Akaka Bill Languishes in Senate September 27 to December 13, 2000 As Stealth Strategy Continues

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

Following are excerpts from a series of newspaper articles that ran between October 5 and December 13, describing the slow death of the Akaka bill in the U.S. Senate. In each case the URL for the full article is provided for reference, but not as a hot link.



Posted on: Thursday, October 5, 2000

By Susan Roth, Advertiser Washington Bureau

Hostility against native bill crops up in capital

WASHINGTON — The swift movement of the Native Hawaiian recognition bill through Congress has drawn opponents out of the woodwork this week, raising the prospect that the measure could stall in the Senate. Although there has been vocal opposition in Hawai‘i for months, such voices have been quiet in Washington until now, with the measure having unexpectedly breezed through the House last week and being poised for passage in the Senate.

Opponents are not demonstrating here, but they have made their influence count with some conservative national media outlets, including the Wall Street Journal, that have influence among Republicans on Capitol Hill. [The bill] still faces some opposition in the Senate, which is keeping it from passing unanimously. Unanimous approval remains the dominant strategy of Sens. Dan Inouye and Daniel Akaka, the Hawai‘i Democrats who are trying to resolve objections to the bill.

On Monday, the Wall Street Journal said in an editorial that the bill passed by the House would "restore Hawai‘i’s racial spoils system. Let’s hope the Senate sits on the idea." On Tuesday, the National Review’s online version published a "guest comment" by Roger Clegg, general counsel of the Center for Equal Opportunity, a conservative think tank. "A disturbing piece of legislation has rather unexpectedly made rapid progress through both houses of Congress and is now on the brink of passage," the commentary begins. "If passed, it would represent an appalling failure by the Republican leadership in both houses to oppose racial and ethnic balkanization." The commentary links to the Web site of Kenneth Conklin, a Hawai‘i resident and vocal opponent of the bill. Both the editorial and the commentary protest that the bill would accord a "special status" to Native Hawaiians that would set a dangerous racial precedent. Both erroneously cite Rep. Patsy Mink, D-Hawai‘i, as the bill’s primary sponsor. In fact, Mink has largely opposed the measure. She spoke in favor of it on the House floor last week, and both articles quote from her comments, but afterward said she still has problems with it.

Yesterday, the bill was the main topic of discussion during a National Public Radio show called "Native America Calling," broadcast from Albuquerque, N.M. Kekuni Blaisdell, a Hawaiian activist who opposes the measure and the concept behind it, debated with bill supporter Jade Danner during the one-hour show; both participated by telephone from Hawai‘i.

Meanwhile, Republicans in the Senate have not cleared the bill for passage under the process requiring unanimous consent. Inouye and Akaka have asked Sen. Ben Nighthorse Campbell, R-Colo., chairman of the Senate Indian Affairs Committee, which easily passed the bill, to find out where the problems are so they can talk with those who have objections to the bill. While the Hawai‘i senators still have other options for passage, such as attaching the measure to a spending bill that must pass before the legislative session ends, such options are considered last resorts.

Last week, Oklahoma Republican Sens. Don Nickles and James Inhofe raised concerns about the measure. For Inhofe, at least, those have not been resolved. "We don’t think Native Hawaiians have an equal equation to the way Indian tribes have been treated," said Gary Hoitsma, Inhofe’s press secretary. "There isn’t a long history of a native government in place as there is with the Indian nations. This bill could be setting a precedent that is counterproductive, and setting a precedent for funding as well. It needs more study to see what the ramifications would be." Hoitsma referred to the National Review commentary as "reflecting our views."


The Tuesday, October 3 article from the online edition of the National Review, mentioned above, is copied here:

No Bill Is an Island

By Roger Clegg, general counsel of the Center for Equal Opportunity  

A disturbing piece of legislation has rather unexpectedly made rapid progress through both houses of Congress and is now on the brink of passage. If passed, it would represent an appalling failure by the Republican leadership in both houses to oppose racial and ethnic balkanization.

H.R. 4904 was voted out of the House Resources Committee on September 20 and, last week, was perfunctorily passed by the full House in a voice vote with only 10 minutes of discussion. Its counterpart, S. 2899, has been voted out of the Senate Indian Affairs Committee and stands ready now to be passed by the full Senate. Because the bills are identical, there would be no need for a House-Senate conference. Instead the legislation would go immediately to President Clinton's eagerly poised pen.

The bills would single out "Native Hawaiians" as deserving of special treatment by the United States government. By so doing, the bills raise serious problems under the U.S. Constitution's Equal Protection Clause, particularly in light of this year's Supreme Court decision in Rice v. Cayetano — indeed, the legislation seeks to overturn this decision. Constitutional issues aside, it is wrong for the government to favor certain groups because of their ethnicity. The Rice decision had rejected Hawaii's practice of allowing only Native Hawaiians to vote in certain elections. The new bill, however, is designed — in the words of its sponsor, U.S. Representative Patsy Mink (D-HI) — to "sustain an election process that is restrictive to only native Hawaiian people."

But the bill is much worse than just that. The legislation defines Native Hawaiians as "the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the state of Hawaii." It asserts that these blood-defined people have "an inherent right to autonomy in their internal affairs"; "an inherent right of self-determination and self-governance"; "the right to reorganize a Native Hawaiian government"; and "the right to become economically self-sufficient." The legislation also sets up an apparatus to ensure that the federal bureaucracy gives special treatment to this group, including "continuing the process of reconciliation" and "facilitating a process for self-determination." The bills would also create a "roll" that would provide "certification of Native Hawaiian ancestry," complete with hearings to assess whether or not an applicant had the proper bloodlines. Those, and only those, passing the test could then participate in creating a new "Native Hawaiian government" with authority to, among other things, "negotiate with Federal, State, and local governments, and other entities."

The special treatment based on blood promised by the legislation sets a dangerous precedent. Under this logic, any group will be able to claim a "right" to special status based on its ancestry. As the Wall Street Journal noted, if Native Hawaiians "can be accorded special status, so too could African-Americans or Bosnian-Americans, a path fraught with peril and partiality." The Supreme Court had ruled in Rice that "Ancestry can be a proxy for race. It is that proxy here. "Notwithstanding that ruling, the bill's proponents now seek to have Congress declare that Native Hawaiians are not an ethnic group, but an Indian tribe. But it is historically and factually untenable to equate Native Hawaiians with an Indian tribe. One recalls the riddle told by Abraham Lincoln: "How many legs does a dog have if you call a tail a leg? Four, because calling a tail a leg doesn't make it one. "Calling Native Hawaiians an Indian tribe doesn't make them one.

Lincoln would of course also have agreed with the Supreme Court's statement in Rice that "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." And so even if Congress had authority to create new, blood-defined, self-governing groups within our nation, why should it want to?

The Court ended its Rice decision by writing, "The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii." It will be appalling if Congress revokes the Constitution's guarantee of equal protection for all citizens of Hawaii, regardless of ancestry, and replaces it instead with legislation that declares some Hawaiians to be more equal than others.



Posted on: Saturday, October 7, 2000

Native Hawaiian bill hits snag in Congress

By Susan Roth, Advertiser Washington Bureau

WASHINGTON — The chairman of the Senate Indian Affairs Committee says the Native Hawaiian recognition bill has stalled in the Senate because lawmakers have concerns about money and the notion of Hawaiian sovereignty. Sen. Ben Nighthorse Campbell, R-Colo., has said he, too, was worried that federal recognition of Native Hawaiians could take money away from American Indian programs. Campbell said Sen. Daniel Inouye, D-Hawai‘i, reassured him, promising to continue securing financing for Native Hawaiian programs separately from Indian money. Campbell then helped pass the bill out of committee with unanimous approval. But the issue lingers, Campbell said this week.

"The concern is if you name a new tribe of more than 200,000 people as Native Americans, that might impact funding. It might affect the Bureau of Indian Affairs," Campbell said. While the bill would not turn Native Hawaiians into an American Indian tribe, it would set a process for the creation of a Native Hawaiian governing body with government-to-government relations with the United States similar to those of Indian tribes. The language, similar to other measures granting federal recognition to Indian tribes, has appeared to ignite the anxiety about money, more so because several senators say Indian programs don’t receive enough as it is. If Native Hawaiian programs were added to the mix, "you would have to either diminish resources for the tribes or increase the pie," Campbell said. He added that Native Hawaiians would automatically become the largest such "tribe" in the country if the bill passes, larger than the 170,000-member Navajo nation. This sheer size would overwhelm Indian programs that already are struggling, other senators have said.

"We don’t know what will happen 10 years from now" or after Inouye leaves office, Campbell said of Native Hawaiian money requests. In the past, Indian tribes have not usually asked for money when given federal recognition. "But in just a matter of a few years, they could say, "We need help, we need land, we need BIA money, we need Indian Health Services.’ It’s the long-term effect that is the problem," Campbell said.

Campbell also acknowledged that some senators have ideological objections to the idea of Hawaiian sovereignty. "There is some concern about whether there should be nation-within-a-nation status" for Native Hawaiians, he said. In particular, he mentioned the historical complaints of Sen. Slade Gorton, R-Wash., who has several times raised the issue of non-Indians being denied rights on Indian reservations in Washington state. Gorton, who is locked in a tight, expensive re-election campaign, was unavailable for comment, and his press secretary said he did not know about Gorton’s objections to the bill. Gorton’s historically rocky relations with Indian tribes in his state have resulted in their solid opposition to his campaign. They have spend hundreds of thousands of dollars on television and other advertising to defeat him.

Campbell said he knew that Inouye has been "negotiating" these issues with Gorton and others who have objections to the bill, including Republican Oklahoma Sens. Don Nickles and James Inhofe. Asked to discuss his problems with the bill this week, Nickles said: "I could, but I won’t."



Posted on: Wednesday, October 18, 2000

Hawaiian bill stalled in Senate

By Susan Roth, Advertiser Washington Bureau

WASHINGTON — The Native Hawaiian recognition bill remains stuck in the Senate, held hostage as arguments swirl over controversial spending measures. Like any number of other bills, it remains held up by a lack of action.

The bill, which would set up a Native Hawaiian governing body within the state of Hawai‘i with government-to-government relations with the United States, is still a candidate for unanimous passage in the Senate. But at least one Republican senator — and perhaps three — still oppose it, and Hawai‘i’s senators apparently have not been able to satisfy their concerns. The measure quickly passed the House on a voice vote Sept. 26. Since then, Sens. Dan Inouye and Daniel Akaka have been seeking unanimous approval for it in the Senate, but objections cropped up from Republican Sens. Don Nickles and James Inhofe, both of Oklahoma, and Slade Gorton of Washington. Under the Senate’s procedure, the bill cannot move until all objections are removed. Should that happen, the bill could pass the same day. Cardus said the bill’s best chance for unanimous approval will be in the last few days of the session, but no one knows when that will be.

Eight of 13 fiscal 2001 appropriations bills remain to be approved, and other major legislation also awaits action: a tax package, a bill to raise the minimum wage and a measure to reform managed health care.

Patricia Zell, an aide to Inouye, said Inouye and Akaka are "still trying to check with members who have concerns" about the Hawaiian recognition bill and they are shoring up the support of others. But she said they are "looking at all options" for passage now, which include inserting the bill into a larger measure bound for passage.



Posted on: Thursday, October 26, 2000

Native bill near passage

By Yasmin Anwar and Susan Roth, Advertiser Staff Writers

After being stuck in the Senate for weeks, the Native Hawaiian recognition bill could soon shake loose. And from Washington to Hawai‘i, there are growing expectations that the measure will pass before month’s end. Washington insiders expect the bill to pass the Senate as early as this week, but the exact date remains uncertain. Congressional staff say they expect to work through Saturday to complete the year’s business. If that’s the case, the bill could pass tomorrow or Saturday. The bill passed the House on a voice vote a month ago, and the president is expected to sign it — if the Senate indeed approves it.

Akaka, who is running for re-election, has insisted that "we’re on track" and said he is still working toward unanimous approval. Republican senators who earlier raised objections to the bill have agreed not to hold it up, though it still has not received a final clearance from the GOP leadership. The bill could be passed as individual legislation or could be attached to a spending bill or an omnibus appropriations bill. The appropriations must pass before Congress adjourns. Sen. Daniel Inouye, D-Hawai‘i, who co-sponsored the bill, is a highly influential member of the Senate Appropriations Committee and close friend of the panel chairman, Sen. Ted Stevens, R-Alaska.

In the meantime, Congress, which was scheduled to adjourn Oct. 6, must wrap up work on three major spending bills for fiscal 2001, to provide money to the Labor Department, Health and Human Services, Education, Commerce, Justice and State, as well as the District of Columbia.

In the wider scope of national concerns, a bill granting federal recognition to Native Hawaiians is a minor issue on Capitol Hill. But in Hawai‘i it would rate as a major step in a tumultuous year for Native Hawaiians.

Akaka introduced the bill in June to protect federally financed programs that benefit Native Hawaiians. He took action after the U.S. Supreme Court issued a ruling that did not treat Native Hawaiians as a federally recognized indigenous group.

John Goemans, the attorney who argued Rice’s case at the Supreme Court, said yesterday that the Akaka bill, too, will be subject to constitutional challenges if passed, and would make Congress look foolish and raise false hopes in the sovereignty movement. "It gives local proponents of self-determination and sovereignty false hope, and that’s bad," he said. Honolulu attorney H. William Burgess, who represented 13 Hawai‘i residents in their successful challenge to OHA’s restriction of trustee seats to Hawaiians only, has been lobbying against the bill. He said such legislation would result in the balkanization of Hawai‘i. "We don’t want to end up like the former Yugoslavia ,where there are ethnic groups battling with other ethnic groups," he said.

OHA Chairman Clayton Hee spoke of how federal recognition has done wonders for Alaska natives, whose population is half the size of Hawai‘i’s native population and yet receives $600 million a year in federal money for health. "That federal recognition is the segue to federal funding," he said, recounting a trip he took to Anchorage last week to address the Alaska Federation of Natives.



Posted on: Saturday, November 11, 2000

GOP lukewarm on native bill

By Susan Roth Advertiser Washington Bureau

WASHINGTON — The Hawai‘i Republican Party is neither pushing for passage of the Native Hawaiian recognition bill, now stalled in Congress, nor becoming involved in GOP efforts to block it. The bill is supported by Hawai‘i’s congressional delegation, all Democrats. It passed the House, but is now facing significant opposition from Republican senators.

The state party has not taken any official position on the measure, but the Republican Party platform "supports its intent," said Micah Kane, executive director of the local GOP.

The bill would allow Native Hawaiians to establish a governing body within Hawai‘i with government-to-government relations with the United States similar to those of American Indian tribes. The party’s state platform says Hawai‘i Republicans "encourage Hawaiians to support initiatives leading to implementation of Hawai‘i self-determination by popular vote of the Hawaiian people."

Members and staff of the Democratic congressional delegation have wondered whether the state GOP has contacted national party leaders or encouraged Senate Republicans who oppose the bill. Staff of the Republican National Committee last month called Hawai‘i Senate offices to ask about the bill.

The measure passed the House in September but chances for passage in the Senate are looking increasingly bleak as Congress continues to haggle over the budget.

In an opinion column, Kane and Linda Lingle, chairwoman of the Hawai‘i party, said: "We support self-determination for Native Hawaiians in managing their own affairs and resources." Hawaiians need the federal recognition offered by the bill to preserve various programs like Hawaiian-only education and health, Kane has also said. Kane said a lack of time has prevented the party’s executive committee from deciding whether to support the bill directly. "We’ve had no opportunity to review the bill in detail," Kane said. "It came up so quick that we haven’t had a chance. There’s no ulterior motive for us not to look at it."

Republican U.S. Senate candidate John Carroll, who lost his challenge to Democratic Sen. Daniel Akaka, leader of the effort to craft the bill, based his campaign on his opposition to the measure. The Hawai‘i Republican Party distanced itself from Carroll on the issue, especially after he filed a federal lawsuit alleging that the Office of Hawaiian Affairs violates the Constitution by spending money "for racially discriminatory purposes."

"We made it clear that we disagree with the legal activities of John Carroll," Kane said. "His lawsuit is not in line with our platform." "I don’t think our position as a state party would add or take away from what’s happening with the bill in the Senate," Kane said. "But we have not taken any action on it. Nobody on our executive or state committee has contacted senators or the Republican National Committee. Republican opposition is not coming from Hawai‘i, except for John Carroll." Kane said he’s not sure if the issue will hurt his party. "That could be the case on the Democratic side, too," he said. "It’s a broad issue. I don’t think the views out there are based on partisanship at all." He acknowledged that the Republican party has been "a little hesitant" to take a stand on the bill, but added that the Carroll lawsuit "allowed us to articulate our position on Hawaiian issues." None of the Hawai‘i congressional delegation has asked Lingle to intervene on behalf of the bill, but Kane said she would take the issue to the party’s executive committee if asked directly.

Don Clegg, a Hawai‘i Democratic pollster, said he was not surprised that the Republicans are skirting a direct statement on the bill. "It’s not a party issue and they don’t want to make it a party issue," he said. "It’s a sensitive issue in the community because people would think others should be supporting the bill because it’s the right thing to do, but privately maybe they don’t support it. My guess is that a lot of people are uncomfortable with it." Clegg added that politicians may be shying away from the bill because the notion of Hawaiian sovereignty remains undefined. "People who might be threatened by it don’t know what to be threatened by. They don’t know what the impact of sovereignty might be," he said.



Tuesday, December 5, 2000

Senators have hope for Hawaiian status bill

Akaka and Inouye are optimistic the legislation, which has passed the House, will still get through the Senate

By Pat Omandam, Star-Bulletin

A federal bill that clarifies the political status of native Hawaiians is looking for a second wind as Congress gets back to work following its recess. For now, the U.S. Senate's priority is to approve four appropriation, or spending, bills for federal departments needed to keep government operating. Beyond that, Hawaii's two senators remain optimistic that the Akaka bill will get a chance at passage, but they are not saying much, according to their top aides.

"It's not dead, and we're just going to have to wait to see what kind of action is possible," said Jennifer Goto Sabas, chief of staff for U.S. Sen. Daniel K. Inouye. Goto Sabas said the political atmosphere in Washington, D.C., is a free-for-all because of the presidential election turmoil. She said the Senate's agenda remains open for any legislation put on hold when Congress took a recess for the general election.

The U.S. House passed an identical version of the bill in September, raising hope for quick passage in the Senate, where it got bogged down. President Clinton said during his stopover last month in Hawaii that he would sign the bill if it's approved by the Senate.

Inouye and Akaka want the bill passed during this session because they fear the next president may oppose the bill and veto it. Paul Cardus, spokesman for U.S. Sen. Daniel K. Akaka, said it remains to be seen if the recess helped or hampered the bill. Both Akaka and Inouye continue to lobby for it with fellow senators, but they are reticent to predict if it will pass before the 106th Congress leaves on Jan. 2, Cardus said. "So much of this work has been and is being done at the member level -- and they don't always let me know what's going on," he said. Cardus said the break was beneficial because there are now more ways the bill could pass. Prior to the congressional recess, the only option left was if the proposal was added to another bill. Now, the measure could pass as an amendment or as stand-alone legislation needing unanimous consent by senators. "As long as they're in session, all options remains open," Cardus said.


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