Akaka bill debate: Hawai'i Attorney General Mark Bennett vs. Burgess, Conklin, and Fein Re Constitutionality of Hawaiian Recognition Bill

In December, 2004 the Attorney General of the State of Hawai'i, Mark J. Bennett, wrote the second of a series of four essays regarding whether the Hawaiian recognition bill is Constitutional and whether it would be good public policy. Mr. Bennett claimed the Akaka bill would be constitutional, and would give ethnic Hawaiians equality with America's other indigenous people. Mr. Bennett's essay was a response to a short letter to editor by attorney H. William Burgess and his wife Sandra Puanani Burgess. Attorney General Bennett's essay received a reply from Kenneth R. Conklin, Ph.D.; and from Bruce Fein, a constitutional attorney and international consultant at Bruce Fein & Associates and The Lichfield Group. Thus, the four articles together read like a debate.

Here are all four essays:
(1) "Don't Count on the Akaka Bill" by H. William Burgess and Sandra Puanani Burgess, 12/17/2004
(2) "The Akaka Bill Would Be Constitutional" by Mark J. Bennett (Attorney General, State of Hawai'i), 12/20/2004
(3) "Akaka Bill Is Unconstitutional and Bad Public Policy" by Ken Conklin, 12/21/2004
(4) "E Pluribus Unum: Debating the Legality of the Akaka Bill" by Bruce Fein (constitutional attorney and international consultant at Bruce Fein & Associates and The Lichfield Group), 1/19/05


Hawaii Reporter, 12/17/2004

Also published in the Honolulu Star-Bulletin on December 17, 2004 with URL:

Don't Count on the Akaka bill

By H. William Burgess and Sandra Puanani Burgess

Arguments in support of the Akaka bill to "save" Hawaiian entitlements are self-contradictory. They urge passage of the Akaka bill because it would give Hawaiians "a governing body similar to Indian tribes."

But this argument itself highlights the fact which prevents Congress from lawfully recognizing Hawaiians as a tribe: There is no entity now in existence which governs Hawaiians only. (Even the Kingdom of Hawaii, from the time it first came into existence in 1810 when Kamehameha the Great united the islands, had fully entitled subjects and leaders who had no native ancestry.)

The federal government may "acknowledge" or "recognize" groups of Indians which have existed as tribes, i.e., autonomous quasi-sovereign entities, continuously from historic times to the present. 25 CFR 83.7. This power derives from Art. I - Sec. 8 of the Constitution which gives Congress power to regulate commerce with foreign nations, among the several states and with the Indian tribes. But the Constitution gives the federal government no power to create Indian tribes where none now exist. One D.O.J. attorney put it succinctly, "We don’t create tribes out of thin air."

Our friends, aunties, uncles, nieces, nephews, calabash cousins, spouses and loved ones of Hawaiian ancestry are governed by the same federal, state and local governments as the rest of us. Congress therefore cannot create a new governing entity exclusively for them.

The Akaka bill is not only beyond the power of Congress, it would divide the most beautifully assimilated, intermarried and racially blended State in the nation. To those who, like us, want Hawaii to remain one state, undivided, with the security, equal justice and Aloha for All that comes with being citizens of the United States, please spread the word, especially to our political leaders.

H. William Burgess and Sandra Puanani Burgess, residents of Honolulu, can be reached via email at mailto:hwburgess@hawaii.rr.com


Hawaii Reporter, 12/20/2004

The Akaka Bill Would Be Constitutional

By Mark J. Bennett

H. William Burgess and Sandra Burgess, who are currently suing the State to try to have programs that benefit Native Hawaiians declared unconstitutional, wrote to say that the Akaka Bill would not be constitutional. They are wrong.

See their report in Hawaii Reporter: "Don't Count on the Akaka bill"

Article I, section 8, clause 3 of the Constitution of the United States (a portion of which is known as the "Indian Commerce Clause") has been interpreted by the Supreme Court to provide the Congress with plenary power to deal with those it finds to be Indian Tribes, even though there have been no new treaties with Indian Tribes in the continental United States since before 1871. Indeed, this power is of such a plenary nature that there is no case in which Congress's recognition of tribal status has been overturned by the courts.

In empowering Congress with the authority to single out and deal with the indigenous societies they knew as "Indians" or "tribes," the Framers of the Constitution did not intend to restrict Congress’s authority to deal with the extension of sovereignty over indigenous groups of which they may never have heard, but which would pose the same basic issues as the Indians occupying the 1789 frontier. During colonial America, "Indian" was still defined as "[a] native of India." The Framers -- and generations before them -- of course knew that Columbus had not reached India, but they used "Indian" to refer to "the inhabitants of our Frontiers." Declaration of Independence ¶ 29 (1776). It is not surprising, then, that Captain Cook and his crew called the Islanders who greeted their ships in 1778 "Indians." The meaning of the word "tribe" also demonstrates that Congress was given broad powers to recognize and deal with all indigenous people that might inhabit the frontiers of the expanding nation. At the founding, "tribe" meant "[a] distinct body of people as divided by family or fortune, or any other characteristic." Congress has historically exercised its Indian affairs power over indigenous people not organized into tribes (at least under then-prevailing definitions), or whose tribal status had been terminated -- and the Supreme Court has upheld that exercise of authority. Thus, for most of our history (until 1993), most Alaska Native Villages were not recognized by the Bureau of Indian Affairs as "Indian tribes." As one court stated, "Indian tribes do not exist in Alaska in the same sense as in [the] continental United States." Yet the Supreme Court has never questioned Congress’s authority to single out and deal with Alaska Natives as such.

These definitions are consistent with the way in which Chief Justice Marshall referred to Indian tribes in 1832. He analogized them to "nations" and explained that "[t]he very term ‘nation,’ so generally applied to [Indian tribes], means ‘a people distinct from others.’ " Hawaiians were not only a "Nation," but were and remain a "distinct and unique indigenous people." The Supreme Court held that "pueblo Indians, if, indeed, they can be called Indians," could not "be classed with [previously recognized] Indian tribes," yet in 1913, the Court rejected the argument that Congress therefore lacked the authority to deal with Pueblos as Indians or tribes. The Court recognized that Pueblos were different from other Indians -- they were citizens, held title to their lands, and lived in "separate and isolated communities, but "[b]e this as it may," Pueblos "have been regarded and treated by the United States as requiring special consideration . . . like other Indian communities."

In that same way, the Congress has recognized the special trust and political relationship between Native Hawaiians and the Untied States for many years. Indeed, Congress has time and again affirmed in statute the special relationship between the United States and Native Hawaiians -- the "indigenous people with a historical continuity to the original inhabitants of [Hawaii] whose society was organized as a Nation prior to . . . 1778." As far back as 1921, in passing the Hawaiian Homes Commission Act, the Congress found support for the measure "in previous enactments granting Indians . . . special privileges in obtaining and using the public lands." Since that time, Congress has expressly included Native Hawaiians in scores of statutory programs specifically benefiting indigenous peoples. The Akaka Bill is the natural progression of those laws.

It would be wrong to relegate Hawaiians to second-class status among America’s indigenous people by denying Congress the authority to address the wrongs it and the Supreme Court already have recognized have been inflicted upon Hawaiians, and I am confident the Supreme Court would so determine.

Mark J. Bennett is the state attorney general for the state of Hawaii.


Hawaii Reporter, 12/21/04

Akaka Bill Is Unconstitutional and Bad Public Policy

By Ken Conklin

On December 20, 2004, the Attorney General of the State of Hawaii, Mark Bennett, published a defense of the Akaka bill in Hawaii Reporter "The Akaka Bill Would Be Constitutional"

Mr. Bennett argues the Akaka bill is legally permissible under the U.S. Constitution. He claims the Indian Commerce Clause of the Constitution gives Congress the power to recognize any group of "indigenous" people as a political entity, or tribe, and grant them legal authority to function as a government.

Although Mr. Bennett may be a brilliant attorney, perhaps he should consider the opinion of the Chairman of the Judiciary Committee of the U.S. House of Representatives. On July 19, 2001 Chairman Sensenbrenner wrote an urgent letter to Speaker Hastert demanding that the Akaka bill be killed, or at least referred to his committee for hearings on its (un)constitutionality. The entire letter can be seen at http://tinyurl.com/49p55

Chairman Sensenbrenner wrote in part:

"I request that the bill not be brought to the floor of the House for a vote until the Committee on the Judiciary has had an opportunity to conduct oversight hearings on the constitutionality of creating a quasi-sovereign state limited to persons of the Native-Hawaiian race. ... as the Supreme Court stated in Rice, '[i]t is a matter of some dispute . . . whether Congress may treat the native Hawaiians as it does the Indian tribes.' And if Congress is powerless to treat the Native-Hawaiian race in the same manner in which it treats Indian tribes, then the establishment of a quasi-sovereign state limited to persons of the Native-Hawaiian race would likely be in contravention of the Constitution. According to the Supreme Court, any racial preference enacted into law must satisfy the strict scrutiny standard to be deemed constitutional under the Equal Protection Clause -- a standard that is rarely met."

Mr. Bennett's misguided theory that would allow Congress to convert an ethnic group into a racial separatist government in Hawai'i could also be used to support racial separatism and eventual independence for "indigenous" people of Mexican (Aztec) ancestry in California, Arizona, New Mexico, Texas, and perhaps other states. That theory played a role in the recent California gubernatorial recall election, when it came to light that the leading Democrat, Lieutenant Governor Cruz Bustamante, is an active member of MEChA, a Chicano nationalist group proposing a "Nation of Aztlan." There are also parallels to Black nationalism and demands for reparations for slavery. See: http://tinyurl.com/722l4 Fortunately Arnold "the terminator" Schwarzenegger put an end to Bustamante's attempted balkanization.

Mr. Bennett says "It would be wrong to relegate Hawaiians to second-class status among Americaís indigenous people ... " Akaka bill supporters often plead that "Native Hawaiians" are the only group of "indigenous people" in America who have not been federally recognized. But of course there are hundreds of native groups claiming to be tribes who are seeking federal recognition. Some have been denied; and some have been waiting for many years. Most Indians are neither members of a recognized tribe nor eligible to join one.

The confusion over treating "Native Hawaiians" like Native Americans or Native Alaskans arises because of the great success of Senators Inouye and Akaka in passing pork barrel legislation to "bring home the bacon" to Hawai'i. Why in the world would Hawai'i's two Senators spend so many years sitting on the Indian Affairs Committee in the Senate when there are not and never have been any Indian tribes in Hawai'i? Why has Hawai'i been the only state to have both of its Senators on the Indian Affairs Committee?

Inouye and Akaka over the years have quietly inserted the words "Native Hawaiian" into bills passing through the Indian Affairs Committee intended to provide federal benefits to real Indian tribes. What a clever strategy! And then, after enough of those bills get enacted into law, it is claimed that the passage of these bills shows that Congress treats "Native Hawaiians" just like Native Americans and Native Alaskans! It is claimed that a "federal trust relationship" has been established with "Native Hawaiians" which now finally deserves to be formally recognized.

The theory goes like this. On Monday I pass by a beggar on my way to work and drop a dollar into his tin cup. On Tuesday I do it again. Also on Wednesday. But on Thursday I walk past the beggar and do not put anything into his tin cup. The beggar then shouts and runs after me, demanding the dollar he says I owe him. He claims my actions on the first three days have established a "trust relationship." And when I hesitate, he demands I sign a document pledging to give him "his" dollar every day forever.

Mr. Bennett complains that failing to pass the Akaka bill would "relegate Hawaiians to second-class status among America's indigenous people." But he fails to point out that passing the bill would relegate ethnic Hawaiians to the same sort of second-class citizenship status "enjoyed" by members of federally recognized tribes. One of the dirty little secrets about Indian tribes is that a tribal government has power over its members that deprives those members of many of the rights enjoyed by all other U.S. citizens under federal and state constitutions. The theory is that tribes have sovereignty to create their own laws, tribal courts, police departments, zoning regulations, taxes, divorce and child custody rules, etc. The theory is that tribal membership is voluntary, so by joining the tribe, an Indian agrees to be bound by whatever rules the tribe makes; and tribal sovereignty means the individual Indian has no recourse to federal or state laws that protect all other citizens.

For a discussion of the loss of rights ethnic Hawaiians would suffer if the Akaka bill passes, see: "The Impact of Tribal Recognition On Ethnic Hawaiians Who Join the Tribe and On Ethnic Hawaiians Who Do Not Join the Tribe" at: http://tinyurl.com/2b73g About 2/3 of that webpage is devoted to "horror stories" and comments by Indians and reservation residents from other states, including documentation.

Finally, let's take note of the fact that Mr. Bennett is supposed to be Attorney General of all the people of Hawai'i. If an Indian tribe is created in our midst, there will be profoundly bad results affecting all Hawai'i's people. States and their citizens are engaged in constant, massive struggles against Indian tribes over jurisdiction, tribal land boundaries, taxation, zoning, water rights, gambing casinos, etc. Lawsuits abound. Hawai'i citizens have a right to expect our Attorney General to represent our collective interests as a state; but in view of his comments about the Akaka bill, it appears he would have a conflict of interest in defending our rights.

Mr. Bennett and his successors as Attorney General (and all Hawai'i's people including ethnic Hawaiians) would deeply regret the creation of a tribal government. See "The Impact of Tribal Recognition On Local Businesses and Neighborhoods" at: http://tinyurl.com/39tw2

The Western States Sheriffs' Association on June 26, 2004 passed a resolution expressing serious concerns about the difficulties of law enforcement and loss of tax revenues in communities near to tribal lands: http://tinyurl.com/2np2n

Hawaii's Attorney General should take some advice from Connecticut's Attorney General Richard Blumenthal. He has been fighting constant battles against the tribes in his state (tribes currently existing and also those seeking federal recognition). On March 10, 2003, Attorney General Blumenthal wrote to Senator Inouye in his capacity as top Democrat on the Indian Affairs Committee. Here is part of his letter, taken from: http://tinyurl.com/47589

"I write to the Committee to express my serious concerns about S.297 ... Instead, I ask the Committee to support S.463, recently introduced by Senator Joseph I. Lieberman and Senator Christopher Dodd ... A decision by the federal government to recognize an Indian tribe has profound and irreversible effects on tribes, states, local communities, and the public. Tribes that receive federal recognition may be permitted to operate commercial casino gaming. They are exempt from most state and local laws and land use and environmental regulations. They enjoy immunity from suit. They may seek to expand their land base by pursuing land claims, or seeking to place land into trust under the Indian Reorganization Act. They may be insulated from many worker protection statutes relating, for example, to the minimum wage or collective bargaining as well as health and safety codes. "For these reasons, I urge you to reject S.297 and support reform measures, such as S.463, that will restore public confidence, integrity, and fairness to the recognition process."

For a five-paragraph summary of what's wrong with the Akaka bill, including extensive footnotes documenting the main points, see: http://tinyurl.com/22q49

Kenneth R. Conklin, Ph.D., is an independent scholar in Kaneohe, Hawaii. His Web site on Hawaiian Sovereignty is at: https://www.angelfire.com/hi2/hawaiiansovereignty He can be contacted at: mailto:Ken_Conklin@yahoo.com


Hawaii Reporter, 1/19/05

E Pluribus Unum
Debating the Legality of the Akaka Bill

By Bruce Fein

Exclusive to Hawaii Reporter

Hawaii Attorney General Mark Bennett is dead wrong in his support of the Akaka Bill.

See his Dec. 20, 2004, editorial in Hawaii Reporter: "The Akaka Bill Would Be Constitutional"

The proposed legislation celebrates race-based divisiveness over America's highest aspirations for unity and equality. The bill is blatantly unconstitutional.

E Pluribus Unum is the nation’s birth certificate.

Ben Franklin sermonized that if we do not all hang together; we assuredly shall all hang separately. Abraham Lincoln preached that “A house divided against itself cannot stand.” Supreme Court Justice Benjamin Cardozo in Baldwin v. Seelig (1935) observed: “The Constitution was framed…upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Justice Antonin Scalia lectured in Adarand Constructors v. Pena (1995) that the Constitution acknowledges only one race in the United States. It is American.

Attorney General Mark J. Bennett’s spirited defense of the Akaka Bill (Hawaii Reporter, December 20, 2004) ignores this wisdom. It is nonsense on stilts. He talks about Congress' power to recognize tribes, but the Akaka Bill is not about recognizing a real tribe that truly exists. Instead, it proposes to crown a racial group with sovereignty by calling it a tribe. But to paraphrase Shakespeare, a racial group by any other name is still a racial group. Congress cannot circumvent the Constituiton with semantics. The United States Supreme Court in United States v. Sandoval (1913) expressly repudiated congressional power arbitrarily to designate a body of people as an Indian tribe, whether Native Hawaiians, Jews, Hispanics, Polish Americans, Italian Americans, Japanese Americans, or otherwise. Associate Justice Willis Van Devanter explained with regard to congressional guardianship over Indians: “[I]t is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring guardianship and protection of the United States are to be determined by Congress, and not by the courts.”

Attorney General Bennett incorrectly argues that the Supreme Court has interpreted the Indian Commerce Clause to endow Congress with plenary “power to deal with those it finds to be Indian Tribes….” No such interpretation has ever been forthcoming, and thus Mr. Bennett is unable to cite a single case to support his falsehood. Indeed, it is discredited by the Sandoval precedent.

Congress enjoys limited powers under the Constitution. They are generally enumerated in Article I, section 8, and include the power to regulate commerce “with the Indian tribes.” Clause 18 also empowers Congress to make all laws “necessary and proper” for executing its enumerated authorities. Contrary to the Hawaii Attorney General, the Indian Commerce Clause has been understood by the Supreme Court as conferring a power to regulate the nation’s intercourse with Indian Tribes, but not to summon a tribe into being with a statutory bugle. The Attorney General is also unable to articulate a connection between any enumerated power of Congress and the Akaka Bill's proposal to endow Native Hawaiians with the quasi-sovereignty and immunities of Indian Tribes.

He absurdly insists that the Founding Fathers intended an open-ended definition of Indian Tribe because contemporary dictionaries defined tribe as “[a] distinct body of people as divided by family or fortune or any other characteristic.” But the Constitution’s makers employed “Indian” to modify tribe. That modifier was understood to include only peoples with an Indian ancestry coupled with a primitive culture that necessitated federal protection from predation by States or private citizens. In Sandoval, for example, Congress properly treated Pueblos as an Indian tribe because “considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary….” Chief Justice John Marshall in The Cherokee Nation v. Georgia (1831) likened an Indian Tribe’s dependency on the United States to the relation of a ward to his guardian. The Akaka Bill, however, does not and could not find that Native Hawaiians need the tutelage of the United States because of their backwardness or child-like vulnerability to exploitation or oppression. Indeed, their political muscle has made them spoiled children of the law, as Attorney General Bennett himself underscores. Finally, the Constitution aimed to overcome, not to foster, parochial conflicts or jealousies. That goal would be shipwrecked by a congressional power to multiply semi-sovereign Indian tribes at will.

He stumbles again in attributing to a court the statement, “Indian tribes do not exist in Alaska in the same sense as in [the] continental United States.” The statement was made by the Secretary of the Interior in a letter noting that Alaskan tribes occupied land which had not been designated as “reservations,” in contrast to Indian tribes.

Section 2 of the Fourteenth Amendment further undermines the Attorney General’s accordion conception of Indian Tribe. It apportions Representatives among the States according to population, but “excluding Indians not taxed.” Mr. Bennett’s argument would invite the majority in Congress to manipulate apportionment by designating entire States that generally voted for the opposition as Indian Tribes.

Finally, the Attorney General wrongly insinuates that Congress would be powerless to rectify historical wrongs to Native Hawaiians absent the Akaka Bill. Congress enjoys discretion to compensate victims or their families when the United States has caused harm by unconstitutional or immoral conduct, as was done for interned Japanese Americans in the Civil Liberties Act of 1988. Congress might alternatively establish a tribunal akin to the Indian Claims Commission to entertain allegations of dishonest or unethical treatment of Native Hawaiians. As the Supreme Court amplified in United States v. Realty Co. (1896): “The nation, speaking broadly, owes a ‘debt’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based on considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of the individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition of claims against the government which are thus founded.”

Bruce Fein is a constitutional attorney and international consultant at Bruce Fein & Associates and The Lichfield Group.


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