Akaka Bill -- OHA flier "The Time is Now" mass-mailed May-June 2006 -- Comments and Corrections

Rebuttal to OHA brochure "The Time is Now"

by Kenneth R. Conklin, Ph.D.

NOTE: A multicolor version of this webpage canbe found at:

"The Time is Now" is a slick trifold flier asking people to support the Akaka bill. It was mass-mailed in late May and early June, apparently to 60,000 subscribers to the OHA monthly newspaper plus other people on the mailing lists of ethnic Hawaiian institutions.

The flier features the Hawaiian flag but no American flag. One reason for the absence of the American flag is that many Hawaiian activists believe that the U.S. is illegally occupying their ancestral homeland and has been the source of prolonged oppression. To empower such people by creating a government for them is to empower a secessionist movement.


"What is the purpose of the Akaka bill?"

"...simply asks Congress to reaffirm and provide parity ... by providing for the reorganization of the government of the Native Hawaiian people, who along with the American Indians and the Alaska Natives, make up the three groups of native peoples in the United States."


No. The bill does not "simply" ask Congress to provide parity. The bill established a process for setting up a government based solely on race, in a place where there has never been such a government. The bill authorizes the new government to negotiate with the federal and state governments for land, money, and political power to be used exclusively by a racial group.

There are NOT "three groups of native peoples in the United States." There are over 560 federally recognized tribes, fiercely independent of each other. some of which formerly fought wars against each other and against the United States. The majority of people who are racially American Indian do not and cannot belong to any tribe. Lumping all American Indians together as one of three "native peoples of the United States" is racial profiling, but does not reflect the political reality that there are hundreds of different tribes with different governments, different laws, and different benefits for members.

The "parity" now "enjoyed" by Native Hawaiians is that they have the same status as several hundred other groups of "indigenous people" who have applied for tribal recognition and have been either denied or put off for decades. Senators Akaka and Inouye have had amazing success in fooling Congress into treating ethnic Hawaiians as though they are an Indian tribe; much as a tailor might be praised for making a sow's ear look like a silk purse.


"Why is the Akaka bill so important now?"

"Since the U.S. Supreme Court decision of Rice v. Cayetano, judicial challenges to existing Hawaiian rights have increased in both number of suits filed and the persistence of the plaintiffs in advancing their cases to the highest court of the land. If these plaintiffs succeed with their racial discrimination suits against programs with a Hawaiian preference, over 150 federal programs and funding vehicles, totaling over $70 million dollars per year, will eventually cease to be available. Funding for programs, services, and entitlements that benefit and improve the lives of Native Hawaiians are at stake. For example, assets and funding of:

* Office of Hawaiian Affairs & $380 million trust fund * Department of Hawaiian Home Lands & 200,000 acres * Alu Like, Inc. * Na Pua No'eau * Native Hawaiian Legal Corporation * UH tuition waivers * Native Hawaiian Education Act * Native Hawaiian Health Improvement Act * Federal funding amounting to $1.1 billion over the past 25 years * Hundreds of community organizations who receive grants totaling $9 million per year from OHA"


This section is honest about saying the main purpose of the bill is to protect "over 150 federal programs and funding vehicles, totaling over $70 million dollars per year." This section is also correct in saying that if plaintiffs in various lawsuits succeed, those programs "will eventually cease to be available." The reason those lawsuits will eventually succeed is because those programs have always been unconstitutional under the 14th Amendment.

Those programs were created only because Senators Akaka and Inouye have served on the Indian Affairs Committee for their entire political careers -- Hawaii is the only State that has both of its Senators on the Indian Affairs committee, despite the fact that there has never been an Indian tribe in Hawai'i. Throughout those many years, whenever a major bill came along to provide federal handouts to genuine Indian tribes, Senators Akaka and Inouye have added "and Native Hawaiians" into the bill.

While it's wonderful for the people of Hawai'i to have all those people in other states sending their tax dollars to Hawai'i, it's legally and morally wrong because ethnic Hawaiians are not an Indian tribe. Now the day of reckoning has arrived, and it's time to dismantle those programs.


"Is the Akaka bill constitutional?"

The brochure says only this: "Absolutely. The U.S. Constitution provides Congress the authority to give federal recognition to all aboriginal groups in the U.S."


That's absolutely false. Nowhere does the Constitution use the word "aboriginal." Nowhere does it say "indigenous." It says Congress has the power "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Everything named in that clause refers to governments, not to racial groups or aboriginal or indigenous people. That clause does not authorize Congress to round up a bunch of widely scattered and thoroughly assimilated individuals who have nothing in common with each other except race, and create a government for them. If that were to be allowed, then Congress could also create a new "Nation of Aztlan" consisting of all people in the U.S. who have Mexican ancestry and who live in those parts of the U.S. that formerly belonged to Mexico. The theory is the same.


"Is the Akaka bill race-based?"

COMMENT: Is the Pope Catholic?

The brochure says "The authority for Congress to pass legislation for America's indigenous groups is not based on race but on their existence as a sovereign nation before the existence of the U.S."


The trouble is, there was never any government exercising authority over all native Hawaiians and exclusively native Hawaiians; which is what the Akaka bill proposes. Prior to 1810 various Hawaiian islands, and subdistricts on each island, had their own rulers who were often at war against each other. When Kamehameha the Great unified all the islands through bloody conquest and successful intimidation, he used newly-available English guns and ships and English military advisors. Those Englishmen then became high-ranking officials of Kamehameha's government -- John Young, for example, was made Governor of Kamehameha's own home Island of Hawai'i. Throughout the Kingdom's history from 1810 to 1893, most of the cabinet ministers and judges, and many appointed and elected members of the Legislature, were not racially native.

If the Akaka bill purports to re-create or re-organize the government of the once-sovereign and independent nation of Hawai'i, that nation must be fully multiracial just as the Kingdom actually was.


"Will the Akaka bill authorize the Native Hawaiian governing entity to conduct gambling?

The brochure says simply: "No, it will not."


That's the same answer that was given during the hearing of the Senate Indian Affairs Committee in February 2005. But several Senators realized that answer was false, and forced an amendment to the Akaka bill to strengthen the language against gambling, before reporting the bill to the floor. At that point the Hawai'i delegation said the bill now had safeguards against gambling. Later, several Senators still were not satisfied,and placed holds on the bill and prevented it from coming to the floor, because they did not believe the safeguards were sufficient. Now comes Senator Akaka with a newly amended bill with allegedly stronger language against gambling. Don't believe him for a moment. He tried to fool the Senators on this point with the original bill, then with the amended bill that came out of committee, then with a new amendment. Don't be fooled yet again.


"The Akaka bill does not ..."

"Does NOT legalize gambling."


Of course the bill does not specifically legalize gambling. But as noted above, the bill probably includes loopholes large enough for clever, highly-paid lawyers to roll the dice through.

"Does NOT permit grabbing or taking of private property or military lands."


True, the bill as written does not specifically permit such things. But the bill does explicitly set up a process whereby the new tribal government can negotiate such things with the State and Federal governments. Similar fears have been fulfilled on the mainland. Furthermore, states and Indian tribes have sometimes negotiated agreements to use the state's power of eminent domain to condemn private land and turn it over to a tribe. A recent decision of the U.S. Supreme Court [Kelo] strengthens the ability for state and tribal governments to do such things.

"Does NOT alter current government authority, including taxation powers, but does provide for future negotiation over such matters."

This is correctly stated. And it should be very frightening to Hawai'i citizens, who have watched the State Legislature and the county councils already eagerly turning over state and county lands and state money to the Office of Hawaiian Affairs, most recently in the case of huge acreage at Waokele O Puna on Hawai'i Island and all of Waimea Valley on O'ahu. In both cases, a consortium of public and private groups paid large sums of money for the land, OHA contributed a very small portion of the funds, and then the deed was simply handed over to OHA. Imagine how much worse this situation will be when a tribal council similar to OHA is recognized as a government on a fully equal footing with the state and federal governments.

"Does NOT authorize secession from the U.S."


Of course no bill could ever be passed by Congress to authorize a State to secede from the Union. A civil war was fought over that issue, 1860-1865.

However, the Akaka bill is based squarely on the apology resolution of 1993 wherein the U.S. apologizes to "Native Hawaiians" (but not to other subjects of the Hawaiian Kingdom) and takes the blame for the overthrow of the monarchy a century earlier.

Senator Slade Gorton objected on the floor of the Senate, saying that the logical consequence of the apology resolution would be secession.

Since then, Hawaiian independence activists have repeatedly cited the apology resolution as a confession of a crime under international law, and are calling for U.S. withdrawal from Hawai'i.

Senator Akaka himself said on National Public Radio that secession will be something for his grandchildren to decide (note that they are already adults!).

OHA has clearly stated on its website that secession is one of the possible eventual outcomes.

The Akaka bill greatly empowers those who hold historical grievances and resentment against the United States for occupying their ancestral homeland, depriving them of their traditional culture, and oppressing them. Why should anyone want to empower such sentiments?


The back page of the brochure includes a list of individuals and organizations which support the Akaka bill.

Some of the "National Supporters" have clear motives of self-interest which should be seen as red flags warning us NOT to pass the Akaka bill.

National Congress of American Indians (NCAI), Alaska Federation of Natives (AFN), Governors' Interstate Indian Council (GIIC), Inter Tribal Council of Arizona, Affiliated Tribes of Northwest Indians, National Indian Education Association, Tribal Education Departments National Asasembly, Virginia Indian Tribal Alliance for Life

All these Indian tribal organizations fear that defeat of the Akaka bill would raise doubts about whether U.S. federal Indian policy might come under closer scrutiny. In particular, the Alaska Federation of Natives is worried that defeat of the Akaka bill would raise doubts about the Constitutional validity of the Alaska Native Claims Settlement Act. Several Alaska native corporations have contributed hundreds of thousands of dollars to the Council for Native Hawaiian Advancement. Hawai'i Senators Akaka and Inouye (both Democrats) have traded votes with Alaska Senators Stevens and Murkowski (both Republicans) whereby Akaka and Inouye vote in favor of drilling for oil in the Alaska National Wildlife Refuge in return for Stevens and Murkowski voting for the Akaka bill.

Japanese American Citizens League (JACL), National Association for the Advancement of Colored People (NAACP), National Coalition of Asian Pacific Americans, National Organization of Pacific Islanders in America, Organization of Chinese Americans

All of these are focused on race or ethnicity; all see their particular ethnic group as victims of white oppression; all see their particular ethnic group as entitled to reparations for historical grievances, so that passing the Akaka bill would smooth the way for them to get reparations for their own groups.

League of United Latin American Citizens (LULAC), and Mexican American Legal Defense and Educational Fund (MALDEF)

These militant organizations seek to defend the "rights" of illegal immigrants; advocate zealously for "open borders" and amnesty for previous law-breaking. They advocate a theory of reconquista, that huge areas of the American Southwest that formerly belonged to Mexico should still be regarded as Mexican territory where people of Mexican ancestry can freely cross the border. Passing the Akaka bill to establish a Nation of Hawai'i would be a precedent for these groups to establish a Nation of Aztlan and take back from the gringos the territory rightfully belonging to La Raza (similar to the Hawaiian term "Ka Lahui").


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