(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
BY MAIL AND E-MAIL
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
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
BY MAIL AND E-MAIL
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
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
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
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
If time permits I want to cover 3 points in my
testimony today: Tribes;
Japanese; and Legacy.
The goal of the Akaka bill is to have
the federal government
give Hawaiians status comparable to that of Indians in
Indian tribes. Congress has power to recognize
separate quasi sovereign
entities as Indian tribes under certain guidelines. (A
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
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
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
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.
Let's look beyond the present, beyond political
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
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
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
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
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
Thurston Twigg-Smith's at http://www.hawaiimatters.com
H. William Burgess
September 1, 2000
Oral Testimony of Kenneth R. Conklin, August 30, 2000
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