(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved

On Friday April 6, 2001 Senator Dan Akaka, on behalf of himself and Senator Dan Inouye, introduced a new version of the Native Hawaiian Recognition bill in the U.S. Senate. This new "Akaka bill" has bill number S.746 and it will presumably replace the former S. 81 that was introduced January 22. It can also be presumed that Congressman Neil Abercrombie will soon introduce the same new bill into the House of Representatives to replace H.R. 617 (that was filed February 14).

The new bill differs from the old bill in three ways, explained below. But the major provisions of the bill remain unchanged, and the analysis presented elsewhere on this website remains valid. What follows is (1) brief informal commentary on the new version of the bill from opponents of the bill and from Senator Akaka himself; and then (2) the complete text of the new bill as filed on April 6, 2001

Some supporters of this bill had complained that there were three problems; and the new bill deals with those problems as explained below. The new bill is even more dangerous than the old bill because it provides much faster federal recognition of an Akaka Kanaka tribe and less federal oversight over potential corruption in the membership and recognition provisions; and because it deceives those who have legitimate concerns over Native Hawaiians competing against genuine Indian tribes for a limited pot of federal money; and it deceives those who are worried that Hawaiians might use federal recognition to open gambling casinos.


(1) The old bill set up a procedure for creating the membership roll and ratifying it. But supporters were worried that this procedure (a) required too much time for enrollment of members, certification of the membership roll, and recognition by the U.S. government; and (b) allowed the U.S. government Department of Interior and Department of Justice too much power over the internal affairs of the Native Hawaiians.

(1a) The primary purpose of this bill has always been to protect a plethora of racial entitlement programs already in place (supporters of a federal "trust relationship" claim there are already over 160 such programs), and to establish a permanent funnel to send billions of federal dollars to racially-defined Native Hawaiians forever. But racial entitlement programs are under heavy attack in several lawsuits currently pending, and more such lawsuits are expected. There is a sense of great urgency to obtain federal recognition for so-called Native Hawaiians as an Indian tribe, because such recognition would presumably protect the entitlement programs from attack under the 14th Amendment equal protection clause of the U.S. Constitution. Government programs restricted by race are allowed for Indian tribes, even when not allowed for society as a whole. The $400 million Office of Hawaiian Affairs, the $6-15 Billion Kamehameha Schools/Bishop Estate, and the numerous other racial entitlement programs for Hawaiians need protection immediately. Therefore, the new version of this legislation would give such recognition to Hawaiians immediately upon being enacted, rather than waiting for a period of several years for creation of a membership roll and certification of recognition by the Department of Interior and Department of Justice. The idea is similar to "shoot now, ask questions later." The idea is to give federal recognition immediately to a poorly-defined empty shell of a sovereign "Native Hawaiian" political entity, thereby providing immediate immunity from "equal protection" lawsuits. The newly invented empty nation could later be populated in whatever way the local organizers choose, with hardly any federal supervision.

(1b) The former version of this bill provided for extensive oversight and ultimate approval of the nation-building process by the Deparement of Interior and the Department of Justice. Under the Clinton Administration, which was very supportive of racial separatism and ethnic nationalism for so-called Native Hawaiians, such "friendly" oversight was considered tolerable; although some independence activists objected that a truly sovereign Hawaiian nation should be able to establish its own procedures for membership and certification and not be subject to approval from the U.S. But now that the new Bush administration has come into power with a politically conservative Secretary of Interior and Attorney General, it is feared that implementation of the legislation might be crippled by unfriendly supervision. Thus, the new version of the bill removes most federal government oversight from the procedure for establishing and certifying the new "nation."


(2) The bill as originally introduced recognized Native Hawaiians as an Indian tribe, creating a huge new tribe that would compete for funding against the other tribes. If Native Hawaiians get recognized as an Indian tribe, they will become eligible for all the programs enacted by Congress that benefit real Indian tribes. New data emerging from Census 2000 indicate that Native Hawaiians would probably be the largest Indian tribe. Even before the year 2000, it was estimated there are about 200,000 Native Hawaiians living in Hawai'i and perhaps another 100,000 living elsewhere in the U.S. and abroad. The only real Indian tribe larger than that was the Cherokee with about 350,000. Native Hawaiians would be either the largest or second-largest tribe, and would therefore elbow-out real Indian tribes for the lion's share of federal benefits. Senator Inouye has long been a very powerful member of the Indian Affairs Committee, and he successfully twisted many Indians' arms to get real tribes to endorse this legislation. But Senators from other states whose Indian tribes currently enjoy substantial federal benefits were not pleased at the prospect of such a huge new competitor for funds. Thus, the new version of the bill includes a disclaimer that Native Hawaiians will not automatically be included with other Indians in legislation providing federal benefits for Indians. Other Senators presumably did not believe Senator Inouye's assurances that funding for Native Hawaiians would continue to be provided through separate legislation (for example healthcare and housing) administered through separate government agencies (for example, the federal health, and housing, bureaucracies) rather than through the Bureau of Indian Affairs. For the future, however, two things should be noted: (a) Native Hawaiian lawyers and political activists have been asserting that it is unfair that Native Hawaiians are treated unequally with America's other "indigenous" peoples (even though Hawaiians are not anything like America's other indigenous peoples and utterly fail to qualify for tribal status under the usual criteria for tribal recognition), so Native Hawaiians are likely to demand equal treatment in the future and this provision of the bill will probably be scuttled once the Hawaiians gain federal recognition; and (b) Senator Inouye is getting old and will probably not be in the Senate much longer, so his assurances on this point aren't worth much. If Native Hawaiians are recognized as essentially the same as Indians, then it won't be too long before any disclaimer in the current bill is overturned by future legislation.


(3) Opponents of the old bill complained that a federally recognized tribe would be able to open gambling casinos in Hawai'i. Hawai'i currently does not legally permit any form of gambling -- not even church bingo games. Some supporters of the bill, including Senator Inouye himself, have stated that Indian gambling establishments are not permitted in states where all forms of gambling are prohibited. However, several Native Hawaiian activists, including Clayton Hee, who was Chairman of the Office of Hawaiian Affairs in Fall 2000, have stated that gambling casinos would certainly be a likely way for Native Hawaiians to get wealth. And such statements were made at the same time that Senator Inouye was assuring his colleagues in the Senate that Native Hawaiian gambling casinos could not open in Hawai'i because the State of Hawai'i does not allow gambling. Federally recognized tribes have the right to sue the State in which they have reservation land for the right to open casinos. Surely such a lawsuit would be one among the hundreds of lawsuits that would be filed by the new Native Hawaiian tribe against the State of Hawai'i (and the federal government) for land, money, and power.


Following is the opening portion of a speech by Senator Akaka taken from the Congressional Record for April 6, 2001 on the occasion of introducing this new version of the legislation.

By Mr. AKAKA (for himself and Mr. INOUYE):

S. 746. A bill to express 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; to the Committee on Indian Affairs.

Mr. AKAKA. Mr. President, I rise today to introduce a bill with my friend and colleague, the senior Senator from Hawaii, Mr. INOUYE which would clarify the political relationship between Native Hawaiians and the United States. This measure would extend the federal policy of self-determination and self-governance to Hawaii's indigenous, native peoples, Native Hawaiians, thereby establishing parity in federal policies towards Native Hawaiians, Alaska Natives and American Indians.

The bill we introduce today is a modified version of legislation we introduced on January 22, 2001. This modified version improves upon our efforts to clarify the political relationship between Native Hawaiians and the United States. Federal policy towards Native Hawaiians has closely paralleled that of our indigenous brothers and sisters, the Alaska Natives and American Indians. This bill provides a process for federal recognition of the Native Hawaiian governing entity for a government-to-government relationship with the United States.

This bill does three things. First it provides a process for federal recognition of the Native Hawaiian governing entity. Second, it establishes an office within the Department of the Interior to focus on Native Hawaiian issues and to serve as a liaison between Native Hawaiians and the Federal government. Finally, it establishes an interagency coordinating group to be composed of representatives of federal agencies which administer programs and implement policies impacting Native Hawaiians.

This measure does not establish entitlements or special treatment for Native Hawaiians based on race. This measure focuses on the political relationship afforded to Native Hawaiians based on the United States' recognition of Native Hawaiians as the aboriginal, indigenous peoples of Hawaii. As we all know, the United States' history with its indigenous peoples has been dismal. In recent decades, however, the United States has engaged in a policy of self-determination and self-governance with its indigenous peoples. Government-to-government relationships provide indigenous peoples with the opportunity to work directly with the federal government on policies affecting their lands, natural resources and many other aspects of their well-being. While federal policies towards Native Hawaiians have paralleled that of Native American Indians and Alaska Natives, the federal policy of self-determination and self-governance, has not yet been extended to Native Hawaiians. This measure extends this policy to Native Hawaiians, thus furthering the process of reconciliation between Native Hawaiians and the United States.

This measure does not impact program funding for American Indians and Alaska Natives. Federal programs for Native Hawaiian health, education and housing are already administered by the Departments of Health and Human Services, Education, and Housing the Urban Development. The bill I introduce today contains a provision which makes clear that this bill does not authorize eligibility for participation in any programs and services provided by the Bureau of Indian Affairs.

This bill does not authorize gaming in Hawaii. In fact, it clearly states that the Indian Gaming Regulatory Act, IGRA, does not apply to the Native Hawaiian governing entity. Hawaii is one of two states in the Union which criminally prohibits all forms of gaming. Therefore, I want to make clear that this bill would not authorize the Native Hawaiian governing entity to conduct any type of gaming in Hawaii.

Finally, this measure does not preclude Native Hawaiians from seeking alternatives in the international arena. This measure focuses on self-determination within the framework of federal law and seeks to establish equality in the federal policies extended towards American Indians, Alaska Natives and Native Hawaiians.


Following is the complete text of the new Akaka bill, S.746, as introduced on April 6, 2001, taken directly from the Library of Congress website.

S 746 IS


1st Session

S. 746

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.


April 6, 2001

Mr. AKAKA (for himself and Mr. INOUYE) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs


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.


school, as well as college and master's degree programs in native language immersion instruction, and traditional justice programs, and by continuing their efforts to enhance Native Hawaiian self-determination and local control.


that now comprise the State of Hawaii on or before January 1, 1893, and who occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii, and includes all Native Hawaiians who were eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) and their lineal descendants.











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