Letters and Testimony Re: Akaka Bill

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

Following is a letter sent from attorney Patrick W. Hanifin to both Senator Inouye and Senator Akaka; a letter from Mr. Hanifin to Senator McCain; oral testimony of attorney H. William Burgess; and oral testimony of Kenneth R. Conklin. Note that these letters use old bill numbers to refer to the Akaka bill, because these letters were sent during the 106th Congress in year 2000. The correct bill numbers for the 107th Congress, 2001-2002, are S.81 and H.R.617


September 13, 2000

Senator Daniel K. Inouye

United States Senate

722 Hart Building

Washington, D.C. 20510-1102


Dear Sen. Inouye:

I urge you to withdraw your sponsorship of S2899, locally known as the “Akaka Bill,” which would create a federal agency exclusively for ethnic Hawaiians. I realize that, in sponsoring that bill, you believe that you are merely protecting federal benefits for some of your constituents. However, the proposal is racially discriminatory, racially divisive, and, in the end, injurious to the people it is intended to help.

S2899 is racially discriminatory. It is intended to evade Rice v. Cayetano, 120 S.Ct. 1044 (2000), which held that “Hawaiian” and “native Hawaiian” as used in Hawai`i state laws are racial classifications. The bill is reminiscent of the South’s “massive resistance” against the Supreme Court’s decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Cutting through the verbiage, S2899 uses essentially the same definitions that the Office of Hawaiian Affairs used to unconstitutionally discriminate against most of the voters of Hawai`i on grounds of race. It seems to be designed to ensure that, no matter what the U.S. Constitution says, government of the race, by the race, and for the race shall not perish from Hawai`i. Such a government is anathema to the principles of American democracy.

This bill would divide the people of Hawai`i along racial lines, and in the long run could undercut much of the social progress that you have worked for through your career. That great liberal justice, William O. Douglas, discussing what he believed was a racial gerrymander, pointed out the fundamental conflict between racially divided government and American democracy:

Racial electoral registers, . . . have no place in a society that honors the Lincoln tradition – “of the people, by the people, for the people.” Here the individual is important, not his race, his creed or his color. . . . The racial electoral register system, . . . by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. . . . [G]overnment has no business designing electoral districts along racial or religious lines. . . .

When racial or religious lines are drawn by the state, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.

Wright v. Rockefeller, 376 US 52, 66-67 (1964) (Douglas, J. dissenting). Justice Douglas drew the analogy to the race-based voting systems in Cyprus, Lebanon, and colonial India. All three countries have been torn apart by bloody internecine war when racial or religious groups demanded divided shares of the government. No one wants Hawai`i to head in that direction. But the cries of outrage from some OHA trustees at the thought that their constituents must share the voting booth with all of their fellow citizens suggests that some people in Hawai`i are beginning to “seek, not the best representative but the best racial . . . partisan.” S2899 would encourage that trend, a trend that should have no place in our multiracial society.

In the long run, the bill could harm ethnic Hawaiians, too. The constitutional principle of equal protection applies as much to Congress as to states. S2899 seeks to evade that principle by classifying ethnic Hawaiians as a kind of Indian tribe and then invoking Congress’ power over Indian tribes. To evade Rice and other cases holding that the Equal Protection Clause equally protects all of us, it would not be enough to interpret Congress’ power as being based on relationships with tribal governments that were not created by Congress or the states. See Rice, 120 S.Ct. at 1057-59. There never was a Hawaiian tribe. Congress has no power to create a tribe. The agency that would be created in S2899 would be a creature of Congress, subject to federal Constitution as every federal agency is. The bill could survive constitutional attack only if the Supreme Court went back to old cases interpreting Congress’ power over Indians as being based on Indians being a distinct and distinctly inferior racial group that needs the civilizing tutelage of the Great White Father unlimited by equal protection. See United States v. Sandoval, 231 U.S. 28, 39-47 (1913) (relied on by the State and OHA in Rice). The basis of that doctrine was not a special privilege of Indians, but a special plenary power of Congress over Indians. If it worked at all, S2899 would strip Hawaiians of the protection of the Equal Protection Clause. How much would you sell your constitutional rights for?

History has shown that when the government racially discriminates, it usually hurts minorities. A minority that claims exclusive privileges would be especially vulnerable to popular resentment. The Hawaiian opponents of S2899 have a good point: being reclassified as a pseudo-Indian to get government benefits would be dangerous. Every time that Congress has passed a program relating to Indians, it has asserted that the program is for really for their benefit: e.g. round them up and put them on the reservation to civilize them; or break up the reservations, take most of their land, and turn them into farmers, etc. Of course you would do whatever you could to fight programs harmful to your constituents, but you will not always be in Congress and Hawai`i will always have a small delegation. It may seem unlikely that Congress would ever abuse its new plenary power over Hawaiians, but who would have predicted in 1937 that, only five years later, the American government would imprison over 100,000 people because of their ancestry?

Please reconsider your sponsorship of this discriminatory and divisive bill.

Very truly yours,

Patrick W. Hanifin



September 13, 2000

Senator John McCain

United States Senate

241 Russell Senate Office Building

Washington, D.C. 20510


Dear Sen. McCain:

As a citizen who supported you in your campaign and who has joined your continuing efforts in Straight Talk America, I would like to draw your attention to S2899, a bill presently scheduled for an expedited hearing in the Senate Indian Affairs Committee. The bill would create a special federal entity using a rule that the United States Supreme Court recently described as “corruptive of the whole legal order democratic elections seek to preserve.” I urge you to oppose the bill.

Although at first glance S2899 might seem to be a purely local matter, the bill is of national importance and illustrates the need for campaign reform. Not only is the bill being pushed by large amounts of lobbying money, but the taxpayers of Hawai`i are being forced to pay for that lobbying from state revenue. Worse, the bill would create a governmental organization of a kind that the Supreme Court has condemned as racially discriminatory.

The bill is disguised as a routine federal recognition of an Indian tribe, in this case so-called “native Hawaiians.” However, the bill would really create an exclusive race-based government, denying all but one favored group the right to vote and to hold public office. There is not now and there never has been a Hawaiian tribe. Congress has neither the power nor the right to create a tribe out of a racially defined group of American citizens. Ethnic Hawaiian citizens of Hawai`i, like the rest of us out here, are equal participants in the government of the State of Hawai`i and the United States. As your distinguished colleague Sen. Akaka demonstrates, ethnic Hawaiians are fully integrated into the political and economic life of Hawai`i. In the 19th century, there was a multiracial Kingdom of Hawai`i. Everyone born here was a citizen of the Kingdom, and anyone who moved here could become a citizen, regardless of their race. When the United States annexed Hawai`i all citizens of Hawai`i became citizens of the United States. S2899 is not a bill that recognizes, protects or restores an Indian tribe.

S2899 is designed to evade the United States Supreme Court’s recent decision striking down laws that deny equal voting rights to citizens who are not ethnic Hawaiians. Hawai`i has a state agency called the Office of Hawaiian Affairs (“OHA”). It has an elective board. State law prohibited people who are not ethnic Hawaiians from voting in OHA elections or running for OHA offices. In Rice v. Cayetano, 120 S.Ct. 1044 (2000), the Supreme Court held that denying the right to vote in OHA elections because of race violates the 15th Amendment. In August the federal District Court issued a preliminary injunction against denying people the right to run for office because of their race.

OHA has become a very wealthy agency due to racially discriminatory laws that siphon off revenue from state lands into its coffers. OHA’s officials have expended a great deal of money to preserve their privileged position by trying to get Congress to create a federal equivalent of OHA. That is what S2899 is intended to do: enact into federal law the same racially discriminatory election laws that the Supreme Court condemned in Rice as “corruptive of the whole legal order democratic elections seek to preserve.” 120 U.S. at 1057. Only ethnic Hawaiians could vote or hold office in the new federal agency. Proponents of the bill hope that it will immunize their exclusive race-based program against further constitutional challenge.

I have great respect for Hawai`i’s senators, Daniel Inouye and Daniel Akaka, but in supporting this bill they have allowed their understandable interest in protecting the special interests of some of their constituents to lure them into ignoring a basic principle: A government of the race by the race and for the race has no place in American democracy. When racial lines are drawn by the government, the multiracial communities that our Constitution seeks to weld together begin to fall apart. The government has no business creating agencies and elective offices along racial lines.

You can find a legal analysis of S2899 and a discussion of the relevant history and law on the Web at www.angelfire.com/hi2/hawaiiansovereignty. Thank you for your attention to this matter.

Very truly yours,

Patrick W. Hanifin



Testimony of H. William Burgess on S. 2899 and H.R. 4904 before the Committee on Indian Affairs U.S. Senate September 1, 2000, Honolulu, Hawaii

H. William Burgess

2299-C Round Top Dr.

Honolulu, HI 96822

Tel: 947-3234

Fax: 947-5822


Aloha Senators Inouye and Akaka, Representatives Abercrombie and Mink.

My name is H. William Burgess. I am a retired attorney. Before retiring 6 years ago, I practiced law in Hawaii for 35 years. I was a delegate to the 1978 Constitutional Convention. And for the last 3 or 4 years I been a dedicated student of the history of Hawaii.

I urge you to vote against this bill. The best hope for Hawaii and all the people who call Hawaii home is to tear down the racial walls that divide us and to again embrace democracy where all of us have the equal protection of the laws without regard to race or ancestry. That is what I refer to as Aloha for All.

I recognize that many in the community have strong feelings about events in Hawaii's history. I happen to disagree with many of them as to these historical events but right or wrong, those feelings are honestly held and must be addressed and we must strive for a political consensus. One good beginning is with the idea that if some people are in need, help should be given based on need, not race. But this bill does not do that.

This bill would place the federal stamp of approval on racial separatism completely at odds with this state's long record of racial tolerance and integration.

If time permits I want to cover 3 points in my testimony today: Tribes; Japanese; and Legacy.


1. Tribes.

The goal of the Akaka bill is to have the federal government give Hawaiians status comparable to that of Indians in federally recognized Indian tribes. Congress has power to recognize separate quasi sovereign entities as Indian tribes under certain guidelines. (A quasi sovereign entity that has continuously presided over and been followed by, a separate distinct people, since historic times.)

But Congress has no power to create a tribe where none exists. And there are no tribes or separate quasi sovereign racial enclaves in Hawaii. We are a multi-ethnic population all blended together by the Aloha spirit. I've lived here 44 years. I've never seen or heard of any Japanese tribe or Irish tribe or Chinese tribe or Filipino tribe or Hawaiian tribe or separate quasi-sovereign entities of any kind.

Long before annexation, Hawaiians had voluntarily rejected their old religion and culture and way of living and adopted new ones. In 1819, shortly after the death of Kamehameha the Great, his favorite widow, Kaahumanu, who became the de facto mo'i, the real ruler, caused Liholiho to break the kapu by sitting down to a feast with the wahine ali'i. A great gasp went up in the throng. Kaahumanu announced "We are going to eat pork and coconuts and bananas and live like the white people do." Onlookers shouted, "The gods are a lie!" Liholiho then ordered destruction of the heiaus and burning of the wooden idols. The first missionaries arrived the following year and soon thereafter, Kaahumanu adopted Christianity and made it the official state religion of the Kingdom of Hawaii. These were changes initiated by the Hawaiians themselves, because they considered it in their own best interests to do so, not because they imposed on them by outsiders.

Unlike the American Indians, Hawaiians did not remain separate and apart. The did the opposite. They welcomed the immigrants, adopted their culture, clothing, technology, laws and legal institutions, forms of government, culture and language and intermarried and assimilated and blended with them. The United States never waged war on the Hawaiian people. It treated Hawaiians as equals from the beginning. By 1898 Hawaii was a multi ethnic constitutional monarchy in which no ethnic group was in the majority. Hawaiians made up less than 30% of the population.

The State's brief in the Rice case acknowledged that "The tribal concept has no part in Hawaii's history." Jon Van Dyke, the highly paid lawyer and professor for OHA admits that Hawaiians have not been organized into tribes. In 1920 during testimony before Congress on the Hawaiian Homes Commission Act, it was acknowledged that there is no entity for Hawaiians like a tribe to deal with.

The goal of the bill is to set up a structure for Hawaiians to form their own separate tribal government. That means, if the bill passes and is implemented, Hawaii will be either partitioned along racial lines or will secede from the United States. That will not be good for anyone of Hawaiian or any other ancestry. That will cause social, economic and political disruption and instability and hurt us all.


2. Japanese in Hawaii.

In 1882 King Kalakaua sent John Kapena to Japan to seek the migration of Japanese people to Hawaii. He met with Japan's Minister of Foreign Affairs Inouye and said, "We believe the Japanese and Hawaiians spring from a cognate race and that the Japanese children growing up and amalgamating with our population will produce a new and vigorous race, which will repeople our Islands."

Although the Meiji emperor had been reluctant before, they responded to King Kalakaua's appeal. By December 31, 1894 there were 20,271 Japanese in Hawaii, about 20% of the population. But citizenship and the benefits of democracy did not come quickly or easily for them.

For over 100 years, the blood, sweat and tears of these industrious people and their descendants along with many from other Asian and European countries helped make Hawaii a better place. They worked long and hard and made great sacrifices to achieve and later preserve the democratic principle of racial equality.


3. Legacy.

Let's look beyond the present, beyond political correctness, forget pandering to vocal minorities, beyond the politics of racial grievance, the politics of victimhood, beyond demagoguery, forget the lure of casino millions. Let's look at what Hawaii will be like in 10, 20, 50, 100 years from now and what your children and grandchildren and future generations will think of what you have done.

Dan Inouye, Please look me in the eye. Do you want the capstone of your distinguished career to be a federal law that makes AJA's in Hawaii second class citizens?

Patsy Mink, do you?

Neal Abercrombie do you want to be remembered as the sponsor of a bill that in effect stamps "Second Class" on the foreheads of 80% of Hawaii's citizens?

Dan Akaka do you want a federal wall dividing Hawaii's citizens by race to be called "The Akaka Wall"?

Finally, I also agree with those of Hawaiian ancestry who object to Hawaiians being treated like American Indians and placed as wards under the guardianship of the Department of the Interior. Reservations under that department's supervision are exemplified by some of the most grinding poverty in the nation. That is not a role model or way of life to which anyone should aspire.

To those of Hawaiian ancestry, I say, be careful what you wish for. Under the Constitution, Congress has power to regulate commerce with foreign nations and with Indian tribes. This gives Congress the power to treat members of Indian tribes differently from citizens of the U.S. Differential treatment does not necessarily mean better treatment. Until 1924 for example, members of Indian tribes were not considered to be American citizens and did not have the right to vote. Congress changed that in 1924 but it could also take it away. Many throughout the world yearn to be citizens of the United States and risk their savings and lives to get here. If you are in the same status as members of Indian tribes under the Constitution your rights would be determined by Congress and not protected by the Constitution.

Finally, I commend you to the following websites: http://aloha4all.org ; Ken Conklin's site at https://www.angelfire.com/hi2/hawaiiansovereignty and Thurston Twigg-Smith's at http://www.hawaiimatters.com

H. William Burgess

September 1, 2000


Oral Testimony of Kenneth R. Conklin, August 30, 2000

Aloha kakou:

Currently we have a unified State of Hawai’i. This Akaka bill would divide us along racial lines. Currently we are all equal under the law. This bill would establish by law two classes of citizens. A racially-defined hereditary elite would have special voting rights and property rights in addition to all the rights of every citizen. Aren’t the days of racial supremacy and second-class citizenship over?

The Supreme Court in Rice v. Cayetano identified “Native Hawaiian” as a racial classification. Over 150 racial entitlement programs might now be found unconstitutional. The Akaka bill tries to save them -- at the expense of carving up Hawai’i along racial lines. Government help should be based on need, not race.

Are Native Hawaiians like any Indian tribe you ever heard of? In 1840 -- 53 years before the overthrow -- the sovereign King Kauikeaouli Kamehameha III exercised self-determination by creating a constitution giving voting rights to all subjects of the Kingdom regardless of race. As time went by, thousands of non-natives became subjects of the Kingdom through naturalization or birth. By the overthrow of 1893 only 40% of the population had any native blood at all. Most high government officials had no native blood. Most of the wealth and political power was held by non-natives. All this happened under the authority of the sovereign monarchs. Has there ever been an Indian tribe where most of the wealth and most of the elected or appointed office-holders are non-Indians?

Sovereignty activists and federal officials are well aware that Hawaiians would never qualify as an Indian tribe under the 7 mandatory criteria for federal recognition. That’s why the Akaka bill was introduced -- to have Congress create a phony Indian tribe through a political process, setting aside long-established procedures. Didn’t Congress learn a lesson from the scandal over a similar political recognition of the Mashantucket Pequot tribe in Connecticut? It was documented in Jeff Benedict’s book: "Without Reservation: The Making of America's Most Powerful Indian Tribe and the World's Largest Casino." And now you’re thinking of doing it again?

Only 157 U.S. soldiers came ashore to maintain order during the overthrow. But ten times that many LOCAL members of the Honolulu Rifles took over government buildings and disarmed the royal guard. These local residents maintained power through 4 years of a hostile Grover Cleveland administration that tried to restore the Queen and secretly supported the failed Wilcox counter-revolution.

The U.S. has apologized for its small role in the overthrow, and wants to give reparations. But to whom are such reparations owed? To just one race of people?

The Kingdom of Hawai’i was not limited to Native Hawaiians. Many non-natives had full voting rights. Only 40% of the population at the time of the overthrow had any native blood at all. Most of the high government officials were non-native. Thousands of ethnic Japanese, Chinese, Americans, and Europeans were naturalized or were native-born subjects of the Kingdom before the overthrow. Their descendants today have equal standing with Native Hawaiians regarding any reparations the U.S. wants to give for its very small role in overthrowing the monarchy; yet the racist Akaka bill totally ignores them.

The Kingdom that had treaties with the U.S. was not Hawaiians-only. Government power, land ownership, and economic wealth were not Hawaiians-only. So why should Congress offer reconciliation and reparations to Hawaiians-only?

Please defeat the Akaka bill. Let us maintain a unified State of Hawai’i, with equality and aloha for all. Do not divide us along racial lines. Do not put us on a path toward Bosnia, Fiji, Rwanda, and Zimbabwe. For further information, visit my website: https://www.angelfire.com/hi2/hawaiiansovereignty


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

Email: ken_conklin@yahoo.com