In mid-July, 2005 Representative Steve King took note that the Akaka bill was moving toward debate and vote in the Senate. He was so alarmed that he asked his Deputy Chief of Staff, S. Brenna Findley, to begin circulating a letter to Speaker J. Dennis Hastert and Majority Leader Tom DeLay, asking that the Akaka bill be killed in the House. This effort to block the bill in the House was also reported in the Maui News of Saturday, July 23 (see news report at the bottom of this webpage).
Here is the message from Findley soliciting signatures on this letter, as the letter was just beginning to be circulated. [Note that RSC is the Republican Study Committee, which is a group of Republican members of Congress who study pending legislation and alert their colleagues to bills needing careful scrutiny or opposition.]
"Many RSC members have serious constitutional and practical concerns about the implications of creating a race-based government for Native Hawaiians. This legislation is currently moving through the Senate. Congressman King urges Members to join him in signing this letter asking House Leadership to refrain from scheduling the legislation for consideration on the floor.
"Contact: Brenna Findley at Brenna.Findley@mail.house.gov or 5-4426"
The Honorable J. Dennis Hastert, Speaker
H-232, U.S. Capitol
Washington, D.C. 20515
The Honorable Tom DeLay
H-107, U.S. Capitol
Washington, D.C. 20515
Dear Speaker Hastert and Majority Leader DeLay,
We have serious concerns about the long-term implications S. 147 and H.R. 309, the Hawaiian Government Reorganization Act, would have on our Constitution and on our nation's hopes for a color-blind society. We ask that you carefully consider the implications S. 147 and H.R. 309 might have on our Constitution and on our commitment to equal protection under the laws. These bills would authorize the creation of a race-based government for Native Hawaiians living throughout the United States. The result will be that different laws could be applied to people of differing races in the same communities. That result would be contrary to fundamental American values, and would set a dangerous precedent for our nation.
Our concerns are several.
First, we have grave concerns about whether the Constitution even allows Congress to create a wholly separate sovereign race-based government exempt from the protections our Constitution affords. The words of the Constitution that give Congress the power to recognize tribes clearly do not extend to the arbitrary designation of a group of people as an Indian tribe. According to the Constitution, Supreme Court precedent and federal law, only groups of 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 preexisting political structure can recognized as a tribe. Native Hawaiians do not meet these criteria. The Hawaiian Government Reorganization Act would likely be struck down by the U.S. Supreme Court on the basis of the Rice v. Cayetano decision in 2000. As Justice Kennedy noted in his opinion in Rice, the equal protection principle enshrined in the Constitution is now the shared "heritage of all the citizens of Hawaii." We believe that fact ought to be the lens through which we weigh any legislation dealing with the people of Hawaii.
Second, these bills raise practical questions that simply have not been addressed. For example, would a race-based government in Hawaii have the power to disrupt our nation's military operations there? Will gambling expand in Hawaii, given this legislation's vague language? Would the new race-based government have new rights to file lawsuits against the federal government under "breach of trust" theories? Will Native American appropriations be depleted when the 400,000 Native Hawaiians across the nation seek to participate in the same programs? How could Hawaii function if people living in the same neighborhood are subject to different laws, regulations, and taxes?
Consider for example, two small businesses in Hawaii competing against one another. One is owned by a Native Hawaiian, and the other is owned by one who is not. The former will be exempt from state taxes, state business regulations, and zoning and environment laws, and the latter will not. These problems and many other questions deserve answers.
Third, our historical commitments do not support a special government for Native Hawaiians. When Hawaii became a state in 1959, there was broad congressional consensus and assurances given by the State of Hawaii that Native Hawaiians would not seek to be treated as a separate racial group and transformed into an "Indian tribe". There has never been a government in Hawaii for Native Hawaiians alone since Kamehameha established the Kingdom in 1810. Today, in the great success of the Hawaiian melting pot, 240,000 Native Hawaiians and other citizens live in harmony as a model for other racially diverse communities-with all accorded the protections of the United States Constitution. The Hawaiian Government Reorganization Act takes certain Hawaiians out of this melting pot and creates divisions between Hawaiians based on race.
For these reasons, we respectfully urge you to not schedule the Hawaiian Government Reorganization Act, or any similar legislation, for consideration.
S. Brenna Findley
Deputy Chief of Staff
Office of Congressman Steve King
1432 Longworth Building
Washington, DC 20515
** The letter with the exact content above was sent to the Speaker and Majority Leader on July 29, 2005 (the last day of Congress before the August recess) according to an article published in Hawaii Reporter on August 10, 2005
According to the Hawaii Reporter article, the letter contained the following signatures:
Representatives Steve King, 5th District of Iowa, Dana Rohrabacher, 46th District of California, Jeff Flake, 6th District of Arizona, Louie Gohmert, 1st District of Texas, Gil Gutknecht, 1st District of Minnesota, Virgil H. Goode Jr., 5th District of Virginia, Ernest J Istook Jr., 5th District of Oklahoma, Lynn A. Westmoreland, 8th District of Georgia, Mike Pence, 6th District of Indiana, Jeb Hensarling, 5th District of Texas, Dave Weldon, 15th District of Florida, Chris Chocola, 2nd District of Indiana, Thomas G. Tancredo, 6th District of Colorado, Ron Paul, 14th District of Texas, John Kline, 2nd District of Minnesota, John J. Duncan Jr., 2nd District of Tennessee, Zach Wamp, 3rd District of Tennessee, Todd W. Akin, 2nd District of Missouri, Charlie Norwood, 9th District of Georgia, Wally Herger, 2nd District of California, and Scott Garrett, 5th District of New Jersey.
NOTE #1: A similar letter was sent by House Judiciary Chairman Sensenbrenner to Speaker Hastert on July 19, 2001. A copy of that letter is available at:
NOTE #2: On Tuesday July 19, 2005 a hearing was held before the House Judiciary Committee, Subcommittee on the Constitution, entitled: "Can Congress Create A Race-Based Government? -- The Constitutionality of H.R.309/S.147". In a very unusual step for a Senator, Senator Kyl (R, AZ) submitted testimony to this House subcommittee. For information about this hearing, including testimony by Senator Kyl and others, see:
Senator Kyl's testimony alone is available at:
West Hawaii Today (Kona), July 23, 2005
Akaka Bill to face new obstacles in U.S. House
by Samantha Young
Stephens Media Group
WASHINGTON -- While Hawaii senators struggled to make progress on a Native Hawaiian bill this week, more potential obstacles began taking shape elsewhere on Capitol Hill.
A small group of House lawmakers began organizing opposition to the Hawaiian effort, which they contend would create an unconstitutional race-based government.
"It seems to me this is an issue that has been below the radar in the House," said Rep. Steve King, R-Iowa. "I don't think anybody has examined the constitutional aspect of this."
The bill would allow 400,000 Native Hawaiians to form a government and seek recognition from the federal government similar to the status awarded American Indians and Alaska Natives.
King was gathering signatures on a draft letter this week that questions creating a entity limited to members of Hawaiian ancestry. He said his interest in the matter stems not only from the Constitution but also his personal religious beliefs.
"God created us all in his image and he draws no distinction between us," King said. "I think it's an affront to God to draw distinctions among us based on image."
In addition, King questioned whether a Native Hawaiian government could disrupt U.S. military operations, promote gambling, file lawsuits against the federal government, and deplete American Indian federal accounts.
King's concerns echoed those in the Senate where critics have blocked a Hawaiian recognition bill. At least six senators placed "holds" on the bill, delaying a much-anticipated debate on the measure.
In a bid to counter what seemed to be growing opposition, Hawaii Reps. Ed Case and Neil Abercrombie enlisted help from Rep. Tom Cole, a conservative Republican from Oklahoma.
Cole authored a letter arguing that Native Hawaiians should be given an equal opportunity to qualify for federal recognition as do Native American tribes.
"It is important to recognize that the establishment of the Native Hawaiian government is not about race; it is about sovereignty," Cole wrote. "In addition, tribal membership is based on conditions set by the governing body, not race alone."
But other House members fear Native Hawaiian sovereignty could damage race relations in Hawaii, and they plan to be vocal about it.
"We certainly intend to weigh in and to speak out," said Rep. Steve Chabot, R-Ohio. Chabot, a subcommittee chairman, convened a hearing last week on the bill that focused on its constitutionality.
"Our colleagues in the House should get the big picture," Chabot said.
Hawaii's allies plan to be equally vocal in support of Native Hawaiians, Case said.
"I think for us on the House side, it is essentially education of those who are interested and containment of those who are being urged to oppose this," Case said.
"Anytime you get close to a vote in either the House or Senate that's the time increased attention is paid to any bill," Case said. "So that's when you can expect the opposition to step up its efforts."
In the Senate, the Hawaiian recognition bill remained on the back burner into the weekend while senators debated defense programs.
Angry that Republicans were rushing through the defense bill, Minority Leader Harry Reid of Nevada suggested the Senate set aside the debate until after the month-long congressional recess in August.
Reid noted that Majority Leader Bill Frist, R-Tenn., had promised Akaka and Inouye that the Hawaiian bill would be brought to the floor.
Frist, who was traveling in California, issued a statement Friday through his spokesman.
"The majority leader continues to work with colleagues to resolve outstanding issues regarding the Native Hawaiian Government Reorganization Act for its timely consideration in the Senate," Frist spokesman Bob Stevenson said.
Hawaii senators had threatened to file a cloture petition Friday that would force votes on the bill early next week. But Akaka said he held off after receiving assurances that Frist would keep his promise.
"I am pleased that leadership wants to keep their commitment and look forward to beginning debate," Akaka said in a statement.
The Senate delay leaves little, if any, time for the House to consider the measure before the Congress departs on its month-long recess Friday.
Send comments or questions to:
SEE MORE INFORMATION ABOUT THE AKAKA BILL
SEE WEBPAGES ABOUT HAWAIIAN SOVEREIGNTY ISSUES IN ADDITION TO THIS BILL