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Affirmative Action Gone Berserk -- Racial Entitlement Programs in Hawai'i, and the Attempt to Create a Phony Indian Tribe to Defend Them (Native Hawaiian Recognition Bill S.344 and H.R.665)



(c) Copyright 2003, Kenneth R. Conklin, Ph.D. All rights reserved


SUMMARY (An expanded essay follows the summary, with extensive documentation)

While the rest of America struggles with the issue of affirmative action or racial preferences in employment and college admissions, Hawai'i has a decades-long tradition of racially exclusionary government and private entitlement programs for ethnic Hawaiians. There are probably more than 170 such programs, worth several Billion dollars. These programs have become entrenched over the years, spawning large bureaucracies and government fiefdoms. The racial spoils system is a way of life in Hawai'i politics. Each year the state government eagerly hands out tens of millions of dollars of public money to quasi-autonomous government agencies (OHA and DHHL) which, by law, give benefits only to the favored race. Thus Hawai'i has a government sanctioned hereditary elite, and balkanization continues at an accelerating pace.

Some ethnic Hawaiians now view themselves as primarily Hawaiian and only secondarily American (if at all). Some go further and seek to re-establish all Hawai'i as an independent nation, in which there would be three classes of people: those with any degree of native ancestry would be first-class citizens with full voting and property rights; those who lack native ancestry but take an oath of allegiance to Hawai'i and foreswear any other citizenship would become second-class citizens with limited voting rights, and property rights limited to non-native areas; and all others would be resident aliens with no voting rights and severely restricted property rights.

Thus Hawai'i has become the laboratory where political scientists can observe the natural progression from racial preferences and affirmative action, to racial entitlement programs, to government-sponsored racial separatism, to demands for ethnic nationalist sovereignty and independence.

But defenders of unity and equality are fighting back. The first big victory was the U.S. Supreme Court Rice v. Cayetano decision in February 2000, which desegregated the right to vote for trustees of the state government Office of Hawaiian Affairs (the agency was founded under segregationist rules in 1980 requiring that only racially-defined Hawaiians could vote for trustee, run for trustee, or receive handouts). Half a year later the U.S. District Court in Honolulu ruled in Arakaki v. Hawai'i that candidacy for OHA trustee could not be racially restricted; and that decision was upheld on December 31, 2002 by the 9th Circuit Court of Appeals. Several other lawsuits have been filed and are now pending, seeking to dismantle OHA and other racial entitlement programs on the grounds that racial restrictions on who can receive benefits are unconstitutional.

Meanwhile the Hawai'i state Legislature every year enacts numerous new racial entitlement programs and provides ever-increasing funding for continuing programs, even while cutting the budgets of schools, health clinics, welfare and environmental programs that serve all people without racial restriction. Such laws are passed faster and more numerously than lawyers can challenge them. A system previously established, successfully challenged, and now being re-established, permanently funnels millions of dollars each year to racial entitlement programs from the revenues produced by the government lands. The percentage of gross revenue allocated to OHA probably exceeds 100% of net income from government lands after capital and operating expenses; thus, taxpayers pay all the expenses but all the income goes to racially exclusionary programs. Hawai'i's new Governor Linda Lingle has worked hard, together with the Office of Hawaiian Affairs and leaders of the Legislature, to set up an automatic, routine system whereby ceded land revenues will permanently and automatically be funneled, to the Office of Hawaiian Affairs behind the scenes, without any need for annual legislation (or public scrutiny).

The lawsuits against the entitlement programs have created fear among the bureaucrats who run them and the established power structure of the state. The only way to save the existing system is to get Congress to pass a law creating a phony Indian tribe for ethnic Hawaiians. If Hawaiians could get federal recognition as an Indian tribe they could legally have government sponsored racial entitlement programs, and elections restricted to voters and candidates of the favored race. Supporters of the Native Hawaiian Recognition bill have tried to pass it since summer of 2000. They came very close to succeeding through stealth and deception, but failed when opponents discovered what was happening.

The Native Hawaiian Recognition bill is unconstitutional. It seeks to overturn a Supreme Court decision by creating a phony Indian tribe out of thin air. Real Indian tribes were historically composed of separate and distinct people living apart from the surrounding non-Indian population, who continuously maintained their social cohesiveness, and who have a tribal government that exercises substantial authority over its members. Ethnic Hawaiians meet none of those requirements. Congress can recognize genuine tribes, but it has no Constitutional authority arbitrarily to convert a racial minority into an Indian tribe for the purpose of preserving racial entitlement programs. If such a thing is allowed to happen in Hawai'i, it can happen elsewhere. For example, using the argument that they are indigenous, people of Mexican ancestry living in Texas and California, who have an Aztec ancestor, could demand federal recognition as the Nation of Aztlan and might even try to secede from the U.S.

Following is a more detailed explanation of some of these points, with numerous references to webpages that provide documentation and further explanation.

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EXPANDED EXPLANATION, WITH EXTENSIVE REFERENCES TO FURTHER DETAILED EXPLANATIONS

While the rest of America struggles with the issue of affirmative action or racial preferences in employment and college admissions, Hawai'i has a decades-long tradition of racially exclusionary entitlement programs for ethnic Hawaiians. There are probably more than 170 such programs, worth several Billion dollars. These are not merely preference or affirmative action programs -- they are absolute government entitlements excluding all persons who are not of the favored race. For a list of many of the Hawai'i programs and their dollar amounts, see
http://www.angelfire.com/hi2/hawaiiansovereignty/listhawnentitlements.html

Long ago the idea was to rehabilitate a dying race of native Hawaiians by offering land leases at one dollar per year for homesteads or farming. The land was not given in fee-simple for fear the uneducated, destitute recipients would sell it and squander the proceeds. 80 years later a new Hawaiian Homelands housing development overlooking downtown Honolulu offers dollar-a-year land leases where fire department captains and managers of brokerage houses who have the right racial heritage build homes valued at nearly $400,000. Thus we see that many of these "poor, downtrodden" Native Hawaiians are quite wealthy yet continue to receive government racial entitlements.
http://the.honoluluadvertiser.com/2001/Jan/28/128localnews12.html

The formerly dying race has multiplied ten-fold during the first century of American sovereignty in Hawai'i, from fewer than 40,000 in 1900 to more than 400,000 in year 2000. About 240,000 live in Hawai'i, comprising about 20% of the state's population, while the remaining 160,000 are scattered throughout the other states. For a spreadsheet of the state-by-state population of Native Hawaiians, see
http://www.angelfire.com/hi2/hawaiiansovereignty/population2000.html

In recent decades the Hawaiian racial entitlement programs have become more numerous and far more lucrative. Anyone with one drop of native Hawaiian blood qualifies for most of these programs, and many programs do not require proof of financial need. An enormous bureaucracy has become entrenched consisting of government agencies, tax-exempt charitable foundations, and for-profit corporations operating as service providers and contractors. Virtually every large company, law firm, and bank in Hawai'i, as well as some on the mainland, has interlocking directorates or on-going relationships with ethnic-Hawaiian-serving institutions. Perhaps that helps explain why the Hawai'i Legislature so eagerly gives money to the semi-autonomous branch of state government called Office of Hawaiian Affairs, which by law can provide benefits only to ethnic Hawaiians. Hawai'i's very "liberal" political establishment strongly supports the existence and expansion of these entitlement programs. To read some of the outrageous bills in the 2003 Legislature, and the testimony written in opposition by defenders of equality under the law, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnbillsleg2003.html

Two recent surveys show that both ethnic Hawaiians and those with no native blood share similar priorities in life, and similar views on what purposes government policies and expenditures should be trying to accomplish. Education, health, housing, environment, and traffic congestion are seen as more important issues for government, and more worthy reasons for possible tax increases, than "native rights" or "Hawaiian sovereignty" or building an ethnic Hawaiian nation. Both ethnic Hawaiians and non-Hawaiians share these opinions with approximately the same ranking of priorities.
http://www.angelfire.com/hi2/hawaiiansovereignty/prioritieshawnonhaw.html

Yet both the Legislature and the Office of Hawaiian Affairs give top priority to issues like ceded land revenues for OHA, defending native rights, and supporting the Native Hawaiian Recognition bill to establish ethnic Hawaiians as a federally recognized Indian nation. That's because enormous amounts of money and power are at stake. It is also because the generous people of Hawai'i, filled with aloha for Hawaiians and their culture, have made a racial group into a sentimental symbol or mascot (whether or not the members of the group wish to be treated that way).
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html

The main arguments offered in support of the Native Hawaiian Recognition bill are based on claims of victimhood, racial debt, and the need for restitution, reparations, reconciliation, and self-determination. The politically correct ideology says that Native Hawaiians are a poor, downtrodden group who need these entitlements; and that "their" nation was overthrown in 1893 by an armed invasion by U.S. Marines in support of greedy white businessmen, and their culture and language was suppressed. Thereafter Hawai'i was "illegally" annexed to the U.S. and the "Native Hawaiian lands" were "stolen." Thus the theory is that Native Hawaiians are owed enormous racial reparations, and the entitlement programs are just a down-payment on that. As indigenous people they also have a right to self-determination, to form their own nation and govern themselves. However, the real motivation for the Akaka bill is simply greed and power, and the bill is fundamentally race-based. For example, the nation whose monarchial government was overthrown by an internal coup in 1893 had thousands of members with no native blood, including many elected members of the Kingdom legislature and nearly all appointed members of the cabinet. Thus any reparations for the overthrow of the monarchy, or for an allegedly illegal annexation to the U.S. more than a century ago, would be owed to all Hawai'i's people. To debunk the claims about indigenous rights, self-determination, victimhood, illegal overthrow of the monarchy, illegal annexation, and the need for reparations; and to understand that the Akaka bill is primarily about race, money, and power, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaRaceNotNation.html

The greed of the recognition bill is the desire to maintain and expand the lucrative entitlement programs in the face of court challenges that they are unconstitutional. The bill is also a quest for power --a desire to solidify and further entrench the bureaucracies which claim to serve those poor, downtrodden Hawaiians. The Rice v. Cayetano decision clearly stated that "Native Hawaiian" is a racial designation, not a political one. Therefore everyone understands that all the racial entitlement programs will eventually be ruled unconstitutional under the 14th Amendment equal protection clause. The only way to salvage those programs is to create a phony Indian tribe and give it federal recognition. The tribe is entirely based on race, unlike the real Kingdom of Hawai'i that once existed as an independent nation in which many elected legislators and most appointed members of the Royal cabinet had no Hawaiian blood. (How many Indian tribes have most of their chiefs being non-Indians?) For information on the full partnership between native Hawaiians and Euro-Americans throughout the Hawaiian Kingdom period, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html

The "tribe" being created in Senator Akaka's bill is not a re-establishment of a real tribe that somehow faded away or was overwhelmed; rather, it is an invention out of thin air, to preserve racially exclusionary entitlement programs that otherwise would be unconstitutional. It is affirmative action run amok. It is an extreme example of what happens when well-meaning people give affirmative action to help some poor downtrodden people, who then get accustomed to the benefits, demand more and more, and come to see themselves as forever deserving of entitlements and even deserving of independent sovereignty itself. The racial entitlement programs are so firmly entrenched in Hawai'i that the entire political establishment of both parties fears to lose them; therefore, the establishment strongly supports the Akaka bill. But that bill would be very bad for Hawai'i. The precedent it would set would be bad for all of America, Most ordinary people of all races, including ethnic Hawaiians, do not support racial separatism. Needy people should get government help based on need alone. Wealthy people, including wealthy Native Hawaiians (of whom there are many, including most supporters of the Akaka bill), do not need and should not receive government entitlement programs even if they have that magical Hawaiian blood. For some important reasons why this bill should be opposed by people from other states outside Hawai'i, in their own best interests, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaOtherStatesOppose.html

Affirmative action over time leads to the entrenchment of programs that come to be seen as entitlements. Large bureaucracies are established. Money and power flow there. Some ethnic Hawaiians have come to identify themselves primarily with their race rather than with their citizenship as Americans. Some Hawaiian activists see America as their historical enemy -- a colonial power illegally occupying the native homeland, suppresing the native culture. Racial separatism in the form of a race-based nation-within-a-nation is seen by many activists as only the first step toward the expulsion of the U.S. from Hawai'i. The resulting independent nation would encompass all the Hawaiian islands, where ethnic Hawaiians would hold guaranteed racial supremacy because of "indigenous rights." For more about this underlying unity of purpose between racial separatism and ethnic nationalism in Hawai'i, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/sepnatcommoncore.html
and for a description of the fundamental principles of unity, equality, and aloha for all, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/principles.html

For a complete history and thorough analysis of the Native Hawaiian Recognition bill, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

For up-to-date general-interest information created to help the media and general public, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/medianotes.html

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CONGRESSIONAL LEADERS, ATTORNEYS, AND SCHOLARS EXPLAIN IN HEAVILY DOCUMENTED DETAIL WHY THE NATIVE HAWAIIAN RECOGNITION BILL IS UNCONSTITUTIONAL, WOULD SET A BAD PRECEDENT FOR THE UNITED STATES, AND WOULD BE DISASTROUS FOR HAWAI'I

For those interested in Congressional commentary on this bill, and heavily-documented legal analyses of why the Native Hawaiian Recognition bill is unconstitutional, why reparations for Native Hawaiians would be inappropriate, and why there is no entitlement to racial ownership of the public lands of Hawai'i or the revenues derived from them, see the following:

In July 2001 Chairman Sensenbrenner of the House Judiciary Committee wrote a letter to Speaker Hastert asking that the bill should be killed, or else should be referred to his Judiciary Committee to hold hearings on its unconstitutionality.
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSensenbrenner071901.html

In December 2001 a very strongly worded and lengthy analysis of the bill was done by Lincoln Oliphant on behalf of Senator Craig for the Senate Republican Policy Committee. That analysis was successful in alerting Republican Senators, who prevented a last-minute stealth maneuver by Senator Inouye.
http://www.angelfire.com/hi2/hawaiiansovereignty/oliphantcraig120601.html

Attorney Paul M. Sullivan wrote a detailed point-by-point legal analysis of the primary version of the Native Hawaiian Recognition bill in the 107th Congress: S.746 and H.R.617
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSullivan040601.html

Attorney Paul M. Sullivan published an article in the Asian-Pacific Law and Policy Journal of July, 2002 analyzing the Rice v. Cayetano decision as applied to the Native Hawaiian Recognition bill. Mr. Sullivan also described the relevance of the Mancari and Sandoval cases regarding the lack of a true tribe of Native Hawaiians, and the the inability of the bill to survive the strict scrutiny test mandated by the Adarand decision.
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanaplpj070102.pdf

Attorney Patrick W. Hanifin published an article in the Asian-Pacific Law and Policy Journal of July, 2002 describing Hawai'i's race-based government agencies OHA and DHHL. He described the Rice decision and its progeny lawsuits Arakaki1, Arakaki2, Barrett, and Carroll. He explained why the Akaka bill is entirely racial and not based on being a tribe, or descent from Hawaiian Kingdom subjects, or a hereditary claim for stolen lands or sovereignty, or claims to political control of culture and language, or claims to being a separate nation.
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinaplpj070102.pdf

Attorney Patrick W. Hanifin published "Hawaiian Reparations: Nothing Lost, Nothing Owed" Patrick W. Hanifin in Volume XVII, No. 2 of the Hawai'i Bar Journal, 1982. This lengthy, heavily-documented 21-year-old article explores all aspects of claims that Native Hawaiians are owed reparations for the overthrow of the monarchy and for the ceding of lands to the United States; it is transcribed on the internet at:
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

Attorney Patrick W. Hanifin published "To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai'i" In Spring, 2002 issue of the Hawaii Bar Journal, Vol. V, No. 13, pp. 15-44. The article is a thorough examination of the history of citizenship and voting rights throughout the history of the Hawaiian Kingdom, Republic, Territory, and State. It shows that at no time have citizenship or voting rights ever been limited exclusively to native Hawaiians, and that the Akaka bill would impose a racial balkanization of citizenship rights entirely inappropriate to this history.
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf

Attorney H. William Burgess was lead attorney in Arakaki vs. State of Hawai’i, also known as Arakaki1. This lawsuit desegregated candidacy for trustee of Office of Hawaiian Affairs. It affirmed that all registered voters regardless of race have a right to run for trustee, and voters are entitled to a full range of candidates for whom to vote, unrestricted by race. Legal documents and analysis are provided.
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki.html

Attorney H. William Burgess is lead attorney in Arakaki v. Cayetano, also known as Arakaki2. This currently pending lawsuit challenges both the Office of Hawaiian Affairs and the Department of Hawaiian Homelands as being unconstitutional. Legal documents and analysis are provided.
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html

A thorough analysis of the ceded lands issue is available at
http://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

H. William Burgess and Sandra Puanani Burgess published an article on the history and analysis of a ceded lands lawsuit OHA v. State of Hawai'i in the July 2001 issue of the Hawai'i Bar Journal.
http://www.angelfire.com/hi2/hawaiiansovereignty/burgesscededhbj0701.html

One reason offered to justify passing the Akaka bill is a series of claims that Native Hawaiians have been historically victimized, and their culture and language were suppressed. There are many victimhood claims in the "findings" section of the bill. One claim repeatedly asserted is that the Hawaiian language was made illegal by the revolutionary government following the overthrow, and remained illegal for several decades. That particular claim has been thoroughly researched and found to be false. See
http://www.angelfire.com/hi2/hawaiiansovereignty/hawlangillegal.html


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Email: ken_conklin@yahoo.com