legislation in Hawai'i's history. So a decision needs to be made. We would like to move forward with some resolutions of Hawaiian land and monetary assets. We've been coming to this day since the statehood act."

Abercrombie's version of the Akaka bill passed through the House Resources Committee on Sept. 15.

But the bill's toughest opposition is in the Senate, where Sen. Jon Kyl, R-Ariz., has held it up all year. Kyl opposes granting sovereignty to Native Hawaiians, arguing that it is unconstitutional to grant special status to any racial group. Kyl has several Indian tribes in his state that have achieved sovereignty. "By creating a separate, race-based government within the state of Hawai'i, (the Akaka bill) would violate the United States Constitution and create a divisive and unworkable system of government," Kyl said.

Sen. Dan Inouye, D-Hawai'i, has staked his powerful reputation on getting the bill to a vote before the session ends. He has said in recent weeks that the bill could be added to one of several major spending bills pending in the Senate or to an expected omnibus spending bill — a giant bill with several spending bills rolled into one.

How the bill is attached to these larger spending bills is significant.

If Native Hawaiian recognition is attached to a spending bill by amendment, a senator could object and have a good chance of having the amendment carved out.

But if Inouye could insert the Akaka bill language into a spending bill during negotiations between the House and Senate, it becomes a part of the very fabric of the spending bill. Rejecting the Akaka bill language would mean killing important spending on such issues as foreign operations, homeland security or veterans' funding. "In effect it waives all rules and sets up final consideration," Abercrombie said. "Believe me, there will not just be the Akaka bill that will ride that train."

Office of Hawaiian Affairs Chairwoman Haunani Apoliona said she is confident that Inouye will deliver passage of the bill. "There is a lot of work that we still need to do, but we are ready to do it," she said.

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

CLOSING COMMENTARY: WEIRD EVENTS IN CONGRESS CONCERNING THE AKAKA BILL, SEPTEMBER THROUGH DECEMBER 2004. HOW STEALTH TACTICS GOT THE AKAKA BILL INTO A JOINT HOUSE-SENATE CONFERENCE COMMITTEE FOR THE OMNIBUS APPROPRIATIONS BILL. THE AKAKA BILL COULD HAVE BECOME LAW EVEN THOUGH IT NEVER PASSED EITHER THE HOUSE OR THE SENATE, BUT THE HOUSE CONFEREES MADE AN OBJECTION.

The Akaka-bill rollercoaster finally returned to the station after its fifth run around the track (2000-2004). Amusement park engineers now have about a month to replace some worn-out tracking, and build some especially vicious new ups, downs, twists and turns to make passengers scream even louder on the next run starting in January. This is a ride we all will be taking whether we want to or not.

Readers might recall a previous article I wrote about the Akaka rollercoaster, which appeared in Hawaii Reporter on September 16, 2004. See:
http://www.hawaiireporter.com/story.aspx?ccf00674-54dc-4f91-86f3-0a5187500539

Since that article was published, a great many things have happened, some of which were not reported in the newspapers. The amazing events of October through December 2004 provide a civics lesson in some of the murky, byzantine ways Congress handles legislation. There's also a question whether Senators Akaka and Inouye did or did not fulfill their end of a bargain they made, and whether the Republican leaders involved in that agreement will or will not complain about any breach of that agreement or perhaps argue that the agreement is now void because it was violated. It is very unclear whether the agreement was violated; and it is equally unclear whether the informal rules of gentlemanly conduct in the Senate would allow Republican leaders to complain and withdraw from the agreement even if they thought it had been violated or was deceptively perpetrated. Let's recall the old saying "If you lie down with dogs you will get fleas."

First, a little background information about what was happening in the Senate, that provoked a need for a procedural agreement about the Akaka bill. Then we'll look at an open, upfront attempt to pass the Akaka bill as an attachment to another bill; then a stealth maneuver to include the core concept of the Akaka bill as a short paragraph hidden inside another bill; then the procedural agreement between Akaka/Inouye and the Republican leadership; and then the way the Akaka conceptual paragraph somehow got included in the Senate's report to a House-Senate conference committee to reconcile an omnibus appropriations bill. The Akaka bill would have passed Congress and been signed into law if it had been included in the conference committee compromise (to be rubber-stamped by both the House and Senate). But fortunately some of the House conferees noticed the Akaka paragraph and announced they did not agree to it; and so it was removed barely in the nick of time. Now, let's go through these things one by one; and the exact language of some items will then be provided at the end of this essay.

In the Senate the Akaka bill had a short hearing in February 2003 in the Indian Affairs Committee, with testimony allowed only from a few hand-picked supporters. The bill passed the committee in May. The Republican hold on the bill continued to prevent it from being considered from May 2003 through the end of 2004, although Akaka/Inouye kept tinkering with the bill's language and sent it back to committee several times for rubber-stamp approval. In the House, the Akaka bill was introduced and sent to committee in February 2003, and was not heard from again for 19 months. The House Committee on Resources finally passed the Akaka bill on September 15 2004. The rumor was that some powerful Republicans who oppose the bill but are friends of Congressman Abercrombie wanted to let him "save face" in Hawai'i. But the bill went nowhere in the House after that. All the action was focused in the Senate.

On July 7 and 8, 2004 a very open, public attempt was made to attach the Akaka bill to a major bill being debated on the Senate floor. By attaching the Akaka bill, it would be possible to get around the Republican hold on it. A major bill was under consideration to reform class action lawsuits by establishing new legal rules for certifying them. The Akaka bill, of course, is irrelevant to that topic. Many other Democrat Senators were also trying to attach their own favorite bills to the class-action bill, including such proposals as raising the minimum wage and allowing the importation of medical drugs from Canada. Republican leaders realized that the main bill was already quite controversial, and loading it up with numerous relevant amendments and irrelevant attachments would make the bill so complex that it would take up too many days on a crowded calendar that was growing short because of a need for a summer recess, the Democrat and Republican national conventions, and a need for time to campaign before the November 2 election. Therefore the Republican leadership removed the class-action bill (and all its many proposed attachments) from the floor.

At some point the core concept of the Akaka bill (without any pesky details) got included as a very short paragraph buried deep inside a major appropriations bill in the Senate (see below for the exact language), where it was probably inserted by Senator Inouye acting alone in the dead of night. This hiding of the Akaka bill core concept deep inside another bill was not reported in the media; and its presence probably remained unknown to most Senators. The committee chairman and ranking member (top-seniority Senator of the minority party, like Inouye) on appropriations committees apparently have the privilege of inserting a few last-minute "improvements" into bills withour a committee vote (Inouye has brought millions of dollars in pork-barrel projects to Hawai'i this way for many years). While that larger host bill was in limbo awaiting action on the Senate floor, Democrat Senators Inouye and Akaka then made an agreement with Republican Senate leaders Kyl and Domenici, and perhaps others. The Republican concessions in the agreement were formally entered into the Congressional Record, while the concessions from Akaka/Inouye were mostly a gentlemen's agreement whose terms remained vague (the colloquy from the Congressional Record is provided below). This agreement was widely and accurately reported in the media.

The agreement was that Akaka/Inouye would stop trying to pass the Akaka bill by including it either visibly or stealthily in other bills. In return the Republicans who have been aggressively blocking the bill agreed to refrain from placing holds or blocks on the bill in 2005, and to allow the bill to come to a decision in the Senate not later than August 7, 2005.

The Republican leaders made the agreement because otherwise dozens of appropriations bills essential to their own home states and to the well-being of the United States would be messed up by having the Akaka bill inserted into them. Delays and procedural problems caused by a need to deal with annoying irrelevant attachments might cause the Senate to run out of time and thereby prevent those major bills from passing, just as had already happened with the bill to reform class-action lawsuits.

Later, with time running short and many must-pass appropriations bills still needing work, the Senate gathered together a large number of these bills containing thousands of pages, and sent the package forward to a joint House-Senate conference committee. The conferees would be expected to reconcile differences between the House and Senate versions, and produce a huge bill whose language could then be rubber-stamped in identical form by both the House and Senate. This is the way Congress ends every year, with the even-numbered years facing the worst crunch because that's the final session of a two-year "Congress" when all unpassed bills die and everything must start from scratch the following January. Senators and Congressmen with high seniority, appointed to the conference committee, love these end-of-session high-pressure last-minute reconciliation conferences, because all sorts of "details" (involving hundreds of millions of dollars in pork-barrel projects) can escape careful scrutiny and get enacted into law. Even a bill which has passed only one chamber (either House or Senate) and gets sent to a conference committee can then pass the entire Congress if the conferees from the other chamber do not object to it.

That short paragraph mentioned earlier, containing the core of the Akaka bill, remained buried deep inside one of the bills the Senate sent to the conference committee. No such language was contained in any of the House versions of the bills. But if the House conferees failed to notice that little paragraph, or if they did not object to it, then that language would be included in the final consolidated bill to be rubber-stamped by both the Senate and House.

Let's review what happened. The Akaka bill did not pass either the Senate or the House. A short paragraph containing the essential concept of the Akaka bill was secretly placed by Senator Inouye into the Senate version of a major appropriations bill (the paragraph granted federal recognition for a tribal council to be elected in the future by "Native Hawaiians" through an unclear process). No Akaka-bill language was contained in any bill forwarded from the House to the conference committee. If the handful of House conferees agreed to that Akaka paragraph, or failed to object to it, or simply failed to notice it, then the Akaka paragraph would be included in the final bill and would surely be rubber-stamped at the last moment by both Senate and House and would then certainly be signed by the President (who has not vetoed a single bill during his first four years in office and whose veto of this omnibus appropriations bill would bring the federal government to a screeching halt until January).

Fortunately, the House conferees did notice the Akaka paragraph, and announced they did not agree to it. The Akaka paragraph was then removed from the final version of the conferenced bill, and Hawai'i was once again spared from disaster. All this took place behind closed doors, without public input.

Now comes the question whether Akaka/Inouye kept their word to stop trying to pass the Akaka bill by attaching it to other bills. What do you think? Let's consider what happened.

Defenders of Akaka/Inouye would say that the Akaka paragraph had already been inserted into the other bill before the agreement was made; therefore, the agreement did not apply to that paragraph. Buyer beware! The Republican leaders made an agreement without realizing that the Akaka paragraph had already been secretly inserted into a larger bill; and that's their fault; they should have been more careful before making the agreement. Too bad for them. Also, there would have been no way to remove the paragraph from the other bill without bringing the other bill back to the Senate floor for an amendment to remove the paragraph before sending it to the conference committee. That would take up too much valuable time (about two minutes) and might open Pandora's box by giving other Senators an excuse to make other "technical" amendments. The agreement stands.

Critics of Akaka/Inouye would say that since they knew the Akaka paragraph was already in place at the time they made the agreement, then either they had an obligation to do whatever was necessary to remove the paragraph, or else they should refrain from making such an agreement which they knew they could never fulfill. It was dishonest and ungentlemanly of them to propose an agreement while knowing a secret Akaka paragraph had already been hidden inside a bill and could not be removed. The fact that the Akaka paragraph got forwarded as part of the Senate package to the conference committee is clear evidence that the agreement was not carried out. Therefore the agreement is moot, and the Republican leadership has no obligation in 2005 to stop blocking the Akaka bill.

The trouble is that the Senate behaves like a gentlemen's club where everyone is expected to behave outwardly in a cordial and respectful way (even while cutting, slashing, sidetracking, or poisoning each other's bills). "I regret that my esteemed colleague from the great state of Slobovia finds himself unable to support my bill at this time and has proposed an amendment I cannot endorse." No Senator is ever supposed to raise a doubt about any other Senator's honor. A Senator of an ethnic minority who has been awarded the Congressional Medal of Honor and walks with an empty sleeve in his suitcoat must always be treated as above reproach.

When one party to a gentlemen's agreement violates that agreement either through inaction or through new action, that person should no longer be regarded as a gentleman and the agreement should thereby considered a nullity. Of course, the gentleman who failed to uphold his end of the bargain might try to avoid the censure of being labeled ungentlemanly by saying, basically, "Oops! Sorry. It slipped by. I was inattentive." Or, maybe, "It would have been impossible for me to delete the offending provision without taking action to do so on the floor of the Senate." Well, too bad. Whatever excuses might be offered, they should have been known to the offending gentleman at the time he entered into an agreement which he should have known he would be unable to perform. Inside the gentleman's club of the Senate, there need be no accusations of ungentlemanly behavior. After all, it might seem ungentlemanly for one Senator to accuse another one of ungentlemanly conduct just because he accidentally (ah-hem!) forgot to do what he had promised to do, or just because he somehow overlooked (ah-hem!) the fact that it would be impossible to do what he had pledged to do.

So fine, let the "gentlemen" maintain the fiction that they behave like gentlemen. It would be very gentlemanly for Senator Kyl to say to Inouye "I regret that the Akaka attachment showed up in the Senate proposal for the consolidated appropriations bill sent to the conference committee; but since that unfortunate event is contrary to our agreement that it should not happen, therefore our agreement is no longer in effect and will not affect what happens in 2005." And then Senator Inouye, being the gentleman he is, will of course reply "My esteemed colleague from Arizona is correct, and I acknowledge that the agreement formerly entered into is now moot."

Indeed, the truly gentlemanly thing for Senator Inouye to do would be to raise the issue himself, offer an apology to Senator Kyl for failing to fulfill the agreement, and then tell Senator Kyl that Kyl is released from any need to adhere to the agreement. And that has as much chance of happening as my getting those presents from Santa Claus that I keep asking for (although I'm sure that Santa is a very honorable gentleman, but he asked me not to sit on his lap, and I know he's very busy).

Anyone who wants to see details about the Akaka paragraph, the gentlemen's agreement, and how the Akaka paragraph got removed from the conference committee report should keep reading. Also, anyone should keep reading who wants to see an example of how to use the Library of Congress website to get information about legislation. Otherwise, it's time to get off the rollercoaster for a while, use the restroom, stretch your legs, and gather your courage for a wild 6th ride on the Akaka rollercoaster. Don't forget the nausea pills and the barf bag.

For a thorough history of the Akaka bill throughout the 108th Congress (2003-2004), including newspaper coverage and analysis, see (perhaps 200 pages):
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist108thCong.html

For a 5-paragraph summary of what's bad about the Akaka bill, followed by extensive documentation of the main points, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaNationalSummary2004.html

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

In quotes below is the one-paragraph "core essence of the Akaka bill" mentioned in the above essay, that was inserted secretly by Senator Inouye into a larger, more imnportant bill. On September 15, 2004, the bill number S.2810, the Dept of Labor, Health and human Services, and Education, and related agencies Appropriations Act (providing funding for fiscal year 2005) was reported out of the Senate Appropriations Committee by Senate Report 108-345, read twice and placed on the calendar. Toward the very end of the bill there appears the following provision:

“SEC. 516. The course of dealings between the United States and the Native Hawaiian people, and the enactment of Public Law 67-34 (the Hawaiian Homes Commission Act), Public Law 83-3 (the Hawaii Admissions Act), Public Law 89-10 (the Native Hawaiian Education Act), Public Law 100-579 (the Native Hawaiian Health Care Improvement Act), Public Law 103-150 (the Native Hawaiian Apology Resolution), Public Law 104-42 (the Hawaiian Homelands Recovery Act), and Public Law 106-569 (the Native American Housing Assistance and Self-Determination Act) have established a special relationship between the United States and the Native Hawaiian people, and accordingly, pursuant to the terms and conditions of S. 344, Senate Calendar No. 185, amendment 3576, upon the election of the officers of the Native Hawaiian governing entity and the certifications by the Secretary of the Interior, the United States shall extend Federal recognition to the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people.”

The reference in Sec. 516 to "amendment 3572" is to the amended version of S. 344 (the Akaka bill) proposed by Sen. Inouye on September 7, 2004 at Cong. Rec. page S8916 to update that bill to match the new House version (HR 4282).

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

The agreement among Senators Akaka, Inouye, Kyl, and Domenici was reported on the flood of the Senate and entered into the Congressional Record for the Senate for October 11, 2004 on page S11234 as follows:

-------

Mr. KYL. Mr. President, I want to take just a couple minutes to engage three of my colleagues in a brief colloquy: Senators Inouye, Senator Akaka, and Senator Domenici, to inform our colleagues of an agreement that was reached in an effort to clear a group of bills that the Energy and Natural Resources Committee had worked on very hard and very long, for a long period of time, and have, in fact, cleared the Senate and been sent to the House, and to ensure that at some point next year, before August 7, a bill relating to native Hawaiians, similar to or the same as S . 344 , would be considered by this body.

We reached that agreement, which was embodied also in a letter from the two leaders to Senators Domenici and Inouye, who had inquired of that possibility, in which the leaders promised their best efforts to ensure that a native Hawaiian bill equivalent to S . 344 would be brought to the Senate floor for debate and resolution no later than August 7 of next year.

I had told both Senators from Hawaii I would express publicly my personal commitment to assist in that effort to ensure that no procedural roadblocks would be thrown in the way of the consideration of that legislation, nor a final vote on it. I will indeed do that and encourage all of my colleagues to work with us toward that end.

I thank Senator Domenici for his leadership on that large group of bills that were so important to so many Members of this body and for his work on this particular issue, as well as our good friends from Hawaii, Senators Akaka and Inouye, for their cooperation in helping us reach

this resolution.

Mr. DOMENICI. Will the Senator yield?

Mr. KYL. I am happy to yield.

The PRESIDING OFFICER. The Senator from New Mexico.

Mr. DOMENICI. Mr. President, I note that Senator Akaka and the distinguished senior Senator from Hawaii are on the floor. First, I want to say they have been gracious. Many Senators had a part in this very major bill, with 24, 28, maybe even 30 pieces of legislation for their States.

I say to the Senators from Hawaii, you had a perfect right to insist that your bill, which has just been described by the distinguished Senator from Arizona, be in that bill. That could have caused the bill to probably be here a long time, the big bill, and you graciously said, if we can work something else out, let's try. We did.

As a result, we passed this bill for many Senators, and we said to you, both Senators from Hawaii, we will do our best to get your very important bill, described by the Senator from Arizona, up. We cannot assure that. I cannot guarantee that. This is the Senate. But we do have a letter with all of the people who are in the leadership, I, myself, by the distinguished two Senators from Arizona, that we will do our best. We described it and everyone knows of it.

Today we thought we would tell the Senate and give this assurance in the RECORD to our two Senators from Hawaii that we are serious, that we will do our part in trying to make sure their bill comes to a vote in the Senate by the date they have agreed to and we have agreed to.

I say to Senator Kyl, I thank you for your diligent efforts in helping with this. Every Senator who got something in that legislation that is now going to the House will know what we have done.

Thank you very much.

The PRESIDING OFFICER. The Senator from Hawaii.

Mr. INOUYE. Mr. President, I am extremely grateful for those reassuring words of my distinguished friend from Arizona and my distinguished friend from New Mexico. We look forward to working with them next year on this most important bill, a bill for the native Hawaiians.

The PRESIDING OFFICER. The Senator from Hawaii.

Mr. AKAKA. Mr. President, I want to express my sincere gratitude to Senator Kyl particularly and also to Senator Domenici for working with us on our Hawaiian bill. Especially I want to express my gratitude for your grace and your commitment for next year. Again, I want to do this, as we say in Hawaii, with much aloha.

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

As of October 24, 2004 S.2810, the appropriations bill for Labor, Health and Human Services, and Education still had the bizarre section 516 noted above, scheduled to come up after the recess for the November 2 election.

This section 516 was apparently never removed as Akaka/Inouye had pledged to do. Perhaps they somehow conveniently "forgot" about it during the election recess? If called to account, they could always say "oops" and protect the appearance of being honorable by then removing it. But apparently nobody caught the "oops." One way or another, either in S.2810 Sec. 516 or in some other bill, the Akaka bill slipped through and became included in the massive omnibus appropriations bill sent from the Senate to a conference committee with the House.

Page H10700 of the Congressional Record for the House of Representatives for November 19, 2004 includes the following section of the report of the House-Senate conference committee agreement on the consolidated appropriations act H.R.4818:

---------

NATIVE HAWAIIAN GOVERNING ENTITY RECOGNITION

The conference agreement does not include a provision, proposed by the Senate, recognizing the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people. [because] The House did not propose a similar provision.

---------

Notice the language of that section clearly says the Senate had proposed to the conference committee the Hawaiian recognition bill (as though it had passed the Senate), but the House conferees did not agree and the Akaka paragraph was therefore removed by the conference committee. Anyone can verify the existence of this piece of the conference committee report by following a series of steps on the Library of Congress website containing the Congressional Record. No permanent link can be provided for that piece, because the "thomas" website makes extensive use of temporary URLs that expire after about ten minutes. Great patience and lengthy searching is needed. Here is the sequence of steps to verify the removal of the Akaka paragraph from the conference report. Following these steps will show how massing the consolidated appropriations bill is, and how deep inside this little paragraph was buried.

The Library of Congress website for tracking Congressional legislation is
http://thomas.loc.gov

Then:
http://thomas.loc.gov/home/approp/app05.html

Status of FY2005 Appropriations Bills

[top row]

Consolidated
Appropriations
HR4818

H.Rept.
108-792

H. Rept. 108-792

Conference Report to Accompany H.R. 4818 - Consolidated Appropriations Act, 2005

CONFERENCE REPORT ON H.R. 4818, CONSOLIDATED APPROPRIATIONS ACT, 2005 -- (House of Representatives - November 19, 2004)

DIVISION F--LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES APPROPRIATIONS 2005 [extremely close to the bottom]

[Page: H10700; containing the following page of content which includes the House conferees' rejection of the paragraph containing essence-of-Akaka]

and Senate stating that none of the funds provided may be used to implement or administer any changes to regulations regarding overtime compensation in effect on July 14, 2004.

HIGHER EDUCATION SPECIAL ALLOWANCE FOR 9.5% LOANS

The conference agreement does not include a provision that prohibits the use of funds for the Secretary to administer or pay any special allowance under sections of the Higher Education Act of 1965 pursuant to provisions of the regulations of the Department of Education. The Senate bill contains no similar provision.

IMMIGRATION LIMITATION

The conference agreement does not include a provision that prohibits the use of funds by the Department of Education in contravention of sections of the Illegal Immigration Reform and Responsibility Act of 1996. The Senate bill contains no similar provision.

NATIVE HAWAIIAN GOVERNING ENTITY RECOGNITION

The conference agreement does not include a provision, proposed by the Senate, recognizing the Native Hawaiian governing entity as the representative governing body of the Native Hawaiian people. The House did not propose a similar provision.

NORTHERN LIGHTS BOULEVARD PROPERTY

The conference agreement includes a provision conveying the property at 1818 W. Northern Lights Boulevard in Anchorage, Alaska from the U.S. Government to the Southcentral Foundation for a replacement Head Start facility. The House bill contains no similar provision.

ACROSS-THE-BOARD SALARIES AND EXPENSES REDUCTION

The conference agreement includes a new provision to reduce salaries and expenses of the Departments of Labor, Health and Human Services, and Education by $18,000,000.


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

You may now

SEE COMPLETE DETAILS ABOUT THE HISTORY OF THE AKAKA BILL DURING THE 108TH CONGRESS (January 2003 through December 2004), INCLUDING FULL TEXT OF NEWSPAPER ARTICLES AND OTHER EVENTS HAPPENING IN HAWAII RELATED TO THE AKAKA BILL

or

SEE A COMPLETE HISTORY OF STEALTH AND DECEPTION REGARDING THE AKAKA BILL FROM YEAR 2000 THROUGH THE PRESENT

or

SEE MORE INFORMATION ABOUT THE NATIVE HAWAIIAN RECOGNITION BILL

or

GO BACK TO OTHER TOPICS ON THIS WEBSITE


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