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History of the Akaka Bill From June 22 to July 16, 2005 -- intense public relations campaigns; McCain announces support for bill; Grassroot Institute survey of all Hawai'i households shows 67% oppose Akaka bill; ethnic Hawaiian opposition to bill; Kyl announces plans for amendments; Department of Justice files objections; House Judiciary sets hearing on unconstitutionality

This was a period of intensive public relations campaigns by opponents to the Akaka bill, plus release of a document from the U.S. Department of Justice identifying major objections to the bill, plus the announcement of a hearing in the House Judiciary Committee regarding the bill's (un)constitutionality. The U.S. Senate is scheduled to begin floor debate on the Akaka bill beginning Monday July 18 and continuing intermittently until a roll call vote perhaps on Wednesday.

Here is an outline of some of the major events to be covered in detail below (about 35 pages of detail):

June 22: U.S. Senate Republican Policy Committee issues a 13-page report blasting the Akaka bill; Lingle, OHA, Inouye, Akaka, Abercrombie, Case, and local newspapers respond.

June 28: Senator McCain announces he will vote in favor of the bill.

July 5: Grassroot Institute of Hawai'i publishes results of a telephone survey of 10,000 Hawai'i households showing that 67% of those who responded to the question oppose the Akaka bill, and 45% will be less likely to vote for any politicians who support the bill. Supporters of the bill attack the survey.

July 7: Constitutional law expert Bruce Fein, repeatedly published in the Congressional Record, challenges Governor Lingle and/or Attorney General Bennett to a public debate (no reply).

July 7: Ethnic Hawaiians opposed to the Akaka bill attend OHA board meeting to demand that OHA provide funding for theim to get their concerns expressed, equal to the funding OHA has spent on lobbying for the bill (millions of dollars).

July 12: Senator Kyl announces plans to introduce an amendment to require approval of the Akaka bill by a majority of Hawai'i citizens; and other undisclosed amendments.

July 13: Assistant Attorney General William Moschella releases a list of Department of Justice objections to the Akaka bill.

July 14: It is announced that the U.S. House Judiciary Subcommittee on the Constitution will hold an oversight hearing entitled: "Can Congress Create A Race-Based Government? -- The Constitutionality of H.R.309/S.147". This hearing will be held on Tuesday, July 19, 2004, at 2:00 p.m. in Room 2141 of the Rayburn House Office Building. Testimony to be presented by Honolulu attorney H. William Burgess available on webpage. Bruce Fein will testify, and also Hawai'i state Attorney General Bennett.

July 15: The Grassroot Institute of Hawaii announces that the survey previously based on 10,000 households was expanded to include all the rest of Hawai'i's 290,000 households, and the results are still essentially the same as before: 67% of those who answer the question oppose the Akaka bill, and 45% would be less likely to vote for any politician who supports the bill. A 33-page document (available for download) was also released that is presumably the testimony to be given by Mark Bennett on Tuesday at the House Judiciary subcommittee: "Position Statement of the Attorney General of the State of Hawaii -- S.147 (The 'Akaka Bill') Is Constitutional."




** This letter-to-editor is valuable because it explains how important the Senate Republican Policy Committee is. The letter is out of chronological order because its primary relevance is as an explainer of the RPC **
Honolulu Advertiser, Sunday, July 3, 2005
Letters to the Editor

Fallout from Akaka bill are available to see

U.S. Sen. Jon Kyl distributed an excellent legislative notice to the U.S. Senate on the consequences of the Akaka bill. As the chairman of the U.S. Senate Republican Policy Committee (RPC), he acts for the Republican leadership of Sens. William Frist, Mitch McConnell, Rick Santorum and Kay Bailey Hutchison.

The RPC membership include Sens. Saxby Chambliss (Agriculture), Thad Cochran (Appropriations), John Warner (Armed Services), Richard Shelby (Banking), Judd Gregg (Budget), Ted Stevens (Commerce), Pete Domenici (Energy), James Inhofe (Environmental), Chuck Grassley (Finance), Richard Lugar (Foreign Relations), Mike Enzi (Health), Susan Collins (Homeland Security), Arlen Specter (Judiciary), Trent Lott (Rules), Olympia Snowe (Small Business) and Larry Craig (Veteran Affairs), who are all chairs of a Senate standing committee.

The RPC meets for lunch every Tuesday at the Capitol, hosted by Chairman Kyl. On another weekly scheduled day, the Republican staff directors of the Senate committees meet to review pending issues, such as the Akaka bill. The RPC policy researchers produce the in-depth research papers on the many complicated and controversial issues facing Congress. (

When Sen. Kyl presented the RPC report generated from the results of research and consulting with many policy experts on the Akaka bill to the Congressional Record on June 22, the report became available to all congressional representatives.

James Kuroiwa


That report from the Republican Policy Committee was given different political "spin" by the two Honolulu daily newspapers. The Star-Bulletin focused on the importance of the report and the issue of how the Akaka bill could lead to secession. The Advertiser downplayed the RPC report as just another of Senator Kyl's attacks on the bill, and how Governor Lingle is fighting for passage of the bill. It should be noted that both newspapers have repeatedly editorialized in support of the Akaka bill throughout the past five years.
Honolulu Star-Bulletin, Friday, June 24, 2005

GOP senator skewers Akaka Bill
Lingle and Akaka say Kyl is mistaken the bill creates a "race-based" Hawaiian government

By Richard Borreca

Senate Republican opponents are sharpening their attack on Sen. Dan Akaka's bill for native Hawaiian recognition.

Sen. Jon Kyl, R-Ariz., called the Akaka Bill "the creation of race-based government for native Hawaiians."

In comments submitted to the Congressional Record and reprinted by the Republican Policy Committee, Kyl warned that Akaka's bill, S-147, could lead to Hawaii leaving the union.

The Akaka Bill defines a process in which the federal government, through the Department of the Interior, would recognize a native Hawaiian governing body. Senate Republicans have agreed to allow a floor vote by early August.

"It is difficult to see how a bill touted in Hawaii as a potential path to 'total independence' is going to help reconcile whatever racial divisions exist there," Kyl wrote. "It goes without saying that Congress does not serve the nation's long-term interest by providing vehicles for its citizens to secede from the Union." Kyl previously blocked a Senate vote on the Akaka Bill, but after meeting with Sen. Daniel Inouye earlier this year, he agreed to permit the bill to be voted on by the entire Senate this summer.

In his own comments in the Congressional Record, Akaka said Kyl is wrong. "It is disturbing that opponents to the bill rely so heavily on mischaracterizations of the legislation to advocate their position," Akaka wrote. "It greatly saddened me that opponents to my bill feel the need to rewrite Hawaii's history, as painful as it is for those of us who have lived it. "It is one thing to oppose my bill. It is quite another, however, to trivialize the history of Hawaii."

Gov. Linda Lingle also said yesterday that Kyl is wrong, adding that she is considering going to Washington to lobby for the bill, which is scheduled to be debated in the Senate next month. "We are disappointed because we have worked with him and talked with him a lot," Lingle said. "He simply has a different opinion on this issue. His opinion is wrong, his facts are wrong and now it is up to us to make clear where he is mistaken."

Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs, said Kyl is "attempting to rewrite history." The Akaka Bill, Apoliona said, is not based on a person's race, but instead on individuals tracing their ancestry to indigenous Hawaiians. "The Hawaiians have been here for thousands of years before the settlers, before Westerners ever came here to settle Hawaii," Apoliona said. "A legal relationship with the United States is what we are pursuing. 'Race-based' is an easy thing to stir up fear and mistrust in the community."

Kyl says it would create "a race-based government for native Hawaiians living throughout the United States." "To create a race-based government would be offensive to our nation's commitment to equal justice and the elimination of racial distinctions in the law."

"S-147 represents a step backwards in American history and would create far more problems -- cultural, practical and constitutional -- than it purports to solve. It must be rejected," Kyl said. "Native Hawaiians are not geographically or culturally segregated in Hawaii. They live in the same neighborhoods, attend the same schools, worship at the same churches and participate in the same civic activities as do all Hawaiians," Kyl said.

Also, Kyl insists, there never was a "race-based Hawaiian government, so there is no native Hawaiian government to be restored." The government of Hawaii in 1893, Kyl says, included Americans, Chinese, Japanese, Koreans, Samoans, Portuguese, Scandinavians, Scots, Germans, Russians, Puerto Ricans and Greeks.

"To speak of restoring the 'native Hawaiian' government of 1893 is to ignore the fact that no such racially exclusive government or nation existed," Kyl said.

Honolulu Advertiser, Friday, June 24, 2005

Lingle fires back at foe of Akaka bill

By Gordon Y.K. Pang

U.S. Sen. Jon Kyl, R-Ariz., has stepped up lobbying efforts against the Akaka bill, prompting a rebuke from Gov. Linda Lingle, a proponent of the bill and fellow Republican who yesterday called recent statements by Kyl "false." "I'm disappointed because we've worked with him a lot, we've talked with him a lot; he simply has a different opinion on this issue," Lingle said yesterday. "His opinion is wrong, his facts are wrong and now it's up to us to make clear where he's mistaken, to make it clear to his colleagues."

Lingle's comments were in response to a report released Wednesday titled "Why Congress must reject race-based government for Native Hawaiians" issued by Kyl, chairman of the Senate Republican Policy Committee. The 13-page report lays out his basic argument against the bill — that it creates a race-based government for Native Hawaiians and promotes "racial division and ethnic separatism."

Lingle said the report incorrectly implies that — should the Akaka bill be approved and signed into law — Native Hawaiians would no longer be governed by U.S. laws, she said. "Continuing to put out misconceptions, really, it leaves you with a false conclusion based on facts that simply aren't true," she said.

The governor said she may travel to Washington to lobby for the bill if supporters deem it critical.

With a vote on the Senate floor perhaps just weeks away, both supporters and opponents of the Akaka bill are mobilizing their forces and stepping up their lobbying efforts. Senate Republicans, led by Kyl, have blocked the bill since it was first introduced in 2000, but agreed late last year to allow a vote on the bill by Aug. 7.

Lingle said yesterday she has been getting "some indication" the vote could happen as early as the second or third week of July.

The Senate Republican Policy Committee is composed of GOP Senate leaders and the chairmen of the Senate's standing committees. The committee's role is to formulate and implement policy and help shape the GOP game plan. Kyl has been chairman of the committee since 2002.

The report concludes by saying, "Congress should not be in the business of creating governments for racial groups that are living in an integrated, largely assimilated society."

It was just the latest action Kyl has taken against the Akaka bill. Last week, he inserted into the Congressional Record several documents collectively titled "Hawaii Divided Against Itself Cannot Stand," written by Washington-based attorney Bruce Fein. The goal of that report was "to inform lawmakers and the public about the (b)ill's deficiencies and ramifications," said Fein, who is under contract by the Grassroot Institute of Hawaii, which opposes the bill.

Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs board of trustees, echoed Lingle in criticizing Kyl. "As you heard from the governor, he's wrong on the facts," Apoliona said. "In fact, some of it, he just rewrites history." Apoliona said she remains optimistic about the bill's chances for passage. "This is a time for courageous hearts and strong spirits, and we will forge on," she said.

U.S. Sen. Daniel Akaka, the bill's chief sponsor, took to the Senate floor Tuesday to respond to the Fein articles placed in the Congressional Record.

"This bill is a step in the right direction for all people of Hawai'i because it provides a structured process that will allow us to finally resolve many of the long-standing issues resulting from the overthrow," Akaka said. "It is disturbing that opponents to the bill rely so heavily on mischaracterizations of the legislation to advocate their position."

"It greatly saddens me that the opponents to my bill feel the need to rewrite Hawai'i's history, as painful as it is for those of us who have lived it, in order to advocate their position. It is one thing to oppose my bill. It is quite another, however, to trivialize the history of Hawai'i."

Hawai'i senior U.S. Sen. Dan Inouye, in a written statement, reiterated that the bill is expected to come before the Senate next month. "At that time, all of the issues surrounding the bill, including Sen. Kyl's claims, will be fully debated," Inouye said.

Politicians have not been the only ones stirring as the vote draws near.

Native Hawaiian groups that support a separate, independent Hawaiian nation will gather tomorrow to see if they can come up with a united front against the Akaka bill, said Skippy Ioane, a leader of the Hilo-based Malama Ka 'Aina Hana Ka 'Aina and King's Landing Village. Native Hawaiians would be worse off under the Akaka bill than they are now, Ioane said. "By participating with the Department of Interior, we would be participating in our own identity theft by creating an Indian out of a Hawaiian," he said.

The Grassroot Institute of Hawaii last week ran a nearly full-page advertisement in The Advertiser that also criticized the bill. Running the same week as Kamehameha Day, the ad stated: "The Akaka bill would divide the people of Hawaii forever and undo the unification which made Kamehameha not only the greatest of the Hawaiian chiefs, but one of the great men of world history."

H. William Burgess, an attorney for a group that has opposed Hawaiian-only entitlements and programs, said he and others who are part of the loose-knit "Aloha for All" have been e-mailing lawmakers to support their position that "all citizens of Hawai'i are entitled to equal protection under the law regardless of their ancestry."

Meanwhile, the Council for Native Hawaiian Advancement has been holding a series of workshops in the community to educate people about the impact of the Akaka bill. Jade Danner, information and government affairs manager for the group, said up to $70 million in federal money tied to Native Hawaiian programs, in addition to the jobs and additional dollars they generate, could be lost if the Akaka bill does not pass and litigation seeking to eliminate those programs is successful. A good number of those attending the workshops walk away supporting the bill, Danner said.

Clyde Namu'o, OHA administrator, said the agency is also using its Web page to explain to Native Hawaiians how they can lobby senators about the bill. At least one newspaper advertisement is also planned, he said, for sometime in July.

Namu'o said he believes the Akaka bill now has the necessary 51 votes needed to pass the Senate: all 47 Democrats and the four Republicans who co-sponsored the measure.

The House, which has approved the Akaka bill in previous years, would then have until the end of the 2006 congressional year to move the bill out. Supporters hope, however, that if the Senate approves the bill, a vote can come before the House sometime in the fall to maintain momentum. The Bush administration has not stated a position on the bill.

Pro and con: Proponents call it a critical step toward making right the injuries suffered as a result of the overthrow of the monarchy and necessary to stave off challenges to Hawaiian-only programs. Some people oppose Hawaiian-only programs as divisive and unconstitutional. Some Native Hawaiians who want a separate, independent nation also oppose the bill.

Honolulu Advertiser, Wednesday, June 29, 2005

Akaka bill has votes to pass, Inouye says

By Dennis Camire
Gannett News Service

WASHINGTON — A bill recognizing Native Hawaiians could come up for a Senate vote as soon as the week of July 18-22, and Hawai'i's two senators said yesterday they believe there are enough votes for it to pass.

"It's supposed to come up," U.S. Sen. Dan Inouye said. "We'll have a majority."

In addition to Inouye, key senators are predicting they'll have the votes to pass the legislation, with six Republican senators joining 44 Democrats in support.

U.S. Sen. Daniel Akaka, the bill's chief sponsor and namesake, said Senate Majority Leader Bill Frist referred to a commitment he made last year to schedule a vote before Aug. 7 and said the only time left was in July. "They were debating whether we should have the first week or the second week," Akaka said. "The leader (Frist) even asked me and I said sooner rather than later in the month."

Akaka's bill picked up additional Republican support yesterday with Sen. John McCain, R-Ariz., saying he will vote for it on the floor. McCain, who had raised questions about the bill in the past, said he will vote for the bill primarily because it has the support of so many Hawai'i officials, including Republican Gov. Linda Lingle. "Here in Washington, it's hard for us to go against the view of the governor, the Legislature — Republican and Democrat — the senators and the congressmen," said McCain, chairman of the Senate Indian Affairs Committee.

The legislation, originally introduced in 2000, calls for the federal government to recognize Native Hawaiians in the same way that it recognizes American Indians and Native Alaskans. The measure would create a framework for Native Hawaiian governance, which would be able to negotiate with the United States and Hawai'i over disposition of Native Hawaiian assets.

Support questioned

Richard Rowland, president of the Grassroot Institute of Hawaii, said he was surprised by McCain's support of the Akaka bill. "It certainly sounds like he's like many others that need a little education on the bill and what it says," Rowland said. "It would seem to me that as a senator, he should be concerned about the constitutionality (of the bill). Is it constitutional and is it good for the United States?" Rowland added: "I think maybe we better see about getting him better educated."

The institute, Rowland said, does not know if the bill has enough votes for passage this summer but is not counting supporters and opponents. While he and other institute members are bothered by many aspects of the bill, it is not lobbying to defeat it, he said. "Our main thrust here is education," he said. "We want to make sure this gets full disclosure. We don't think the opposing side has been aired, hardly at all." For instance, when Hawai'i became a state, he said, there was a vote among residents. "Here, they're talking about starting a complete, separate sovereign entity without a vote of the people, any of the people." Rowland said the institute "would be pleased with a delay in the vote until there was more time for discussing."

With McCain, the bill has six Republican votes. The other five — Sens. Ted Stevens and Lisa Murkowski of Alaska, Gordon H. Smith of Oregon, Lindsey Graham of South Carolina and Norm Coleman of Minnesota — are co-sponsors of the bill. With the backing of all 44 Democratic senators and the one independent — Sen. Jim Jeffords of Vermont — the bill would have at least 51 votes when it gets to the floor.

Akaka said he was confident that the entire Democratic caucus would vote for the bill, since none have said they are not backing it. Senate Democratic Leader Harry Reid of Nevada also told the Democratic caucus yesterday that he expects them to support the bill, Akaka said.

Influential opponent

Still, opposition remains from Sen. Jon Kyl, R-Ariz.

Kyl, chairman of the Republican Policy Committee and a long-time opponent of the Akaka bill, issued a report last week saying the legislation would create a race-based government for Native Hawaiians and promotes "racial division and ethnic separatism."

Smith, of Oregon, warned that Kyl is "a senator of genuine influence," but he added that he believes the bill will pass. "But I think Jon Kyl has just begun working on it so I don't know how successful he will be," Smith said. "My own position on it is that the Hawaiians are not unlike Native Americans of North America and it costs us very little to treat them as they would like to be treated."

Inouye, Akaka, Stevens and other supporters of the bill said they doubted Kyl could prevail on the Senate floor and block passage. "I still think we could do it," Inouye said.

Stevens said he believes the opponents have misunderstood what the bill does. "It really isn't a sovereignty bill," said Stevens, a long-time supporter. "It's a bill to give people recognition and it could lead later to a sovereignty approach if Congress wants to go that far."

Lingle spokesman Russell Pang said the governor "appreciates the ongoing support of Sen. McCain on this issue that is important not just to Native Hawaiians, but all the people of our state."

Last week, Lingle criticized Kyl for making what she described as "false" and "mistaken" statements, adding that she is considering going to Washington to lobby if the vote is close. Pang yesterday said the governor had not yet decided whether to make another trip. Lingle testified for the bill before the Indian Affairs Committee in March, and also in 2003.

Surpassing 51 votes

Clyde Namu'o, administrator for the Office of Hawaiian Affairs, also was pleased by McCain's commitment. "That's great because that will push it over the 51 mark," Namu'o said. It was assumed McCain would vote for the bill because it moved out of the Indian Affairs Committee — the panel he chairs — but until now supporters had no guarantee of that, Namu'o said.

Bill supporters want to be able to get 65 votes in the Senate to persuade the White House to support the measure, Namu'o said.

The Bush administration has to date been silent on the bill.


On July 5, 2005 the Grassroot Institute of Hawai'i released the report of a scientific survey of Hawai'i's people done by an out-of-state professional survey company. The survey showed that out of 10,000 people who were called on the telephone, 67% of those who responded to the question said they are opposed to the Akaka bill. Furthermore, 45% feel strongly enough about this issue that they are less likely to vote for any politician who supports the bill. For results of this survey, and also other surveys done previously, see:


On July 7, 2005 Constitutional law expert, attorney Bruce Fein challenged Governor Linda Lingle, or Hawai'i Attorney General Mark Bennett, to a debate on the Akaka bill. Attorney H. William Burgess, chairman of Aloha For All, issued the following press release:


On June 24, 2005, in response to the Republican Policy Committee report "Why Congress Must Reject Race-Based Government for Native Hawaiians", Governor Lingle said, referring to Committee Chairman Senator Jon Kyl, "His opinion is wrong, his facts are wrong and now it's up to us to make clear where he's mistaken, to make it clear to his colleagues." To assist the Governor in making the Akaka bill, and its consequences, clear for members of Congress and for the people of Hawaii, Grassroot Institute of Hawii has made tentative arrangements for two debates this month at the Hawaii State Capiton Auditorium between Constitutional attorney Bruce Fein and Governor Lingle or her Attorney General, Mark Bennett. Today Mr Fein sent the open invitation (attached and pasted below the asterisks) to the Governor to debate the Akaka bill. Grassroot Institute asks each of you to please encourage, insist or demand that the Governor and Attorney General Mark Bennett accept this challenge. The citizens of Hawaii deserve a full and informed understanding of what this bill would mean for Hawaii, its citizens, and for the United States.


The actual challenge to debate, on letterhead stationery in pdf format, can be downloaded from:

The Honolulu Advertiser, July 8, 2005

Opponents ask OHA's aid to derail Akaka bill

By Gordon Y.K. Pang

Native Hawaiian groups that oppose the Akaka bill say they want the Office of Hawaiian Affairs to use some of its resources to thwart the legislation's passage rather than lobby for it.

Meanwhile, a lawyer for a separate group seeking to stop the federal recognition bill said he wants Gov. Linda Lingle, a supporter, to debate him on the merits of the legislation.

Both demands were made yesterday as the countdown continued toward a vote on the Akaka bill, which sets up a process that would lead to the U.S. government's recognition of the nation's 400,000 Native Hawaiians in the same way that it recognizes American Indians and Alaska natives. A Senate floor vote on the measure is expected in the next few weeks.

Lingle, OHA and other supporters say the bill is an important step toward making right the injuries suffered as a result of the overthrow of the monarchy and is necessary to stave off challenges to Hawaiian-only programs.

About 20 members of the "Hui Pu," or gathering, of Native Hawaiian groups that oppose the Akaka bill on a number of grounds, showed up yesterday at OHA's regularly scheduled meeting in Honolulu, demanding that OHA spend money to explain the positions of those against the controversial measure. Ikaika Hussey, a spokesman for Hui Pu, said OHA has spent millions promoting the Akaka bill through an advertising campaign, hiring a Washington-based lobbying group and other efforts. "We're saying they also need to put up a balanced perspective," Hussey said after the visit with OHA leaders. What's more, the native Hawaiian groups want OHA to hold a statewide series of hearings on the bill to allow the public to air their views. Anti-Akaka groups do not believe a majority of the public supports the bill, Hussey said.

No public hearings on the measure have been held in Hawai'i since August 2000, and since both Congress and the state Legislature have refused to do so, it is up to OHA to convene the hearings, he said.

OHA administrator Clyde Namu'o said trustees' support of the Akaka bill does not mean opposition to independence from the United States, which many of the Hui Pu groups want.

Namu'o said many of those in the independence movement are concerned that once federal recognition is achieved, a drive for independence may be diminished. "But that remains to be seen," Namu'o said. "If, truly, the Hawaiian community feels independence is the noblest of goals, regardless of whether federal recognition comes about, it could still be pursued."

Namu'o noted that OHA has given some support to the independence movement, including sponsoring a visit from a noted scholar who has argued that Hawaiians should not seek the same federal recognition as achieved by the other indigenous groups.

Since May 2003, OHA has paid the lobbying group Patton Boggs about $650,000 to push Congressional members for passage of the Akaka bill, Namu'o said. Namu'o said he is uncertain exactly how much more OHA has spent on the Akaka bill, although he acknowledged that a recent scientific poll and OHA's Kau Inoa project to get Native Hawaiians on a registry are somewhat related to the Akaka bill. Some who support the Akaka bill, including Hawaiian homestead groups and the Council for Native Hawaiian Advancement, may get funding for specific projects from OHA, Namu'o said, but not to lobby for federal recognition.

Also yesterday, Washington-based attorney Bruce Fein called on Lingle to debate him on the bill. Fein has been hired by the Grassroot Institute of Hawaii, a conservative nonprofit organization opposed to federal recognition for Native Hawaiians, "to get the Mainland educated about the Akaka bill and its ramifications," according to Grassroot president Richard Rowland.

Fein, in his letter to Lingle, said she is wrong in suggesting that the Akaka bill could not result in Native Hawaiians being allowed to ignore the U.S. Constitution or U.S. laws in favor of their own.

Fein and the Grassroot Institute believe the Akaka bill is race-based and, therefore, unconstitutional.

"I think you would agree that the people of Hawai'i, whether supporters, detractors or neutral on the Akaka bill, would be disserved and deprecated by the absence of an informative and mutually respectful debate over the legislation," Fein wrote.

The governor's office yesterday did not respond to a request for a comment on Fein's letter.

West Hawaii Today (Kona), Wednesday, July 13, 2005

Kyl argues against bill


by Samantha Young
Stephens Media Group

WASHINGTON -- Previewing an upcoming Senate debate on Native Hawaiian rights, Sen. John Kyl, R-Ariz., said Tuesday he will seek to require that Hawaii citizens vote whether natives should be given sovereignty by the federal government.

An ardent critic of Native Hawaiian Recognition Bill, Kyl said he plans to introduce an amendment requiring a statewide referendum before the U.S. government could recognize Native Hawaiians as an independent entity similar to Indian tribes.

Kyl said he would offer his amendment as early as next week when the Senate is expected to take up a bill establishing a process for an estimated 400,000 Native Hawaiians to govern themselves.

"When I was first told about this, at least there was an inference that this couldn't be approved until the people of Hawaii have some referendum on it and approve it, not just the people of Native Hawaiian blood voting but all the (citizens of Hawaii)," Kyl said. "That's not the way I read the legislation so one of our methods would simply provide that would be a referendum for Hawaii."

The referendum is among several amendments Kyl said he plans to offer to the recognition bill. He declined to discuss his other amendments but said he would urge senators ultimately to vote against the federal recognition bill.

Sen. Daniel Akaka, D-Hawaii, issued a statement explaining that the recognition process already provides for a referendum of Hawaii voters. So, Kyl's amendment would not be necessary.

"Specifically, before any of the negotiations can be implemented, state and federal laws have to be amended, and, most likely, the state Constitution will have to be amended," Akaka said.

For example, if the Department of Hawaiian Home Lands and the Office of Hawaiian Affairs become a part of an independent entity, Hawaii's state constitution will need to be modified, Akaka said.

"Therefore, the State of Hawaii will have an opportunity for a referendum for any implementing changes to the state constitution and through the state legislature for any changes to state law and through Congress for any changes to federal law," he added.

Sen. Daniel Inouye, D-Hawaii, declined to comment. Inouye spokesman Mike Yuen said the senator "believes it would be premature at this time to comment on any amendment that Senator Kyl might introduce."

Advocates of the bill point to a groundswell of support for the legislation in Hawaii and in Washington. The state's four-member congressional delegation, along with the Office of Hawaiian Affairs, Gov. Linda Lingle and the state legislature back the bill.

"Native Hawaiians should be treated the same as other indigenous peoples of the U.S. and they don't have any referendum requirement," said Martha Ross, OHA Washington bureau chief.

Critics of Hawaiian federal recognition applauded the referendum proposal.

"I think it is an excellent idea. After all, this bill would allow state officials to surrender jurisdiction of part of Hawaii without the consent of the people of Hawaii," said H. William Burgess of Honolulu who has led a coordinated opposition movement against the bill.

A recent survey by the Grassroot Institute of Hawaii showed that two out of three households in the state opposed awarding Native Hawaiians independence, which could include handing over jurisdiction of Hawaiian Home Lands and allowing Native Hawaiians to govern themselves.



On July 13, 2005, U.S. Assistant Attorney General William Moschella released a letter to Senator John McCain, Chairman of the Senate Select Committee on Indian Affairs, identifying several important objections to the Akaka bill on behalf of the U.S. Department of Justice. Mr. Moschella's letter came only a few days before the full Senate was scheduled to debate and vote on the bill, S.147. The letter, on official stationery, can be downloaded in pdf format from:


Review of Bush Administration Actions and Statements on Native Hawaiian Recognition Bill, 2000-2004

In addition: In June 2003 Newspaper Articles Describe Bush Administration Policy Memos Issued Weeks or Months Previously, Questioning the Constitutionality of Race-Based Hawaiian Programs -- OHA Intensifies Local Propaganda and Washington Lobbying For Akaka Bill, Citing Threat Posed By Memos. Probable contents of letter from DOJ attorney Will Moschella to Senator Olympia Snowe in 2003, cobbled together from published sources (note: Will Moschella is the same person who authored the new memo of objections to the Akaka bill released July 13, 2005).


Honolulu Advertiser, Thursday, July 14, 2005

Justice Dept. wants Akaka bill altered

By Gordon Y.K. Pang

The Department of Justice yesterday raised "serious policy concerns" about the Akaka bill. Among other issues, the department wants to shorten or eliminate the time allowed for monetary claims by Hawaiians; add language that explicitly prohibits gambling; and allow non-Hawaiians to sit on the panel that would chart the course of a sovereign Hawaiian entity.

The department issued a two-page letter stating those concerns about the Native Hawaiian federal recognition bill to U.S. Sen. John McCain, R-Ariz., chairman of the Senate Indian Affairs Committee, just days before a crucial Senate vote is expected.

Opinions were mixed yesterday on what impact the letter might have on the bill's chances.

The Justice Department wants:

* Explicit language precluding future claims for land once held by Native Hawaiians and, if not, shortening the statute of limitations for claims from the proposed 20 years.

* Lawmakers to ensure that the bill would in no way interfere with U.S. military operations.

* Further clarification that the governing entity would not have gambling rights.

* Clarification on who would have jurisdiction to enforce criminal laws on Hawaiian land.

* Non-Hawaiians to be eligible to serve on a commission that would certify who would be part of a Native Hawaiian government.

The department also raised the issue of whether recognizing Native Hawaiians would be constitutional, but suggested several changes that may resolve the Bush administration's concerns.

The administration had not taken a position on the bill, known as the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, but Republicans have blocked it since 2000 over objections that it is racially based.

The bill would establish a process for the United States to formally recognize the nation's 400,000 Native Hawaiians as an indigenous people similar to American Indians and Alaska Natives. Native Hawaiians would then decide whether to pursue a sovereign government that could negotiate with the U.S. and the state of Hawai'i over land use and other rights.

The Justice Department letter was signed by William Moschella, an assistant attorney general who had previously raised constitutional concerns over separate legislation aimed at helping Native Hawaiians.

Hawai'i Attorney General Mark Bennett, who has been lobbying senators to support the bill on behalf of Gov. Linda Lingle, said he views the letter as "an extremely positive development."

But Bennett acknowledged the Justice Department again raised the question of whether the bill was constitutional, specifically whether a Native Hawaiian government would conflict with the Supreme Court ruling in Rice v. Cayetano in 2000. The court ruled it was unconstitutional to prohibit non-Hawaiians from voting for trustees to the state Office of Hawaiian Affairs.

But Bennett does not view that as a problem. "I feel very confident that the Supreme Court would uphold the Akaka bill," he said. "I think it's quite significant that the Department of Justice didn't express an opinion that the bill was unconstitutional, but rather simply said the Supreme Court had left this as an open question, which indeed the Supreme Court did."

Hawai'i's senators were cautiously optimistic.

Mike Yuen, a spokesman for U.S. Sen. Dan Inouye, D-Hawai'i, said: "The senator is pleased that the administration has now provided its views on the Native Hawaiian Government Reorganization Act. He looks forward to working with the administration to ensure that the legislation continues to have bipartisan support that would lead to its passage."

Akaka also expressed hope. "I welcome the administration's suggestions and am working with administration officials to address the issues expressed in their letter," he said in a statement. "I am confident we can reach common ground on the identified issues. I am even more optimistic about our efforts to enact this legislation."

Haunani Apoliona, the chairwoman of the OHA board of trustees, and OHA administrator Clyde Namu'o said they believe some of the issues raised in the letter can be easily addressed while others may not. "I don't think our senators and the governors are going to rewrite everything," Apoliona said. "What this provides is a point of discussion." Namu'o said OHA would not have any problems with the bill being amended to include the Justice Department's language pertaining to gambling and criminal jurisdiction. "They're pretty innocuous," he said.

The issue of federal military bases is something that would have to be agreed to between the federal government, the state and the new government entity down the line and is not something that can be resolved immediately, Apoliona said. On the issue of a shorter time frame for Native Hawaiians to make claims, Apoliona said, "20 years is good. ... It's very generous from what I understand, but we're not advocating shortening it."

William Burgess of Aloha for All, which opposes the Akaka bill, said the letter points out to senators that "there are some absurd features to this law and if you really want to pass it, then you've got to get rid of these things." Burgess said he is pleased the letter made a reference to the bill's constitutionality. "Is the whole damn thing constitutional? I think this is a message from the administration saying that if you want us to even seriously consider that, then you've got to clean up these other five things," he said. "I think it's a good letter," he said. "It's realistic. It doesn't preclude the proponents of the bill from doing something." Burgess said Aloha for All would still oppose the bill if the issues raised in the letter were addressed because his group's basic premise is that the legislation is race-based. But, he said, "it would make it harder to convince people that it's absurd."

Lilikala Kame'eleihiwa, former director of the University of Hawai'i at Manoa's Center for Hawaiian Studies, said she was appalled by the suggestion in the letter that future claims for reparations be eliminated, or the time frame reduced. "The Department of Justice shows that it has no justice for the native people by this letter," she said. "Precluding us from gaining any land while having a government and federal recognition is unacceptable to all Hawaiians." Rather than shortening the time frame for making claims, she said, "we thought 20 years was too short. We had over 100 years of America's government taking our land illegally and we're supposed to fix it all in 20 years? I don't think so."

Richard Rowland, president of the Grassroot Institute of Hawai'i, said he's happy the Bush administration has begun to voice its concerns, but noted the letter does not address the institute's main concern that a state vote should be held on the bill. "Our position is we've got to have a vote of the Hawai'i people," Rowland said. While he and other members of the institute "think this bill stands democracy on its head," it would be more palatable if a majority of the state's voters supported it in a referendum, Rowland said.

Lingle announced yesterday that she will go to Washington, D.C., next week to talk to key senators about the Akaka bill. Lingle will join Bennett, Namu'o and eight of the nine OHA board members who are also scheduled to be in the capital when the Akaka bill is debated on the Senate floor.


The major criticisms of the Akaka bill raised in a letter from the U.S. Department of Justice:

• The provision for claims by Native Hawaiians against the federal government is too open-ended. The current draft of the bill sets a statute of limitations allowing a 20-year time span for claims — starting the clock from when the new government gains federal recognition. More typically, the window for federal claims remains open for two years.

• Amendments should clarify that negotiations among the federal, state and Native Hawaiian governments must not lead to concessions that would interfere with military operations. This concern arises from the fact that military installations at Pearl Harbor, Hickam and Lualualei sit on Hawaiian kingdom lands ceded to the federal government. Some have asserted that this land, or at least compensation for it, should go to Hawaiians.

• The bill should state clearly which government would enforce criminal laws on Native Hawaiian lands. Officials of the U.S. Department of Interior have said they don’t want a repeat of the clashes that have arisen with Native American tribes over this issue.

• The legislation should specifically bar gambling rights for a Native Hawaiian government. Language in the current draft already indicates that the new law would not extend existing native gaming authorization to Hawaiians; it was inserted to assuage concerns among some tribes about casino competition. The Justice Department seeks a clearer prohibition.

• The fifth request deals not with questions of government policy but with constitutional concerns over racial provisions of the bill that may conflict with the U.S. Supreme Court ruling in Rice v. Cayetano. The department suggests one remedy: The commissioners named to certify the Native Hawaiian membership rolls should be required to have expertise with Native Hawaiian issues but not to be Hawaiian themselves.

The Honolulu Advertiser, Thursday, July 14, 2005, EDITORIAL

Feds draw the lines in Akaka bill debate

The president himself has not commented specifically on the idea of federal recognition to Native Hawaiians, but this week more light was shed on how the Bush administration views the measure known as the Akaka bill, which would grant this political status for Hawai'i's indigenous people.

For both supporters and opponents of the Akaka bill, the letter from William E. Moschella, assistant attorney general for the U.S. Department of Justice, provides important insight. It identifies some of what the administration sees as fault lines in the legislation, although some concerns are left unclear.

The Justice position on the issue of claims seems foggy. In one sentence, Moschella writes that language should preclude potential native claims - clearly, the federal government can't bar the doors of the federal courthouse. Then he asserts that the 20-year statute of limitations is too long, which suggests that claims could be entertained but that the period they'll be accepted should be curtailed.

On the other points, the administration makes more straightforward complaints. While open to debate, none of these objections seem to be deal-breakers. First, Justice wants certainty that negotiations would not result in any impediment to U.S. military operations. Notwithstanding the more radical assertions by some Hawaiians that Pearl Harbor by rights belongs to them, there's no evidence that this position enjoys broad support.

Second, the current bill already states that it does not authorize native gaming provisions, but perhaps this can be stated more strongly.

Third, Justice makes a strong case that jurisdictional questions, especially over criminal law enforcement, should be answered. In a state as unsegregated as Hawai'i, such conflicts would be insurmountable.

Finally, Justice wants the commissioners who will certify the membership rolls be required only to show expertise on Native Hawaiian issues and not necessarily be Native Hawaiians themselves. It's wise to remove provisions that unnecessarily test constitutional boundaries set out in the landmark Rice v. Cayetano case.

With a vote on the bill expected within about one week, it's important for those on either side of the fence to craft a response that addresses these points - either by crystallizing objections overlooked here, or by clarifying how the concerns either are unwarranted or can be resolved in a final draft.

In either case, the next few days demand timely, thoughtful responses.

The president himself has not commented specifically on the idea of federal recognition to Native Hawaiians, but this week more light was shed on how the Bush administration views the measure known as the Akaka bill, which would grant this political status for Hawai'i's indigenous people.

The Honolulu Advertiser, Thursday, July 14, 2005

Measure faces amendments in Senate

Advertiser Washington Bureau

WASHINGTON - When the bill to give federal recognition to Native Hawaiians comes up for Senate debate next week, Sen. Jon Kyl will be armed with amendments to modify it.

Kyl, R-Ariz., the bill's leading opponent, said that one of his proposals would stop the process for federal recognition unless it's approved in a referendum of all Hawai'i residents. "I think that makes eminent sense," said Kyl, chairman of the Republican Policy Committee. "I think that is an amendment that will pass."

But Sen. Daniel K. Akaka, D-Hawai'i, said the process outlined in the bill already allows for a referendum. "Before any of the negotiations can be implemented, state and federal laws have to be amended and, most likely, the state constitution will have to be amended," said Akaka, chief sponsor of the bill that takes his name.

The disagreement between Akaka and Kyl provide a snapshot of the arguments that are likely to be made on the Senate floor when debate opens next week on the proposal that has been around for five years.

Akaka said if the state Department of Hawaiian Home Lands and the Office of Hawaiian Affairs become a part of the Native Hawaiian governing entity that would be created, then Hawai'i's state constitution would need to be modified. That would allow the state to hold a referendum of all residents to approve any needed changes to the state constitution, Akaka said. The Hawai'i Legislature would have to approve any changes to state law, he added, and Congress would have to approve any changes to federal law.

Kyl declined to provide details on other amendments he intends to offer. "What we have tried to do is identify what we think are some of the most vulnerable parts of the bill in terms of the way people would look at it and see whether they would like to make changes in those parts of the bill," Kyl said.

Sen. Dan Inouye, D-Hawai'i, declined to comment on Kyl's referendum amendment, saying it would be premature because he has not yet seen the proposal, according to spokesman Mike Yuen. "With Senate floor debate on this crucial legislation ... just a few days away, it is important to have a full reading of the precise language of any amendment that may be introduced," Yuen said. "Sen. Inouye reiterated that he is looking forward to the forthcoming floor debate."

Kyl issued a report last month saying the legislation would create a race-based government for Native Hawaiians and promote "racial division and ethnic separatism."

While he is leading Republican opposition to the bill, Kyl said he didn't know whether he had enough votes to block its passage. He also said he would not try to filibuster it. "You understand that I'm keeping my commitment to try my best to ensure that we have an up-or-down vote and, therefore, 51 votes one way or the other wins," he said. "I don't have some of my colleagues talked into that yet, but I have a responsibility to try very hard and I believe that in the end, I will be successful in doing that to allow it to come to a straight up-or-down vote plus amendments."

The bill has the support of six Republicans, including Sen. John McCain of Arizona, chairman of the Indian Affairs Committee. With the Republicans and the backing of all 44 Democratic senators and the one independent - Sen. Jim Jeffords of Vermont - the bill would have at least a majority vote on the floor.

Despite the discussions about the bill over the past five years, some Republicans remain undecided about how they might vote. "I need to talk and think and read more about it," said Sen. Craig Thomas, R-Wyo., a member of the Indian Affairs Committee, which approved the bill in the spring. "I'm a little concerned about it in that it seems like ... it's quite a different thing than sovereignty of the Indian tribes. I'm undecided on it because I'm uninformed."


All the talk about Republican Senators planning to offer and debate multiple amendments to the Akaka bill, and Department of Justice objections to the bill that would require substantial amendments to remedy, prompted an editorial cartoon from Corky at the Honolulu Star-Bulletin. The cartoon was published at


The U.S. House Judiciary Subcommittee on the Constitution will hold an oversight hearing entitled:

"Can Congress Create A Race-Based Government? -- The Constitutionality of H.R.309/S.147".

This hearing will be 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 will happen, as Bruce Fein, Mark Bennett, and H. William Burgess appear before a Congressional subcommittee on Tuesday July 19.

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 will take 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:

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: 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 very powerful, 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."

Testimony by Honolulu attorney H. William Burgess, on behalf of the Aloha For All group, can be seen at:


July 15: The Grassroot Institute of Hawaii announces that the survey previously based on 10,000 households was expanded to include all the rest of Hawai'i's 290,000 households, and the results are still essentially the same as before: 67% of those who answer the question oppose the Akaka bill, and 45% would be less likely to vote for any politician who supports the bill. The complete results for the total-coverage survey have been added to the bottom of the survey webpage at
Honolulu Advertiser, Saturday, July 16, 2005

Legality of Akaka bill to be debated

By Gordon Y.K. Pang

Some Republicans in the U.S. House of Representatives may be preparing to fight the Akaka bill, which is expected to come to a vote in the Senate next week.

The House Judiciary subcommittee on the Constitution has scheduled a hearing Tuesday on whether the bill is constitutional. The measure would recognize Native Hawaiians as an indigenous people and would create a process for Hawaiians to form their own government.

The judiciary subcommittee cannot block the bill's progress in the House since the House Resources Committee has jurisdiction over the measure, but the timing of the hearing suggests that opponents may be sending a message.

The Akaka bill, named for its main sponsor, U.S. Sen. Daniel Akaka, D-Hawai'i, has languished in the Senate since 2000 because of opposition from those who view it as a race-based initiative.

"The request for the hearing was certainly initiated by those that oppose the Akaka bill because those that support the bill, including myself, don't question the constitutionality of the bill," said U.S. Rep. Ed Case, D-Hawai'i. "Either the external opposition prevailed upon that chair to at least hold the hearing, or the members of that committee on the majority side have some opposition to the bill. But thus far, there's no reason to conclude that." Case added: "My own feeling is that it is an accommodation to external opposition to the bill."

U.S. Rep. Neil Abercrombie, D-Hawai'i, agreed. "It's more of an academic exercise," he said. Given that most of Hawai'i's elected officials of various ideological stripes support it, "those raising the question, it seems to me, are on the extreme margins — rather obsessively I would think — on this issue."

H. William Burgess, head of Aloha for All, which opposes the Akaka bill, said he was invited to testify at the hearing along with state Attorney General Mark Bennett and Washington, D.C.-based attorney Bruce Fein. Bennett will represent the state, which supports the bill. Fein is a paid consultant for the Grassroot Institute of Hawaii, which opposes the bill. "This is an excellent opportunity to put before Congress and the public on a national stage the radical nature of what the Akaka bill proposes," Burgess wrote to members of his organization.

While the bill passed the House in 2000, and has had the support of the Resources Committee, Case said he expects some Republican objections. "I obviously expect some opposition," he said. "I do not believe it is anywhere close to a majority of the House. I believe the support is there."

Officials from the state Office of Hawaiian Affairs hope that if the bill is approved by the Senate next week it could get to the floor of the House as early as the end of the month. "There's a possibility it would be before the August recess," Case said. "Other than that, we would hope to bring it to a vote in September."

Most of the political focus has been on the Senate, but conservative Republicans in the House have also had concerns about the bill.

U.S. Rep. F. James Sensenbrenner Jr., R-Wis., the chairman of the Judiciary Committee, raised early constitutional questions. U.S. Rep. Steve Chabot, R-Ohio, the chairman of the Judiciary Subcommittee on the Constitution, has tended to favor a strict reading of the Constitution and is critical of what he believes are activist judges who interpret broader rights into the law.

In Honolulu, board members for OHA were preparing for the trip to Washington, D.C., for last-minute lobbying and to witness the Senate vote. Gov. Linda Lingle also is scheduled to go.

"The U.S. Senate debate and vote would culminate five years, almost to the date, since the introduction of federal legislation to extend recognition to Native Hawaiians and to reaffirm the legal and political relationship of Native Hawaiians with the United States," said OHA chairwoman Haunani Apoliona.


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