Bruce Fein is a Constitutional law attorney and international consultant with Bruce Fein and Associates and the Lichfield Group. During the period from October 2004 through March 2005 he became aware of the dangers of the Hawaiian Government Reorganization bill S.147 (also known as the Akaka bill) and published three major articles opposing the bill. On March 17, 2005 Senator Kyl (R, AZ) made a statement on the floor of the U.S. Senate reaffirming his opposition to the Hawaiian bill, and entered into the Congressional Record the three articles by Bruce Fein. The original sources of those three articles, and some closely-related articles, are provided at the bottom of this webpage.
Mr. KYL. Mr. President, it has come to my attention that persons outside of the Senate have told Senators that I do not oppose S. 147, the latest incarnation of a bill that would create a tribal government for Native Hawaiians. This is untrue; it is probably being said because I agreed that the issue could be brought to the Senate floor for a vote. I continue to believe that this bill is profoundly unconstitutional and poses serious moral and political problems. I oppose this bill, and urge my colleagues to do so.
I ask unanimous consent that the following three news columns by Bruce Fein, constitutional scholar and former Reagan administration Justice Department official, be printed in the RECORD.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
The Pineapple Time Bomb
It is not because Native Hawaiians should be cherished less but that equality under the law should be loved more that the Akaka Bill to create a race-based government should be opposed. The Senate Committee on Indian Affairs blithely approved the legislation Wednesday without seriously examining its constitutionality. The bill previously
The proposed legislation would ordain a Native Hawaiian Governing Entity cobbled together by Native Hawaiians meeting a threshold of Native Hawaiian blood. The Entity would negotiate with the United States and the State of Hawaii for lands, natural resources, civil and criminal jurisdiction, and other matters within the customary purview of a sovereign. It would be a race-based state within a state: a government of Native Hawaiians, by Native Hawaiians, for Native Hawaiians. It does not deserve birth.
The grandeur of the United States has been a history of escape from ugly racial, ethnic or class distinctions. The nation celebrates equality of opportunity and merit rather than birth as the touchstone of destiny. American citizenship is defined by common ideals and aspirations unstained by hierarchy: no divisions between patricians or clergy, nobles and commoners. Indeed, the Constitution forbids titles of nobility.
Accordingly, Supreme Court Justice Antonin Scalia instructed in Adarand Constructors v. Pena (1995): ``To pursue the concept of racial entitlement--even for the most admirable and benign of purposes--is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are but one race here. It is American.''
The United States has flourished by overcoming stains on its creed of equality. Black slavery was ended by the 13th Amendment, and Jim Crow died with the Civil Rights Act of 1964 and Voting Rights Act of 1965. Individual Japanese-Americans got an apology and compensation for race-based maltreatment in World War II in the Civil Liberties Act of 1988.
Racism is defeated by its renunciation, not its practice. The latter pits citizen against citizen and invites strife and jealousies that weaken rather than strengthen.
An exclusive Native Hawaiian government is no exception. Justice Anthony Kennedy persuasively discredited the argument that the Akaka Bill will bring reconciliation between Native Hawaiians and their co-citizens in Rice v. Caytano (2000). In voiding a race-based restriction on the franchise for trustees of the Office of Hawaiian Affairs, Justice Kennedy sermonized: ``One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. ..... [T]he use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become an instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.''
The Akaka Bill would create an unprecedented race-based government in Hawaii. Prior to the 1893 dethronement of Queen Lili'uokalani, the monarchy treated Native Hawaiians and immigrants alike. Each enjoyed equal rights under the law. Ditto under the successor government and territorial authority after Hawaii's annexation by the United States in 1898. In other words, the race-based legislation would not restore the 1893 legal landscape, but enshrine an odious political distinction amongst Hawaii's inhabitants that never before existed.
A Native Hawaiian enjoys the same freedoms as other Americans. Native Hawaiians may celebrate a distinctive culture under the protection of the Constitution, like the Amish. Racial discrimination against a Native Hawaiian is illegal. And the civil and political rights of Native Hawaiians dwarf what was indulged by the sovereign under the former monarchy.
Stripped of rhetorical adornments, the Akaka Bill is racial discrimination for the sake of racial discrimination; a dishonoring of the idea of what it means to be an American and a formula for domestic convulsions.
A Race-Based Drift?
The nation's mindless celebration of multiculturalism and denigration of the American creed has reached a new plateau of destructiveness. A bill recently reported by the Senate Appropriations Committee (S. 344) would establish a race-based government for Native Hawaiians unconstrained by the restrictions of the U.S. Constitution. The bill's enactment would mark the beginning of the end of the United States, akin to the sack of Rome by Alaric the Great in 410 A.D. A country that wavers in its fundamental political and cultural values--like a nation half slave and half free--will not long endure.
S. 344 would erect an independent government for the lineal descendants of Native Hawaiians to honor their asserted ``rights as native people to self-determination and self-governance.'' Best estimates place their number at more than 400,000. Like Adolf Hitler's blood tests for Jews, a minuscule percentage of Native Hawaiian ancestry would establish an entitlement to participate in the new racially exclusive domain.
The right to self-determination means the right of a people to choose their sovereign destiny, whether independence, federation, accession to another nation or otherwise. Thus, the bill would overturn the past and prevailing understanding of the Civil War. As Chief Justice Salmon Portland Chase lectured, Ulysses S. Grant's defeat of Robert E. Lee established an indivisible national unity among indestructible states.
The Native Hawaiian government would be unbothered by the ``irritants'' of the U.S. Constitution. Thus, it might choose theocracy over secularism; summary justice over due process; indoctrination over freedom of speech; property confiscations over property rights; subjugation over equality; or, group quotas over individual merit. The Native Hawaiian citizens of the Native Hawaiian government would also be exempt from swearing or affirming allegiance to the United States of America or the U.S. Constitution.
The race-based sovereignty created by S. 344 is first cousin to a revolution against the United States. As the Declaration of Independence elaborates, revolutions may be justified by repression or deafness to pronounced grievances. Thomas Jefferson's indictment of King George III is compelling on that score. But S. 344 does not and could not find Native Hawaiians are oppressed or maltreated in any way. They are first-class American citizens crowned with a host of special privileges. Indeed, the proposed legislation acknowledges that, ``Native Hawaiians ..... give expression to their rights as native peoples to self-determination and self-governance through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school.''
The annexation of Hawaii by the United States in 1898 has proven a bright chapter in the history of democracy and human rights. Native Hawaiians had failed for centuries to build a democratic dispensation and the rule of law. When Queen Lili'uokulani was ousted from power in 1893, the potentate was no more eager to yield monarchical powers than was the shah of Iran. Annexation and statehood in 1959 brought all Hawaiian residents irrespective of race or ethnicity the blessings of the U.S. Constitution--government of the people, by the people, for the people. Native Hawaiians prospered far beyond the destiny available under Queen Lili'uokulani and her royal successors. Suppose Japan had attacked Pearl Harbor when under the queen's sovereignty. The Hawaiian Islands would have been colonized and brutalized as was Korea from 1910-1945.
American civilization has been a boon, not an incubus, for the Native Hawaiians living today. Generally speaking, they thrive from the benefits of science, medicine, literature, higher education, free enterprise, private property and freedom of inquiry, amenities and enjoyments not found in lands untouched by Western values and practices. As elaborated in the report of Senate Committee of Indian Affairs accompanying S. 344, Native Hawaiians' nagging resistance to complete assimilation seems to explain their suboptimal demographics. Hawaiian law, for example, has invariably guaranteed subsistence gathering rights to the people to retain native customs and traditions.
Not a crumb of legitimate grievance justifies the odious race-based government championed by S. 344. To borrow from Associate Supreme Court Justice Antonin Scalia in Adarand Construction vs. Pena (1995), in the eyes of the law and the creed of the United States, there is only one race in the nation. It is American. And to be an American is to embrace the values of freedom, individual liberty and equality acclaimed in the Declaration of Independence, Constitution and Gettysburg Address. S. 344 would create a distinct race of Native Hawaiians subject to a race-based Native Hawaiian government with the purpose of creating and preserving non-American values: namely, ``Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions.''
Native Hawaiians hold no more right to a race-based government than countless other racial or ethnic groups in the United States. They are no more entitled to secede from the jurisdiction of the U.S. Constitution than were the Confederate States of America. Enacting S. 344 would surrender the intellectual and moral underpinnings of the United States.
E Pluribus Unum--Debating the Legality of the Akaka Bill
Hawaii Attorney General Mark Bennett is dead wrong in his support of the Akaka Bill.
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.
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 Constitution 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.''
** Note by Ken Conklin, website editor: The content above was copied from the Library of Congress website after doing a search. There is no permanent URL for displaying the results of such a search. However, a pdf file has been created showing photographs of the three pages of the printed Congressional Record which include the content above. To download that pdf file, click here:
HERE ARE ORIGINAL SOURCES OF BRUCE FEIN'S THREE ARTICLES IN THE ORDER LISTED IN THE CONGRESSIONAL RECORD, ALONG WITH OTHER ARTICLES CLOSELY RELATED TO THEM
(1) Bruce Fein, "The Pineapple Time Bomb," The Washington Times, March 11, 2005
(2) Bruce Fein, "A Race-Based Drift?" The Washington Times, October 5, 2004
That Washington Times article of October 5 evoked two responses. The first response was from a team of three Honolulu attorneys speaking on behalf of the Office of Hawaiian Affairs (a state government agency providing racially exclusionary benefits to ethnic Hawaiians and lobbying in support of the Akaka bill). The second response was a letter-to-editor by Kenneth R. Conklin, Ph.D. addressing some of the points raised by the OHA attorneys. The complete series of three items can be seen at:
(3) Bruce Fein, "E Pluribus Unum: Debating the Legality of the Akaka Bill" Hawaii Reporter (on-line), January 19, 2005
That Hawaii Reporter article was a response to an article by Hawai'i Attorney General Mark Bennett which had claimed the Akaka bill is constitutional. Those two articles were included in a series of four, as follows:
(a) "Don't Count on the Akaka Bill" by H. William Burgess and Sandra Puanani Burgess, 12/17/2004
(b) "The Akaka Bill Would Be Constitutional" by Mark J. Bennett (Attorney General, State of Hawai'i), 12/20/2004
(c) "Akaka Bill Is Unconstitutional and Bad Public Policy" by Ken Conklin, 12/21/2004
(d) "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
The complete series of four articles is available at:
In June 2005 Bruce Fein published a booklet under the auspices of the Grassroot Hawai'i think-tank: "Hawaii Divided Against Itself Cannot Stand." Mr. Fein's essay is of special interest to scholars because of his analysis of the apology resolution of 1993 as well as the provisions of the Akaka bill. It can be downloaded in pdf format here:
Senator Kyl (R, AZ) obtained unanimous consent to print Mr. Fein's essay in the Congressional Record in three installments on three consecutive days: June 14, 15, and 16 of 2005. Each installment was introduced by brief remarks by Senator Kyl. The relevant portions of the Congressional Record are copied here:
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