Akaka/Inouye Plan B -- Upcoming Consolation Prize --The Hawaii Racial Entitlements Protection Act of 2006

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

The period following a victory is a very dangerous time. Losing warriors can retreat until their wounds heal, and then come back for a devastating counter-attack. It's one thing to be magnanimous in victory; it's quite another thing to be overly conciliatory or foolish and thereby snatch defeat from the jaws of victory.

A collection of news reports and commentaries at the end of this essay provides evidence that new legislation to replace the Akaka bill is already being written by Senator Inouye, and is already being pushed very strongly by the Honolulu Advertiser. Even state Senator Sam Slom, who went to Washington to lobby against the Akaka bill, feels magnanimous in victory and expresses a wish to help preserve race-based programs. How sad! Caring for Hawaiian culture and protecting historic places does not require unconstitutional race-based government programs.

Watching the Senate debate the Akaka bill was alternately inspiring and disgusting. Transcripts of the entire Senate debate, the cloture vote, and hundreds of pages of news reports and commentary from Hawaii and around the nation can be found at

So, what's next?

1. The Akaka bill is not dead forever. It will come back next year, like the Egyptian mummy in the horror movie, rising from its tomb. Senator Inouye has promised the bill will be back.

2. The Akaka bill is not even dead for this year, despite wishful thinking and despite Senator Inouye's assurances. The Honolulu Advertiser quoted him on June 14 saying that he and other supporters "were not going to sneak anything through the Senate to protect Hawaiian programs. 'We're going to try to get committee approval so that at least if we're going to attach it to something, we can say it's been approved by the committee,' he said. 'This is just too important a measure to go sneaking around.'"

Don't believe that for a moment. Remember at the very end of the two-year 106th Congress, on December 12, 2000 Inouye was quoted as saying the bill was dead; and there were lamentations and obituaries in the Honolulu newspapers on December 13 and 14. But all that public wailing was a diversion to cover stealth maneuvers -- the Akaka bill was hidden as a single sentence deep inside an appropriations bill and actually passed for a few hours, until it was discovered and rescinded on December 15, the very last day of the 106th Congress. In December 2001 there were more stealth maneuvers. In Fall 2004 there was more stealth. An agreement was reached whereby Senators Akaka and Inouye would stop trying to attach the Akaka bill to other legislation Republican leaders wanted to pass, in return for those leaders' pledge to allow the Akaka bill to come to the floor for a debate and vote in 2005. But despite that agreement, the Akaka bill somehow showed up buried inside the final omnibus budget bill being considered by a House-Senate conference committee -- it showed up there even though it had not been passed by either the House or the Senate; and it would have stayed there and been enacted into law except that some eagle-eyed staffer saw it and the House conferees made an objection which forced its removal. See

Senator Inouye simply cannot be believed when he tells the newspapers the bill is dead. And even when he promises his Senate colleagues that he will stop inserting it into other legislation, he keeps on doing it.

3. When the family dog suddenly dies, Dad's first impulse is to rush out and get a replacement. The new dog might be only a puppy, needing to be housebroken and taught to do tricks; but eventually it will grow into a full-sized dog. Papa Inouye is already working on his "pet project."

While allegedly waiting until next year for the full-blown Akaka bill, Senator Inouye has announced he's planning to introduce very soon some sort of scaled-down version. We might call it Plan B or perhaps Akaka-Lite. But it must not be taken lightly. The outlines have already been indicated in news reports. The concept is to set aside the attempt to create a federally recognized sovereign governing entity for ethnic Hawaiians, and yet somehow protect Hawaii's multitude of race-based programs and institutions. How that can be done without running afoul of the Constitution and without creating a phony new Indian tribe is hard to imagine.

Inouye's new bill is just now being written, and does not yet have a name. But it's already being pushed -- hard -- by the editorial board and columnists at the Honolulu Advertiser.

Since the bill as yet has no name let's call it the "Hawaii Racial Entitlements Protection Act of 2006."

Here are the main arguments in favor of the bill, and what's wrong with them.

A. Nice-guy consolation prize. Pro: Senators Akaka and Inouye are very nice and distinguished gentlemen, representing a state known for Aloha. And the Senate has just dealt them a devastating loss. Therefore they deserve a consolation prize, and we should pass this bill to show them our love and respect. Con: There are times when collegiality can be carried too far. People who seem nice can request very bad things. We have sworn an oath to uphold the Constitution, and we must do what's right for all the people of Hawaii and for the United States.

B. Reparations. Pro: The U.S. staged an armed invasion of Hawaii, overthrew the Queen, set up a puppet regime, and continues its belligerent occupation of the indigenous ancestral homeland. The U.S. has apologized, and now must give reparations for the damage it has caused. Con: The apology resolution is filled with historical errors, as shown in point-by-point rebuttals. The U.S. government has already studied the question whether the U.S. owes anything special to ethnic Hawaiians, and produced two massive reports: the Morgan Report of 1894 and the Native Hawaiians Study Commission report of 1983. Both are now available on the internet. The materials mentioned in this paragraph are available at

C. Poor downtrodden ethnic Hawaiians. Pro: Ethnic Hawaiians have the worst statistics for poverty, disease, incarceration, etc. and therefore they need the help. Con: Those statistics can be challenged; see

Even if true, those statistics do not justify race-based programs; on the contrary, those statistics merely prove that if handouts are given to needy people based on need alone, then ethnic Hawaiians will get the lion's share of the help since they are (allegedly) the neediest group. Simple fairness requires that government help should be needs-based and race-neutral. Giving help to needy Hawaiians while denying the same help to equally needy people of other races is ... well ... racist.

And doesn't it seem strange that OHA keeps telling us about poor, downtrodden Hawaiians desperately in need of government handouts, even while OHA itself has been hoarding $400,000,000 for many long years?

D. Preserving the culture. Pro: Hawaiian culture is the core of what makes Hawai'i a special place; therefore we must help preserve the culture. Con: There is no danger the culture will weaken or die -- it has flourished and grown strong during the past 30 years with revival of the language, hula, voyaging canoes, taro, fishponds, heiau restoration, etc. all without any need for racial separatism. Indeed, thousands of people with no Hawaiian native ancestry actively participate in celebrating and preserving Hawaiian culture. Government can provide money to help with cultural preservation in a race-neutral way, by appropriating funds directly for specific purposes such as preserving historic places, promoting Hawaiian language, and providing facilities for cultural activities open to all who care to participate.

E. Hawaiians as the state pet or favorite race. Pro: Hawaiians are a dearly beloved endangered species. They are dying out (See "Then There Were None"
https://www.angelfire.com/hi2/hawaiiansovereignty/lindseynoyesthennone.html ). They are special. "No Hawaiians, no aloha." Con: There is no danger ethnic Hawaiians will die out -- their number has multiplied ten-fold during the first century of American sovereignty in Hawai'i. Hawaiians have higher incomes and longer, more healthy lives than any other Polynesian group. Hawaiians are indeed treated as Hawai'i's favorite race, which is permissible as a matter of personal preference but unwise and illegal as a basis for government policy.

OHA and DHHL: What should be done about OHA (Office of Hawaiian Affairs) and DHHL (Department of Hawaiian Homelands)? If Senators Inouye and Akaka really want to be helpful, they should sponsor legislation to allow the State of Hawai'i to convert Hawaiian Homestead leases to fee-simple, so that homeowners could actually own the land under their houses and would be free to give their homes to anyone they wish at death, or to sell them; regardless of race. If our Senators are so eager to being federal dollars to Hawai'i, they should sponsor legislation to provide dollar-for-dollar matching funds to help homestead leaseholders to purchase the fee-simple title to their land. Our Legislature should then force OHA to spend its $400 Million to help homestead leaseholders to buy their land, in cooperation with the federal matching funds; and if any money is left over after helping the homesteaders it should be returned to the state general fund. OHA and DHHL could then both be abolished with no harm to anyone.

It's time for Hawai'i to get rid of our entrenched institutionalized racism. Those who fight against race-based institutions are not anti-Hawaiian. We simply recognize that racial separatism is bad for everyone. We know that institutions providing race-based services often are more interested in preserving and enriching their institutions and employees than they are in helping the people they are supposed to be serving. So long as government handouts are funneled through race-based institutions, those institutions will grow ever more powerful, balkanizing our society and ultimately demanding to be protected by a race-based government.

Will Inouye/Akaka sponsor federal legislation to facilitate a smooth transition toward unity, equality, and aloha for all? Or will they sponsor legislation to help entrenched institutions cling to power and pursue the failed policies of the past? Anyone care to make a wager?



Honolulu Advertiser, Friday, June 9, 2006 EDITORIAL

Akaka bill failure: It's time for Plan B

The failure of the Akaka Hawaiian recognition bill to be cleared for a vote on the Senate floor might signal various things, but one of them is that both the political landscape and a lack of national public sympathy for Hawaiian issues have derailed the Native Hawaiian federal recognition train, at least for now.

The bill's chances for passage this session dropped to practically nil yesterday when the vote fell short by four of the 60 needed for "cloture." That maneuver would have precluded filibustering, so now the measure's many opponents are free to block a final Senate vote.

Two actions are necessary at this point: one to deal with the short-term reality, and one to improve chances for recognition at some point down the road.

For the immediate future, the Office of Hawaiian Affairs and other Hawaiian beneficiary agencies that receive public money must consider alternative strategies for helping Native Hawaiians that wouldn't be vulnerable to legal challenge.

The Akaka bill had been seen as a potential shield against lawsuits, still unresolved, that targeted publicly funded programs that base their benefits on racial criteria.

One approach would be to make programs accessible on the basis of need, cultural affinity and factors other than ethnicity. Agencies would be able to address genuine socioeconomic problems within Hawaiian communities, uninterrupted by this kind of litigation.

For the long term, Hawaiians must make the case that they are a political entity — and they don't need the Akaka bill to assert their sovereignty.

The Native Hawaiian registry program known as Kau Inoa represents the first step toward organizing and self-determination.

Washington officials have said in the past that it's more customary for the federal government to recognize a political entity that already exists than to merely set the wheels rolling toward recognition, as the Akaka bill would have done.

Political tides in Washington may some day turn more in favor of Hawaiians, as well as other indigenous people currently taking heat from conservatives. But they should not sit back and wait for that day to happen.


Honolulu Star-Bulletin, June 9, 2006 EDITORIAL


Akaka Bill's defeat imperils programs

Hawaiian sovereignty has failed to win enough Senate votes to receive final consideration.

SOVEREIGNTY for Hawaiians has been set aside at least for the duration of the Bush administration and might not be achievable beyond then. Yesterday's setback in the Senate should prompt serious discussion about how to shield Hawaiian programs from legal challenges.

The Senate voted 56-41 in favor of proceeding with the Akaka Bill, but 60 votes were needed. More importantly, it fell 11 votes short of being enough to override a veto telegraphed by President Bush. On the eve of the vote, the Bush administration declared that it "strongly opposes" the bill's passage.

William E. Moschella, the assistant attorney general for legislative affairs, had indicated as much three years ago in a letter to Sen. Olympia Snow, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship. That letter said a Senate bill's inclusion of Hawaiians as eligible recipients of small-business startups and expansions for native Americans "raises significant constitutional concerns."

Governor Lingle minimized the letter's importance, saying, "Some person down in an office who wrote a letter does not represent the policy of the Bush administration." Moschella's letter on Wednesday to Majority Leader Bill Frist made clear that the administration opposes Hawaiian recognition because it would "divide people by their race."

The Constitution gives Congress plenary authority to recognize indigenous peoples, but opponents of the Akaka Bill pointed out that the Hawaiian monarchy overthrown in 1893 was multiracial. The fact that the overthrow was spearheaded by Americans living in Hawaii and backed by American troops failed to persuade them.

The bill's opponents implied that any sovereign Hawaiian nation should be extended to all people who can trace their lineage to anyone living in the islands at the time of the overthrow. Distorted as that reasoning might seem, it could be the only way to rescue programs aimed at helping Hawaiians.

Taxpayers cannot challenge federal expenditures in court, and the U.S. Supreme Court ruled last month that state funding also is safe from taxpayer lawsuits. While that should bring an end to a current lawsuit challenging public expenditures on Hawaiian programs, they might be challenged by people claiming to be denied benefits because of race.

A 9th U.S. Circuit Court of Appeals panel ruled last August that Kamehameha Schools' admission policy is illegally discriminatory against non-Hawaiians. In the absence of Hawaiian sovereignty, Kamehameha might need to broaden admission to include all children who can trace their ancestry in Hawaii to 1844, when Princess Bernice Pauahi Bishop wrote her will.


Honolulu Star-Bulletin, June 9, 2006

Lingle resolute after bill dies
Despite the failure of the Akaka Bill in the Senate, the governor seeks other options to accomplish its goals

By Crystal Kua and Gregg K. Kakesako

IT IS TIME to explore ways besides federal legislation to reach the goals sought through the native Hawaiian recognition bill, Gov. Linda Lingle said after the Senate essentially killed the Akaka Bill for the current session.

The governor said she will wait for Office of Hawaiian Affairs trustees and Hawaii Attorney General Mark Bennett to return to Hawaii from Washington to discuss other options.

She declined to say how that would be accomplished but said more legal challenges to native Hawaiian entitlements are inevitable without some kind of protection.

"Now someone will go in and say, 'Look, they couldn't get federal recognition. That proves that these programs are race-based and therefore illegal,'" she said.

Lingle said she is disappointed with a procedural vote that failed to move the Akaka Bill to the Senate floor yesterday, but the vote at least showed that a majority of senators supported the bill. Yesterday's cloture vote needed 60 of 100 senators to allow the bill to move to the Senate floor. It got 56 votes. All the no votes were from Republicans.

"This is not the end for our attempts to achieve both of those things, which is protection of the existing programs that benefit native Hawaiians and also to create a mechanism, a structure so that the Hawaiian people can have the authority and the responsibility for their own resources and assets," Lingle said.

Hawaii's congressional delegation said a last-ditch effort by the Bush administration might have derailed the bill from getting a floor vote.

U.S. Sen. Daniel Inouye said the U.S. Justice Department released a letter on the eve of yesterday's Senate action.

In a written statement, Inouye said he "did not expect or anticipate that the administration of President Bush would issue the sort of misleading letter."

In the letter, William Moschella, assistant attorney general for the Justice Department, cited a report from the U.S. Civil Rights Commission, saying the bill risks "further subdividing the American people into discrete subgroups accorded varying degrees of privilege."

Inouye charged that the Bush administration on Wednesday was "grossly disingenuous" in its letter and based its opposition on the original language of the bill, knowing that it had been reworded to meet past objections.

"Then the Republican leadership used the letter to urge the majority to vote against the Akaka Bill, saying this was the administration's position," Inouye said.

When asked about the letter, Lingle said, "I wish it wouldn't have come out when it did. I don't think it was helpful."

Democratic gubernatorial candidate Randy Iwase cited statements from Lingle during her 2002 campaign saying that as a Republican she would be in a better position to try and persuade members of her party and the Bush administration to support the bill.

"All the boasts in 2002 have not come to fruition," Iwase said. "It is she who made these promises, it is she who made party an issue in 2002 and it is she who said that as a Republican she can get this bill through Congress, and she did not deliver."

Lingle said that her administration has worked hard for more than three years in lobbying both the Republican members of Congress and the White House for the bill's passage.

"I'm not sure a Democratic governor could have gotten any Republicans, frankly. I think we had a very good and positive impact," she said.

She pointed to several Republican senators whom she met with personally -- including Senate Judiciary Chairman Arlen Specter R-Pa. -- who later voted to move the bill forward. "We were able to get people to come on board who wouldn't have otherwise had we not gone out," Lingle said.

Akaka said yesterday he still believes he has enough votes to pass the his bill if it can make it to the Senate floor.

"Obviously, this is a setback," said Clyde Namuo, administrator for the Office of Hawaiian Affairs, which has been lobbying hard in Washington for passage of the bill.

The Akaka Bill would authorize an unspecified process that would eventually lead to the formulation of a native Hawaiian governing entity with the authority to negotiate with the U.S. government.

Under the current version of the bill, the new body would negotiate with the Department of the Interior. The bill does not give the governing native Hawaiian entity explicit powers, but instead legislates these powers to be granted in the course of future, three-way agreements approved by the federal government, the State of Hawaii and the new native Hawaiian governing body.

Opponents of the bill praised the vote.

"I think it's a definite victory for all of the individuals, both Hawaiian and non-Hawaiian, who contacted their senators and asked they vote against the cloture petition," said Ikaika Hussey, of Hui Pu, a coalition of native Hawaiians opposed to the Akaka Bill.

Star-Bulletin reporters Sally Apgar and B.J. Reyes and the Associated Press contributed to this story.


Honolulu Advertiser, Sunday, June 11, 2006

Suits will continue without Akaka bill

By Ken Kobayashi
Advertiser Courts Writer

In February 2000, the U.S. Supreme Court issued a landmark decision for Hawai'i, saying that serving as a trustee with the Office of Hawaiian Affairs cannot be restricted to Native Hawaiians.

A major point of the ruling was that the restriction was unconstitutional because it was based on race, not on a recognition that Native Hawaiians deserve treatment as a political entity such as Native American tribes.

The decision led to fears that government programs for Native Hawaiian programs would be in jeopardy. It prompted U.S. Sen. Daniel K. Akaka in July of that year to introduce the bill that would essentially provide federal recognition to Native Hawaiians in an attempt to defuse the high court's decision.

But after six years, the bill named for its sponsor still languishes in Congress, stalled now that the U.S. Senate last week refused to force a vote on the legislation.

The setback for the bill means that the U.S. Supreme Court's pronouncement that Native Hawaiians are not a political entity remains the law of the land.

Because the legal landscape for Native Hawaiians remains the same, attorneys don't believe the Senate action will have a direct impact on two major federal pending court cases, one challenging Native Hawaiian programs funded by the state, the other addressing Kamehameha Schools admissions policy.

But more legal challenges can be expected in the future, according to H. William Burgess, an attorney in one of the two cases who filed a taxpayer lawsuit challenging state money going to the Office of Hawaiian Affairs.

"The challenges will continue until everybody in Hawai'i is required to follow the same rules," Burgess said.

He said those challenges would be filed even without the Akaka legislation, but Akaka bill supporters believe the legislation would deter or doom those future suits.

"It would bring the litigation to a quick close," said Jon Van Dyke, a University of Hawai'i law professor who has written in support of the bill.


The Akaka bill would establish a process for the federal government to formally recognize the 400,000 Native Hawaiians here and elsewhere as an indigenous people similar to American Indians and Alaska Natives. It would also lay out the procedure for a Native Hawaiian government that could negotiate with the United States and Hawai'i over land use and other rights.

Burgess, head of a loosely knit group called Aloha for All, is the lawyer representing Earl F. Arakaki and about a dozen others who challenged state government funding for OHA and the Hawaiian Home Lands program.

Although both sides are asking the U.S. Supreme Court to review the case, the merits of the lawsuit have yet to be decided.

The issue is whether taxpayers have legal standing to challenge the programs, a matter separate from whether Native Hawaiians are recognized by the federal government as an indigenous people.

The suit had been tossed by U.S. District Judge Susan Mollway Oki in 2004. In September, the 9th U.S. Circuit Court of Appeals reinstated only a sliver of the suit, the part challenging state general funds going to OHA.

Lawyers for the state and OHA believe a recent U.S. Supreme Court decision in an Ohio taxpayer case decided in May means the end of Burgess' challenge. Burgess, however, doesn't believe the Ohio case applies to his lawsuit.

The high court has yet to say whether it will hear the case.

The other major lawsuit deals with the Kamehameha Schools admissions policy, which is under challenge by lawyers for an unnamed, non-Native Hawaiian teenager and his mother.

In a 2-1 decision in August last year, a three-member panel of the 9th Circuit held that the school's policy of admitting only Native Hawaiians violate the federal civil rights law.

That decision, however, was withdrawn when the 9th Circuit agreed to rehear the case with an "en banc" panel of 15 appeals court judges. The hearing is scheduled for June 20 in San Francisco.

In that case, Kamehameha Schools, a charitable trust, has acknowledged that its policy is based on race, but is justified to remedy the social, economic and educational disadvantages of Native Hawaiians.

John Goemans, one of the lawyers for the teenager as well as Big Island rancher Harold "Freddy" Rice, whose challenge to the OHA voting led to the high court's 2000 ruling bearing his name, Rice v. Cayetano, said he doesn't think the lack of Akaka legislation has any bearing on the Kamehameha Schools case.

Eric Grant, a California lawyer and lead counsel for the teenager, agrees.

"It removes a potential distraction," he said.

But Van Dyke, one of OHA's lawyers and a consultant to Kamehameha Schools in its case, said the passage of the Akaka legislation would have helped the charitable trust, although he believes the schools have enough of a case to prevail.


The legislation would have made it much clearer that the courts — in interpreting and applying the federal civil rights law — should defer to Congress' recognition of Native Hawaiians in allowing the private educational entity to defend its admission practices, Van Dyke said.

One of the school's main contentions is that Congress has already recognized racial preferences are permissible for a private educational institution by authorizing federal funds for loans and scholarships exclusively to Native Hawaiians.

Other lawsuits were filed in the wake of the Rice v. Cayetano ruling.

One was filed for 14 Hawai'i residents, including Ken Conklin, a non-Hawaiian who wanted to run for the OHA trusteeship. It led to U.S. District Judge Helen Gillmor declaring unconstitutional the ban on non-Hawaiians running for OHA trusteeships, opening the office to other ethnic groups.

Another suit was filed by Patrick Barrett, a Mo'ili'ili resident, who unsuccessfully filed for an OHA loan.

He contested the constitutionality of OHA serving only Native Hawaiians, but Barrett's suit was dismissed before arguments on the merits of his case. U.S. District Judge David Ezra found that Barrett could not establish that the rejection was based on race because his loan application was insufficient.

In 2003, the 9th Circuit affirmed the dismissal.


Burgess said even if the Arakaki suit is thrown out because taxpayers don't have standing to sue, there will be other challenges, with or without the Akaka bill becoming law. Burgess maintains that the Rice v. Cayetano decision would still bar preferential treatment for one ethnic group.

"It'll be a long, slow process, but the challenges will continue," he said. "Those (government-funded) programs have no future."

He said the challenge might include someone who properly applies for any of those loan or educational programs.

"There are people who are prepared to go through that slower process if we have to," he said.

Van Dyke, however, believes the Akaka bill, by recognizing Native Hawaiians as a political entity, would bring an end to the legal challenges.

"The Akaka bill would have been very important simply to allow OHA and Kamehameha Schools and Hawaiian groups to get back to trying to achieve their mission rather than taking this rear guard action to defend their programs," he said.


Honolulu Advertiser, Sunday, June 11, 2006

Hawaiians could hold swing vote

By Jerry Burris
Advertiser Columnist

The failure of the Hawaiian recognition or Akaka bill will generate political fallout for a long time.

The most immediate question is whether this will have much of an impact on the primary election fight between Sen. Daniel K. Akaka and Rep. Ed Case for the Democratic senatorial nomination. Akaka hitched his political reputation to this measure.

At a minimum, the Senate's action dulls Akaka's contention that he needs to be in Congress to see the bill passed. He was there, and it didn't.

Of course, Akaka could argue that this defeat makes it more important than ever that he be returned, since it will be next year at the earliest before this subject is revisited. The senator contends that his network of friends and alliances remains the best hope for the bill.

Case can reply that with the Akaka bill set aside for the moment, it is time to move on to other matters, such as his desire to begin building a new generation of leadership for Hawai'i in the Senate.

Since Case also supports the recognition measure, the best bet is that this issue will slip into second-rank importance in their race.

Back home, the Democrats will undoubtedly use this setback to raise questions about Gov. Linda Lingle's influence in Republican-dominated Washington. One of her key campaign planks four years ago was her promise to use her influence with the Bush administration and Republican senators to get the Akaka bill through.

So much for that.

In the end, Lingle couldn't even manage to keep the Bush administration neutral on the matter. At the very last minute, the Justice Department (saying it spoke for the Bush administration) weighed in firmly against the Akaka bill in a letter to the Senate leadership.

But unlike four years ago, there's a new approach: Lingle this year is unlikely to make much about her close relationship with Bush and his administration in the current campaign. So there will be few opportunities for the Democrats to play the "influence-shminfluence" card anyway.

The biggest political fallout is likely to come within the Hawaiian community. Will this defeat serve as a rallying point for Hawaiians who feel they deserve federal recognition?

If it does, and if the Hawaiian community can come to anything close to a consensus agreement on what steps should come next, it will make up a formidable voting bloc in the fall elections.

The task ahead is to move beyond federal recognition of Hawaiians to the larger issue of Hawaiian self-determination and the myriad programs that focus on Hawaiian betterment, from the Office of Hawaiian Affairs and various federal health and educational programs to Hawaiian Homelands itself.

Candidates who have clear ideas and answers to these issues will find themselves far ahead of the pack as the 2006 election rolls around.

Jerry Burris is The Advertiser's editorial page editor.


Honolulu Star-Bulletin, June 11, 2006

Hawaiians must resist politics of dependency

by Kaleihanamau Johnson

HAVING lived in Venezuela for 10 years, I experienced firsthand the economic and social crises that led to the dictatorship that now exists there.

President Hugo Chavez and his government successfully divided Venezuelans, stirring sentiments of hatred between his supporters and the opposition. Promises of benefits were made to Venezuelans that parallel those proposed in the Native Hawaiian Government Reorganization Act (Akaka Bill): medical benefits, education, employment, social services, agrarian reform, the right to self-determination and self-governance. These benefits were to be funded by proceeds from the petroleum industry in Venezuela and by state taxes and federal pork in Hawaii.

Organized marchers in red T-shirts were a sight all too familiar in Venezuela as paid supporters of the government made public appearances at a moment's notice, and the following week formed queues at banks to cash their paychecks. The intent was not to enrich the poor but to create a dependent majority to back the socialist government, thereby sustaining the momentum of its power to change the economy from private ownership to state control of resources, capital and labor.

In the meantime the poor are still poor, although they now receive enough support from the government to keep them loyal and compliant. There is no end in sight to this one-party system supported by petroleum and a poor majority. The movement is sweeping Latin America.

I RETURNED to Hawaii three years ago, and have observed the same pattern unfolding. Here also, the hidden tactic of the state is not to better the condition of a select class, the native Hawaiians, but to make that class dependent on the government. Because Hawaiians are seen as the "swing" vote, they must be kept dependent or the (socialist) government (with its Republican governor and Democratic Legislature) stands to lose in the future elections.

Creating and perpetuating dependency on government as the path to getting and keeping political power is addictive. For the rulers of Hawaii, both executive and legislative, keeping Hawaiians in a state of dependency, like any addiction, has become the thing that makes their lives worth living. How else to explain the state political establishment's almost unanimous support for the Akaka Bill? The Akaka Bill would put native Hawaiians into the same legal status as the most dependent group of people in the nation.

IT GRIEVES me to have seen it before, lived through it, lost all material wealth and a great portion of my life work because of a dictator kept in office by a culture of dependency, then to come home to start anew in mid-life and see the same bad seed bearing fruit here. The Office of Hawaiian Affairs, hoarding about $350 million in trust for Hawaiians (the small, and always shrinking, number of persons of not less than one-half part of the blood) now seeks to vastly expand the subjects under its dominion to include the more than 400,000 and constantly growing number of persons with even a drop of Hawaiian ancestry.

There is no need to look further than the marriage between the Bishop Estate and the state of Hawaii to recognize the ramifications if the Akaka Bill comes to pass and a nation within a nation materializes. Consider this: Bernice Pauahi Bishop was a member of the class that exercised absolute rule until 1819, and from then until 1893 as a monarchy; a one-party system. Her wealth descended, in the purest sense, from the enslavement of others. The trust survives today thanks to the institution of private property as we know it.

The Apology Resolution signed by President Clinton states that at the arrival of Captain Cook in 1778 the land was held in communal tenure and therefore, private property was nonexistent. As proposed by the Akaka Bill, the ceded lands and Hawaiian Home Lands are to be held in common for the benefit of native Hawaiians. Shouldn't then the land of the Bishop Estate be converted to the classification, by definition of the Apology Resolution, as communal tenure held in trust for Hawaiians? What of the other trusts of chiefly estates?

Many persons of Hawaiian ancestry have had their hands in the cookie jar as trustees, administrators and elected officials; such as OHA, the Department of Hawaiian Home Lands, Bishop Estate, executors and legislators for decades. If among the lot of them they have yet to do the right thing by Hawaiians, such as give title to Hawaiian homesteaders for their own prosperity, why should they be trusted now to govern? The DHHL alone is responsible for keeping Hawaiians at a disadvantage by denying them the right to own their land.

ELECTED OFFICIALS, both Democratic and Republican, who support the Akaka Bill show their fear of public opinion by denying the citizens of Hawaii the right to vote because, in all probability, the democratic method will work in favor of the opponents. No elected official is entitled to a government job; that is why we vote.

The Akaka Bill is written to create a dependent class of an unprecedented multitude, to politically and racially divide us, steal our freedom by not recognizing private property and subject the people of Hawaii to socialized living in perpetuity. It is not a just settlement but the beginning of a great conflict.

Kaleihanamau Johnson traveled by sailboat through most of Polynesia with her parents, Rockne H. Johnson, a geophysicist, and Rubellite K. Johnson, professor emerita of Hawaiian literature. She is working on her bachelor's degree in history.


Hawaii Reporter, June 12, 2006

People, Not Government, Reign Supreme
Lessons Learned in Washington By Proponents and Opponents of the 'Akaka Bill'

By Sen. Sam Slom, R-Hawaii Kai

A funny thing happened on the way to Washington, D.C. last week.

The widely accepted local belief that the Native Hawaiian Reorganization Act, S.147, also known as the "Akaka Bill," was going to sail through and be enacted into law by Congress, was proven absolutely false.

Despite 6 years of political maneuvering and posturing by some of Hawaii's leading political figures, power brokers, special interest groups, mainstream media, outrageous (and untrue) statements by proponents, millions of tax dollars spent for advertising, public relations and political consulting, the bill still failed.

Even with major political arm-twisting, first class junkets, and a successful attempt to keep the issues of the bill concealed from Hawaii residents by negotiating the bill's final language in secret, the bill is still as dead as Abu Musab al-Zarqawi.

U.S. Sen. Daniel Akaka (D-Hawaii), who says he can revive the bill this year, shows once again that he is in a virtual world of non-reality if he really thinks the bill will come up again with this President and this Congress. It just won't happen.

Little reported by the mainstream Hawaii media, was that eight Hawaii residents (including Native Hawaiians) went to Washington last week on their own dime -- not taxpayer funds -- to set the record straight by talking personally with individual Senators, their staff, and private free market organizations, such as the Heritage Foundation and Americans for Tax Reform.

The "Hawaii Eight" had different interests and focus in opposition to the bill but were united in the belief that its passage would be bad for Hawaii and bad for Native Hawaiians. Their message was successfully delivered.

My interest in going to D.C. was threefold:

* (1) to strongly restate my support for a fair settlement of the promises made by the United States government to Native Hawaiians by the Hawaiian Homes Commission Act in 1921 and the Hawaii Admission Act of 1959. I also support the granting of fee simple interests in their homestead leases, and educational provisions of the private will of Bernice Pauahi Bishop. I do not in any way seek to diminish any right or opportunity of Native Hawaiians, or anyone else, to improve their conditions and participate more fully in the American Dream. None of these worthy goals, however, requires carving a separate government out of the state of Hawaii;

* (2) to support another measure (other than the divisive Akaka bill) or method of righting admitted wrongs at issue, and

* (3) to explain why I was the only member of the 76-person Hawaii State Legislature to actually vote "no" on the Akaka Resolution (HCR 56, SD1) of 2005, even while our Republican governor has passionately been urging passage of the bill.

I thought it important to speak out and to offer a different perspective on S. 147 (and its last minute amended successor S.3064), the "Akaka Bill."

A number of my colleagues, community and business leaders, and Native Hawaiians, had grave unanswered concerns about this measure. There is a broad array of issues and questions not addressed here in Hawaii.

At the very least, one necessary amendment was a requirement that a vote be taken in Hawaii prior to any adoption of the Akaka bill. Supporters were adamantly opposed.

During the 2006 Hawaii Legislative Session, which concluded May 4, I offered a Resolution (S.C.R. 78) simply calling for a public debate, referendum, or plebiscite here in Hawaii on S147.

Hawaii has no statewide initiative, referendum or recall. My Resolution was never given a hearing. Instead, those who have raised questions, have been personally attacked by spokespeople from the Office of Hawaiian Affairs (OHA), the appointed state Attorney General, other members of the state administration, and the "drive by" media.

The chair of the United States Civil Rights Commission, Gerald Reynolds, was viciously attacked by Hawaii's Attorney General after the Commission advised against passage of the bill, saying, "it was the worst piece of legislation they ever reviewed." I met with Mr. Reynolds, an African American attorney from Kansas City. He did not deserve the personal attack.

OHA, using Hawaii taxpayer money, has spent lavishly, in a major lobbying and PR effort here in Hawaii and in Washington, including retaining the firm of Patton Boggs at a cost of $660,000-plus, yet still refusing to document its total public expenditures or to sponsor or support a public vote.

A rally, organized on the Capitol lawn by OHA, brought in six of nine OHA Trustees, staff, friends, former Gov. John Waihee, former state Supreme Court Justice, now consultant, Robert Klein, University of Hawaii president David McClain and others. Republican Congressional candidate Quentin Kawananakoa, attended, presumably on his own, and used the event for a filmed campaign speech and ad.

Conflicts of interest have been documented related to Native Hawaiian assets previously.

New expensive OHA advertising, under the banner and logo of "Federal Recognition," began yesterday in the Hawaii print media.

In Hawaii, where we poll for everything all the time -- including the naming of the state fish (the "humuhumunukunukuapua'a"), there has been no "official" (released) poll on the Akaka bill. One must wonder why. Three polls -- one by OHA and the other two by the free market think tank Grassroot Institute of Hawaii -- are the only polls released and publicized and they show different answers to different questions:

In its telephone poll of 604 voters (303 Hawaiians and 301 non-Hawaiians) in July, 2003, OHA said the majority of respondents think Hawaiians should be recognized by the U.S. as a distinct group similar to the special recognition given to Native Americans and Native Alaskans. Meanwhile Grassroot Institute surveyed every household (over 300,000) with telephones in the State of Hawaii, one in July, 2005, and the second just completed in May, 2006, showing that 2 to 1 consistently answered "No" to the question, "Do you want Congress to approve the Akaka Bill?"

A reasonable person would have to ask, "Why do the supporters not want transparency? Why don't they want to openly debate, and perhaps amend, the original Akaka legislation?"

Maybe, part of the reason is that University of Hawaii political science professor, Neil Milner, consultant to the supporters of the bill, urged them to, "keep the bill below the radar." They have succeeded. In Hawaii only.

The latest version of the Akaka bill, S.3064, was shrouded in secrecy, with a reluctance to specifically discuss what the term, Hawaiian "entity" actually means. Issues such as "nationhood," sovereignty, secession, gambling, taxation, land use and claims, in addition to racial preferences, have been shrugged off by the supporters with basically, a "trust me," attitude. In fact, Senior Democrat U.S. Sen. Daniel K. Inouye, at the state Democratic Party Convention in Honolulu in late May, spoke to Americans of Japanese Ancestry, reassuring them to put aside their hesitancy on the bill by trusting him.

Troubling to many was the claim by supporters that the bill had in fact been amended several times "to address your concerns." Yet, no one, until the last few days prior to the Washington vote, actually had ready access to the "finished" product, which must have been amended behind closed doors.

It seems that the Akaka bill also had been caught up in the desperate attempt to re-elect 81-year-old Sen. Akaka who is being challenged by Democrat U.S. Congressman Ed Case. You may have read recently in Time magazine that Sen. Akaka was listed as one of the five worst and least effective Senators. That set off a political firestorm here and resulted in renewed efforts to pass the Akaka bill now. It seemed that the bill was more about Sen. Akaka than Hawaiian rights. His performance in the Senate, viewed on C-SPAN by many here, and the failure of the bill, did not do anything to erase Time's subjective perception.

But why would the Republican governor, the first in 45 years, support the Democrat bill and make four trips to Washington on Akaka's behalf? And lobby Republicans here and there so strongly while not honoring her signed No Tax Pledge? The governor said because she promised OHA she would support the bill during her campaign in 2002. She kept her promise.

Many Republicans here have taken no public position on Akaka because they, like I, support and respect our governor. She is a breath of fresh air at the Capitol on many issues, but has disappointed on others, while being a tireless lobbyist for this legislation. But privately, they are concerned that the Akaka bill was out of touch with the people of Hawaii and Republicans should more properly support a Republican initiative more closely attuned to the will of the people of Hawaii to guarantee the rights of Hawaiians and all citizens, with support of the U.S. Constitution and the United States of America, rather than rescue a failed Democrat proposal.

Many remember that it was former Republican Congresswoman Pat Saiki of Hawaii who prevailed on then President George H.W. Bush, to halt the military target bombing of Kahoolawe Island; something important to Native Hawaiian groups and something Democrats could not accomplish previously even with a Democrat president and Congress.

To this day, neither Mrs. Saiki, nor President Bush, receive recognition or respect from Democrats for their efforts. Many of us believe this will be the same scenario with Akaka; if passed, no respect for Lingle; with lack of passage, Lingle and other Republicans being blamed for the failed Democrat bill, nationally and in the Fall Hawaii elections.

To many people last Thursday, June 8, the cloture vote (not a vote on the bill itself) was a "nail biter," falling just four votes short of the required 60 votes. The actual vote was 56 for cloture, 41 against and 3 (two Democrats and one Republican) absent.

The reality, however, was that it was a careful choreographed vote that was not in doubt; especially since the President and the Department of Justice, came out with a strongly worded rejection on Wednesday before the vote. Had cloture somehow succeeded, the vote on the bill after debate would have killed it since all 42 present Democrats voted for cloture and for their friends Senators Akaka and Inouye, but stated they would vote against the bill if it went further.

(To prove this, note that Senator John Kyl (R-AZ) strongest opponent of Akaka, voted for cloture because of previous promises to Inouye, while he, Sen. Ted Kennedy (D-MA) and other Democrats would have voted no on the final bill.

Some people just don't get it. After leaving the Senate gallery after the historic vote, one of the OHA Trustees told me in the stairwell, "You better not gloat; this is only one vote." As I told her, I wasn't there to gloat; I was there to secure rights for all citizens of Hawaii regardless of race or ethnicity.

While the bill failed to garner the votes for cloture and an additional vote, the people of Hawaii actually won as did the process of right over might and transparency over back door secretive politics.

Now that the vote has been taken and everyone, except perhaps Sen. Akaka, knows his bill is history, maybe we can turn our efforts to passing a bill at the state level that genuinely addresses the real problems facing Native Hawaiians and solving them without political and ego posturing.

Hawaii should settle its internal issues prior to outside federal intervention and can address the problems of Native Hawaiian rights globally by including all residents in an open and fair process.

Sam Slom is a Republican state Senator representing the Hawaii Kai to Diamond Head areas on Oahu. Reach him via email at mailto:Sbh@lava.net


** E-mail from Ken Conklin to Senator Slom following publication of his article above.

Aloha Senator Sam Slom,

First, you have my undying gratitude for going to Washington to lobby against the Akaka bill. And thank you also for writing your article published in Hawaii Reporter of Monday June 12.

You set a very conciliatory tone in that article, being magnanimous in victory and holding out the possibility of everyone working together to achieve some sort of settlement.

But from long, hard experience dealing with the folks pushing the Akaka bill, let me urge you to exercise extreme caution in offering any sort of concessions at all.

This is a very dangerous time, when the winners would like to "make nice" with the losers. There's going to be a sympathy backlash -- oh, those poor downtrodden Hawaiians, what can we do for them to help ease the pain of their most recent loss.

Remember the Con-Con of 1978, when OHA was created? That was supposed to be a little something nice we could all do for our Hawaiian friends, just to show them how much we care and want to make things right. Looking back, was that a good idea? The Statehood Admissions Act identified 5 purposes for using the ceded land revenues -- well, why not "simply" set aside 1/5 of ceded land revenues to be dedicated to the newly created OHA? And was that a good idea?

Here's the language I see in your Hawaii Reporter article that has me concerned that you might be entertaining a new round of similar "compromises":

"strongly restate my support for a fair settlement of the promises made by the United States government to Native Hawaiians by the Hawaiian Homes Commission Act in 1921 and the Hawaii Admission Act of 1959"

"to support another measure (other than the divisive Akaka bill) or method of righting admitted wrongs at issue"

"support a Republican initiative more closely attuned to the will of the people of Hawaii to guarantee the rights of Hawaiians"

"maybe we can turn our efforts to passing a bill at the state level that genuinely addresses the real problems facing Native Hawaiians and solving them without political and ego posturing."

NO! NO! Please don't go that way.

The one idea I can agree with is to award fee-simple title to the leaseholders of Hawaiian Homelands residential leases where homes have already been built, PROVIDED that all the $400 Million of the OHA hoard, anf the remaining "debt" owed of the $600 Million pledged to DHHL at $20 Million for 30 years, is allocated to paying for the purchase of those titles, whereupon OHA and DHHL are then abolished. That concept was part of my campaign platform when I ran for OHA in 2000. The only reason I support such a "solution" is to avoid harming the individuals who find themselves trapped in that system because of our own stupidity in setting it up in the first place.

The U.S., and the State of Hawai'i owe ethnic Hawaiians exactly what they owe to all the people of Hawai'i -- nothing more and nothing less. Protection of life, liberty, property, and the rule of law; and assistance to individuals who are unable to help themselves. Needs-based help, not race-based boondoggles.

Two major studies commissioned by Congress have thoroughly studied the question what does the U.S. owe to Native Hawaiians. The Morgan Report (1894) and the Native Hawaiians Study Commission (1983). I have summarized the findings of both reports, with documentation, at http://tinyurl.com/f4cqt

Please hold firm to the fundamental principles of unity and equality. For everybody, equally. Regardless of race. Nothing more and nothing less.

Ken Conklin


Honolulu Advertiser, Wednesday, June 14, 2006

Inouye pitches new native bill

By Gordon Y.K. Pang and Dennis Camire

WASHINGTON — Federal and state programs that benefit Hawaiians would be protected under new legislation being drafted even as the battle continues for formal federal recognition, U.S. Sen. Daniel K. Inouye, D-Hawai'i, said yesterday.

Inouye also said he believed it "would be unwise" to battle for a new vote this year on the Native Hawaiian federal recognition bill after the Senate rejected an effort last week to bring the bill to the floor for a debate and vote.

Instead, supporters are expected to offer a new version of the Native Hawaiian bill after the next Congress convenes in January.

"While we wait for another opportunity (on the Native Hawaiian bill), we would like to make certain that all the programs we have in place at this moment are not placed in jeopardy," Inouye said.

According to a memorandum prepared by Inouye's office, the Senate has appropriated more than $1.2 billion for Native Hawaiian programs over the past 26 years.

Derek Kauanoe, a student at the University of Hawai'i's William S. Richardson School of Law, applauded the shift in strategy. Kauanoe got a grant from the Office of Hawaiian Affairs to set up a program designed to help Native Hawaiian students enter law school and stay there.

"It's about time they did that," Kauanoe said. He noted that several of the senators opposed to the so-called Akaka bill said there might be other ways to address the concerns of Hawaiians outside of federal recognition.

"We can keep on doing the same thing over and over again before we realize we've got to do something else," he said.

OHA administrator Clyde Namu'o pointed out that a key opponent of the federal recognition bill, U.S. Sen. Jon Kyl, R-Arizona, previously had said he was not against Hawaiians-only programs and would actually support such legislation.

Namu'o said he is also pleased with Inouye's plan.

Following last Thursday's vote, "all of us (Akaka bill supporters) went back and started to rethink whether there was a legislative fix that could protect the program but still not provide recognition," Namu'o said.

H. William Burgess of the group Aloha for All, which opposes the Akaka bill, said he and others will fight any legislation that seeks to provide privileges from one racial group to the detriment of others.

"I don't think that's appropriate," Burgess said. "That's the whole idea of the equal protection laws. Government does not allocate benefits or detriments based on race."

Burgess said he has no problem with the federal government continuing to provide funding for needy people in Hawai'i so long as it is not discriminatory.

U.S. Sen. Daniel Akaka, D-Hawai'i, chief sponsor of the Native Hawaiian bill, said the programs were essential for Hawaiians and non-Hawaiians alike.

"The very fabric of Hawai'i is based on the culture of Native Hawaiians," Akaka said.

Inouye said that in negotiations with the Bush administration last year on the Native Hawaiian bill, officials "made it clear" that they supported language in the bill aimed at keeping the 160 federal programs now helping Hawaiians. The bill would protect the programs from legislative and legal attacks.

"What we're going to do is use the language ... in this measure that we hope will protect our benefits," he said. "We will use it verbatim."

Inouye said he hopes to introduce the new bill before Congress leaves for its Fourth of July recess.

"I'm in the process of trying to get bipartisan sponsorship" for the new bill, he said.

Inouye said he hoped House sponsors of the Native Hawaiian bill — Hawai'i's Democratic Reps. Neil Abercrombie and Ed Case — would introduce a similar bill in the House.

Inouye said that he and other supporters "were not going to sneak anything through" the Senate to protect Hawaiian programs.

"We're going to try to get committee approval so that at least if we're going to attach it to something, we can say it's been approved by the committee," he said. "This is just too important a measure to go sneaking around."

Inouye's position against trying for a new Senate vote on the Native Hawaiian bill this year apparently is the death knell for any further action until the next Congress forms.

The Native Hawaiian bill, originally introduced in 2000, would create a process for a Native Hawaiian government to be recognized by the U.S. government, similar to the political status given to Native American and Alaskan Native tribes.

James A. Thurber, a congressional expert at American University in Washington, said pushing the Native Hawaiian bill to next year for any new action "might be good" for its chances with the fall elections looming.

Thurber said Democrats might regain control of the House in elections and gain more seats in the Senate.

"It (Congress) might just change enough to give them enough votes in the Senate and the House to pass this thing," he said.

Inouye said any new version of the Native Hawaiian recognition bill would incorporate changes negotiated late last year with the Justice Department, the White House and the Office of Management and Budget.

The negotiations came after the Justice Department raised concerns about the bill last summer. Proposed changes addressing the concerns were to be added to the bill when it came up for floor debate.

Both supporters and opponents of the bill agreed that Native Hawaiian programs are central to the Akaka bill debate.

Kauanoe, the law school student, said the program to help Hawaiians succeed in law school has helped about a dozen potential law students to date and is expected to help dozens more.

He got a $30,000 grant from 'Ahahui O Hawai'i, a law school club dedicated to Hawaiian causes. Hawaiians are under-represented at the law school and in the Hawai'i legal community, he said.

It is one of hundreds of programs receiving state and federal funding that help Hawaiians, programs that run the gamut from Hawaiian language programs to health initiatives.


Federal appropriations for Native Hawaiian programs over the past 26 years — fiscal years 1981-2006 — total $1.2 billion.

Here's a breakdown:

Education: programs for school-age to college students, $484.8 million

Defense: restoration of Kaho'olawe, conservation/historic preservation and repatriation of remains on military land, $474 million

Health services: various healthcare programs and treatments, $146.2 million

Housing: programs tied to homeownership and use of Hawaiian Homelands property, $56.9 million

Culture/arts: various programs, $33.4 million

Agriculture: programs ranging from aquaculture to multi-cropping strategies, $6.5 million

EPA: Native Hawaiian fishpond water quality strategies, $1.5 million

Other programs: $30.4 million

Source: Office of Sen. Daniel K. Inouye


Honolulu Advertiser, Wednesday, June 14, 2006


Creativity crucial with Akaka bill's failure

By David Shapiro

The Akaka bill for native Hawaiian recognition was doomed nearly from the start when its proponents lost sight of the objective.

U.S. Sen. Daniel Akaka introduced the measure in 2000 after the U.S. Supreme Court ruled that Hawaiian-only elections for the state Office of Hawaiian Affairs unconstitutionally granted special voting privileges based on race.

By defining Hawaiians as a racial minority rather than an aboriginal people, the court left other Hawaiians-only institutions such as Hawaiian Homes and Kamehameha Schools also vulnerable to legal challenge.

The Akaka bill was intended to head off the race issue by recognizing Hawaiians as indigenous Americans with political rights, the same as American Indians and Alaskan Natives.

But that goal was quickly lost as the Akaka bill instead became a platform for grandiose notions of Hawaiian sovereignty and nationhood that never were clearly defined.

Opponents of Hawaiian rights jumped on the opportunity to beat the measure down with absurd claims that it would suspend the Bill of Rights, force non-Hawaiians off their property, bring gambling to the islands and even lead to Hawai'i's secession from the union.

The tragic consequence is that Hawaiian assets that have existed from 30 years to more than a century are more vulnerable than ever, with cases against OHA and Kamehameha Schools already moving through the appeals courts and more challenges sure to follow.

The tragedy will compound if proponents of Hawaiian rights don't learn from the mistakes.

In his Democratic primary contest against U.S. Rep. Ed Case, Akaka is making political capital out of his questionable handling of this failed legislation by arguing he's needed now more than ever to keep beating the same dead horse.

The fact is that his bill will never pass as long as George W. Bush is president and Republican conservatives control Congress; pursuing it for the next two years, at least, is a waste of valuable time.

What voters need now from Akaka, Case and other leaders are fresh ideas for dealing with vital issues left unresolved by the failure of the Akaka bill.

Gov. Linda Lingle, who was unable to win Bush administration support for the Akaka bill after three years of lobbying, says it's time to pursue other options for protecting Hawaiian assets — possibly without federal involvement.

This would almost certainly require an attitude adjustment by Hawaiian organizations, which have resisted changing their policies to address legal challenges while awaiting the outcome of the Akaka bill.

Now, the priority should be to find creative ways to preserve programs such as OHA, Hawaiian Homes and Kamehameha Schools primarily for Hawaiians while taking race out of the equation.

These institutions can either get ahead of the courts and adapt to the new legal realities on their own terms — or risk being ordered by the courts to open up to everyone, period.

As for Hawaiian nationhood, it's up to Hawaiians to decide what they want and try to make it happen.

It was never the proper role of the federal government to create a process for recognizing a sovereign Hawaiian entity that didn't otherwise exist, as the Akaka bill proposed.

The correct path would be for Hawaiians themselves to form an organization, agree on a leadership and agenda, and then petition for recognition.

If Hawaiians can't get past the disunity that has stymied advancement in defining sovereignty for 30 years, it raises serious questions about whether there is enough commonality of interest in the diverse Hawaiian community to support a Hawaiian nation.

Time is not on their side as court challenges, Hawai'i's changing demographics and intermarriage trends that dilute the native Hawaiian population all work against them.


Honolulu Advertiser, Friday, June 16, 2006


Hawaiian programs benefit whole society

On the heels of the failure (at least for the moment) of the Akaka bill, encouraging signs are emerging signaling that new doors are opening for those interested in protecting programs aimed at helping Hawaiians.

The U.S. Supreme Court, not unexpectedly, rejected a taxpayer lawsuit against the Office of Hawaiian Affairs on grounds that being a taxpayer alone is not enough to give people legal standing to sue.

At the same time, Hawai'i Sen. Daniel Inouye has begun work on a new law designed to protect federal programs for Hawaiians that does not depend on federal recognition.

Neither of these political and legal fronts is likely to dissuade those who believe any government program aimed at helping Hawaiians is wrong because it is race-based.

To be fair, those who oppose Hawaiian-only programs are not against the idea of government helping those in need. But their point is that the deciding factor should be need — not racial ancestry.

This misses the point. Both the federal and state governments (as well as those who voted on the 1978 Hawai'i Constitution) concluded that there are needs directly related to the ancestry of a specific group of people.

This goes back at least as far as 1920, when Congress created the Hawaiian Homes Commission Act, aimed at resettling disposed Hawaiians on farm lots and homesteads. That responsibility was taken over by the state upon statehood.

Over the years hundreds of federal programs targeting Hawaiians, ranging from health and education to economic development, have been approved by Congress.

In 1978, the voters of Hawai'i overwhelmingly approved a change to the state constitution to create the Office of Hawaiian Affairs, a semi-autonomous agency charged with working for the betterment of Hawaiians.

There's no question that government has repeatedly recognized the value of programs aimed at bettering the status of Hawaiians.

The Akaka bill's primary focus was to take race out of the equation by recognizing Hawaiians as a political entity.

It is clear that much social good has come from all these programs. To be sure, the record of the Hawaiian Homes program and OHA, among others, is far from perfect.

But it is hard to argue that the general status of Hawaiians, and by extension, the entire community, has not been improved through these efforts. Those who oppose such programs must say how they would replace them if they were eliminated. How possibly could it be argued that society would gain with their loss?

As for the race question, the courts have long recognized that extraordinary situations (slavery is the predominant example) call for extraordinary remedies.

The task ahead for Hawaiians and those who support them is to convince the courts and policymakers that this, too, is an extraordinary situation demanding extraordinary remedies.


Honolulu Advertiser, June 17, 2006, LETTERS TO EDITOR


It is truly unfortunate that Hawai'i embarrassed itself in front of a nationwide audience as its senators attempted to pass the Akaka bill.

This bill was defined as racist and divisive by no less than the U.S. Commission on Civil Rights, the U.S. Justice Department and the president of the United States.

Ignoring these organizations and the president, Sens. Inouye and Akaka vainly tried to mislead their colleagues into believing that creating a nation of one race based on ancestry was not racist. Particularly onerous was Sen. Inouye quoting attorney John Roberts (now chief justice of the U.S. Supreme Court) while he was a paid attorney for OHA in Rice v. Cayetano.

It is time to put the Akaka Bill to rest and work on restoring the trust and unity among all races that Hawai'i's leadership has purposely devalued. It's time to stop the politicians looking for swing votes, the OHA employees trying to hold on to their jobs, OHA attorneys making a fortune on the spinning of the U.S. Constitution and the overpaid OHA lobbyists eagerly accepting money that should have gone to Hawaiian benefits.

Above all else it's time to stop the victimization of a great race of people. Over the past several years individuals who would benefit from the passage of the bill have tried to convince us that Native Hawaiians had to have a separate nation to become whole. It is disingenuous and divisive for the state to continue to try and circumvent the U.S. Constitution by crafting ways to achieve on a local level what the Akaka bill couldn't do on the federal level.

Garry Smith
'Ewa Beach


Honolulu Advertiser, Tuesday, June 20, 2006

Debate over recognition puts focus on Hawaiian aid programs

By Gordon Y.K. Pang

The roof leaks in one of the three bedrooms of Symphonie Kaai's family home in Nanakuli, rendering that section of the house useless.

Kaai, a 29-year-old community health worker, is primary breadwinner in a family of seven that cannot afford badly needed repairs.

But last year, Kaai attended home improvement classes offered by the Nanakuli Housing Corp., which is dedicated to helping Native Hawaiians gain and maintain home ownership. The nonprofit also provided the family with a new water heater and, later, volunteers who went to the home to install window screens.

Nanakuli Housing is now looking into whether Kaai's family can qualify to purchase a fixer-upper that can be moved onto their homestead.

"If it wasn't for the Nanakuli Housing Corp., I wouldn't know how to take the first steps," said Kaai, a single mother of a 7-year-old.

Both supporters and opponents of Native Hawaiian programs could point to Nanakuli Housing to argue their cases.

H. William Burgess of the group Aloha For All, which has mounted legal challenges against Hawaiian funding, said such programs should be open to all, Hawaiian or not. "As far as funding is concerned, I think it could continue from the federal government to the state — based on the needs of needy citizens, whatever their race," Burgess said.

Kapi'olani Barber, executive director of Nanakuli Housing, countered that the statistics are clear that Hawaiians still need the extra help. "It's very sad — the majority of people in prison are Native Hawaiians, the most impoverished, demographically, are Native Hawaiians. And as the host culture, it just shouldn't be that way."

The debate is inextricably linked to federal recognition and the proposed Native Hawaiian Recognition Act, which suffered a blow earlier this month when the U.S. Senate decided against hearing it. The bill proposes establishing a process that would lead to federal recognition of a Native Hawaiian government and, supporters believe, shield programs aimed at helping Hawaiians.


Over the last 26 years, more than $1.2 billion in federal funds have been distributed to hundreds of Hawaiian programs, according to the office of U.S. Sen. Daniel K. Inouye, who is largely credited for steering the money to Hawai'i.

Inouye last week announced he will introduce legislation designed specifically to shield the Hawaiian programs without addressing the explosive issue of federal recognition. Opponents of the programs have vowed to continue the fight.

Larger Hawaiian initiatives range from the Native Hawaiian Education Council to Papa Ola Lokahi, which helps with a variety of health programs from clinics to classes.

Hardy Spoehr, executive director for Papa Ola Lokahi, said proposed legislation such as that being drafted by Inouye would go a long way to helping ensure funding for Hawaiian health programs. "We're already funded for this coming year, but who knows what's going to happen a year from now?" Spoehr said.

Colin Kippen, executive director of the education council, estimates Native Hawaiian education programs receive about $34 million annually from the federal government to help students from the preschool to post-graduate levels. "If the goal is to move the Hawaiian community forward and to assure proportionality and equity in terms of their representation in all fields ... education is really the way to make that happen," Kippen said.

In addition to federal funding, millions more come from state coffers. Aloha For All estimates that since 1990, the state has earmarked $1 billion for Hawaiian programs. Burgess leads an ongoing legal challenge of that funding in a case that the U.S. Supreme Court last week sent back to a lower court, suggesting it take a look at a separate case in which it determined that paying taxes alone is not enough to provide a group with the legal standing needed to challenge state funding.

In the U.S. Supreme Court's 2000 decision in a case known as Rice v. Cayetano, however, the court ruled unconstitutional the state Office of Hawaiian Affairs' requirement that voters for its trustees must have Hawaiian blood.

Jade Danner, vice president of the Council for Native Hawaiian Advancement, said she's nearly certain there will be more challenges to Hawaiian programs. "The absence of a formal relationship with the United States makes defending those programs more difficult," Danner said.

Danner pointed out that the programs are successful, noting that the number of Hawaiian speakers rose from about 500 to about 9,000 in the 18 years since the inception of Punana Leo, the Hawaiian immersion school, and other Hawaiian language initiatives. She maintains that many of the programs are not Hawaiians-only, and those that are could ultimately benefit all state residents. "If they're paying for some resources with Hawaiian money, that leaves other money to serve other needs more widely," Danner said.


Richard Rowland, president of the Grassroot Institute of Hawaii, said his group opposes special treatment of any group, including Hawaiians-only programs. Rowland said such efforts would perpetuate a counter-productive "dependent mentality" in any group singled out for funding.

The ongoing funding debate is an emotional one, pitting the plight of Native Hawaiians, whom many feel were wronged when the monarchy was overthrown in 1893, against America's constitutional ideal that everyone should get equal treatment.

'Ehu Cardwell of the pro-independence Koani Foundation, opposes the Native Hawaiian Recognition Act — dubbed the Akaka bill for its sponsor, U.S. Sen. Daniel Akaka. His group, which contends the bill does not go far enough in addressing wrongs that began with annexation, nevertheless believes Hawaiian programs funded by the federal and state governments are important.

"As an occupying power, that's the least the U.S. can do for Native Hawaiians," he said.

While Nanakuli Housing is a mid-sized Hawaiian program, 'Ahahui O Hawai'i is among the smaller programs. The student organization at the University of Hawai'i William S. Richardson School of Law offers law school examination preparation and tutoring classes for potential lawyers of Native Hawaiian ancestry and receives funding from OHA.

Joni Domingues was recently among the students taking part in a law school exam preparation class offered by 'Ahahui O Hawai'i. The smaller classes helped her get a better grasp on what she needed to learn, she said. Domingues said while she understands why some non-Hawaiians are challenging the constitutional issues ties to funding Hawaiian programs, she said the targeted funding is justified. "This is Hawai'i, these are our ancestral lands," Domingues said. "I don't think it's unfair we get special treatment or entitlements."


JUNE 23: OHA VERSION OF PLAN B -- TRIBAL RECOGNITION BY STATE OF HAWAII TO CONSOLIDATE ASSETS UNDER RACIALLY EXCLUSIONARY CONTROL, AND AS STEPPING-STONE TO FEDERAL RECOGNITION. The idea is to use the Kau Inoa signup registry to create an elected "government"; then transfer to the new "tribe" all land and money currently under control of OHA, DHHL, and other state and federal government sponsored programs; then have the new entity apply for federal recognition.

See: "KKK -- Kanaka Klub -- Office of Hawaiian Affairs confidential memo of June 2006 outlining OHA plans for setting up Hawaiian apartheid regime following failure of the Akaka bill" at:



West Hawaii Today (Kona), Friday June 23, 2006 (same article also in Hilo Hawaii-Tribune)

OHA advances plan for Hawaiian self-rule

by Nancy Cook Lauer
Stephens Media Group

HONOLULU -- Just two weeks after the U.S. Senate refused to consider self-rule for Native Hawaiians, the Board of Trustees of the Office of Hawaiian Affairs on Thursday unanimously advanced a plan to create a new Hawaiian government by the end of 2007.

Most of the details of the ambitious plan were discussed during a closed-door session with OHA attorneys. The trustees then opened the meeting for a formal vote.

But a draft copy of "Hooulu Lahui Aloha, to Raise a Beloved Nation," obtained by Stephens Media Group details plans to hold a constitutional convention next summer, followed by the election of officers and transfer of Hawaiian assets by the end of the year.

"I don't see this government here as being a stand-by government," said OHA Administrator Clyde Namuo, responding to a trustee's comment. "We need to assert ourselves as a sovereign people. And I think, as we have laid this out, it is with that goal in mind. Let's not, please, consider this to be simply a placeholder."

OHA itself would be dismantled, with its powers transferred to the Native Hawaiian Governing Entity. The new government would then negotiate with the governor, the state Legislature and Congress for full autonomy.

Namuo said the ambitious timetable is due in part to having a "friendly administration" to help pressure the state Legislature to amend statutes and the state constitution to accommodate the new government. Gov. Linda Lingle, who is considered very likely to win re-election this year, is an advocate of Native Hawaiian rights.

OHA's action follows the failure earlier this month of an attempt by U.S. Sen. Daniel Akaka, D-Hawaii, to get the Senate to consider a bill paving the way for Native Hawaiian sovereignty.

The Akaka bill seeks to put in place a process for the estimated 400,000 Native Hawaiians -- about half of whom live in Hawaii --- to form a government entity and win formal recognition from the U.S. government.

It also would establish an office in the Department of Interior for Hawaiian issues and create an interagency group to monitor programs and policies that affect Native Hawaiians.

On the day the Akaka bill failed, Lingle held a news conference where she said she would be meeting with OHA to see how to "create a mechanism, a structure so the Hawaiian people can have the authority and responsibility for their own resources and assets." She had declined to be more specific.

Neither Lingle nor Akaka could be reached for further comment Thursday.

OHA's work builds on the efforts of a coalition of community leaders who, in 2003, started collecting names of those with Hawaiian blood as the first step in creating a Native Hawaiian governing entity. With help from OHA, the registration drive, known as "Kau Inoa," has collected more than 50,000 names.

Some OHA trustees worried that the coalition and other groups that have been pushing for Native Hawaiian rights might be taken aback by the aggressive involvement of OHA, which is a semiautonomous self-governing body created by state government to protect Native Hawaiian interests and assets. It is governed by a nine-member elected board.

"While these groups have history, and certainly brought the issue forward, kicked it around in the community, sometimes peacefully, sometimes more aggressively, I think it's all part of the maturation of the community," said Chairwoman Haunani Apoliona. "This framework is supposed to catalyze, invigorate and cause vibration in the community, but I think it's clear and I think our trustees know that this ultimate long-term process will not go forward without the support of the Office of Hawaiian Affairs."

** Comment posted by Ken Conklin to the same story in the Hilo Herald-Tribune: Any bunch of folks can form a private club. Calling that a "government" is far-fetched. Transferring state government assets to such a club is troubling -- illegal if the club is racially exclusionary. Amending our Constitution requires ratification by ALL the people. That will be very interesting!

** Additional comment by Ken: The concept described in this article seems to be what is known as "state recognition" of tribal status -- some tribes have state recognition even without federal recognition. It's my understanding that state recognition can provide entitlements within the state, and can be a springboard to federal recognition.


Honolulu Advertiser, Saturday, June 24, 2006

OHA now working toward nationhood

By Gordon Y.K. Pang

Rebuffed by Congress in its attempt to get the Akaka bill passed, trustees with the Office of Hawaiian Affairs are now seeking to move forward with a Native Hawaiian governing entity without the endorsement of officials in Washington.

A draft "nation-building" model approved unanimously by trustees on Thursday could lead to creation of what essentially would be a Hawaiians-only government that would negotiate for control of land, money and other assets lost when the Hawaiian monarchy was overthrown in 1893 by individuals backed by U.S. military forces.

Control of those assets, believed to be worth hundreds of millions of dollars, would need to be negotiated by the new "nation" with the state and the federal governments.

If successful, the draft OHA plan would lead to elections for representatives to a new government entity as soon as early 2008.

The plan is preliminary and OHA officials intend to meet with different groups for their suggestions and input, said Clyde Namu'o, OHA administrator.

"This process gets us to the creating of a governing entity," he said.

The proposal is being introduced now because the Native Hawaiian Government Reorganization Act, the so-called Akaka bill, is stalled in Congress.

"The bill didn't pass. There's no reason for us to wait any longer," Namu'o said. "The notion of creating a governing entity is something that's been talked about for years."


If the Akaka bill had passed, "you would have had the power of the legislation that would encourage people to participate. People would naturally want to participate if the bill were to pass," he said. "Now, with this process, we're going to have to spend a lot more time educating folks in terms of how the process works and what it will ultimately end up with."

Otherwise, he said, the process for establishing the government entity is very similar to that outlined in the Akaka bill. The other key difference is that the Akaka bill requires Hawaiians to trace their lineage back to either the 1893 overthrow or the 1921 enactment of the Hawaiian Homes Commission Act, he said. The OHA proposal simply calls for a potential voter to verify that he or she is Hawaiian, he said.


In the 2000 U.S. Supreme Court Rice v. Cayetano, the court ruled that the election of OHA trustees must be open to all Hawai'i voters, not just Hawaiians.

OHA does not believe the process for deciding on the new government runs counter to that ruling, Namu'o said.

"Our position is that Hawaiians are aboriginal, indigenous people and the federal policy is that aboriginal indigenous people of the United States enjoy the inherent right to sovereignty," Namu'o said. "There are Indian tribes who have organized their government and have never tried to be federally recognized, nor are they even state-recognized."

H. William Burgess, a member of the group Aloha For All, said the plan cannot pass the legal hurdle thrown up by the Rice case.

"It won't work," he said, because establishment of a government that excludes others based on race was forbidden by the Rice case.

"What is the problem with just having a melting pot in Hawai'i?" he said. "Why is that so offensive to anybody? It seems to be that those who are championing (an independent Hawaiian government) are those who have some vested interest in keeping Hawaiians in a state of dependency."


Jon Osorio, chairman of the Center for Hawaiian Studies at the University of Hawai'i, said OHA will need to enlist the support of activist groups that have opposed the Akaka bill for the new process to be successful.

"Instead of hoping that (the Akaka bill) gets passed in the Senate, they're taking this state agency and putting their mana behind the making of a government ... and basically forcing the Senate's hand," Osorio said. "'What we're going to do is make this government, we're going to put it in your face, and we're going to make you say no.'"

He added: "If (OHA) does not involve the wider activist community, if they don't get them on their side, it will fail. Because what will happen is the independence people and the non-federal recognition people will criticize it to death."

Namu'o said a strong registry of voters on the Kau Inoa list and a strong showing during the elections will establish legitimacy for the new government.

Currently, there are 50,000 registered. OHA's goal is 118,000, which is about two-thirds the total number of Hawaiians and part-Hawaiians in the state, Namu'o said.

"You begin to build some credibility, because the question that will come is whether or not this Native Hawaiian governing entity truly represents the Native Hawaiian people."


# Continuing a process to register Hawaiians for a Hawaiians-only election. Verification of eligibility would be by an advisory board. The process is known as Kau Inoa.

# Convening a constitutional convention for the new government, with delegates to be elected by those registered by Kau Inoa. An apportionment committee would decide the makeup of the delegates and who they would represent. There also would be an elections oversight committee and an elections certification board.

# Allowing the convention delegates to decide on a constitution and other documents that would lay the groundwork for the nation, including how it is to be governed.

# Having the elected officials of the new entity negotiate with the state for whatever assets it believes should be transferred and, if they so choose, negotiate for federal recognition with the U.S. government.


Honolulu Advertiser, Wednesday, November 15, 2006
Commentary by columnist

Akaka bill backers: Better get that Plan B

By David Shapiro

The Democratic takeover of Congress has renewed hopes for passage of the Akaka bill for Native Hawaiian recognition, but it would be a mistake for those seeking to preserve Hawaiian assets from legal challenge to put all of their eggs back in that basket.

The political climate has changed dramatically since the Akaka bill failed to advance to a vote in the U.S. Senate on June 8 and proponents certainly should take another shot but the measure still faces major obstacles.

Hawaiians would be well-advised to continue working on a Plan B to protect traditional assets in the event that federal political recognition of native rights is not forthcoming.

The Akaka bill was proposed by Sen. Daniel Akaka in 2000 after the U.S. Supreme Court ruled in Rice v. Cayetano that Hawaiian-only elections for the state Office of Hawaiian Affairs unconstitutionally granted special privileges based on race.

The decision opened the door to legal challenges of all Hawaiian-only programs, including Hawaiian Homes and ali'i trusts such as Kamehameha Schools.

The Akaka bill sought to defuse the race issue by recognizing Hawaiians as indigenous Americans with political rights, similar to American Indians and Alaskan Natives.

The legislation was tied up for six years by conservative Republicans opposing entitlements they saw as race-based. They fanned fears that the Akaka bill could restrict the property rights of non-Hawaiians and ultimately lead to Hawai'i secession from the union.

Akaka and fellow Hawai'i Sen. Daniel Inouye finally got Republican leaders to bring the bill to the Senate floor this year by trading their votes on a GOP energy bill, but they fell four votes short of the 60 needed to head off a possible filibuster by opponents.

Akaka and Inouye lined up all 43 Democrats behind allowing the bill to be debated, and Gov. Linda Lingle got 13 Republicans to go along, but the effort was done in by a scathing report issued by the Bush administration at the last minute charging that the bill was "subdividing the American people into discrete subgroups accorded varying degrees of privilege."

While the numbers in Congress have changed in favor of the Democrats, opposition remains strong among conservatives, and it's far from guaranteed that Inouye and Akaka could overcome a Republican filibuster and bring the measure to a successful vote in the Senate or that Hawai'i Reps. Neil Abercrombie and Mazie Hirono could get it through the House.

Even if the Akaka bill does clear both houses of Congress, the margins would likely be too slim to overcome a possible veto by President Bush.

Also working against the measure is the opposition of a vocal segment of Hawaiians who believe the Akaka bill would restrict native rights more than protect them. Thus, the continued need for a Plan B.

Lingle said after the Senate setback that she would work with OHA and Attorney General Mark Bennett to find ways other than federal recognition to protect Native Hawaiian assets, but no details were ever forthcoming.

Inouye said he would introduce a backup bill to protect Hawaiian programs without the complications of Native Hawaiian sovereignty, but again, there have been no details.

OHA stepped up its efforts to form a native Hawaiian government without waiting for federal recognition, but it's far from clear that Hawaiians will accept the leadership of OHA, which has inherent conflicts of interest as a state agency.

What's always seemed backward is that the Akaka bill seeks to create a process for recognizing an undefined sovereign Hawaiian entity that doesn't otherwise exist.

Hawaiians could vastly improve their chances if they approached federal recognition with ideas for a sovereign organization, leadership and agenda already in place.


** Note from Ken Conklin: Here's an article about an Indian group in Connecticut which is a state-recognized tribe but has repeatedly failed to get federal recognition as a tribe. That's the scenario envisioned under OHA's Plan B.

The Boston Globe (Connecticut edition), November 29, 2006

Judge drops Golden Hill Paugussetts' land claims

By Dave Collins, Associated Press Writer

HARTFORD, Conn. --A federal judge on Wednesday dismissed all of the remaining land claims filed by the Golden Hill Paugussett tribe, which had sought to use them as leverage to acquire land for a casino in Bridgeport.

U.S. District Judge Janet Bond Arterton in New Haven ruled that the Trumbull-based tribe cannot pursue land claims in court because it is not recognized as an American Indian tribe by the federal government. The Paugussetts, who contend their ancestral lands were seized illegally, have been repeatedly denied federal recognition, but are recognized as a tribe by the state.

State Attorney General Richard Blumenthal said Wednesday that the ruling should end the tribe's 14-year attempt to seize thousands of acres of land in Fairfield and New Haven counties.

"This final result should put to rest any remaining land claims by this group and provide peace of mind to property owners in the region," Blumenthal said.

"As we said from the beginning, we would relentlessly and tirelessly resist any attempts to bully innocent property owners or the state and use the land owners as hostages in efforts to gain federal tribal recognition," he said.

But the Paugussetts said the legal battle is far from over and they plan to appeal Wednesday's ruling to the 2nd U.S. Circuit Court of Appeals in New York within 30 days.

"We disagree with Judge Arterton's decision and will appeal our case to the 2nd Circuit, as is our legal right," the Paugussetts' Chief Quiet Hawk said in a statement.

Wednesday's ruling dismissed claims filed in federal court to 140 acres in Bridgeport, Trumbull and Orange.

In 1992, the tribe filed claims in state and federal courts to 17,000 acres in Bridgeport, Trumbull, Orange, Seymour, Southbury and Shelton. It had also threatened to file claims to nearly 700,000 more acres throughout southern and western Connecticut.

The claims in state court were thrown out in 1997, and those in federal court were dismissed over the years.

The tribe had said it would drop the land claims in return for 300 acres in Bridgeport for a casino.


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