6 Months of Stealth and Deception -- Overview of July 2000 to January 2001

The following article was published on January 17, 2001 in the newspaper 'Honolulu Weekly' by columnist Robert M. Rees. It is reprinted here by permission of the author.

(c) Copyright 2001 Robert M. Rees. All rights reserved.

The Akaka Recognition Bill is too lofty and erudite for the low road taken by its sponsors.

Road to Nowhere?

The 107th U.S. Congress has only just begun, but Hawaii's congressional delegation has already promised to reintroduce the Akaka Recognition Bill. The bill got waylaid last year when the Senate of the 106th Congress, on Dec. 12, refused to go along with a stealth effort to attach it to an appropriations measure for health and human services.

From the start, the big problem was that the bill had been fast-tracked on the low road of circumvention. Hastily developed in reaction to the U.S. Supreme Court's Rice v. Cayetano decision of Feb. 23, 2000, the bill was literally hustled so that President Clinton could sign it before leaving office.

Immediately following the Rice decision, Sen. Daniel Akaka formed a Task Force on Native Hawaiian Issues. Devoted to an issue that by itself raises serious constitutional questions invoked by the Equal Protection Clause of the 14th Amendment, the task force excluded non-Hawaiians. As Akaka and Sen. Daniel Inouye later said of the resulting bill, 'This legislation has been developed by Native Hawaiians for Native Hawaiians following extensive consultations with Native Hawaiians.' Try that legislative history on the U.S. Supreme Court.

Following Akaka's official introduction of the bill on July 20, there was dissent from the Hawaiian community, but it was of the self-destructive variety. For example, on Aug. 11, at a self-styled Aloha March and gathering in Washington DC, local activist Piilani Smith, in a reference to the bill's special recognition for Hawaiians based on Congress' power over Indian tribes, shouted, 'Some [Indian] tribes have federal recognition -- we know what it got them.' This valid concern, because it was delivered along with absurdly false charges of racism, got lost.

Hawaii's congressional delegation scheduled hearings for the bill on Oahu and the Neighbor Islands. Then, ostensibly to accommodate Akaka's recovery from a hip replacement, but more likely to avoid the strong protests that had occurred during the reconciliation hearings on the Big Island, the proceedings were confined to the Blaisdell Center on Oahu.

During the Aug. 28-Sept. 1 hearings, based on testimony actually delivered, opponents outnumbered proponents by 9 to 1. Even the testimony in favor came hedged with pleas for substantial changes in the bill. However, the official version of the hearings, as Rep. Neal Abercrombie spun it after just the first day of hearings, was that 'Phone calls and letters to the delegation are overwhelmingly supportive.'

The report taken back to Congress indicated there had been almost no opposition. On Sept. 14, following a few revisions -- including clarification that the relationship of the U.S. government with Native Hawaiians would be that of a trustee with wards -- the Senate Indian Affairs Committee passed the bill. Only five pre-selected witnesses from Hawaii were allowed to testify, and all five favored the bill in spite of long-standing Hawaiian objections to the trustee-ward concept.

The Indian Affairs Committee unanimously sent the bill to the floor for a vote, but not before Sens. Pete Domenici of New Mexico and Frank Murkowski of Alaska raised questions. Asked Murkowski, 'What do Hawaiians really want out of this? My understanding is that about 200,000 people could qualify for this.'

Also expressing concern Sen. Ben Nighthorse Campbell, an American Indian from Colorado. He shared Domenici's fear that Hawaiian programs would reduce the funding available for American Indian tribes.

Alarmed by the opposition, Inouye used his clout to persuade representatives from the National Congress of American Indians and the Alaska Federation of Natives to announce support for the bill. More importantly, Inouye capitalized on his close horse-trading friendship with Alaska's senior senator, Republican Ted Stevens. Stevens pressured Alaska's only representative in the U.S. House, Don Young, to make sure the bill zipped by Young's House Resources Committee, of which Rep. Neil Abercrombie is a member.

After passage by his committee, Young, a Republican, placed the bill in a hopper of 'non-controversial' measures earmarked by House Republican leadership for passage without discussion. To keep this maneuver covert, Abercrombie did not speak on behalf of the bill on the floor, and the House approved it with a perfunctory after-dinner vote on Sept. 26. (Commented Abercrombie after this deceptive maneuvering, 'It justifies my life in public service.')

Following the House vote, Akaka and Inouye tried to 'hot-line' the bill for a quick unanimous consent vote in the Senate. To support the effort, Akaka got the Justice and Interior Departments to release their final report on reconciliation, a report that all but endorsed the Akaka Bill.

However, passage in the House had awakened the opposition. On Oct. 2, the Wall Street Journal blasted the bill as one that would 'restore Hawaii's racial spoils system.' It appears that the editorial was at least prompted if not written by the Journal's Barbara Olson, the spouse of Theodore Olson, Freddy Rice's and then George W. Bush's attorney before the U.S. Supreme Court. (A rumor making the rounds in Washington DC is that Theodore Olson might be named as Bush's Solicitor General. This, along with Sen John Ashcroft as U.S. Attorney General, will all but guarantee opposition to Hawaiian quasi-sovereignty from the Bush Administration.

Some senator -- reportedly including Ted Kennedy -- quietly made it clear that the bill was too important for unanimous consent. Further, Oklahoma senators James Inhofe and Don Nickles made it clear they would oppose attempts to sneak the bill through as a rider, and Nickles warned his colleagues that the bill 'would discriminate against the majority of the citizens of Hawaii on the basis of race.'

To complicate matters, Congress passed Akaka's other Hawaiian bill, an amendment to the Native American Housing and Self-Determination Act. For the first time, Hawaiians will be eligible for special federal housing assistance. Because of resistance in Congress to costs, eligibility will be limited to Hawaiians on Hawaiian Homelands, i.e. to Hawaiians defined as those with a blood quantum of at least 50 percent. This confused those legislators familiar with the Akaka Bill, which had left the definition open-ended. (The Akaka Bill also disturbed and confused the Hawaiian homesteaders, who are now arguing in court that programs without a minimal blood quantum definition are unconstitutional.)

On Dec. 12, Republican staffers in the Senate spotted Inouye's attempt to sneak in the bill as a rider to an appropriations bill. The Senate, with an increasing number of its members wary and suspicious, refused to go along. Three days later, on Dec. 15, the 106th Congress adjourned.

Hawaii's congressional delegation promptly blamed their failure on 'a handful of Republicans,' but should have added that it was also hurt by its low road, one not yet abandoned. In fact, only a few days ago, on Jan. 9, the Indian Affairs Committee of the U.S. Senate quietly held another of its invitation-only conferences at the Hilton Hawaiian Village hotel.

With reintroduction of the bill, there's an opportunity to put it back where it belongs, on the high road through the tough-minded discussion appropriate for significant legislation that almost certainly will wind up before the U.S. Supreme Court.

(c) Copyright 2001 Robert M. Rees. All rights reserved.


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