(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved
On Friday April 6, 2001 Senator Dan Akaka, on behalf of himself and Senator Dan Inouye, introduced S.746 in the Senate. It was referred to the Committee on Indian Affairs, whose chairman is Senator Inouye, and where Senator Akaka is a committee member. S.746 was a revised version of S.81, which also remained alive in the committee. Everyone understood that S.746 would be the "real" bill since it was exactly the same as H.R.617.
On July 24, 2001 S.746 passed the Senate Indian Affairs Committee by voice vote, without any questions or objections, and with only three members of the committee present. See the Honolulu Advertiser report of July 25:
Two of those three present were the bill's sponsors, Hawai'i Senator Dan Inouye (chairman of the committee), and Hawai'i Senator Dan Akaka (who is Native Hawaiian and allegedly wrote the bill). Also in attendance was Colorado Senator Ben Nighthorse Campbell, ranking Republican (an Indian who was formerly a Democrat and was chairman of the committee as a Republican before Senator Jeffords switched parties and gave the Democrats control of the chairmanship). Just three guys sitting at a table. "Shall we pass it? Waddya say? (1) Yeah, (2) Sure, (3) Whatever."
The bill languished until September. Then, just 10 days after the terrorist attacks of September 11, while Congress was trying to cope with the emergency, Senator Inouye's Indian Affairs Committee found time to issue Senate Report 107-66 for Calendar Item No. 165 -- a lengthy report to "accompany" S.746 in order to "clarify" its purposes and meanings. The document was issued so quietly that it took a full week before the Honolulu Star-Bulletin published an article on it:
and also an editorial praising it:
The Star-Bulletin article describes the role of Beadie Dawson, Native Hawaiian activist and head of a huge family business which stands to profit enormously if the bill passes:
"We were very adamant about having this clarification and are so pleased that it is included in the report. Our (congressional) delegation has been enormously helpful and responsive to the native Hawaiian people," said Beadie Kanahele Dawson, a lawyer and businesswoman who was among native Hawaiian leaders that last year helped draft the original bill... In August, Dawson and others sent a letter to Hawaii's congressional delegation expressing their objections to some of the changes and asking for more public input... Dawson and others had also objected to language giving the Hawaii state government a role in approving a native Hawaiian government."
The bill languished until early December, because one or more Republican Senators issued a personal "hold" on the bill to prevent it from being passed by a stealth procedure: unanimous consent on a voice vote with only a handful of Senators present. With the hold in place, the bill could only be passed by bringing it to the floor as a stand-alone bill for an honest up-or-down vote; or by attaching it to another bill.
Fearing the bill could not stand the scrutiny of a floor debate and up-or-down vote, Senator Inouye repeated his stealth maneuver used a year previously. He hid the Hawaiian bill deep inside a huge must-pass appropriations bill on an unrelated topic during the final days of a session of Congress before adjournment for the Christmas holiday. For details of the stealth campaign regarding the Native Hawaiian Recognition bill during the previous year 2000, see
In both 2000 and 2001, the Hawaiian bill was hidden inside the larger bill in the form of a single sentence, in the hope that it might slip through without anyone noticing. Here is that sentence in December 2001, buried in section 8,132 of the massive Defense Appropriations bill HR.3338:
"SEC. 8132. The provisions of S. 746 of the 107th Congress, as reported to
the Senate on September 21, 2001, are hereby enacted into law."
On December 6, 2001, an important memo was sent from the chairman of the U.S. Senate Republican Policy Committee to all Republican Senators, and to the Democrat leadership. The memo was writtem by Mr. Lincoln Oliphant at the request of the chairman, Senator Larry Craig. This memo makes clear why the Native Hawaiian Recognition bill would be bad public policy and is unconstitutional. The memo also severely criticizes the stealth tactics used (by Senator Inouye) two years in a row to try to sneak this highly controversial bill past the Senate by burying it deep inside a major appropriations bill at the last moment during the rush toward adjournment for the holidays.
Here is a portion of that memo by Mr. Oliphant on behalf of Senator Craig, Chairman of the Republican Policy Committee. The full text can be seen at
"Before addressing some of the issues raised by S. 746, it is important to remember that in the last Congress also there was a little-noticed attempt to attach the "Native Hawaiians bill" to an appropriations act. In December of 2000, well into the new fiscal year and near unto Christmas, the multi-billion dollar Consolidated Appropriations Act for Fiscal Year 2001 (H.R. 4577, Pub. L. 106-554) was stopped cold in the Senate even though the House already had passed the conference report and Congress was eager to adjourn. The issue? A "Native Hawaiians bill" that had been slipped into the conference report. The issue was not resolved until both houses of Congress passed S. Con. Res. 162 which instructed the enrolling clerk to omit the section of the Act that contained the offending provisions. History will repeat itself, and now we have S. 746 added to this year's Defense Appropriations Act."
Inouye's sneak attack on the people of Hawai'i blew up in the Senate on December 7, 2001, exactly 60 years after the sneak attack on Pearl Harbor, Hawai'i on December 7, 1941: "A day that shall live in infamy" (President Roosevelt asking Congress to declare war). "Bombs Away!" is an appropriate metaphor for the Native Hawaiian Recognition bill's political and social effects, because it is a time bomb that would destroy the Aloha Spirit by permanently dividing Hawai'i's people along racial lines.
In both December 2000 and December 2001, the normal proceedings in Congress had to be brought to a halt to surgically remove the cancer Inouye had inserted into other legislation. Senator Craig, quoted above, was not the only Senator to criticize Inouye for his underhanded tactics. Senator McCain also had harsh words, as the Star-Bulletin of December 12 reports:
"As chairman of the Senate appropriations defense subcommittee, Inouye was able to have the defense bill amended, but as he noted "it survived until Friday." That's when, on the Senate floor, the Akaka amendment was noted by Sen. John McCain (R, Arizona). "How in the world do you justify, on a defense appropriations committee bill, a change in policy, a far-reaching change in policy regarding our treatment of native Hawaiians?" McCain asked. Inouye said he already had checked with the Senate parliamentarian and knew the amendment was vulnerable. "I must tell you, when I put it in, I knew it was not according to the rules. But it was to make a point and to find out where the opposition was coming from."
The Honolulu Advertiser of December 13 notes Inouye's violation of Senate rules, and credits Senator Phil Gramm with raising a point of order:
"Under Senate convention, legislation that does not involve appropriations should not be attached to spending bills. But Inouye said he was confounded by the repeated secret holds on the Hawaiian bill. He said he considers the tradition of the anonymous holds undemocratic. When Gramm raised a point of order on the Hawaiian bill's attachment to the defense bill late Friday night, Inouye immediately withdrew the amendment."
On December 7, immediately after the first wave of Senator Inouye's sneak attack had been shot down, he and Senator Akaka launched a second wave. They introduced a new version of the Native Hawaiian Recognition bill, numbered S.1783.
Clearly Senator Inouye was hoping to pass the previous version, S.746, through his stealth strategy. Clearly he also had the new bill S.1783 already written and "in his back pocket" in case the stealth tactics failed. There were some changes in the bill requested by some Hawaiian sovereignty activists and some politically-connected Hawaiian-owned businesses. Senators Inouye and Akaka were prepared to abandon the former bill when their stealth tactics were exposed, and to promptly introduce the new bill. The new bill was immediately referred to the Committee on Indian Affairs, where Senator Inouye is chairman and Senator Akaka is a member. They might simply substitute the content of the new bill in place of the content of S.746, which has already passed the committee and is poised for passage on the Senate floor (a similar stealth maneuver was done earlier in 2001); or they might quickly have the committee "pass" the new version on a voice vote with only themselves and the ranking Republican Senator Ben Nighthorse Campbell present (as they did with S.746).
Although the first session of the 107th Congress is finished at the end of 2001, the second session picks up in January right where the first session left off. There is no need to re-introduce legislation, which means that the Native Hawaiian recognition bill which has already passed through committees in both the House and the Senate remains poised for passage in both houses and can be brought to a vote "by unanimous consent" on a moment's notice with few members present, or can be hidden inside another bill as Senator Inouye has alread twice tried to do. In fact, three different versions of the Native Hawaiian Recognition bill are still alive in the Senate and can be a source of future mischief: S.81, S.746, and the new S.1783. Perhaps the presence of multiple versions of the bill is another stealth strategy, similar to a bomber spreading chaff to fool enemy radar, or an intercontinental missile being accompanied by decoys.
Following is a letter written in the heat of battle in December 2001 by attorney Patrick W. Hanifin. He is an honors graduate of Harvard law school and the Kennedy School of Government, and was co-counsel with H. William Burgess in the Arakaki case last year which invalidated the racial restriction on running for and serving as trustee of the Office of Hawaiian Affairs.
Please oppose S.746, which has been slipped into the Defense Appropriations bill (H.R. 3338) in § 8132. S.746 would create a racially discriminatory agency for the exclusive benefit of “native Hawaiians,” a group defined solely by race. While this bill is being described as a purely local matter, it is actually of national significance because it would set a precedent for racial discrimination by the federal government. Senators have blocked this bill from the unanimous consent calendar and it should not be allowed to slip through in the fine print of an unrelated bill.
Adding a racially divisive program to the defense appropriations bill is especially inappropriate when the nation needs to unite in wartime. It is even more ironically inappropriate on the 60th anniversary of Pearl Harbor when the attack on America’s base in Hawai`i catapulted the country into its greatest war.
Now, as America fights a new war, prominent proponents of S.746 denounce America in the hopes of separating from America. University of Hawai`i Professor Haunani-Kay Trask, a leader of Ka Lahui, one of the largest groups to support S.746, said she “would be angry too”—if the September 11 attack had been an attack on her country—but the United States has only itself to blame for the murders of thousands of its citizens. Trask analogized America’s war against terrorism to the 1893 overthrow of the Hawaiian Kingdom and described America as having “hands soaked in blood.” (See http://starbulletin.com/2001/10/18/news/index.html .)
Hawaiian racial separatists even object to the flying of the American flag over a state building, the former state capitol and royal palace. As one separatist said, they would “rather see Iolani Palace burned to the ground than to see the U.S. flag flying over” it. (See http://starbulletin.com/2001/11/15/news/index.html .) These people are a small minority in Hawai`i but they can hope to take over a special government that would disenfranchise the majority based on race. They have had some success: the organization that runs Iolani Palace for the state refuses to fly the American flag.
Denouncing America is the logical conclusion to claiming special privileges based on ancestry. Claiming special status because one’s ancestors came here first, or once ruled, or were better off or worse off than other people’s ancestors contradicts the equality of American citizens.
Congress is being told that S.746 is a routine exercise of Congress’ power over Indian tribes (although Hawaiians are not Indians and have never been a tribe). But some of its proponents are describing it as the first step towards taking Hawaii out of the Union. The U.S. Commission on Civil Rights’ Hawaii Advisory Committee has endorsed legislation giving ethnic Hawaiians a race-based government, noting that they should then be able to use their recognized “sovereignty” to cause Hawaii to secede from America. Hawaii Advisory Committee to the U.S. Commission on Civil Rights, Reconciliation at a Crossroads, 49-52 (June 2001), www.usccr.gov/hisac/main.htm. This would allow ethnic Hawaiians to pursue their claims “in
the international arena,” even if “that international resolution would necessarily involve secession.” Advisory Comm. Rep. at 51. Under the “international oversight by nonaligned observers of international repute,” the “federal government should engage in negotiations with the sovereign Hawaiian entity” and then pay for whatever the “sovereign Hawaiian entity”
decides to do. Id. at 52. Dismissing the Constitution as mere “existing domestic law,” the Advisory Committee backs the “important proposition . . . that those who would choose to swear their allegiance to a restored sovereign Hawaiian entity be given that choice,” even if it means secession from the Union. Id. at 51-52.
The real threat of S.746 is that trying to buy off racial separatists by giving them a government and federal money and land will encourage racial divisions. Anyone can assert, “I deserve special treatment because some of my ancestors were treated badly.” When the government subsidized cheese production, the warehouses were overflowing with cheese. If the
government pays anyone who feels racial resentment because of his ancestors’ experiences, the community will soon be overflowing with racial resentment.
Other ethnic groups could demand racially exclusive federal agencies and subsidies. Any of the millions of Americans who can claim at least one ancestor who was in America before the “white men” could claim special political privileges, even though they are not members of Indian tribes. Because the bill breaks the connection between Congress’ regulatory power and the prior existence of an Indian tribe, it would be a precedent for every ethnic group to claim its own
sovereign government, money and land. For instance, Hispanics descended from the people who lived in the Southwest before the U.S. annexed the area could claim reparations and special privileges. Like ethnic Hawaiians, these people can say that their ancestors never chose to come to the United States.
S.746 is unconstitutional. The bill is intended to overturn the U.S. Supreme Court’s decision in Rice v. Cayetano, 120 S.Ct. 1044 (2000). Rice held that a government agency with voting rights limited to ethnic Hawaiians amounted to unconstitutional racial discrimination. Last year, the federal District Court in Hawaii followed Rice and held that restricting the right to run for office on grounds of race is also unconstitutional. Arakaki v. State of Hawaii, Civil No. 00-00514 HG. The racial classification struck down in Rice and Arakaki is essentially repeated in S.746.
Government of the race, by the race, and for the race has no place in American democracy. I urge you to oppose S.746 and to insist that any reference to it be deleted from the Defense Appropriations bill.
Patrick W. Hanifin, Esq.
Im Hanifin Parsons
1001 Bishop Street
Pacific Tower, Suite 2475
Honolulu, Hawaii 96813
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(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved