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Akaka bill hearing before the U.S. House Judiciary Subcommittee on the Constitution, in Washington D.C., on Tuesday July 19, 2005

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

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.

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:

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.

Tuesday 07/19/2005 - 2:00 PM
2141 Rayburn House Office Building
Subcommittee on the Constitution

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

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.


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.

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

The third link consists of questions from the Members of Congress and answers from those who gave testimony.


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

"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)

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:

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."

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:

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:

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.

109th Congress

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  

Aloha and good afternoon.  

I am an attorney who practiced law in Hawaii for 35 years until I retired in 1994. For the last seven years I have been advocating and litigating for the basic democratic principle of equality under the law.


I know that Chairman Sensenbrenner has been concerned about this bill for some time. In July 2001, he said in his letter to Speaker Hastert , "the primary purpose of the Akaka bill is to establish a separate government for a particular race of people called 'Native Hawaiians.' The many people in Hawaii who oppose the bill2 are glad that the Judiciary Committee's particular expertise on civil-liberties issues is now being called into action.  

Background of the Akaka bill. The original version of S. 147, commonly referred to as the "Akaka bill", was first introduced in the year 2000 shortly after the Supreme Court, in Rice v. Cayetano, struck down the racial restriction on voting for the Office of Hawaiian Affairs. Because that decision threatened many other laws and programs for the "benefit" of Hawaiians, Senator Akaka with Senator Inouye's endorsement, proposed candidly to circumvent the Supreme Court's decision by having Congress "recognize" Hawaiians (defined substantially the same way the Supreme Court had held in Rice to be "racial") as the equivalent of an Indian tribe.  

The bill encountered resistance and did not pass in 2000 or subsequently. (It did pass a sparsely attended House in 2000 when Representative Abercrombie included it in a vote on non-controversial items.) Efforts to attach it as a rider to appropriations bills in 2000, 2001 and 2004 were defeated. Hawaii's political leaders have resubmitted the bill to the 109th Congress as S. 147 and H.R. 309. It is expected to reach the Senate floor before August 7, 2005, 

A radical change in existing law. Although the proponents assert the bill will simply give Native Hawaiians "parity with the Federal Government's treatment of American Indians and Alaska Natives, the bill would in reality make a radical change in existing law. The bill would give Native Hawaiians, merely because of their ancestry, something no American Indian has: the right to create the equivalent of a tribe where none now exists.  

 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.  

 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. 

" As soon as the bill is enacted, superior political rights are granted to Native Hawaiians, defined by ancestry: $7(a) The U.S. is deemed to have recognized the right of Native Hawaiians to form their own new government and to adopt its organic governing documents. No one else in the United States has that right. This creates a hereditary aristocracy in violation of Article I, Sec. 9, U.S. Const. "No Title of Nobility shall be granted by the United States."  

  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

 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. 

The myth of past injustices and economic deprivations. Contrary to the claims of the bill supporters, the U.S. took no lands from Hawaiians at the time of the 1893 revolution or the 1898 Annexation (or at any other time) and it did not deprive them of sovereignty. As part of the Annexation Act, the U.S. provided compensation by assuming the debts of about $4 million which had been incurred by the Kingdom. The lands ceded to the U.S. were government lands under the Kingdom held for the benefit of all citizens without regard to race. They still are. Private land titles were unaffected by the overthrow or annexation. Upon annexation, ordinary Hawaiians became full citizens of the U.S. with more freedom, security, opportunity for prosperity and sovereignty than they ever had under the Kingdom.  

 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).  

See Paul Sullivan's Killing Aloha, The Native Hawaiian Recognition Bill is wrong for Native Hawaiians, wrong for the State of Hawaii and wrong for the United States with a comprehensive section-by-section analysis of the bill,


Keep Hawaii one state indivisible. Carving up Hawaii into separate sovereign enclaves would hurt all of us, whether we are of Hawaiian or any other ancestry. A house divided against itself cannot stand. The Constitution "looks to an indestructible union, composed of indestructible States." Texas v. White, 7 Wallace 700 (1869).  

Please say yes to equality under the law. Reject H.R. 309. Mahalo, 

Honolulu, Hawaii July 14, 2005. 


H. William Burgess

299C Round Top Drive

Honolulu, Hawaii 96822

Tel.: (808) 947-3234

Fax: (808) 947-5822


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: (click on Q&A�s) and or email .

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.


Honolulu Advertiser, Tuesday, July 19, 2005

Hearing today will address Akaka bill constitutionality

By Derrick DePledge

WASHINGTON -- An Ohio Republican who will lead a U.S. House hearing today on a Native Hawaiian federal recognition bill believes the bill might be unconstitutional.

Meantime in the U.S. Senate, Hawai'i Democrats are expected to meet with Republican leaders about bringing the bill to the floor for debate later today or sometime this week.

U.S. Rep. Steve Chabot, R-Ohio, said the bill would divide people based on their race and conflict with the nation's goal of a color-blind society. "My impression at this point is that it is not constitutional or at least not appropriate," Chabot, the chairman of the House Judiciary subcommittee on the Constitution, told The Advertiser. "I think it is the wrong way for the nation to be heading."

The Judiciary Committee does not have jurisdiction over the bill -- it was assigned to the House Resources Committee -- but Chabot and other conservative Republicans could have an influence on their colleagues.

State Attorney General Mark Bennett is expected to defend the bill at the hearing. The bill would recognize Native Hawaiians as an indigenous people and create a process for Hawaiians to form their own government.

In prepared testimony, Bennett argues that the bill would not create a race-based government. He said a new government would be made up of descendents of the indigenous people of the Islands, who Congress has already recognized through numerous federal programs because of their unique status, not their race.

"This is not just clever word play, and the contention that recognizing Native Hawaiians would create a 'racial' classification would be flat wrong, and would ignore decades of consistent United States Supreme Court precedent," Bennett wrote.

Native Hawaiians, he wrote, have a special political relationship with the United States, much like American Indians or Alaska Natives.

H. William Burgess, an attorney with Aloha for All, which opposes the bill, described it in his testimony as "a radical change in existing law."

"The bill would give Native Hawaiians, merely because of their ancestry, something no American Indian has: the right to create the equivalent of a tribe where none now exists," Burgess wrote.

Honolulu Advertiser, July 20, 2005

WASHINGTON -- State Attorney General Mark Bennett, in an extensive defense of a Native Hawaiian federal recognition bill, told U.S. House lawmakers yesterday that denying recognition "makes no sense for a country that prides itself on justice and fairness."

At a hearing before the House Judiciary subcommittee on the Constitution, Bennett said Native Hawaiians have had a special political relationship with the United States based on their unique status as indigenous people, not their race.

Bennett said Congress has the constitutional authority under the Indian commerce clause to recognize Hawaiians as it has Indian tribes and Alaska Natives. "It is not a matter of race. It is not unconstitutional. It is a matter of justice and fairness," he said.

Several conservative Republicans have been critical of the bill, which would create a process for Native Hawaiians to form their own government because it would classify people based on race.

The hearing yesterday, as the bill awaits a possible vote in the U.S. Senate, was the first to solely address whether it is constitutional. Supporters of the bill, known as the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, saw the hearing as a preview of potential opposition in the House if the bill were to make it through the Senate.

Several trustees from the Office of Hawaiian Affairs, who came here in anticipation of the Senate vote, were in the audience at the hearing, wearing purple and white lei.

Three of the four witnesses invited to testify fundamentally oppose the bill as unconstitutional, and the subcommittee's chairman, U.S. Rep. Steve Chabot, R-Ohio, said yesterday he believes it might be unconstitutional.

Chabot said the bill would divide people based on their race and conflict with the nation's goal of a colorblind society. "My impression at this point is that it is not constitutional or at least not appropriate," he told The Advertiser. "I think it is the wrong way for the nation to be heading."

The Judiciary Committee does not have jurisdiction over the bill -- it was assigned to the House Resources Committee -- but Chabot and other conservatives could have an influence on their colleagues.

H. William Burgess, an attorney with Aloha for All, which opposes the bill, said it would "validate the radical minority separatists" who want Hawaiian independence.

"The U.S. can't give rights to groups of people merely because they share an ancestry," Burgess said.

The constitutional questions involve whether the bill would violate due process and equal protection rights by limiting eligibility in a new government to Native Hawaiians. Legal experts believe the bill will likely be challenged in court if it passes.

The Supreme Court, in Rice v. Cayetano in 2000, ruled that it was unconstitutional to prohibit non-Hawaiians from voting for trustees of the state Office of Hawaiian Affairs. Opponents believe the Akaka bill could pose a similar problem if an appointed commission that would certify who belongs to a new government is restricted to Native Hawaiians.

Bruce Fein, a constitutional lawyer hired by the Grassroot Institute of Hawaii, which also opposes the bill, said one of the nation's strengths is its commitment to equal opportunity regardless of race or ancestry. "The Akaka bill, in my judgment, besmirches those ideals. It would weaken the country and must be defeated," he said.

Bennett said that while race is a component, the new government would be made up of descendants of the indigenous people of the Islands, who have already been recognized by Congress through numerous federal programs that have stood without challenge for decades.

The bill has broad support from OHA and Hawai'i politicians, but some in the Hawaiian community believe it would weaken any real claims to sovereignty.

Kilikina Kekumano, a retired flight attendant who has homes in Poka'i Bay and Williamsburg, Va., said she thought a formal 1993 apology to Hawaiians from President Clinton and Congress for the U.S. government's role in the 1893 overthrow might eventually lead to the restoration of the Hawaiian kingdom.

The Akaka bill, she said, might jeopardize independence. "Now we're going to be federal wards of America," Kekumano said.