The U.S. House Judiciary Subcommittee on the Constitution held an oversight hearing entitled:
"Can Congress Create A Race-Based Government? -- The Constitutionality of H.R.309/S.147".
This hearing was held on Tuesday, July 19, 2004, at 2:00 p.m. in Room 2141 of the Rayburn House Office Building.
Constitutional law expert Bruce Fein previously challenged Hawai'i Governor Linda Lingle, or Hawai'i Attorney General Mark Bennett, to a public debate on the Akaka bill. The challenge to debate is available at
https://www.angelfire.com/hi5/bigfiles3/AkakaFeinChallengeLingleBennettDebate.pdf
The Governor and Attorney General refused to comment on that invitation, and "blew it off."
Now that debate has happened, as Bruce Fein, Mark Bennett, and H. William Burgess appeared before a Congressional subcommittee on Tuesday July 19, along with others.
This marks the first time that any opponent of the Akaka bill has ever been given a chance to testify in person before Congress in Washington, D.C. All previous hearings before the Senate Committee on Indian Affairs from 2000 to 2005 were "rigged" and featured only supporters of the bill, such as Governor Lingle, Haunani Apoliona (head of OHA), and Micah Kane (head of the Department of Hawaiian Homelands).
The only previous time opponents of the Akaka bill were allowed to testify before members of Congress was in August 2000 at the Blaisdell in Honolulu, when a so-called "joint committee" hearing was held with only four members of Congress and one Delegate present: Hawai'i Senators Akaka (sponsor of the bill) and Inouye (cosponsor) , Representatives Abercrombie (sponsor of the bill) and Mink (cosponsor), and Samoa territorial Delegate Eni Faleiomavaega (cosponsor). Independent reporter Bob Rees attended all five days of the hearing, and wrote that testimony was about 9-1 in opposition, often accompanied by angry outbursts from the audience.
https://www.angelfire.com/hi2/hawaiiansovereignty/ReesAkaka090600.html
This debate took place on the 4th anniversary of a letter sent on July 19, 2001, from House Judiciary Committee Chairman Sensenbrenner to Speaker Hastert, demanding that the House leadership either kill the Akaka bill or refer the bill to his committee for hearings on its (un)constitutionality. That letter can be seen at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSensenbrenner071901.html
Links to mportant written documents by Bruce Fein and Mark Bennett, which may or may not have been the testimony submitted by either or both of them, are provided below on this webpage. Written testimony submitted by H. William Burgess to this subcommittee is provided farther down on this webpage.
Immediately below are a list of testifiers, and the opening remarks of the subcommittee chairman. Also provided are three links to audio files of the beginning, middle, and end of the actual hearing.
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http://judiciary.house.gov/schedule.aspx
7/19/2005
Tuesday 07/19/2005 - 2:00 PM
2141 Rayburn House Office Building
Subcommittee on the Constitution
http://judiciary.house.gov/oversight.aspx?ID=185
Oversight Hearing on "Can Congress Create a Race-Based Government? The Constitutionality of H.R. 309/S. 147."
Four witnesses presenting testimony and responding to questions from Members of Congress:
Honorable Mark Bennett; Attorney General, State of Hawaii
Shannen W. Coffin; Partner, Steptoe & Johnson, L.L.P H.
William Burgess; Aloha for All
Bruce Fein; The Lichfield Group
http://judiciary.house.gov/OversightOpeningStatement.aspx?ID=45
Opening Statement of Chairman Steve Chabot
Subcommittee on the Constitution
Can Congress Create A Race-Based Government?:
The Constitutionality of S. 147/H.R. 309
July 19, 2005
Good afternoon. I would like to thank everyone for coming. This is a hearing before the Subcommittee on the Constitution to examine whether Congress can create a race-based government within the United States and in particular, the constitutionality of H.R. 309, a bill that would authorize the creation and recognition of a Native Hawaiian quasi-sovereign government. I would like to recognize at the outset that this Committee does not have jurisdiction over H.R. 309 itself. But, I believe that this bill, and the companion bill in the Senate, raise constitutional questions of such magnitude that we would be doing a disservice to the public and to our constituents if we did not closely examine the constitutional implications of H.R. 309.
We have a distinguished panel before us today. I would like to thank them for taking the time to provide us with their insight and expertise. I know Mr. Burgess, who flew in from Hawaii, had an extremely long trip. I appreciate his efforts in coming here. I look forward to his testimony, as well as to all of the testimony to be presented here this afternoon.
Since the Civil War, the United States has strived to become a color blind society. We have struggled to ensure that the principles on which our country was founded are applied equally and that every person receives just and fair treatment under our laws. But, the issue that we are focused on today suggests that race should be the sole criteria for how individuals are treated. I couldn't disagree more.
In asking Congress to take steps toward authorizing the creation of a race-based government some refer us back to our nation's history and treatment of Native American Indians. Under Article I, Section 8, Congress has the power "to regulate Commerce with the Indian tribes." And, it is under this power that we have afforded unique protections to Indian tribes over the last two hundred and twenty-nine years. But those protections center on preserving the quasi-sovereign tribal status that Indians have lived under since the beginning of their existence, a point that has been reiterated time and time again by the Supreme Court. In fact, in U.S. v. Sandoval, the Supreme Court rejected the idea that "Congress may bring a community or body of people within range of this power by arbitrarily calling them an Indian tribe," finding that "in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress." It is on this premise that unique treatment has been provided to Indians.
And it is on this premise that Native Hawaiians would seek quasi-sovereign status, similar to Native American Indians. However, unlike Native American Indian and Alaskan tribes, the only factor that would bind together a quasi-sovereign Native Hawaiian government if formed today would be race.
Race alone does not and should not be the basis for creating a sovereign entity. It is the antithesis of our form of government and contrary to the principles on which this country was founded. The Supreme Court stated in Rice v. Cayetano that "the law itself may not be an instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions."
Justice Scalia stated most appropriately in Adarand Contractors Inc., that "to pursue the concept of racial entitlement even for the most benign purposes - is to reinforce and to preserve for future mischief the way of thinking that produced race slavery, race privilege, and race-hatred. In the eyes of the government we are just one race here. We are American."
It is here in America that all cultures are free to practice their traditions, cultures, and religions - free from government intrusion. It is here in America where injustices that have occurred are remedied to make individuals and groups whole.
However, America should not be a place where governments are defined by race or ancestry or the color of one's skin. And, it should not be a place neighbors, who may have lived next to each other for decades, are suddenly subject to two different civil and criminal standards because of race. It's with that understanding that I look forward to exploring the issues before us today.
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The session is covered with three links to audio files, listed in the correct order below. Note that once you have downloaded and listened to the contents of any particular link, you can then save it to your hard-drive for future listening enjoyment, in the same way you would save any ordinary open file.
The first link covers purely ceremonial greetings, lei, macadamia nut candy; and is of no substantive interest.
http://64.62.196.98/lounge/house071905b/1intro.mp3
The second link includes introductions of those giving testimony; the testimony of Hawai'i Attorney General Mark Bennett; testimony of Shannen W. Coffin; testimony of Honolulu attorney H. William Burgess; testimony of Constitutional law expert, attorney Bruce Fein
http://64.62.196.98/lounge/house071905b/2panel.mp3
The third link consists of questions from the Members of Congress and answers from those who gave testimony.
http://64.62.196.98/lounge/house071905b/3qa.mp3
====================
Regarding Bruce Fein:
See 3 published articles by Bruce Fein opposing the Akaka bill that were inserted into the Congressional Record by Senator Kyl (R, AZ) on March 17, 2005 as Senator Kyl reaffirmed his opposition to the bill
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaFeinCongRec031705.html
"Hawaii Divided Against Itself Cannot Stand" (Essay by Constitutional lawyer Bruce Fein, as printed In the Congressional Record of June 14, 15, and 16 of 2005 by unanimous consent, by request of Senator Kyl)
https://www.angelfire.com/hi5/bigfiles3/AkakaFeinCongRec061405.html
Regarding Hawai'i Attorney General Mark Bennett: He published an article in Hawaii Reporter defending the constitutionality of the Akaka bill, which produced a published response from Bruce Fein. Those two articles are among the four gathered at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBennett2004.html
On July 15, 2005 a 33-page pdf file became available, entitled: "Position Statement of the Attorney General of the State of Hawaii -- S.147 (The 'Akaka Bill') Is Constitutional." Presumably the author is Mark Bennett. The document is filled with legal citations in defense of the concept that Congress does indeed have the power to create Indian tribes out of thin air; that Congress has had a special trust relationship with "Native Hawaiians" for many decades comparable to the trust relationship with other native groups which were later given federal recognition as tribes; and that high rates of intermarriage and participation by non-natives in a native group and in the government of that group does not prevent Congress from recognizing that group's native members as a tribe. If the Akaka bill passes and is later challenged in court as being unconstitutional, this document would appear to be the legal brief ready to be filed in defense of the right of Congress to recognize "Native Hawaiians."
https://www.angelfire.com/hi5/bigfiles3/AkakaBennettConstJuly2005.pdf
On July 19, 2005 Senator Kyl released a 14-page document which he sent to the House Judiciary subcommittee on the Constitution as his testimony opposing the Akaka bill. Senator Kyl's statement is a response to Hawai'i Attorney General Mark Bennet's testimony. Senator Kyl's statement, on official stationery, can be downloaded from:
https://www.angelfire.com/hi5/bigfiles3/AkakaKylToHseJudicry071905.pdf
In late July it became known that a letter was circulated from members of the House Republican Study Commission to Speaker Hastert and Majority Leader DeLay asking them to kill the Akaka bill. See:
https://www.angelfire.com/hi5/bigfiles3/AkakaHseRepubLtrJuly2005.html
Regarding Honolulu attorney H. William Burgess: Here is his testimony for Tuesday July 19, 2005, as circulated to Aloha For All a few days prior to his appearance in Congress on behalf of that group.
House Judiciary Committee,
Subcommittee on the Constitution Oversight hearing Tuesday,
July 19, 2005, 2:00 p.m. Can Congress Create A
Race-Based Government?: The Constitutionality of H.R.309/S.147, the
Native Hawaiian Government Reorganization Act of 2005 ("Akaka Bill") Testimony by H. William
Burgess on his own behalf and on behalf of Aloha for All1 For Native Americans, ancestry alone
confers no special status. Membership in a tribe that has existed continuously
is required. According to Census 2000 there are over 4 million people
with some Native American ancestry. But less than 2 million of them
are members of recognized tribes and only those recognized tribes can
have a government-to-government relationship with the United States. Congress may "acknowledge" or "recognize"
groups which have existed as tribes, i.e., autonomous quasi-sovereign
governing entities, continuously from historic times to the present
(25 C.F.R. 83.7) but it has no power to create a tribe arbitrarily.
(U.S. v. Sandoval, 231 U.S. 28 (1913)). One D.O.J. attorney
put it succinctly, "We don't create tribes out of thin air."3 In 1790 (20 years before 1810 when he
unified the Hawaiian islands) Kamehameha the Great brought John Young
and Isaac Davis on to join his forces and welcomed them into his family.
Non-natives thereafter continued to intermarry, assimilate and contribute
to the governance under the great King and under every subsequent government
of Hawaii since then, both in high governmental positions as cabinet
members, judges, elected legislators, and as ordinary citizens. Unlike the history of Native Americans,
there has never been in Hawaii, even during the years of the Kingdom,
any "tribe" or government of any kind for Native Hawaiians separate
from the government of the rest of Hawaii's citizens. The Hawaiians-only
nation the Akaka bill proposes to "reorganize" has never existed. See
Patrick W. Hanifin's To Dwell on the Earth in Unity: Rice, Arakaki,
and the Growth of Citizenship and Voting Rights in Hawaii. https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf Our friends, neighbors, fellow professionals,
judges, political leaders. aunties, uncles, nieces, nephews, calabash
cousins, spouses and loved ones of Hawaiian ancestry are governed by
the same federal, state and local governments as the rest of us. That
is why Congress cannot use laws applicable to Indian tribes to create
a new government in Hawaii. Sen. Inouye, in his remarks on introduction
of S. 147/H.R.309 at 151 Congressional Record 450 (Senate, Tuesday,
January 25, 2005) concedes that federal Indian law does not provide
the authority for Congress to create a Native Hawaiian governing entity. "Because the Native Hawaiian government
is not an Indian tribe, the body of Federal Indian law that would otherwise
customarily apply when the United States extends Federal recognition
to an Indian tribal group does not apply." "That is why concerns which are
premised on the manner in which Federal Indian law provides for the
respective governmental authorities of the state governments and Indian
tribal governments simply don't apply in Hawaii." There being no tribe, the Constitution
applies. The Akaka bill stumbles over the Constitution virtually
every step it takes. Also, under $8(a) upon enactment,
the delegation by the U.S. of authority to the State of Hawaii to "address
the conditions of the indigenous, native people of Hawaii" in the Admission
Act "is reaffirmed." This delegation to the State of authority to single
out one ancestral group for special privilege would also seem to violate
the prohibition against hereditary aristocracy. The Constitution forbids
the United States from granting titles of nobility itself. That must
also preclude the United States from authorizing states to bestow hereditary
privilege. " $7(b)(2)(A)&(B) Requires the
Secretary of the DOI to appoint a commission of 9 members who "shall
be Native Hawaiian." Restricting federal appointments based on race
would violate the Equal Protection clause of the Fifth Amendment, among
other laws, and would require the Secretary to violate her oath to uphold
the Constitution. " $7(c) requires the Commission to
prepare a roll of adult Native Hawaiians and the Secretary to publish
the racially restricted roll in the Federal Register and thereafter
update it. Same Constitutional violations as immediately above. " $7(c)(2) Persons on the roll may
develop the criteria and structure of an Interim Governing Council
and elect members from the roll to that Council. Racial restrictions
on electors and upon candidates both violate the Fifteenth Amendment
and the Voting Rights Act. " $7(c)(2)(B)(iii)(I) The Council
may conduct a referendum among those on the roll to determine the proposed
elements of the organic governing documents of the Native Hawaiian governing
entity. Racial restrictions on persons allowed to vote in the referendum
would violate the 15th Amendment and the Voting Rights Act. " $7(c)(2)(B)(iii)(IV) Based on
the referendum, the Council may develop proposed organic documents
and hold elections by persons on the roll to ratify them. This would
be the third racially restricted election and third violation of the
15th Amendment and the Voting Rights Act. " $7(c)(4)(A) Requires the Secretary
to certify that the organic governing documents comply with 7 listed
requirements. Use of the roll to make the certification would violate
the Equal Protection clause of the Fifth Amendment, among other laws,
and would, again, require the Secretary to violate her oath to uphold
the Constitution. " $7(c)(5) Once the Secretary issues
the certification, the Council may hold elections of the officers of
the new government. (If these elections restrict the right to vote based
on race, as seems very likely) they would violate the 15th
Amendment and the Voting Rights Act.) " $7(c) Upon the election of the
officers, the U.S., without any further action of Congress or the Executive
branch, "reaffirms the political and legal relationship between the
U.S. and the Native Hawaiian governing entity" and recognizes the Native
Hawaiian governing body as the "representative governing body of the
Native Hawaiian people." This would violate the Equal Protection clause
of the 5th and 14th Amendments by giving one racial
group political power and status and their own sovereign government.
These special relationships with the United States are denied to any
other citizens. " $8(b) The 3 governments may then
negotiate an agreement for: transfer of lands, natural resources
& other assets; and delegation of governmental power & authority to the new government; and exercise of civil & criminal jurisdiction
by the new government; and "residual responsibilities"
of the US & State of Hawaii to the new government. This carte blanche grant of authority
to officials of the State and Federal governments to agree to give away
public lands, natural resources and other assets to the new government,
without receiving anything in return, is beyond all existing constitutional
limitations on the power of the Federal and State of Hawaii executive
branches. Even more extreme is the authority to surrender the sovereignty
and jurisdiction of the State of Hawaii over some or all of the lands
and surrounding waters of some or all of the islands of the State of
Hawaii and over some or all of the people of Hawaii, boggles the mind.
Likewise the general power to commit the Federal and State governments
to "residual responsibilities" to the new Native Hawaiian government. " $8(b)(2) The 3 governments may,
but are not required to, submit to Congress and to the Hawaii State
Governor and legislature, amendments to federal and state laws that
will enable implementation of the agreement. Treaties with foreign
governments require the approval of 2/3rd of the Senate.
Constitutional amendments require the consent of the citizens. But
the Akaka bill does not require the consent of the citizens of Hawaii
or of Congress or of the State of Hawaii legislature to the terms of
the agreement. Under the bill, the only mention is that the parties
may recommend amendments to implement the terms they have agreed
to. Given the dynamics at the bargaining
table created by the bill: where the State officials are driven by the
same urge they now exhibit, to curry favor with what they view as the
"swing" vote; and Federal officials are perhaps constrained with a similar
inclination; and the new Native Hawaiian government officials have the
duty to their constituents to demand the maximum; it is not likely that
the agreement reached will be moderate or that any review by Congress
or the Hawaii legislature will be sought if it can be avoided. More
likely is that the State will proceed under the authority of the Akaka
bill to promptly implement whatever deal has been made. Nor do Native Hawaiians suffer from
the grinding poverty of Native American tribes. The Senate Indian Affairs
Committee's March 3, 2004 Views and Estimates of the 2005 budget request
notes that "the vast majority of Native economies are moribund" (page
3) "with unemployment averaging 45%" and "per capita income for Indians
averages $8,284." (page 4). By contrast Census 2000 shows per capita
income for Native Hawaiians in Hawaii at $14,199 and median family income
of $49,282. For the 60,000 Native Hawaiians residing in California,
where they are free from the incentive-smothering entitlement programs
provided in Hawaii, the per capita income of Native Hawaiians is $19,881
and median family income is $55,770. Striking evidence that Native
Hawaiians are fully capable of prospering, without being wards of the
DOI and without entitlements from Hawaii, is shown in the Census 2000
reports of median per capita income of Male, full time, year round Native
Hawaiian workers: $33,258 in Hawaii and $38,997 in California. Hawaiians today are no different, in
any constitutionally significant way, from any other ethnic group in
Hawaii';s multi-ethnic, intermarried, integrated society. Like all the
rest of us, some do well, some don't and most are somewhere in between. Rejection of democracy and Aloha.
Today the State of Hawai'i is, by law as well as by aspiration, a multiracial,
thoroughly integrated state. The Akaka bill is a frontal assault on
both Aloha and the American ideal of equality under the law. It would
elevate one racial group to the status of a hereditary elite to be supported
by citizens who are not of the favored race. As U.S. District Judge
Helen Gillmor said in Arakaki I, "This Court is mindful that ours
is a political system that strives to govern its citizens as individuals
rather than as groups. The Supreme Court's brightest moments have affirmed
this idea" (citing Brown v. Board of Education and other cases);
"while its darkest moments have rejected this concept" (citing
Dred Scott, Plessy v. Ferguson, Bradwell v. Illinois and Korematsu). Honolulu, Hawaii July 14, 2005. ___________________________ H. William Burgess 299C Round Top Drive Honolulu, Hawaii 96822 Tel.: (808) 947-3234 Fax: (808) 947-5822 Email: hwburgess@hawaii.rr.com 1. Aloha for All, is a multi-ethnic group of men
and women, all residents, taxpayers and property owners in Hawaii who
believe that Aloha is for everyone and every citizen is entitled to
the equal protection of the laws without regard to her or his ancestry.
For further information about the Akaka bill see: http://www.aloha4all.org (click on Q&A�s) and https://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html or email hwburgess@hawaii.rr.com
. 2. Hawaii residents oppose the bill by a margin
of 2 to 1. The comprehensive statewide telephone survey just completed
shows 67% responding to the question are against the Akaka bill. 3.
Connecticut v. Babbitt, U.S. Court of Appeals, Second Circuit, January
6, 2000. Alice Thurston arguing on behalf of the Interior Secretary,
"When the Department of Interior recognizes tribes, it is not saying,
"You are a tribe." It is saying, "We recognize that your sovereignty
exists." We don't create tribes out of thin air." Without Reservation,
Benedict, page 352.
