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U.S. Commission on Civil Rights -- Report Opposing the Akaka bill


The report of the U.S. Commission on Civil Rights regarding the Akaka bill was published May 4, 2006.

"The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege."

The USCCR report makes wonderful reading for all who oppose racial preferences and balkanization. It's a ray of sunshine offering a vision of the rainbow beauty of multiracial equality that is too often obscured by the dark clouds of Hawai'i's entrenched racial spoils system. Keep hope alive!

The draft report was considered by the Commissioners at their meeting of May 4, 2006.

The 47-page document in pdf format can be downloaded from

http://www.angelfire.com/hi5/bigfiles3/USCCRdraftrepthrng012006.pdf

The draft report was approved by a 5-2 vote but was amended during the meeting on May 4, solely to delete the "findings" section (pp. 16-18 of the draft) as an act of conciliation to the begging and pleading of Akaka bill supporters. (read the findings in the draft report to see the true sentiments of the Commissioners.) The final report is at

http://www.usccr.gov/pubs/060504NatHawBriefReport.pdf

The final, official recommendation of the USCCR is:

"The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege."

This report includes full text of the written testimony of the four experts (two supporters and two opponents of the Akaka bill) who were invited panelists at the January 20, 2006 meeting of the USCCR: Noe Kalipi, the Democratic Staff Director on the Senate Committee on Veteran’s Affairs (she is Senator Akaka's aide); H. William Burgess, attorney and co-founder (with Mrs. Sandra Puanani Burgess) of the Aloha For All group; H. Christopher Bartolomucci, Partner, Hogan & Hartson (on behalf of himself and Viet Dinh); and Gail Heriot, Professor of Law, University of San Diego Law School.

This report also includes a running summary of the main points discussed at the January 20 meeting, as the panelists responded to questions from the Commissioners. It also includes brief summaries or excerpts of some of the written comments submitted by others who were not present on January 20. The report takes note that "While most commenters oppose the legislation, the governmental and institutional commenters primarily support it."

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HONOLULU ADVERTISER "NEWS ARTICLE" TRASHES USCCR REPORT

A Honolulu Advertiser "news" article of May 5, 2006, purporting to report on the USCCR report, is quite amazing. It says almost nothing about the actual USCCR report, nor the fact that it was approved by a 5-2 vote. Instead the article celebrates the objections to the report, apparently trying to minimize its significance and trash its content. Anyone who reads the USCCR report will easily recognize that both sides fully presented their views and were represented by very effective advocates. The Commissioners explicitly state more than once that they considered previous reports by the Hawai'i Advisory Committee to the USCCR (which were strongly favorable to the Akaka bill, and also favorable to the possibility of secession). By contrast, anyone who reads the "news" report in the Honolulu Advertiser will see how the people of Hawai'i are constantly bombarded with propaganda. Unfortunately our politicians almost unanimously favor the Akaka bill as a way of protecting Hawai'i's massive, long-entrenched system of racially exclusionary government benefits and the private institutions thriving under that system. The politicians do this because they mistakenly stereotype ethnic Hawaiians as a monolithic 20% "swing vote" in support of Hawai'i's racial spoils system. Some of the commenters quoted in the USCCR report are ethnic Hawaiians whose eloquent remarks in support of unity and equality prove that the politicians are mistaken.

Here's the offending Honolulu Advertiser "news" report:

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060501/NEWS23/605010339/1001

Senators Inouye and Akaka complaining about a biased report? Containing "significant errors of fact and history"? Adopting the report through a process that "was also highly suspect"? Oh my goodness. The pot calling the kettle black! Those are correct descriptions of the 1993 apology resolution and of the current Akaka bill! They clearly are not valid regarding the USCCR report.

Read the USCCR report and judge for yourself:

http://www.angelfire.com/hi5/bigfiles3/USCCRdraftrepthrng012006.pdf

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HONOLULU STAR-BULLETIN EDITORIAL TRASHES USCCR REPORT; SB MAIN POINTS REFUTED

** This is the text of an article published on May 8, 2006 in Hawaii Reporter by Ken Conklin at
http://www.hawaiireporter.com/story.aspx?efadf9ec-b707-43b0-969e-04db75b73c88

On May 7, 2006 the Honolulu Star-Bulletin published another in a long string of editorials supporting the Akaka bill. Like all the others, this one was filled with inaccuracies and just plain silliness. But this particlar editorial needs a response, because it bashes the report of the U.S. Commission on Civil Rights. Here's the Star-Bulletin editorial of May 7:

http://starbulletin.com/2006/05/07/editorial/editorial01.html

Let's see how the Star-Bulletin screwed up this time. It's easy and quick to make a false statement that grabs lots of attention. Dear readers, it's difficult and time-consuming to disprove what is false and explain what is true. Please bear with me.

(1) "... the Constitution gives Congress plenary authority to recognize native peoples."

False. The Constitution only gives Congress authority to recognize pre-existing Indian TRIBES. The history of native Hawaiians is nothing like the history of American Indian tribes. OHA (and the Star-Bulletin) thinks Congress has a magic wand to change a widely scattered fully integrated bunch of people into an Indian tribe (sort of like turning a sow's ear into a silk purse). But wishing does not make it true. Why do Indian tribes get special rights? Why do nations have sovereignty, independence, and self-determination? See a very brief look at the history of the United States and the history of Indian tribes, treaties with Indian tribes, treaties with the Kingdom of Hawai'i, and the laws governing Indians:

http://www.angelfire.com/hi2/hawaiiansovereignty/tribehistandlaw.html

Federal legislation has spelled out seven mandatory criteria that any group of Indians must meet in order for the Bureau of Indian Affairs to give them federal recognition as a tribe. Many groups applying for recognition have been denied for failing to meet any one or more of these seven criteria. For detailed discussion of them in the context of ethnic Hawaiians, see:

http://www.angelfire.com/hi2/hawaiiansovereignty/tribefederalrecognition.html

In October 2005 the Bureau of Indian Affairs issued a final decision refusing to recognize two Indian groups in Connecticut to whom the BIA had previously given tentative recognition (they were already planning where to build their casinos).

http://www.angelfire.com/hi5/bigfiles3/fedrecdenied2connecticutgroups101205.html

The BIA criteria require that the group must be separate and distinct from the surrounding non-Indian population, and must have a tribal council or leadership group that has exercised substantial authority over tribal members continuously from bygone days through the present. Ethnic Hawaiians are now widely dispersed and fully integrated among other ethnic groups. Ethnic Hawaiians have NEVER throughout history had a government that included ALL ethnic Hawaiians and that included ONLY ethnic Hawaiians (as the Akaka bill includes all ethnic Hawaiians and only ethnic Hawaiians). Kamehameha The Great was the first person in history who ever unified all the Hawaiian islands under a single authority. And right from the beginning of Kamehameha's government, non-natives held leadership positions in the "tribal council." For example, Kamehameha appointed John Young to be governor of Kamehameha's own home island of Hawai'i, and gave him land immediately next to the great Heiau Pu'ukohola which Kamehameha had built to fulfill a prophecy that he would conquer all the islands. John Young's grave is in the Royal Mausoleum on Nu'uanu Avenue, right next to the chapel which formerly held the bones of Hawaiian royalty. As the Kingdom continued, under several Constitutions beginning in 1840, most appointed cabinet ministers, and many appointed and elected members of the Legislature, were non-natives. Virtually all department heads in the government bureaucracy throughout the Kingdom were non-natives. There has never been an Indian tribe where most of the chiefs were not Indians.

REGARDING THAT WORD "PLENARY" The SB article said "... the Constitution gives Congress plenary authority to recognize native peoples." That is flat-out false. (a) Here's the famous "indian Commerce Clause" that all the Akaka-bill boosters pin their hopes on: Article 1, Section 8, Paragraph 3: [The Congress shall have power] "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This does not say Congress has authority "to recognize native peoples." The majority of Indians today do not belong to any tribe and would not be eligible to join one. The word "plenary" is not in the Constitution anywhere. Congress does NOT have the power to arbitrarily select a bunch of Indians currently "on the loose" and round them up and create a tribe for them.

The concept that Congress has plenary power over Indian tribes is correct -- it is based on a long history of court decisions. Plenary power means total, absolute power over all aspects of Indian tribes. Congress has the power to give land or to take it away from a tribe for any reason or for no reason, and without any compensation. Congress has the power to change any tribal laws it doesn't like. But, although Congress DOES have plenary power over federally recognized tribes, it DOES NOT have plenary power to create tribes out of thin air; and in fact court decisions have ruled that Congress cannot give federal recognition arbitrarily or capriciously: United States v. Sandoval, 231 U.S. 28, 39-47 (1913)

(2) SB editorial says "The bill essentially would provide the same status to Hawaiians that is given to American Indians and indigenous Alaskans. Congress has stated in numerous programs assisting Hawaiians that it was doing so not 'because of their race but because of their unique status as the indigenous people' of Hawaii." And also, "Hawaiians deserve equal treatment."

Yes, the "findings" sections of some racially exclusionary benefit bills passed by Congress have included that language. The "findings" are like a "preamble" which expresses an opinion but which has no legal force. It's like the "whereas" clauses of the apology resolution that are filled with historical falsehoods -- Congress can express its opinion to explain why it wants to do something, but Congress cannot change the truth any more than it can repeal the law of gravity. Congress does not have the authority to single out any group of people merely because they are "indigenous"; so legislation based on that assumption is subject to being challenged. That's the whole issue in the Akaka bill -- it's an attempt to make a radical change in existing laws and court precedents by exercising a brand new "power" of Congress that is not allowed to Congress in the Constitution. Such a power would be extremely dangerous and lead to great balkanization and subdivision of America as all sorts of groups of "indigenous" people would step forward to demand the same (new) "right."

Supporters of the Akaka bill say it's up to the courts to judge the (un)Constitutionality of the Akaka bill, so go ahead and pass it and then let the courts rule on it. What a dumb idea! Shoot now and ask questions later! First of all, we know how difficult it is to get a clearly unconstitutional law nullified. The Hawai'i Constitution was amended in 1978 to create OHA and included the illegal provision that only ethnic Hawaiians could vote for OHA trustee. It took until 1996 for Mr. Rice to challenge the law, and then four more years of court battles until the U.S. Supreme Court ruled that law violated the U.S. Constitution. Meantime, hundreds of thousands of voters were denied their civil rights for 22 years. Aside from delays and injustice during on-going illegal activity, there's the responsibility of lawmakers to protect the Constitution. Every Senator and Representative takes an oath to support and defend the Constitution of the United States, and therefore has a moral obligation to vote against something that is unconstitutional.

Recent turmoil over illegal immigration provides a powerful illustration of the dangers of racial balkanization. One aspect of the Mexican "invasion" is the concept of "reconquista." There's a movement underway for many years to demand that those portions of the U.S. that were formerly a part of Mexico should now be "returned" to the "indigenous" people (Mexican descendants with at least a drop of Aztec blood) whose lands were "stolen" without compensation and whose sovereignty was engulfed by the United States without their consent. Sound familiar? The "Nation of Aztlan" believes Chicanos are entitled to cross the border to their ancestral homelands in California, Texas, etc. (sort of like some ethnic Hawaiian squatters believe they are entitled to live on the beach or on government land without a permit). See: "Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations -- Akaka Bill Sets a Precedent for the Balkanization of America (109th Congress, S.147 and H.R.309)" at

http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnl.html

The claim that ethnic Hawaiians are an "indigenous people" is also easy to dispute:

http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html

Saying that "Hawaiians deserve equal treatment" with the Indian tribes presumes that Hawaiians are similar to the Indian tribes; and that is just plain false, as can be seen by looking at the seven BIA criteria mentioned earlier.

(3) The SB editorial says "The overthrow was clearly spearheaded by Americans living in Hawaii and backed by American troops. It was led by Honolulu publisher Lorrin Thurston, in collaboration with John Stevens, American minister under the administration of Benjamin Harrison, who said he would welcome annexation, which came five years later. Congress has apologized."

Actually, a majority of the "Committee of Safety" that led the revolution were native-born or naturalized subjects of the Kingdom, with full political rights. There was no collaboration between U.S. minister John Stevens and the Hawaiian revolutionists under Lorrin Thurston who overthrew the monarchy. The U.S. did not conspire with the revolutionists beforehand, and did not take over any buildings or provide any guns or supplies during the revolution. For 808 pages of eye-opening history, read the report of the U.S. Senate Committee on Foreign Affairs, which spent 2 months in 1894 taking sworn testimony under cross-examination in open session regarding what approximately 160 U.S. peacekeepers did and did not do in Hawai'i (they performed the same sort of mission as American peacekeepers in Haiti and more recently in Liberia during times of political revolution).

http://morganreport.org

The apology resolution of 1993 is filled with falsehoods. See Constitutional law expert Bruce Fein's point-by point analysis contained in "Hawaii Divided Against Itself Cannot Stand" which was reprinted in its entirety in the Congressional Record

http://www.angelfire.com/hi5/bigfiles3/AkakaHawaiiDividedFeinJune2005.pdf

and see also

http://www.hawaiimatters.com/book/Ch%2010%20Congress%20Apology.pdf

Consider this. Did you ever apologize for something you never did? Did you ever have a friend who thought you had done something wrong, and was very sure of it, and kept bugging you about it, and because you valued the friendship and let bygones be bygones you gave him an apology? But in court, if someone pleads guilty, the judge never accepts the guilty plea without first asking the defense attorney "Is there sufficient evidence to warrant the guilty plea?" The U.S. had no history-defense attorney on the Senate floor when the apology resolution was debated for one hour in 1993. Even the strongest opponent of the resolution, Senator Slade Gorton, said he did not dispute the history in the apology bill, he only expressed concern about the balkanization it would produce, the way it would be abused by those who would cite it when making demands for reparations, and the fact that the logical consequence of the resolution would be secession. Too bad there was nobody to defend the U.S. against the false historical allegations, or to remember the Morgan Report of 99 years previously or the 1986 report of the Native Hawaiians Study Commission. The apology resolution should be repealed. The 50th anniversary of Statehood might be a good occasion to do that.

(4) The SB editorial says "The implication by opponents of the Akaka Bill is that any sovereign Hawaiian nation should be extended to all people who can trace their lineage to anyone living in the islands at the time of the overthrow, including those who plotted and participated in it. That would turn history on its head."

Some of the people opposing the Akaka bill, who are in favor of ripping the 50th star off the flag, say that it is true the Kingdom was multiracial, and therefore when Hawai'i achieves independence, all descendants of Kingdom subjects, regardless of race, should have full political equality. But then (like the SB editorial) they quickly add that descendants of Kingdom "traitors" would not be entitled to any consideration. (The U.S. Constitution calls blaming the sons for the sins of their fathers "corruption of the blood" and declares it illegal).

On the face of it, the proposal to establish a political entity based on having an ancestor who was a Kingdom subject sounds fair, and not racist. However, there are both legal and moral problems with it. As an analogy, why not declare that the people in the U.S. (or in Massachusetts) who are entitled to voting rights should be only those people who have an ancestor who lived there prior to 1492 (Columbus) PLUS those people who have an ancestor who landed at Plymouth Rock in the Mayflower in 1620. Sounds fair, doesn't it? But in practice that would mean that only Indians and some white people would get to vote. Anyone descended only from later immigrants after 1620 is excluded. I choose the date of Columbus' arrival 1492 because it is analogous to Captain Cook's arrival 1778 which is part of the law in Hawai'i defining who is "Native Hawaiian." And I use the date of the Mayflower 1620 because it is analogous to giving rights to today's people based on who had rights at a crucial turning point in history (like the Hawaiian revolution of 1893). Wasn't there actually a law passed in Massachusetts a while back that provided special political and/or economic rights to Mayflower descendants, and that law was ruled unconstitutional? By the same reasoning, an Akaka bill amended to allow tribal membership to descendants of Kingdom subjects prior to 1893 would also be illegal.

One final point regarding the alleged morality of creating a government granting political rights only to descendants of Kingdom subjects prior to 1893. That concept certainly does seem race-neutral. It clearly would do what Akaka bill supporters wrongly claim the current bill does -- it would recognize a politically-defined group rather than a racially-defined group. But what the advocates of that concept are not telling you, and are actually hiding from you, is that their proposal is combined with an additional concept. The concept of "indigenous rights." The concept that under "international law" (not yet actually adopted by the United Nations, but they're working on it), "indigenous" people have special rights to self-determination and to exercise political control over their ancestral lands. Thus, the "nation" envisioned by these folks would be similar to the multiracial Kingdom of Hawai'i regarding voting rights and property rights; EXCEPT that UNLIKE the Kingdom of Hawai'i there would be guaranteed racial supremacy for ethnic Hawaiians. Clever these guys! Hawaiian independence activists, and Akaka bill supporters, seek a system like the one in Fiji, where indigenous Fijians have guaranteed racial supremacy over Asian descendants of sugar plantation workers, and enforced that racial supremacy through a military coup after an Asian Fijian was democratically elected to the presidency. See:

http://www.angelfire.com/hi2/hawaiiansovereignty/fiji.html

See also:

"PROTECTING CIVIL RIGHTS IN HAWAI'I -- Testimony by Ken Conklin to the U.S. Commission on Civil Rights regarding the Hawaiian Government Reorganization bill, S.147 and H.R.309 (Akaka bill), March 13, 2006" at
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaUSCCRtstmny031306.html

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http://www.hawaiireporter.com/story.aspx?a08a57c3-b96d-46da-986d-58f0bab03b80
Hawaii Reporter, May 9, 2006

The Real Akaka Bill Bias

By Don Newman

One of those things that can be counted on as consistently as the sun coming up is that any report, such as the recent U.S. Civil Rights Commission draft report, because it recommends rejection of the Akaka bill will be characterized by the latter’s proponents as “biased.”

In a May 3, 2006, article in the Honolulu Star-Bulletin Sen. Daniel Akaka is quoted as saying, “To learn that the commission has produced a staff draft report with biased conclusions contradicts a fair process”. Why is it to be automatically assumed that the draft report is based upon “biased conclusions” rather than that Sen. Akaka is operating from biased premises? Why is Akaka’s opinion the only “fair” one? It is so easy to shout “bias” whenever anyone disagrees with you.

Sen. Daniel Inouye was quoted in The Honolulu Advertiser on May 5, 2006, as saying “I was dismayed to learn that the (commission) voted ... to adopt a seriously flawed report that unfairly characterizes the Akaka bill as race-based and discriminatory.” The Akaka bill IS race-based and discriminatory and just saying it isn’t doesn’t make it so.

Using the terms “indigenous ancestry” and then by using those terms claiming that the Akaka bill doesn’t establish a race-based government is simply disingenuous. Playing semantic games and playing fast and loose with language doesn’t change the facts. Qualifying people according to the racial heritage, i.e., “indigenous ancestry” is, in fact, race-based criteria pure and simple.

This is one of the reasons that politics has become so dishonest and is held in such low regard by so much of the populace. Politicians say things that are clearly untrue and expect the people, simply because the politicians have said so, to believe it. Same is true for most of the editorial writers in the mainstream media. Nowhere is this more true than the editorial positions on the Akaka bill in the major daily newspapers here. They just keep making the same blind assertions over and over again.

Sen. Inouye is also reported to have said, “From what I have learned, not only does the report have significant errors of fact and history, but the process in which the commission considered the report was also highly suspect.”

This is another typical tactic used by proponents of the Akaka bill. Any conclusions other than the politically correct ones are claimed to be based upon “errors of fact and history” while never identifying what these are. Once again, fact and history according to whom? While our senators would never admit it, there is significant disagreement as to what really took place at the time of the overthrow and who was truly responsible.

The Native Hawaiians Study Commission (NHSC) reached one conclusion in 1983 and because that conclusion wasn’t what Daniel Akaka wanted to hear he worked for years to get the Apology Resolution passed specifically to refute that conclusion. Whatever evidence is at hand that the U.S. wasn’t directly responsible for the overthrow is simply rejected out of hand. There is never any real discussion of the facts because the only facts accepted are those that arrive at the predetermined conclusion endorsed by Akaka. The other tactic is to personally attack those who don’t tow the proper line. This is the intent behind another Inouye quote about the Civil Rights commission report, “The meeting was disorganized and unprofessional; commissioners were forced to take a 10-minute break because they did not understand what they were voting on. Given those factors, how can anyone give credence to its report?”

This is very clever, call into question the professionalism of those you don’t agree with. It is, of course, simply a hit piece by Inouye. If they didn’t know what they were voting on then a 10-minute break wouldn’t have been long enough to truly cure them of their ignorance. The assertion is, on its face, preposterous.

Not to be outdone in this department Representative Neil Abercrombie had this to say about the report “I wish they had taken a more objective approach based on history and the context of the cause that is involved with Native Hawaiians. It's very difficult sometimes for people who have a political agenda to be able to actually step back and give an objective evaluation.”

Once again, first attack those that have a differing view as not being objective and not understanding history in the proper way. Then attack them personally. Only those people who disagree have a “political agenda” but Rep. Abercrombie could never be guilty of this himself, could he? This tactic is used over and over again by Inouye, Abercrombie and those of their ilk.

The comparison of Native Hawaiians indigenous status to that of Native Americans and Native Alaskans is flawed for one very important reason. The Hawaiian monarchy was not an indigenous government. It was a government that included people from all nationalities and racial composition. The idea of an indigenous Native Hawaiian government had already been given up by the Hawaiians themselves.

So the idea of returning to a Native Hawaiian government based upon indigenous ancestry is to return to something that only briefly, if ever, actually existed. That is why the insistence of Inouye and others that opposing the Akaka bill denies the historical facts is entirely wrong. They are the ones who are trying to rewrite the facts and the history.

One of the commissioners who voted against the report, Michael Yaki, makes this very error in asking “But what I wonder is if we say no (to the Akaka bill) then how do we explain to them (Native Hawaiians) why Native Americans and Native Alaskans have that right.” The explanation is that the situations are not analogous. Native Americans and Alaskans have had continuous self governing entities exclusively governing their peoples all along. Native Hawaiians gave up such a form of government long before the overthrow.

All of these arguments for the Akaka bill are all red herrings to avoid this fact. Focusing on the details of the overthrow and what culpability the U.S. had, if any, are all diversions from the fact that the Hawaiian Kingdom had ceased to be a Native Hawaiian kingdom, no matter how much Hawaiians of that day, and some Hawaiians of today, dislike that fact.

To establish a government that would turn Hawaii into a two-tiered society based upon racial heritage would be one of the greatest mistakes that the United States could make. It will divide and eventually destroy the racial harmony that has existed for over a hundred years in these islands. It will set a precedent that will justify any number of groups to make the same claim about any part of the U.S.

The Native Hawaiian people live throughout the islands, side by side with those who have come from other places to live here. The Akaka bill will seek to divide those who live side by side based upon a single criteria and seek to set some of those people on one side of an imaginary line, and others on the other side of that line.

It will even set some Hawaiians against others depending upon whether or not they seek to join the newly reorganized Hawaiian government, giving special preferences and benefits to those that do join and penalizing those that don’t, even though their heritage is exactly the same. If our elected officials cannot see that this is simply wrong then the people of Hawaii should demand a vote on the issue to make it clear to them whether the people think it is wrong or not.

This is little doubt about how that vote would come out which is why they are trying to impose the Akaka bill from the top down, by Congressional mandate, in the first place. Otherwise they wouldn’t be afraid of a vote of the people first.

References

http://starbulletin.com/2006/05/04/news/story06.html

http://tinyurl.com/kjqdc

Don Newman, senior policy analyst for the Grassroot Institute of Hawaii, Hawaii's first and only free market public policy institute focused on individual freedom and liberty, can be reached at: mailto: newmand001@hawaii.rr.com


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Ken_Conklin@yahoo.com

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