Senator Jon Kyl (Republican of Arizona) -- Complete Text of Letter to His Constituents Explaining Why He Opposes the Akaka Bill (Fall, 2003)

(1) The body of Senator Kyl's letter to constituents giving reasons for his strong opposition to the Akaka bill.
(2) An explanation of why the letter was written and how it came to public attention.
(3) A reminder about a previous letter from House Judiciary Chairman Sensenbrenner to Speaker Hastert, and a previous letter from the Chairman of the Senate Republican Policy Committee to members of the Senate.




While I support efforts to preserve the heritage and culture of Native Hawaiians, I oppose this bill. By creating a separate, race-based government within the state of Hawaii, S. 344 would violate the United States Constitution and create a divisive and unworkable system of government.

The Akaka bill would authorize persons with some Native Hawaiian blood to form a Native Hawaiian government. This government would have powers identical to those of a reservation Indian tribe - the power to tax, regulate, and make laws for its members.

On a practical level, it is difficult to imagine how such a government would interact with the rest of Hawaii's people. Tribal Indians on a reservation generally are immune from state laws - from the taxes and regulations that apply to other residents of the state. But unlike reservation Indians, Native Hawaiians do not live in one area of the State that is set aside for Indians. They live in the same cities and neighborhoods, and on the same streets, as other Hawaiians do.

Would the citizens of the new Native Hawaiian government - like reservation Indians - be immune from state laws, regulations, and taxes? Would a Native Hawaiian-owned business - like a reservation Indian business - be exempt from the taxes that its non-Native competitors must pay? If Congress were to create a separate tribal government for Native Hawaiians, it would be imposing just such a system on the people of Hawaii. Persons of different races, who live together in the same society, would be subject to different legal codes. This would not produce racial reconciliation in Hawaii. Instead, it is a recipe for permanent racial conflict.

I believe that the Akaka bill also violates the U.S. Constitution. The tribal governments on Indian reservations in the continental United States were preserved as separate entities when their surrounding states entered the union. These governments are not subject to the U.S. Constitution's Bill of Rights. The proposed Native Hawaiian government likewise would not be bound by the Bill of Rights. But, unlike reservation Indians, all of Hawaii's citizens have been subject to state law ever since Hawaii entered the union - and all Hawaiians receive the full protection of the Bill of Rights. By subjecting Native Hawaiians to a government that is not bound by the Constitution, the Akaka bill effectively would take away these constitutional rights from persons who currently enjoy their protection. This is something that I believe Congress neither can nor should do.

Finally, it is apparent that S. 344 is, in large part, motivated by a desire to immunize government preferences for Native Hawaiians from constitutional scrutiny under the U.S. Supreme Court's decision in Rice v. Cayetano (2000). The Supreme Court generally has frowned on legislative efforts to reverse the effect of its decisions. I do not think that the Akaka bill would fare any better. If particular preferences in current laws violate the Constitution, Congress and the State ought to fix those laws, rather than attempt to insulate them from equal-protection scrutiny.

While I respect Native Hawaiians and their traditions, I believe that we must preserve those traditions in a manner that is consistent with the U.S. Constitution.



(2) An explanation of why the letter was written and how it came to public attention.

Senator Jon Kyl, Republican of Arizona, opposes the Native Hawaiian Recognition bill, also known as the Akaka bill. On September 24, 2003 Derrick DePledge, Washington-based reporter for the Honolulu Advertiser, published an article quoting from a letter Senator Kyl had sent to an Arizona voter. In the letter Senator Kyl gives his reasons for opposing the Akaka bill. The newspaper article, including excerpts of a few of those reasons, can be read at:

Senator Kyl's letter was subsequently obtained by website editor Ken Conklin, from a different source, and the body of that letter is published in its entirety above.

Why was the letter written? Why would Senator Kyl be writing to a voter in Arizona about the Hawaiian recognition bill?

During Summer and Fall of 2003, the Office of Hawaiian Affairs launched a major campaign to pass the Akaka bill. Part of that campaign included sending 140 faxes over the Labor Day weekend to each of the 100 members of the Senate (yes, that's fourteen thousand political lobbying faxes sent by State of Hawai'i OHA employees using offices and equipment paid for by government money taken from all Hawai'i residents). Part of the campaign also included OHA staffers using the telephone to contact ethnic Hawaiians living in all 50 states to ask them to contact their Senators to support the Akaka bill; and also, members of the Kamehameha School alumni association living in all the states were asked to contact their Senators.

Senators and members of Congress send a standard courtesy reply to their constituents -- usually a general, vaguely worded note like: "Thank you for contacting me to express your views on this important matter. I will give serious consideration to what you have said." But Senator Kyl has strong views on the Akaka bill, and therefore composed a substantive and lengthy letter to explain his views.


(3) A reminder about a previous letter from House Judiciary Chairman Sensenbrenner to Speaker Hastert, and a previous letter from the Chairman of the Senate Republican Policy Committee to members of the Senate.

This was not the first time that Senators and Representatives have directly spoken out against the Akaka bill. In the 107th Congress (when the bill-numbers were different), two very important messages came to public attention, both expressing serious concern about the unconstitutionality of the bill.

Here is a letter sent by Chairman Sensenbrenner of the House Judiciary Committee to Speaker of the House Dennis Hastert, on July 19, 2001, asking Speaker Hastert to kill the bill, or send it to the Judiciary Committee for hearings on its constitutionality. Chairman Sensenbrenner also warned Speaker Hastert that the bill should not be allowed to be placed on the calendar of non-controversial bills to be passed by voice vote under suspension of the rules (as had happened the previous year):

Here is a lengthy and detailed letter sent by Senator Larry Craig, who was then Chairman of the Senate Republican Policy Committee, to all Republican Senators and to the Senate leadership, at a crucial moment on December 6, 2001, severely criticizing the bill as unconstitutional and strongly rebuking Senator Inouye’s stealth tactic of hiding it in the form of a single sentence as section 8,132 deep inside the huge Defense Appropriations bill.


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