Bush Administration Strongly Opposes Passage of the Akaka Bill -- Department of Justice urgent letter to U.S. Senate Majority Leader Bill Frist on June 7, 2006 following 3 hours of Senate debate

(c) Copyright 2006 by Kenneth R. Conklin, Ph.D.

A new letter from the Bush administration on June 7, 2006 strongly opposes the Akaka bill. The opening sentence says:

"The Administration strongly opposes passage of S.147"

The letter is from William E. Moschella, Assistant Attorney General of the United States, addressed to Senator Bill Frist, Majority Leader of the Senate. Some or all of the Moschella letter was read on the floor of the U.S. Senate by Senator Jeff Sessions (R,AL) during an unusual out-of-sequence ten-minute speech approximately 7:15 to 7:25 PM Eastern Daylight Time on Wednesday June 7. Senator Sessions clearly believed it was important to circulate this letter among all the Senators and their constituencies before the crucial cloture vote scheduled for 12:45 PM on June 8.

(1) Attorney General Moschella's letter to Senator Frist; (2) political analysis


(1) Attorney General Moschella's letter to Senator Frist

June 7, 2006

The Honorable Bill Frist
Majority Leader
United States Senate
Washington, D.C. 205 10

Dear Mr. Leader:

The Administration strongly opposes passage of S.147. As noted recently by the U.S. Civil Rights Commission, this bill risks "further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege." As the President has said, "we must ... honor the great American tradition of the melting pot, which has made us one nation out of many peoples." This bill would reverse that great American tradition and divide people by their race. Closely related to that policy concern, this bill raises the serious threshold constitutional issues that arise anytime legislation seeks to separate American citizens into race-related classifications rather than "according to [their] own merit[s] and essential qualities." Indeed, in the particular context of native Hawaiians, the Supreme Court and lower Federal courts have invalidated state legislation containing similar race-based qualifications for participation in government entities and programs.

While this legislation seeks to address this issue by affording federal tribal recognition to native Hawaiians, the Supreme Court has noted that whether native Hawaiians are eligible for tribal status is a "matter of dispute" and "of considerable moment and difficulty." Given the substantial historical, structural and cultural differences between native Hawaiians as a group and recognized federal Indian tribes, tribal recognition is inappropriate for native Hawaiians and would still raise difficult constitutional issues.


William E. Moschella
Assistant Attorney General

CC: The Honorable Harry Reid
Minority Leader

Here is a photograph of the letter on official stationery, with Mr. Moschella's signature. In case there's any difficulty seeing the letter here, it can also be seen at

** Additional note: Transcripts of the three-hour Senate debate from Wednesday June 7, plus all further transcripts related to the cloture motion and possible further debate on the Akaka bill, are placed on this website as soon as they become available from the Library of Congress (24-48 hours). See:
The history of the Akaka bill for 2005-2006, including news reports and commentaries, can be followed at


(2) Political analysis

The letter from the Department of Justice to the Senate Majority Leader clearly shows that Senators Inouye and Akaka were trying to mislead their colleagues to have them believe that the Akaka bill has been approved by DOJ.

Senator Inouye, apparently referring to the new S.3064, said in Wednesday's debate that the bill is the result of successful negotiations with DOJ. However: (a) The bill under consideration for the cloture petition and being debated for over three hours on the floor of the Senate was S.147, not S.3064; and (b) as the new letter from Mr. Moschella shows, DOJ most certainly does NOT approve of even the newer version S.3064. For DOJ to issue such a letter in the evening hours is quite unusual. For Senator Sessions to quote from that letter as soon as possible, and at 7:15 PM local time on the floor of the Senate, shows the urgency of this matter.

On May 25 Senator Akaka finally introduced in the Senate the bill now numbered S.3064, which is the bill he placed on his Senate website in mid-September 2005. At that time the entire Hawai'i delegation made a great noise that this new Akaka bill was the product of negotiations with the Department of Justice which had successfully resolved all concerns. A few days thereafter the DOJ issued a statement saying that there were still major concerns about both the appropriateness of such a policy and the (un)constitutionality of the bill.

Senator Akaka then allowed that alleged amended bill to sit dormant without ever introducing it, until May 25 when it had a "first reading" and received bill number S.3064. That created the impression that S.3064 was now the active version of the bill.

However, on June 6 a cloture motion was made for the older version, S.147. That seemed very strange. It was not an accident. Every reference to the Akaka bill in the cloture motion and the unanimous consent scheduling for the following days referred to S.147.

A logical explanation would be that the alleged amendment S.3064 was simply a decoy posted by Senator Akaka last September for the purpose of fooling DOJ and the Bush administration into thinking that it would become the real Akaka bill. By fooling DOJ with this decoy, the Hawai'i delegation successfully avoided having the Bush administration make any public statement opposing the bill, thereby giving the public the impression that the bill had the President's blessing or at least acquiescence. S.3064 remained a decoy even after being formally introduced on May 25, as shown by the fact that the subject of the cloture petition was S.147, not S.3064.

Let's also recall that the U.S. Commission on Civil Rights reported on S.147; and when their scathing report was issued, the Hawai'i delegation bitterly complained that USCCR had not taken note of the (allegedly) "amended bill." As though anyone should make a determination based on a bill that was never (yet) introduced! Furthermore, the new S.3064 in no way addresses the policy and Constitutional concerns which the DOJ has consistently expressed all along and continues to express in the Moschella letter of June 7.

It now appears that the Hawai'i delegation has been playing fast and loose for several years, trying to deceive both the Bush administration and the general public regarding what the Akaka bill is really all about. The chickens have now, at long last, come home to roost. May this bill now finally get the cremation and burial it so richly deserves.

Shame on Governor Linda Lingle for squandering her political capital in Washington on the Akaka bill when there are so many productive things she might have used it for.

Shame on Attorney General Bennett whose title tells us he surely knew (or should have known) all along that this bill is bad policy and worse law.

Shame on our Legislators for repeatedly voting in favor of resolutions supporting the Akaka bill even when some of them privately said they think it's disgusting. They are cowards, and they also refused to place the issue on the ballot for Hawai'i's people to vote.

Shame on them all, plus the OHA trustees, for spending many millions of dollars of our government money on lobbying, advertising, consultants' fees, postage, first-class travel, etc. Shame on them all for putting us through this wringer for so many years, causing divisiveness in this land of Aloha.

It's time for the people of Hawai'i to stand up and be counted. E ku'e kakou i ka palapala a Akaka, a me na po'e kako'o ana kela. (Let's all stand opposed to the Akaka bill and to the people supporting it).


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(c) Copyright 2006 Kenneth R. Conklin, Ph.D. All rights reserved