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Akaka Bill -- Three Important Articles Opposing It, Published July 15, 2005 Just Before Senate Consideration of the Bill -- Authors Bruce Fein, Ed Meese, Todd Gaziano, Brian McNicoll

Below are three articles published in the national media on Friday, July 15, 2005 just days before the U.S. Senate is scheduled to hold a debate and floor vote on the Akaka bill.

1. Bruce Fein, "New Racism in New Bottles", The Washington Times

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

2. Ed Meese and Todd Gaziano, "The 'Native Hawaiian' bill", Townhall

Ed Meese was the Seventy-Fifth Attorney General of the United States, serving under President Ronald Reagan. Todd Gaziano worked as an attorney in all three branches of the federal government. Meese and Gaziano now direct the Center for Legal and Judicial Studies at The Heritage Foundation.

3. Brian McNicoll, "Trouble in paradise?", Townhall

Brian McNicoll is contributing columnist for and a senior writer at The Heritage Foundation, a member group.

The Washington Times, July 15, 2005

New racism in new bottles

By Bruce Fein

On the heels of apologizing for its old racism in thwarting anti-lynching laws, the U.S. Senate is poised to initiate a new racism celebrated in the so-called "Akaka Bill." It would summon into being for the first time a race-based Native Hawaiian sovereignty operating outside the U.S. Constitution. Only persons with at least "one drop" of Native Hawaiian blood would enjoy the right to create the new sovereign entity with its sweeping immunities from federal and state laws.

The Akaka bill would authorize and have the United States facilitate Hawaiian officials in relinquishing the State's sovereignty over a portion of its citizens and territory. In addition, it would authorize transfer of part of the state's lands, natural resources and other assets to the new race-based sovereign gratis, all without the approval of the state legislature or the consent of its citizens

Proponents oppose any amendment, for example, a requirement of approval by a majority of adult Native Hawaiians before all Native Hawaiians are subjected to the new race-based government; a prohibition on racial, religious or ethnic discrimination; a proscription on secession; an injunction against evicting the U.S. military from Pearl Harbor; or, an obligation to honor the Bill of Rights. They even reject a requiring a plebiscite in Hawaii to determine if its citizens wish to carve out of every island multiple sovereign racial enclaves.

According to the most recent, comprehensive and reliable polling, 2 in 3 residents of Hawaii oppose a race-based Akaka bill. Native Hawaiians, who account for 20 percent of Hawaii's population, are themselves sharply divided, with 48 percent opposed. These percentages are stunning because the government of Hawaii has spent millions propagandizing in favor of the race-based legislation over several years. They discredit the representations of the governor of Hawaii and Hawaii's two senators and two representatives that the people of Hawaii overwhelming covet a race-based sovereign.

The Akaka Bill should be crushingly defeated when it comes to a vote in the U.S. Senate, which seems imminent. Race-based governments convulse communities and besmirch the nation's signature creed: E Pluribus Unum. During the long years of Jim Crow, lives were lost and liberties trampled by the racism whites practiced against blacks. It should thus be unthinkable that in 2005, the United States Congress would enter the squalid business of creating a race-based government. If the legislation is passed, the Senate will have earned the scorn Talleyrand cast on the French Bourbons: "They have learned nothing, and forgotten nothing."

The United States Supreme Court has repeatedly lectured that racial distinctions are odious to a free people. Thus, in Rice v. Cayetano (2000), the high court held unconstitutional the disfranchisement of non-Native Hawaiians in electing trustees to the Office of Hawaiian Affairs. Justice Anthony Kennedy explained the evils of race-based politics: "The ancestral inquiry mandated by [Hawaii] is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose ancestry is disclosed by their ethnic characteristics and cultural traditions."

The unexcelled progress of the United States has been a history of eliminating barriers to equal opportunity. American citizenship is earmarked by attachment to a constellation of supreme values: the rule of law; merit and character as destiny; equal justice; and, government by the consent of the governed. The Akaka Bill stains all four: It would fashion a governing entity outside the Constitution and laws of the United States and the state of Hawaii; it would make Native Hawaiian ancestry decisive in destiny; it would deny equal justice to non-Native Hawaiians; and, it would mock self-government by denying the citizens of Hawaii a plebiscite to determine whether the state should be fractured along racial lines. In contrast, a Hawaiian plebiscite was held in 1959 over statehood; 94 percent of the voters approved, including a majority of Native Hawaiians.

Akaka Bill champions preposterously insist Native Hawaiians are indistinguishable from federally recognized Native American Indian tribes. Since the arrival of Captain Cook in 1778, Native Hawaiians and non-Native Hawaiians have uniformly been governed by a common Hawaiian sovereign. Throughout the past two centuries of Hawaiian history, including the entire period of the Kingdom, they served side-by-side in the legislature, Cabinet and national Supreme Court. Both Native Hawaiians and non-Native Hawaiians exercised the franchise. With rare exceptions, the laws of the Hawaiian Kingdom generally eschewed racial distinctions.

Native Hawaiians have never experienced racial discrimination. None lost an inch of land or other property when the Monarchy was overthrown in 1893 as a step toward a republican form of government. They were never less than equal, and for the past 30 years Native Hawaiians have invariably been privileged under the law regarding housing, education or other social assistance. The U.S. Constitution scrupulously protects their right to celebrate their culture. That explains why Queen Liliuokalani confided to then Sen. George Hoar, Massachusetts Republican that, "The best thing for [Native Hawaiians] that could have happened was to belong to the United States."

Hawaii has been the quintessential example of the American "melting pot." King Lunalilo, on the day of his coronation in 1873, boasted: "This nation presents the most interesting example in history of the cordial co-operation of the native and foreign races in the administration of its government, and most happily, too, in all the relations of life there exists a feeling which every good man will strive to promote." Sen. Daniel Inouye, Hawaii Democrat, echoed the king 121 years later in commemorating the 35th anniversary of Hawaii's statehood: "Hawaii remains one of the greatest examples of a multiethnic society living in relative peace."

The Akaka Bill is unconstitutional, racist, divisive and subversive of American unity. It deserves the same repudiation as Jim Crow laws.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

==================, July 15, 2005

The 'Native Hawaiian' bill

Ed Meese and Todd Gaziano

As well-informed readers of Townhall know, the U.S. Senate is scheduled to begin debate soon on S. 147, the falsely named “Native Hawaiian Government Reorganization Act of 2005.” The proponents of this bill, some motivated by seemingly benign purposes and others by simple greed, argue that the legislation redresses ancient wrongs done to early Hawaiians by the United States. The bill purports to authorize the creation of an exclusively race-based government of so-called “native” Hawaiians to exercise sovereignty over native Hawaiians living anywhere in the United States. This “Native Hawaiian Government” supposedly could exempt these Hawaiians from whatever aspects of the United States Constitution and state authority it thought undesirable.

The United States Supreme Court ruled decisively that this approach is unconstitutional in Rice v. Cayetano (2000). Yet, the proponents of S. 147 believe they can avoid this ruling simply by passing a law that calls the descendants of so-called “aboriginal” Hawaiians an American Indian tribe. The bill would require the federal government to create a database of persons with one drop or more of “aboriginal” Hawaiian blood, organize elections for an “interim government” of this alleged “tribe,” and finally recognize the sovereignty and privileges and immunities (or lack thereof) that the new government establishes for its “tribal members.” Although Hawaii correctly argued in the Rice litigation that descendants of aboriginal Hawaiians are not an American Indian tribe, state officials have changed their minds—since that is the only way they can practice racial discrimination on behalf of a favored interest group. Hopefully, the United States Constitution is not so easily circumvented.

Whether its sponsors are well meaning or not, a Hawaiian analogy to American Indian tribes does not work. It does not work for a host of constitutional reasons and it will not work if the principles of the Fourteenth Amendment are respected at all. Hawaiians were never an American Indian tribe, and cannot become one by congressional decree. When the first western missionaries arrived on the islands, Hawaii was ruled by a powerful king in a feudal monarchy, not unlike some in Eastern Europe and the Far East at the time. Congress simply cannot create an Indian tribe, as that term is understood in the Constitution, or “recognize” an Indian tribe that never existed. If it could somehow do so, there would be no end to racial separatist “nations” that Congress could carve out of the United States population and exempt from the United States Constitution. This cannot be.

S. 147 is unconstitutional for more reasons than could be explained in an op-ed (the June 22, 2005 paper by Senator Jon Kyl for the Republican Policy Committee , contains an excellent summary of both the bill’s policy problems and constitutional defects), but the bill’s disregard for the United States Constitution is surpassed by the profound negative consequences that would result even if it were constitutional. It is unfortunate that racial separatists and other opportunists have persuaded the Senate Leadership to take up the bill. And, it’s a cause for real concern that the number of Senators supporting the bill supposedly exceeds 50 (through purported logrolling and vote trading). Thus, it is high time for scholars and patriots, who thought that this bill—like its predecessors—would never go anywhere, to speak out about its fundamental defects.

Here are some basic points Congress should be aware of as it considers S. 147:

- First, Hawaiians (regardless of blood purity) are not and cannot be an American Indian tribe. The term “Indian tribes” mentioned in the Constitution has a fixed constitutional meaning that can’t be changed by a simple Act of Congress. They are limited to the pre-existing tribes within North America, or their offshoots, that were thought to be “dependent nations” at the time of the framing of the Constitution. Such American Indian tribes must have an independent existence and predominately separate “community” apart from the rest of American society, and their government structure must have a continuous history for at least the past century.

- By these standards (and several other requirements), Hawaiians never could qualify as an American Indian tribe. The fact that they were “aboriginal” people is of no constitutional significance. That does not make a tribe. As the Supreme Court correctly noted in Rice, Hawaii was a feudal kingdom at the time western sailors and missionaries arrived. America has incorporated voluntarily or by conquest many areas controlled by other monarchs, republics, or other nation-states. Monarchies, republics, and other nation-states simply are not Indian tribes. Even if aboriginal Hawaiians were once organized in tribal governments, they have had no type of “Native Hawaiian Government” for over 100 years. Finally, there is no independent and separate community of their descendants. Hawaii is the most integrated and blended society in America, perhaps the world. There are no “native” Hawaiians living apart from other Americans. Hawaiians, whether they have pure, part, or no “aboriginal blood,” all live in the same neighborhoods, go to the same schools and churches, and participate in the same community life. In sum, Congress cannot create or recognize a tribe that never existed, or pretend that one exists based on sharing one drop of “aboriginal” blood.

- Second, no government organized under the United States Constitution may create another government that is exempted from part of the Constitution. Yet, this is what S. 147 purports to do by allowing the alleged new government to grant preferences and exempt itself from portions of the Bill of Rights as it sees fit. The “Indian law exception” is controversial enough, but it can exist only because real Indian tribes are not created by Congress or the states, but existed prior to the formation of either. Real Indian tribes predate the Constitution, even if some of them have split or reorganized for various reasons. Congress could end the treaties with existing Indian tribes (leaving the merits of such an action aside) if it chose to do so, because these “dependent nations” are still subject to some control. But Congress simply can’t create new governments, new nations, or new tribes on its own, and then exempt them from portions of the Constitution. If it could, the restrictions on government in the Bill of Rights and elsewhere would be of extremely limited value.

- Third, the Fourteenth Amendment does not allow such naked discrimination. The Fourteenth Amendment was adopted precisely to prevent a state from excluding certain of its residents from the privileges and immunities of citizenship, especially on the basis of race or ethnicity. The Fourteenth Amendment begins with the proposition that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” The next sentence of the Fourteenth Amendment prohibits any state from abridging any of the “privileges or immunities of citizens of the United States.” And as most Americans know, this same section also prohibits the denial of equal protection to any person within a state’s jurisdiction. Thus, all United States citizens who reside in Hawaii are equally citizens of Hawaii and are entitled to enjoy all the privilege and immunities common to other citizens, including the protection against discriminatory laws—especially racially-discriminatory laws.

Apart from the insurmountable constitutional defects with S. 147, it’s a terrible idea to try to create a separate “Native Hawaiian Government” even if it could be done. It is an insult to the independent Indian nations to have their governments trivialized, and there would also be no end to the number of purely racist separatist governments that could be formed if Hawaiians were “made” a tribe. Real Indian tribes were not and are not organized along “racial” lines. There are 562 tribes that the Bureau of Indian Affairs recognizes, and no one thinks that each represents a separate and distinct race. At the time of the framing, many tribes allowed Europeans and Americans to join and other members to leave. In short, they were not and are not “racially” exclusive. If sharing one drop of aboriginal Hawaiian blood makes a tribe, then Chicanos, Latinos, African Americans, Mexicans, indeed any ethnicity could become a tribe if Congress so decrees.

Even if Congress did no more harm than create a separatist Hawaiian government, that act would help destroy the wonderful and admirable blended society—“the Aloha,” if you will—that does exist in Hawaii, where intermarriage and the cultural mixing of Asians, Americans, Europeans, and others is a model for the rest of the United States. A separate “Native Hawaiian Government” is both offensive and nonsensical, except to racial separatists and greedy opportunists. Those burdened with liberal guilt about ancient wrongs should think seriously about the harm they would do to the very values they purport to espouse.

There are legitimate ways to preserve ancient Hawaiian culture and to protect historic trust properties for the benefit all Hawaiians. But S. 147 is not the answer. It must be dramatically altered to cure all of its constitutional and policy defects. Failing that, we believe Members of Congress and the President are bound by the oath they took to support the Constitution not to give effect to measures that violate it.

Ed Meese was the Seventy-Fifth Attorney General of the United States, serving under President Ronald Reagan. Todd Gaziano worked as an attorney in all three branches of the federal government. Meese and Gaziano now direct the Center for Legal and Judicial Studies at The Heritage Foundation.

==============, July 15, 2005

The 'Native Hawaiian' bill

Brian McNicoll

I've been talking to some buddies from high school, and we're thinking of getting together and forming an Indian tribe.

Though most of us have a little Indian blood, we?re not Indians per se. We don't live together -- most of them are still in Louisiana, and I?m 1,200 miles away here in Washington. We don't share a culture in any real sense.

But if Sen. Daniel Akaka?s Native Hawaiian Recognition Act (s. 147) becomes law, we're going to take our shot.

Why? The benefits are just too good. We'd get to claim some land, divvy up some government loot, maybe open a casino, and we'd get to create a sovereign government. Indian tribes are exempt from many federal laws, collect their own taxes and generally can ignore the Bill of Rights, discriminate in favor of their "tribe" members and operate their own justice system.

I know what you're thinking: What kind of peace pipe is this guy smoking? You can't just create a tribe out of whole cloth, declare yourself exempt from the Constitution and start cordoning off property.

Oh yeah? The Senate seems prepared to do exactly that for a group about as homogenous and culturally coherent -- and as much an Indian tribe in any meaningful way -- as me and my pals from high school. In fact, when Hawaii was trying to earn statehood, it campaigned on the theme that its aboriginal natives were part of an "America in microcosm" -- a mini-melting pot that, as Sen. Herbert Lehman, D-N.Y., put it in 1954, "has produced a common nationality, a common patriotism, a common faith in freedom and in the institutions of America."

What's sad is that the current Senate measure would impose racial balkanization and have neighbors living side by side but under different laws in a place that has been largely spared racial strife. The Hawaiian monarchy, which held power till 1893, certainly never viewed itself as a race-based government. It embraced and made use of the expertise of its immigrants almost as soon as those immigrants arrived.

By the mid-1850s, the royal family had subjects from 150 countries and a white American attorney general. The earliest white settlers -- missionaries from Europe -- often married natives. Today, 46 percent of the marriages in Hawaii are interracial, compared to a national average of less than 5 percent.

Oddly, under the Akaka bill, race would be the only requirement for membership in this tribe. That means that anyone who can prove he or she is a direct lineal descendant of the aboriginal, indigenous native people who resided and "exercised sovereignty" in the Hawaiian Islands on or before Jan. 1, 1893, is in. It doesn't matter if you live in Hawaii, if you've ever been to Hawaii or if you participate in the native Hawaiian culture in any way.

These are not Indians. This is not a tribe. And this remedy for various imagined wrongs does not hold water.

For one thing, Congress can't create tribes. It can't confer sovereignty on any one or any entity. Otherwise, it could exempt, say, General Motors from the equal protection clause and let it hire whites only if it so chose. The tribes that exist today were recognized as quasi-sovereign national entities at the time of the framing and have had a continuous political existence since then. Their lands and pre-existing sovereignty are recognized either from treaties made with the United States or as part of the bargains that brought some states into the Union.

None of this holds for the native Hawaiians. They are spread the breadth and width of our nation. If everyone officials believe to be eligible signs up, this new tribe would be the largest in America, with more than 400,000 members. It would have members, and thus jurisdiction, in all 50 states.

What's doubly sad is that this monstrous abuse of both process and basic American values could be law before we know it. Six Republicans have agreed to join all 45 Democrats in support of the bill. Prospects in the House are unknown at this time, but the Resources Committee, which would have jurisdiction, has not scheduled hearings on the matter and doesn't expect to in the near future, committee staffers said. But given that President Bush has not checked the box marked "veto" once in nearly six years in office, the smart money would not look to the White House for a bailout on this one.

I can accept it if my high school buddies and me don't get our tribe. We were never very organized anyway. But neither are the native Hawaiians. They've long-since learned to live side-by-side with people of other cultures. Why on earth would we mess with that now?

Brian McNicoll is contributing columnist for and a senior writer at The Heritage Foundation, a member group.


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