Major Articles Opposing the Hawaiian Government Reorganization bill (Akaka bill) -- February 2005 through July 15, 2005. Michelle Malkin blog; Bruce Fein, Washington Times and Congressional Record; Grassroot Institute of Hawaii comprehensive survey of Hawaii households; Ramesh Ponnuru, National Review; U.S. Senate Republican Policy Committee; Paul M. Weyrich, Free Congress Foundation; Elaine Willman, Citizens Equal Rights Alliance; Ed Meese, Todd Gaziano, Brian McNicoll, Townhall; others in Honolulu newspapers including Jerry Coffee, Honolulu Star-Bulletin online poll, Don Newman, Tracy Ryan, Elaine Willman


Here is a table of contents of the articles in the order they appear lower on this webpage. To see the actual articles, scroll down.

On February 28, 2005, nationlly syndicated conservative columnist Michelle Malkin published her second article devoted to the Hawaiian recognition bill.
HOT AIR ON THE WASHINGTON POST OP-ED PAGE
HAWAII'S SECESSIONISTS
By Michelle Malkin February 28, 2005
The article can be seen as originally published (including fancy scripts, Ms. Malkin's photo, hot-links and reader comments)at:
http://michellemalkin.com/archives/001612.htm
Full text of Ms. Malkin's article is copied below on this webpage.

On March 11, 2005 an article entitled "The Pineapple Time Bomb" was published in The Washington Times by Bruce Fein, a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. The article is copied in full below on this webpage.
http://washtimes.com/commentary/20050310-085600-2662r.htm

On March 13, 2005 An article was published in Hawaii Reporter (on-line) saying that the Akaka bill is intentionally vague about the impacts the bill would have on local businesses and communities in Hawai'i. The article describes some of the actual consequences of federal tribal recognitions on the mainland, focusing on Washington state. The author is Elaine Willman, Chair of the Citizens Equal Rights Alliance (CERA) in Toppenish, WA. The full text of her article is copied below on this webpage.
http://www.hawaiireporter.com/story.aspx?6126e6bf-7ddb-4b75-a268-26b512914720

Jerry Coffee (Captain, U.S. Navy, Retired) was the pilot of a reconnaissance aircraft flying over North Vietnam when shot down in 1966. He was held as a prisoner of war until released in 1973. An article was published by Jerry Coffee as his weekly column in the March 16, 2005 issue of "Midweek" newspaper in Honolulu. That article, "Arguing Against the Akaka Bill," is copied in full, below, in chronological order.

Attorney Bruce Fein, nationally recognized expert on Constitutional law, published three articles opposing the Akaka bill, between November 2004 and March 2005. The articles were entitled "The Pineapple Time Bomb"; "A Race-based Drift?"; and "E Pluribus Unum, Debating the Legality of the Akaka Bill." All three articles were entered into the Congressional Record by Senator Kyl (R. AZ) on March 17, 2005, along with Senator Kyl's own statement reaffirming his opposition to the Akaka bill. The actual pages of the Congressional Record can be seen, along with URLs for the original sources of the three articles and some closely related articles. Go to:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaFeinCongRec031705.html

In March 2005 the Honolulu Star-Bulletin conducted an on-line poll which asked the question "Would you like to see the Akaka bill become law?" When the poll ended, the votes were "Yes" 436 and "No" 1301 -- a resounding 75% opposed. This in the only time public opinion on the Akaka bill has ever been gathered in a survey open to anyone who cared to participate. That is important, because the State of Hawai'i does not allow citizens to place "initiative" questions on the ballot; and even Constitutional amendments must first be approved by the Legislature before being placed on the ballot. Previous Akaka-bill polls were conducted under circumstances controlled by supporters of the bill. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSBpollmarch2005.html

Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation. On June 13, 2005 he published an article in "The Austin Review" entitled "Native Hawaiian" Government -- A Dangerous Experiment. The article is copied in full below. Its citation is:
http://www.freecongress.org/commentaries/2005/050614.asp
and also
http://www.austinreview.com/archives/2005/06/native_hawaiian.html

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On June 14, 2005 an article "The Akaka Bill Could Give Birth to the Nation of Aztlan" was published by Don Newman, Senior Policy Analyst for the Grassroot Institute of Hawai'i, in Hawaii Reporter (on-line) at
http://www.hawaiireporter.com/story.aspx?f0c797b0-6025-4a3f-8a11-7541cae9db52

The analysis of the Akaka bill as related to MEChA (Nation of Aztlan) presented in the above short article was limited by space, but its analysis is similar to an article previously published in Hawaii Reporter on September 3, 2003 by Kenneth R. Conklin: "Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations - Akaka Bill Sets a Precedent for Balkanizing and Dismembering America"
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnlHawRept.html
. That article in turn was based on a webpage twice as long by the same title with much greater detail:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnl.html

SUMMARY

There are strong similarities between the Hawaiian sovereignty movement and the Chicano nationalist movement. The 2003 Gubernatorial recall campaign in California focused public attention for a few days in August on the radical agenda of an ethnic nationalist group to which Lieutenant Governor Cruz Bustamante belongs. This Chicano-power group is MEChA, or Nation of Aztlan. Its view of history and demands for nationhood are strikingly similar to the Hawaiian sovereignty movement.

A bill now being considered in Congress, S.147 and H.R.309 (the Hawaiian Government Reorganization bill), would give federal political recognition to an ethnic group in Hawai'i as though they are an Indian tribe. This bill is pork barrel politics, designed to protect 160 racially exclusionary government programs for "Native Hawaiians" which will otherwise be ruled unconstitutional by the courts. But the same misguided theory that would allow Congress to convert an ethnic group into a racial separatist government in Hawai'i could also be used to support racial separatism and eventual independence for "indigenous" people of Mexican ancestry in California, Arizona, New Mexico, Texas, and perhaps other states. Anyone concerned about MEChA, Nation of Aztlan, or Chicano nationalism should also be concerned about Hawaiian nationalism, and vice versa. The success of one would help the other both politically and legally. There are also parallels to Black nationalism and demands for reparations for slavery.

What makes Hawaiian nationalism of special concern to the rest of America is that it may be the first nationalist movement to succeed in establishing a government, thanks to the support of Hawai'i's powerful senior Senator, Daniel Inouye. S.147/H.R.309, the Native Hawaiian Recognition bill, would give a political and legal victory to Hawaiian nationalism, setting a precedent for other ethnic nationalist movements. Our country is strong enough militarily to defeat any foreign enemy. Our most dangerous enemy comes from within -- the idea of race-based rights and ethnic nationalism. S.147/H.R.309 is the thin edge of a very large knife poised to dismember America. That is a very good reason why Senators and members of Congress from throughout America must oppose this disastrous legislation.

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Constitutional law expert Bruce Fein published a booklet June 1, 2005 under the auspices of the Grassroot Institute of Hawaii: "Hawaii Divided Against Itself Cannot Stand." Mr. Fein's essay is of special interest to scholars because of his analysis of the apology resolution of 1993 as well as the provisions of the Akaka bill. It can be downloaded in pdf format here:
https://www.angelfire.com/hi5/bigfiles3/AkakaHawaiiDividedFeinJune2005.pdf
Senator Kyl (R, AZ) obtained unanimous consent to print Mr. Fein's essay in the Congressional Record in three installments on three consecutive days: June 14, 15, and 16 of 2005. Each installment was introduced by brief remarks by Senator Kyl. The relevant portions of the Congressional Record are copied here:
https://www.angelfire.com/hi5/bigfiles3/AkakaFeinCongRec061405.htm

On June 22, 2005 the U.S. Senate Republican Policy Committee issued a 13-page report on the Akaka bill entitled: "S.147 Offends Basic American Values -- Why Congress Must Reject Race-Based Government for Native Hawaiians." The report, on official stationery, can be downloaded in pdf format here:
https://www.angelfire.com/hi5/bigfiles3/AkakaSenRepubPolComm062205.pdf

On July 5, 2005 the Grassroot Institute of Hawai'i released the report of a scientific survey of Hawai'i's people done by an out-of-state professional survey company. The survey showed that out of 10,000 people who were called on the telephone, 67% of those who responded to the question said they are opposed to the Akaka bill. Furthermore, 45% feel strongly enough about this issue that they are less likely to vote for any politician who supports the bill. The results of this survey are posted, along with a review of other surveys previously conducted, at
https://www.angelfire.com/hi5/bigfiles3/AkakaScientificSurvey070505.html

ON JULY 18, 2005 "THE NATIONAL REVIEW" PUBLISHED AN ARTICLE BY RAMESH PONNURU ENTITLED: "A RACE-BASED STATE -- HAWAII WANTS A SEGREGATION THAT WOULD BOGGLE YOUR MIND". That article is copied in full at the bottom of this webpage (in chronological order).

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Citizens Equal Rights Alliance, open letter to Hawai'i Governor Linda Lingle, July 11, 2005, regarding Akaka bill
https://www.angelfire.com/hi5/bigfiles3/AkakaCERAletterToLingle071105.html

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http://www.hawaiireporter.com/story.aspx?57939234-6c46-4d26-b6dd-2eda95da2b77
Hawaii Reporter (on-line), July 13, 2005

Akaka Bill Facilitates Open Season on America

By Don Newman

Full text copied below, in chronological order

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http://www.hawaiireporter.com/story.aspx?4590d9b2-951c-4f52-b790-6095b4c0b83f
Hawaii Reporter (on-line), July 13, 2005

Thoughts on the Akaka Bill -- A Libertarian View

By Tracy A. Ryan

Full text copied below, in chronological order

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Three articles published in the national media on Friday, July 15, 2005 just days before the U.S. Senate is scheduled to hold a debate and floor vote on the Akaka bill.

1. Bruce Fein, "New Racism in New Bottles", The Washington Times

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

2. Ed Meese and Todd Gaziano, "The 'Native Hawaiian' bill", Townhall

Ed Meese was the Seventy-Fifth Attorney General of the United States, serving under President Ronald Reagan. Todd Gaziano worked as an attorney in all three branches of the federal government. Meese and Gaziano now direct the Center for Legal and Judicial Studies at The Heritage Foundation.

3. Brian McNicoll, "Trouble in paradise?", Townhall

Brian McNicoll is contributing columnist for Townhall.com and a senior writer at The Heritage Foundation, a TownHall.com member group.

All three articles are available at
https://www.angelfire.com/hi5/bigfiles3/Akaka3ArticlesFeinMeeseMcNicoll071505.html

==============

On February 28, 2005, nationally syndicated conservative columnist Michelle Malkin published her second article devoted to the Hawaiian recognition bill.
HOT AIR ON THE WASHINGTON POST OP-ED PAGE
HAWAII'S SECESSIONISTS
By Michelle Malkin February 28, 2005
The article can be seen as originally published (including hot-links and reader comments)at:
http://michellemalkin.com/archives/001612.htm
Full text of Ms. Malkin's article is copied next:

HOT AIR ON THE WASHINGTON POST OP-ED PAGE |

HAWAII'S SECESSIONISTS
By Michelle Malkin   ·   February 28, 2005 05:58 AM

Tomorrow is Sen. John McCain's hearing of S. 147, the Native Hawaiian Government Reorganization Act of 2005. The bill is also known as the Akaka bill, after the bill's principal sponsor, Sen. Daniel Akaka (D-Hawaii). Tomorrow's hearing, which begins at 10 am eastern time, will be broadcast live over the internet through a link provided on the web page of the Indian Affairs Committee at http://indian.senate.gov/.

The Akaka bill would establish a new government for descendants of Native Hawaiians. A "United States Office for Native Hawaiian Relations" similar to the Bureau of Indian Affairs would direct federal policy. A "Native Hawaiian Interagency Coordinating Group" would oversee public health, welfare and education programs for Native Hawaiians would be eligible.

Giving descendents of Native Hawaiians Indian tribal-like sovereignty is historically absurd. As I noted when I wrote about similar legislation four years ago, Native Hawaiians have never organized, acted or existed as a tribe. Unlike legitimate Indian tribes that retained quasi-sovereign powers after ceding their lands to the U.S., Native Hawaiians never established a treaty right to self-governance and exemption from our federal Constitution.

The U.S. Supreme Court basically said as much in Rice v. Cayetano (2000), when it struck down a Hawaiian-only restriction for voting in a statewide Hawaiian election. The court ruled that the racial restriction "demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities."

Hawaii's Governor, Linda Lingle, is a Republican. She supports the Akaka bill and will reportedly testify tomorrow on its behalf. Will Sen. McCain and other Republicans have the stomach to challenge hre?

***

Constitutional lawyer Bruce Fein had this to say about an earlier incarnation of the Akaka bill, S. 344, last fall:

The Native Hawaiian government would be unbothered by the "irritants" of the U.S. Constitution. Thus, it might choose theocracy over secularism; summary justice over due process; indoctrination over freedom of speech; property confiscations over property rights; subjugation over equality; or, group quotas over individual merit. The Native Hawaiian citizens of the Native Hawaiian government would also be exempt from swearing or affirming allegiance to the United States of America or the U.S. Constitution.

The race-based sovereignty created by S.344 is first cousin to a revolution against the United States. As the Declaration of Independence elaborates, revolutions may be justified by repression or deafness to pronounced grievances. Thomas Jefferson's indictment of King George III is compelling on that score. But S. 344 does not and could not find Native Hawaiians are oppressed or maltreated in any way. They are first-class American citizens crowned with a host of special privileges. Indeed, the proposed legislation acknowledges that, "Native Hawaiians... give expression to their rights as native peoples to self-determination and self-governance through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school...."

Not a crumb of legitimate grievance justifies the odious race-based government championed by S. 344. To borrow from Associate Supreme Court Justice Antonin Scalia in Adarand Construction vs. Pena (1995), in the eyes of the law and the creed of the United States, there is only one race in the nation. It is American. And to be an American is to embrace the values of freedom, individual liberty and equality acclaimed in the Declaration of Independence, Constitution and Gettysburg Address. S.344 would create a distinct race of Native Hawaiians subject to a race-based Native Hawaiian government with the purpose of creating and preserving non- American values: namely, "Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions."

Native Hawaiians hold no more right to a race-based government than countless other racial or ethnic groups in the United States. They are no more entitled to secede from the jurisdiction of the U.S. Constitution than were the Confederate States of America. Enacting S. 344 would surrender the intellectual and moral underpinnings of the United States.

Lots more here.

Update: David Orland says, "What would a 'reorganized' Hawaii look like? There's no telling. But I think it's safe to say that it will involve lots of casinos."

TrackBack <3>


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On March 11, 2005 an article entitled "The Pineapple Time Bomb" was published in The Washington Times by Bruce Fein, a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. Here is that article copied from
http://washtimes.com/commentary/20050310-085600-2662r.htm

The Washington Times
www.washingtontimes.com

The pineapple time bomb

By Bruce Fein
Published March 11, 2005

It is not because Native Hawaiians should be cherished less but that equality under the law should be loved more that the Akaka Bill to create a race-based government should be opposed. The Senate Committee on Indian Affairs blithely approved the legislation Wednesday without seriously examining its constitutionality. The bill previously passed the House in 2000 as a "noncontroversial," like treating South Carolina's firing on Fort Sumter as a July Fourth celebration.
    The proposed legislation would ordain a Native Hawaiian Governing Entity cobbled together by Native Hawaiians meeting a threshold of Native Hawaiian blood. The Entity would negotiate with the United States and the State of Hawaii for lands, natural resources, civil and criminal jurisdiction, and other matters within the customary purview of a sovereign. It would be a race-based state within a state: a government of Native Hawaiians, by Native Hawaiians, for Native Hawaiians. It does not deserve birth.
    The grandeur of the United States has been a history of escape from ugly racial, ethnic or class distinctions. The nation celebrates equality of opportunity and merit rather than birth as the touchstone of destiny. American citizenship is defined by common ideals and aspirations unstained by hierarchy: no divisions between patricians or clergy, nobles and commoners. Indeed, the Constitution forbids titles of nobility.
    Accordingly, Supreme Court Justice Antonin Scalia instructed in Adarand Constructors v. Pena (1995): "To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are but one race here. It is American."
    The United States has flourished by overcoming stains on its creed of equality. Black slavery was ended by the 13th Amendment, and Jim Crow died with the Civil Rights Act of 1964 and Voting Rights Act of 1965. Individual Japanese-Americans got an apology and compensation for race-based maltreatment in World War II in the Civil Liberties Act of 1988.
    Racism is defeated by its renunciation, not its practice. The latter pits citizen against citizen and invites strife and jealousies that weaken rather than strengthen.
    An exclusive Native Hawaiian government is no exception. Justice Anthony Kennedy persuasively discredited the argument that the Akaka Bill will bring reconciliation between Native Hawaiians and their co-citizens in Rice v. Caytano (2000). In voiding a race-based restriction on the franchise for trustees of the Office of Hawaiian Affairs, Justice Kennedy sermonized: "One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. ... [T]he use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become an instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions."
    The Akaka Bill would create an unprecedented race-based government in Hawaii. Prior to the 1893 dethronement of Queen Lili'uokalani, the monarchy treated Native Hawaiians and immigrants alike. Each enjoyed equal rights under the law. Ditto under the successor government and territorial authority after Hawaii's annexation by the United States in 1898. In other words, the race-based legislation would not restore the 1893 legal landscape, but enshrine an odious political distinction amongst Hawaii's inhabitants that never before existed.
    A Native Hawaiian enjoys the same freedoms as other Americans. Native Hawaiians may celebrate a distinctive culture under the protection of the Constitution, like the Amish. Racial discrimination against a Native Hawaiian is illegal. And the civil and political rights of Native Hawaiians dwarf what was indulged by the sovereign under the former monarchy.
    Stripped of rhetorical adornments, the Akaka Bill is racial discrimination for the sake of racial discrimination; a dishonoring of the idea of what it means to be an American and a formula for domestic convulsions.
    
    Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group and adviser to the Grass Roots Institute in Hawaii.
    
Copyright © 2005 News World Communications, Inc. All rights reserved.


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On March 13, 2005 An article was published in Hawaii Reporter (on-line) saying that the Akaka bill is intentionally vague about the impacts the bill would have on local businesses and communities in Hawai'i. The article describes some of the actual consequences of federal tribal recognitions on the mainland, focusing on Washington state. The author is Elaine Willman, Chair of the Citizens Equal Rights Alliance (CERA) in Toppenish, WA. The full text of her article is copied here, taken from
http://www.hawaiireporter.com/story.aspx?6126e6bf-7ddb-4b75-a268-26b512914720

Akaka Bill May Be Intentionally Vague on What a Native Hawaiian Government Means for Hawaii

By Elaine Willman

The Akaka bill, which grants Native Hawaiians certain entitlements and sets up a seperate entity in Hawaii based on race, is being considered in the U.S. Congress.

But what the bill lacks in terms of specifics raises questions as to whether it may be intentionally vague when documenting what the Native Hawaiian "government entity" may be like.

For so long as no one can predict the specifics of this nebulous proposed new government entity, people of Hawaii may believe there is nothing to fear. There is much to fear.

Based on what exists in the Native American communities, the actual governing authorities a new "Native Hawaiian government entity" might include in its original governing document (perhaps a constitution) are some or all of the following powers:

* A "sovereign" immunity from suit or litigation;
* An ability to tax, i.e. property, sales, energy services, etc;
* The power of eminent domain;
* Exemption from federal, state and local property, sales, B&O, and other taxes;
* Exemption from state, county and local licensing or permit fees or requirements;
* Exemption from state and local land use and zoning regulations;
* Tribal zoning and land use regulations likely to be incompatible with state and county zoning;
* A "tribal employment rights ordinance (TERO)" which will REQUIRE all businesses to implement hiring preferences for Native Hawaiians, and in most cases includes a front-end FEE for new construction, expansion of facilities within a recognized boundary of the new governing entity;
* Tribal police, tribal courts and jails - all having jurisdiction of Native Hawaiians and any other enrolled tribal members of ANY other Indian tribe. Law enforcement jurisdictional conflicts are a worst nightmare, and Tribal police have two things generally in common: inadequate training and a very aggressive attitude with their own and other people;
* As a tribal government they could pursue through EPA, "Treatment Similar to States (TSTS) for control and authority over air quality, water quality, pesticides, and other major congressional environmental legislation. This process is immediately problematic for existing and new businesses, farmers and equitable water distribution and services.

Taxation Examples

The U. S. Supreme Court in 2001, in Atkinson v. Shirley, ruled "a tribe may not tax a non-member." This was a broad and clear ruling that continues to be ignored on many reservations, but the highest court has spoken quite succinctly on this point. Tribal governments have the authority to enact and enforce taxes upon their members and their tribally controlled properties, but have no authority to enact taxation upon non-members, absent "mutual consent" of non-members.

On the Tulalip Indian Reservation in Marysville, there is a former/historical boundary and an actual, smaller Tulalip Indian reservation boundary. The Tulalip tribe has been collecting a 2 percent excise/escrow fee from the sale of any property any time, within their historical boundary or actual boundary - and this includes privately owned fee parcels, deeded land that is NOT Indian owned or held, and not otherwise encumbered with any Indian restrictions. Tulalips arbitrarily imposed this fee and were collecting it from willing local escrow companies, with cooperation from county assessor offices - no one questioned them. They've collected, unlawfully, a ton of money until just recently when this maneuver was publicly surfaced and the tribe has backed off.

Several tribes -- Tulalip, Lummi, Swinomish and Yakama -- in Washington State alone - are imposing and collecting "tribal utility taxes" from non-tribal businesses, residents and properties -- based upon the existence of utility infrastructure passing through their reservations. Even if the infrastructure lies within public highway right-of-ways and is not on tribal property -- these taxes are imposed and collected, with no one at state agency level, discouraging or stopping this unlawful act (Atkinson v. Shirley, 2001).

The Yakama Indian Nation imposes a 3 percent utility tax on the electricity and natural gas services within it's boundaries. For our agricultural businesses (canning, cold storage) the cost is an additional $900 - $1,200 per month on their utility bills. My local group, Citizens Standup! Committee has sued the Washington Utilities and Transportation Commission (WUTC) for enabling this unlawful taxation - our case is being reviewed at this moment by the Washington State Supreme Court. It is not in federal court because the WUTC actually converted a tribal ordinance from a "franchise fee" to a "utility tax" when it had no authority to amend tribal legislation or to impose such a tax upon Washington ratepayers.

With 29 tribes in Washington State, you can imagine the political influence upon state agencies and elected officials who willingly roll over for all tribal whims, even the unlawful.

Tribal Employment Rights Ordinance

The Tribal Employment Rights Ordinance is typical among most federally recognized tribes. It's intent is to promote hiring preferences for Native Americans, but this is also a very strategic revenue tool for Indian tribes. For example, when a very small and budget constrained school district in Central Idaho wanted to build a new middle school, the Nez Perce tribe immediately informed the school district that it must: 1) pay $600,000 to the tribe for permission to construct the school within their "historic" (not actual) boundary; and 2) enforce Nez Perce hiring preferences.

This upfront cost for construction nearly defeated the school district's urgent need. This was defeated only when three counties, six towns, hospital districts, highway districts and school districts formed a more strengthened local coalition to stand up against the small (1,700) Nez Perce tribe.

The tribe receives 38+ million per year from the federal government and provides no services whatsoever to the surrounding community, and only limited services to its tribal members. The combined annual budgets of 23 small government entities that provide all the services (law enforcement, highways, schools, government) -- the combined annual budget of 23 governments in Central Idaho is less than what the Nez Perce tribe receives annually, and this does not include their annual gaming revenue -- which is also huge.

Another example, here in my town of Toppenish, WA, our county purchased land to build a new county corrections facility (our town has been so economically crippled by gambling and Numbers 1 through 9 above) that we were happy to have a new corrections facility. The tribe immediately informed the county that a Tribal Employment Rights Ordinance fee of $650,000 would be required for construction, even when it knew that within its own tribal ordinance, government facilities were exempt from Tribal Employment Rights Ordinance. Yakima County officials had not informed themselves and were ready to cut the check. Our citizens group informed the county that they were exempt. The next thing to happen was the tribal government claimed water control over the site and threatened litigation if the county built the corrections facility -- so we lost it.

Within every state that contains federally recognized tribal governments and reservation spaces, issues like the above occur.

Law Enforcement

If a second law enforcement system is overlaid over your current law enforcement, i.e. a "Native Hawaiian Police Division" -- then enforcement is divided between criminal and civil matters, and determinations are made as to which police have authority of which persons. On the Yakama Reservation, state and county and municipal police have authority over major felonies for all persons, including tribal members. These agencies have no authority over tribal members respecting misdemeanors. Here's how that works: a tribal member may not be cited for not having a valid driver's license, for not having a seat-belt on, or for not having auto insurance. These are all misdemeanors. There is little incentive for tribal members here to bother with such amenities as a driver's license, auto insurance or seat belts. And when this is combined with tendencies toward frequent drunk driving - the financial toll to victims (both tribal and other, and especially tribal children) is incalculable.

Most tribal governments do not include a fire department or emergency response services. On our reservation, when fires occur on tribal properties, county and municipal responders incur the obligation and costs. Tribes contribute zero dollars for annual fire services. Same thing goes for emergency response services. Local emergency response services are obligated to respond to tribal requests. Tribes contribute zero to service providers.

An Initial Reservation

Since a Native Hawaiian "reservation" would be unique, the process may differ somewhat, but if the federal recognition proceeds as with other newly recognized tribes, then the Department of Interior through the Bureau if Indian Affairs (or your new Bureau of Hawaiian Affairs) will create something akin to a Tribal Land Assessment Area for purpose of developing an initial reservation. On Oahu, for example this would likely include currently ceded lands and/or other lands controlled by the Office of Hawaiian Affairs, etc. -- and would then include a wide boundary that brings all prime properties into a contiguous space to be designated a "federally recognized Hawaiian reservation." Privately held businesses and properties would not be subject to tribal governance, but properties could see title restrictions or "clouds" that would force a seller to sell first to the tribal government, or such other restrictions that could be dreamed up and imposed.

The ability of a private business to compete on the same terms and in the same marketplace as a tribal business is a complete zero. Private businesses must follow all federal, state and local regulations and pay all respective annual taxes, licenses, permits and fees. Tribal businesses skate free here. The difference in dollars and cents for startup or annual costs is astounding.

For example, the local irrigation waters are controlled by the Wapato Irrigation District (a tribally held system). Private farmers pay an exorbitant annual fee for water. Indian farmers pay nothing. In drought years or water shortages (such as is our crisis right now), private farmers get immediately cut off from their water -- Indian farmed lands do not. Indians get their water free, and never have it cut off. Private farmers financially support the irrigation system and stand last in line behind any tribally farmed land. Despite this, we remain a primarily agricultural area.

Tax-exempt tribal businesses run the gambit of casinos, hotels, marinas, gas stations, restaurants, grocery stores, convenience stores, clothing and manufacturing, -- everything. All of these industries operate on a severely different playing field than privately owned businesses. There is no fair market system in place in or near a federally recognized Indian reservation. This problem is frequently compounded with the facilitation that tribes receive from EPA, the Army Corps of Engineers, Department of Interior, etc.

Finally, I have a serious concern that Native Hawaiians may not be fully considering the consequences of the yoke of dual citizenship -- as an enrolled member of a second government, and as a U.S. citizen. Generally, tribal governments are not democratic in form and contain little, if any, checks and balances between a governing authority, its legislative and judicial bodies. Familial and monarchial forms of government are far more limiting in terms of free speech, and include a tendency towards retaliation or reduction of services for those who voice concerns or opposition. Dual citizenship can also include dual taxation. The current freedoms enjoyed by Native Hawaiians as Americans can be severely constrained when saddled with the obligations and political influence of a separate, race-based government.

Elaine D. Willman is the Chair of the Citizens Equal Rights Alliance (CERA) in Toppenish, WA. She can be reached via email at
toppin@aol.com See more about Citizens Equal Rights Alliance, an organization seeking Constitutional and civil rights for individuals on or near Indian reservations, at:
http://www.citizensalliance.org/

================

Jerry Coffee (Captain, U.S. Navy, Retired) was the pilot of a reconnaissance aircraft flying over North Vietnam when shot down in 1966. He was held as a prisoner of war until released in 1973. The following article was published by Jerry Coffee as his weekly column in the March 16, 2005 issue of "Midweek" newspaper in Honolulu. That newspaper does not maintain archives for its columnists.

Arguing Against the Akaka Bill

Over the past few years, I -- like many of you -- have been hearing about the "Akaka Bill" and linked it to the gentlemanly and well beloved Hawaiian Senator, Dan Akaka. I had thought, legislation coming from such a man must support the aspirations of the Hawaiian people. The outspoken support of Governor Lingle has served to reinforce that impression.

And yet, I must admit to an increasing feeling of unease about legislation that might divide us into "we" and "they", especially at a time when our island state must stand united against terrorist threats to our military, shipping, air transport, and infrastructure, and also come together for solutions to our social, economic, and educational needs.

This past week I attended a debate on the Akaka Bill which included Hawaiians both pro and con, and then read Paul Sullivan's concise book, "Killing Aloha", sub-titled "The Akaka Bill is wrong for Native Hawaiians, wrong for the State of Hawaii, and wrong for the United States. Here's why!" My intuitive reservations about the bill were starkly confirmed.

Sullivan, an experienced observer and commentator on Hawaiian land issues, provides an articulate and authoritative line-by-line critique of the bill, pointing out the revisionist history and law and other false premises upon which it is founded, and ultimately -- as race based legislation -- its unconstitutionality. To bypass the race issue, the bill seeks to redefine the meaning of "indigenous" to qualify native Hawaiians as a "tribe" in the same sense as Native Americans on the mainland who were present there from the beginning of recorded history, i.e., indigenous. But Hawaiians, by their own oral tradition and other recent scholarly research, proudly trace their migration from the South Pacific some time after the Romans were colonizing England; a historically recent arrival hardly supporting the claim of "indigenous."

The Akaka Bill would also establish a dangerous precedent, encouraging the separatist and sovereignty aspirations of numerous other minority groups in America. It's no exaggeration to suggest we risk undoing piecemeal all that was won in the Civil War; the preservation of the Union.

In his conclusion, Sullivan emphasizes that the Akaka Bill should not become law, that it won't work, and that it is unnecessary. "It is replete with ambiguity and uncertainty. It perpetuates inaccurate and divisive views of history and law. Vital questions about its effect remain unanswered (implementation, land rights and use, taxation, judicial authority, citizenship, gaming). By law it divides forever not only the people of Hawaii, but the people of the United States on grounds of (race and ancestry) which the U.S. Supreme Court has termed "odious to a free people." Far from promoting reconciliation, it is more likely to promote conflict and resentment."

As this is being written, the Bill has passed out of the Committee on Indian Affairs for a full vote in the Congress. If you share these concerns about its ultimate effect, and would like to receive a copy of Sullivan's "Killing Aloha", it can be ordered at sullivanp003@hawaii.rr.com Or download directly from http://tinyurl.com/63lu9 This is a very serious issue which should be understood by every citizen of Hawaii.

Thirty years ago I made Hawaii my home by choice because of the Hawaiian people and the culture of Aloha, a people and culture that have literally thrived in union with the United States of America. As U.S. citizens, the vast majority of native Hawaiians -- as defined by the Akaka Bill -- enjoy freedom, dignity, respect, prosperity, opportunity, and promotion of their culture far surpassing that available even under their own Monarchy, and unequaled anywhere else in the world today.

================

Attorney Bruce Fein, nationally recognized expert on Constitutional law, published three articles opposing the Akaka bill, between November 2004 and March 2005. The articles were entitled "The Pineapple Time Bomb"; "A Race-based Drift?"; and "E Pluribus Unum, Debating the Legality of the Akaka Bill." All three articles were entered into the Congressional Record by Senator Kyl (R. AZ) on March 17, 2005, along with Senator Kyl's own statement reaffirming his opposition to the Akaka bill. The actual pages of the Congressional Record can be seen, along with URLs for the original sources of the three articles and some closely related articles. Go to:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaFeinCongRec031705.html

==============

In March 2005 the Honolulu Star-Bulletin conducted an on-line poll which asked the question "Would you like to see the Akaka bill become law?" When the poll ended, the votes were "Yes" 436 and "No" 1301 -- a resounding 75% opposed. This in the only time public opinion on the Akaka bill has ever been gathered in a survey open to anyone who cared to participate. That is important, because the State of Hawai'i does not allow citizens to place "initiative" questions on the ballot; and even Constitutional amendments must first be approved by the Legislature before being placed on the ballot. Previous Akaka-bill polls were conducted under circumstances controlled by supporters of the bill. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSBpollmarch2005.html

==================

http://www.freecongress.org/commentaries/2005/050614.asp
and also
http://www.austinreview.com/archives/2005/06/native_hawaiian.html

The Austin Review
June 13, 2005

"Native Hawaiian" Government -- A Dangerous Experiment

by Paul M. Weyrich
[Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.]

Senator Jon Kyl (R-AZ) certainly is one of the most thoughtful Senators. He almost always is on the right side of issues. When he zeroes in on an issue no Senator is more prepared, more articulate and more passionate than Senator Kyl. I proudly helped him win a contentious primary for a House seat years before he vacated that seat and was elected to the Senate. That is why I was astounded to learn that Kyl made a deal with Senator Daniel K. Akaka (D-HI) to bring S. 147, Akaka's Native Hawaiian Government Reorganization Act of 2005, to the Senate Floor for consideration later this session.

It is not clear whether Kyl intends to support the measure, although the Senate Republican Policy Committee, which Kyl chairs, is not producing its usual product, such as the one that would point out the defects in the Akaka Bill.

Those defects are breathtaking, especially for a conservative Republican Senator. The Akaka measure would create a race-based and racially separate tribal government within Hawaii. It would manage this by funneling the so-called Native Hawaiian population into laws governing "Native Americans," the accepted name for those formally called Indians. Never mind that "Native Hawaiians" are not "Native Americans." Nevertheless, the resulting government to be created by this measure would end up calling Native Hawaiians a "tribe."

Twenty percent of Hawaii's population, along with 400,000 other people nationwide, would belong to this nation's largest Indian "tribe." Perhaps both "Indian" and "tribe" always should be in quotation marks.

Senator Kyl is a student of the Constitution. He is one of the few Senators who often questions the constitutionality of a legislative matter. Yet the Akaka Bill is highly suspect in regard to the U.S. Constitution. Never before in our history has Congress created an extra-constitutional race-based government out of a group of American citizens. You see, if this bill should become law it would follow the precedent of existing Indian treaties. Thus, it may be that such a new government could deny its citizens the protections of the Constitution's 1st, 5th and 14th Amendments.

The way S.147 would analogize Indian law to establish race-based governments is, as one Senate observer said, "a crude distortion of history and law." Please understand that the Indian tribes of the lower 48 States existed before the U.S. Government did. Their sovereignty was preserved either by a treaty or a statehood act. When Hawaii became a state in 1959 there was no such preservation of sovereignty of Native Hawaiians. In fact, most Native Hawaiians were lobbying more vigorously for statehood than any other group.

Liberals love to distort history. Senator Akaka claims that his bill is merely reorganizing an earlier race-based government of Native Hawaiians. Really? The fact is that there has not been a racially homogenous government in Hawaii since the early Century.

Senator Akaka's bill would extend American Indian sovereignty and immunity to Native Hawaiians and actually would apply different legal codes to different races living in the same society. This might work on Indian reservations where Indians live apart from the rest of the population but it is highly questionable when different laws would apply to folks living next door to each other on the same street.

Native Hawaiians could end up, depending upon what this new "government" would do, immune from the body of state and local laws, regulations and taxes which bind the rest of the population of our 50th State. Talk about the possibility for race wars! What really gets me about Senator Akaka is his claim that by dividing people by race it will promote racial harmony. This is almost Orwellian in its scope. The Supreme Court, the year after I was born in 1943, noted that "distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded on the doctrine of equality." That is from a decision entitled Hirabayashi v. United States, 320 U.S. 81, just in case a legal scholar wants to see if this non-lawyer has it right.

Senator Akaka may mean well. I cannot know his heart. His bill, if enacted into law would create a terrible precedent which in the future could cause the Balkanization of America. Because Senator Kyl is in the Senate Leadership and has made his deal with Senator Akaka, no doubt Akaka's bill will come to the Senate floor for a vote. (Kyl is the Senate's leading proponent of missile defense and Senator Akaka voted for missile defense in a move that surprised nearly everyone. If that should be the trade off, perhaps Kyl could be forgiven.) It would be highly unusual for the rest of the Senate Leadership to turn on one of its own. However, an effort is being made to see that the Akaka Bill never sees the light of day in the House of Representatives. The House, by and large, is the more responsible body when it comes to such issues. And unfortunately this is the kind of bill that President Bush might sign if it had passed both Houses by convincing margins. Let us hope the House will exercise restraint because it is frightening to think of what would happen were this measure to become law.

Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.

--------------------

On June 14, 2005 the following article was published in Hawaii Reporter (on-line)
http://www.hawaiireporter.com/story.aspx?f0c797b0-6025-4a3f-8a11-7541cae9db52

The Akaka Bill Could Give Birth to the Nation of Aztlan

By Don Newman, 6/14/2005

Aztlan -- have you ever heard of it? You know, the nation that encompasses what used to be all of California, Arizona, New Mexico, Texas and southern Colorado as well as most of Northern Mexico. There is no such nation you say? Well, a University of New Mexico Chicano Studies professor named Charles Truxillo says that it is "an inevitability."

The influx of illegal aliens, especially from Mexico, that come and settle in that general area is seen as a precursor for the formation of this new nation. By establishing themselves in overwhelming numbers they intend to create such a huge voting block that the nation of Aztlan could be voted into reality.

This could never happen legally you say. There could be no legal precedent for the formation of a new sovereign nation within the borders of the United States that could form the seed for such a new nation. Well, the irony is that legal precedence may come from, of all places, Hawaii.

The intent of the Akaka bill is to do just that, create a new sovereign nation within the borders of the United States. The criterion is the "blood quantum" or traceable lineage of anyone who qualifies according to the established definitions as "Hawaiian." What kind of government will be the ultimate result of such an arrangement is anybody's guess.

Now, there will be those who will quibble as to the actual nature of the "sovereign nation" and they may be right. That is not the point of this editorial. The point is the precedence this bill will set if it passes. If Hawaiians can lay a claim to the ceded lands of Hawaii then why can't Mexicans who were forced off their land in 1848 have a similar claim?

MEChA is a radical pro-Mexico student group that says it is committed to "the physical liberation of Occupied America" and a separate Hispanic nation in the Southwest U.S. It's motto is "Por La Raza Todo, Fuera de La Raza Nada: for the race, everything; outside the race, nothing."

Notice the same race based definition as that of the Akaka Bill. Once the precedent has been established that race is the criterion for land, government and inclusion then where does that end? It then becomes a pell-mell scuffle for land and power, nothing more.

The idea that precedents cannot lead to such absurd conclusions was recently demonstrated to be wrong by the Supreme Court's decision on medical marijuana. The original decision concerning the wheat farmer who grew a couple hundred bushels of wheat for his own use that was ruled by the Supreme Court to be subject to the Commerce Clause of the Constitution was the precedence that led to the absurd conclusion that six marijuana plants grown for personal use were also subject to the same Commerce Clause although all commerce in the commodity is illegal.

This is the way of such legal precedents, they lead down paths that no one could possibly have envisioned. Thus to say that the Akaka Bill could lead to the establishment of native Mexican tribes in the United States which would form the seed for the nation of Aztlan is not so farfetched. It certainly could come to pass in the full course of time.

Don Newman, senior policy analyst for the Grassroot Institute of Hawaii, Hawaii's first and only free market public policy institute focused on individual freedom and liberty, can be reached at: mailto:newmand001@hawaii.rr.com

-----------------

The analysis of the Akaka bill as related to MEChA (Nation of Aztlan) presented in the above short article was limited by space, but its analysis is similar to an article previously published in Hawaii Reporter on September 3, 2003 by Kenneth R. Conklin: "Hawaiian Nationalism, Chicano Nationalism, Black Nationalism, Indian Tribes, and Reparations - Akaka Bill Sets a Precedent for Balkanizing and Dismembering America"
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnlHawRept.html
. That article in turn was based on a webpage twice as long by the same title with much greater detail:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHawnChicanoNatnl.html

SUMMARY

There are strong similarities between the Hawaiian sovereignty movement and the Chicano nationalist movement. The 2003 Gubernatorial recall campaign in California focused public attention for a few days in August on the radical agenda of an ethnic nationalist group to which Lieutenant Governor Cruz Bustamante belongs. This Chicano-power group is MEChA, or Nation of Aztlan. Its view of history and demands for nationhood are strikingly similar to the Hawaiian sovereignty movement.

A bill now being considered in Congress, S.147 and H.R.309 (the Hawaiian Government Reorganization bill), would give federal political recognition to an ethnic group in Hawai'i as though they are an Indian tribe. This bill is pork barrel politics, designed to protect 160 racially exclusionary government programs for "Native Hawaiians" which will otherwise be ruled unconstitutional by the courts. But the same misguided theory that would allow Congress to convert an ethnic group into a racial separatist government in Hawai'i could also be used to support racial separatism and eventual independence for "indigenous" people of Mexican ancestry in California, Arizona, New Mexico, Texas, and perhaps other states. Anyone concerned about MEChA, Nation of Aztlan, or Chicano nationalism should also be concerned about Hawaiian nationalism, and vice versa. The success of one would help the other both politically and legally. There are also parallels to Black nationalism and demands for reparations for slavery.

What makes Hawaiian nationalism of special concern to the rest of America is that it may be the first nationalist movement to succeed in establishing a government, thanks to the support of Hawai'i's powerful senior Senator, Daniel Inouye. S.147/H.R.309, the Native Hawaiian Recognition bill, would give a political and legal victory to Hawaiian nationalism, setting a precedent for other ethnic nationalist movements. Our country is strong enough militarily to defeat any foreign enemy. Our most dangerous enemy comes from within -- the idea of race-based rights and ethnic nationalism. S.147/H.R.309 is the thin edge of a very large knife poised to dismember America. That is a very good reason why Senators and members of Congress from throughout America must oppose this disastrous legislation.

===============

Constitutional law expert Bruce Fein published a booklet June 1, 2005 under the auspices of the Grassroot Institute of Hawaii: "Hawaii Divided Against Itself Cannot Stand." Mr. Fein's essay is of special interest to scholars because of his analysis of the apology resolution of 1993 as well as the provisions of the Akaka bill. It can be downloaded in pdf format here:
https://www.angelfire.com/hi5/bigfiles3/AkakaHawaiiDividedFeinJune2005.pdf
Senator Kyl (R, AZ) obtained unanimous consent to print Mr. Fein's essay in the Congressional Record in three installments on three consecutive days: June 14, 15, and 16 of 2005. Each installment was introduced by brief remarks by Senator Kyl. The relevant portions of the Congressional Record are copied here:
https://www.angelfire.com/hi5/bigfiles3/AkakaFeinCongRec061405.htm

==============

On June 22, 2005 the U.S. Senate Republican Policy Committee issued a 13-page report on the Akaka bill entitled: "S.147 Offends Basic American Values -- Why Congress Must Reject Race-Based Government for Native Hawaiians." The report, on official stationery, can be downloaded in pdf format here:
https://www.angelfire.com/hi5/bigfiles3/AkakaSenRepubPolComm062205.pdf

===============

On July 5, 2005 the Grassroot Institute of Hawai'i released the report of a scientific survey of Hawai'i's people done by an out-of-state professional survey company. The survey showed that out of 10,000 people who were called on the telephone, 67% of those who responded to the question said they are opposed to the Akaka bill. Furthermore, 45% feel strongly enough about this issue that they are less likely to vote for any politician who supports the bill. The results of this survey are posted, along with a review of other surveys previously conducted, at
https://www.angelfire.com/hi5/bigfiles3/AkakaScientificSurvey070505.html

On July 7, 2005 the National Review on-line announced that its July 18 print edition would include an article by Ramesh Ponnuru entitled "A Race-Based State -- Hawaii wants a segregation that would boggle your mind." The July 7 on-line announcement included an excerpt, plus a link to the full text available only to subscribers. The announcement and link are at
http://www.nationalreview.com/ponnuru/ponnuru200507070816.asp Apparently a subscriber later sent the full text to Hawaiian sovereignty activist Scott Crawford, who then published it on his blog at
http://www.hawaiiankingdom.info/C608676235/E20050707145655/index.html

Here is the full text as taken from Scott Crawford's blog.

National Review, July 18, 2005

By Ramesh Ponnuru

A Race-Based State

Hawaii wants a segregation that would boggle your mind.

Republicans have shown precious little courage in fighting government policies that distribute benefits based on race in recent years. There have been no legislative efforts to rein in racial preferences in federal contracts, and the Bush administration gave a qualified blessing to racial preferences in college admissions when the Supreme Court was considering the issue. Now we are going to see whether Republicans can at least oppose the creation of new race-based subsidies.

Sen. Daniel Akaka, a Democrat from Hawaii, is sponsoring a bill to create a race-based government for "Native Hawaiians." It may well pass, thanks to the support it has gotten from a few Republicans, including Lindsey Graham of South Carolina and Norm Coleman of Minnesota.

Hawaii has an Office of Hawaiian Affairs that provides benefits to "Native Hawaiians" - that is, to descendants of the racial majority of the islands at the time they became part of the United States. Until recently, the board of the agency was restricted to Native Hawaiians, and only Native Hawaiians were allowed to vote in elections for board members. In 2000, however, the Supreme Court ruled (over the dissent of two liberals) that the racial restrictions on voting violated the Fifteenth Amendment. (That's the one that, well, prohibits racial restrictions on voting.) In the course of explaining their decision, the justices cast doubt on the constitutionality of the whole scheme of benefits for Native Hawaiians.

The Akaka bill heads off the threat of colorblind government by treating Native Hawaiians as akin to an Indian tribe. The tribes get to govern themselves. Under the bill, Native Hawaiians would be treated similarly - or so the bill's supporters claim. Native Hawaiians will get the sustained prosperity and good government that Native Americans so famously enjoy. Or the Native Hawaiians could choose to go back to monarchy, the form of government that was overthrown in 1893. The new government, whatever its form, will negotiate with Hawaii and the federal government over lands, natural resources, and civil and criminal jurisdiction. The Bill of Rights does not fully apply to Indian tribes, and even those elements of it that do theoretically apply are hard to enforce. The Native Hawaiian government would not have to comply with the Bill of Rights, either.

The new government could choose to sever ties with the United States. The Office of Hawaiian Affairs promotes the bill as a step toward letting Native Hawaiians "exercise their right to self-determination by selecting another form of government including free association or total independence."

Critics of the bill, however, say that Native Hawaiians are not analogous to Indian tribes. The federal government did not create sovereign tribes so much as recognize them. Generally, the tribes existed as tribes before the areas in which they lived got statehood. The federal government made treaties with them, or passed statehood-enabling laws that recognized them. In a few other cases, tribes have been recognized after demonstrating that they had formed a separate and distinct community exercising sovereignty over the previous century.

Native Hawaiians aren't a separate and distinct community. They aren't geographically separate. Native Hawaiians who live in Hawaii live in the same neighborhoods, and go to the same stores, churches, and schools, as the other four-fifths of Hawaiians. So federal recognition of their "tribal" status would mean that a Native Hawaiian storeowner would be effectively exempt from state sales taxes while his non-Native competitor down the street would remain subject to them. There is no marked cultural separation of Native and non-Native Hawaiians, either: Intermarriage rates are quite high in Hawaii.

Nor have Native Hawaiians exercised political sovereignty. There are no pretenders to the old Hawaiian throne. There wasn't a purely race-based government in Hawaii even before 1893. The queen had subjects who had come, or whose ancestors had come, to Hawaii from all over the world. The government included officials of many races. Nor was the sovereignty of the Native Hawaiian race recognized at the time Hawaii became a state. The rhetoric of statehood advocates at that time (the 1950s) was that of the melting pot, not of racial separatism. Yet the Akaka bill's criterion for participating in the new government is being able to document lineal descent from the indigenous people of Hawaii. (The bill does not specify how much Native Hawaiian blood must flow in a person's veins for him to qualify - one drop would apparently count.)

Jon Kyl, a Republican senator from Arizona, has led the opposition to the bill. "It is the antithesis of the American concept of E pluribus unum and could begin the balkanization of the United States based strictly on race and ethnicity." If Aztlan and other Latino separatists ever acquired some political strength in California and the Southwest, the Akaka bill would be a handy precedent for them.

But Kyl doesn't have much company. Congress has a track record of pandering on Hawaiian issues: In 1993, it officially apologized for America's alleged role in the overthrow of the monarchy. (Apparently that was illegitimate, although it was perfectly fine for that line of monarchs to take over Hawaii in the first place.) There is no Democratic opposition to the Akaka bill, and several Republicans are supporting it. Alaska's congressional delegation has long worked with Hawaii's. The senators from Hawaii voted to allow drilling in the Arctic National Wildlife Refuge, a priority for Alaska lawmakers that just barely passed the Senate. Alaska's Republican senators, Ted Stevens and Lisa Murkowski, are co-sponsors of the Akaka bill.

But the Alaska connection isn't the only reason some Republicans are supporting the bill. In 2002, Hawaii elected Linda Lingle, the first Republican governor of the state for 40 years. She backs the Akaka bill. She is said to see her position as a prerequisite for increasing the party's share of the Native Hawaiian vote. And she has brought Republicans elsewhere with her. Gordon Smith of Oregon might have co-sponsored the bill in any case. But it is hard to believe that Lindsey Graham would be co-sponsoring it if not for Lingle.

Kyl has been fighting the bill for almost as long as it's been around. Last year, though, he was forced to make a partial retreat. Senator Stevens and Hawaii's Daniel Inouye attached the Native Hawaiian bill as an amendment to the bill funding the Departments of Labor and Health and Human Services. Kyl couldn't very well defeat that bill, especially as a member of the Senate Republican leadership. And supporters of the Akaka bill were threatening to hold up bills important to Arizona if he tried. So Kyl and other opponents of the bill - notably Pete Domenici of New Mexico and majority leader Bill Frist - cut a deal promising a vote on the bill in 2005.

Kyl is going to try to amend the bill to make it less noxious. He may, for example, try to take out its strict racial classifications. If the bill passes, action will move to the House - where it has received even less scrutiny than it has gotten in the Senate.

Benjamin Ginsberg, a well-connected Republican lobbyist - he was counsel to the Bush campaign in 2000 and most of 2004, and he works at the powerhouse firm of Patton Boggs - is working for the bill. There is no money on the other side of the issue. Ted Olson, Bush's former solicitor general, has been so appalled by the legislation that he has done a little pro bono work against it.

In short, everyone with an interest in the bill - Lingle, the Alaskans, Ginsberg - wants it to pass. The only people who want it to fail - Kyl, Olson - do so for reasons of principle. That's the state of play right now: It's interest vs. principle. You know which way to bet.

----------------------

Citizens Equal Rights Alliance, open letter to Hawai'i Governor Linda Lingle, July 11, 2005, regarding Akaka bill
https://www.angelfire.com/hi5/bigfiles3/AkakaCERAletterToLingle071105.html

-----------------------

http://www.hawaiireporter.com/story.aspx?57939234-6c46-4d26-b6dd-2eda95da2b77
Hawaii Reporter (on-line), July 13, 2005

Akaka Bill Facilitates Open Season on America

By Don Newman

The Native Hawaiian Government Reorganization Act, known as the Akaka Bill for U.S. Senator Dan Akaka, D-Hawaii, who introduced it, sets a dangerous precedent in U.S. law. Often asserted to be a bill that settles Hawaiian claims it does nothing of the sort. To the contrary, it leaves the door open for any claim to be made, no matter how frivolous or foolhardy, for 20 years following its passage. Also there is no limit to the extent or nature of these claims.

The nomenclature of this bill designates an independent governing body for a portion of the populace in the state of Hawaii, entirely defined by so-called indigenous racial lineage. This is something that even the original Hawaiian Kingdom did not do. It opens the door for any group within the U.S. to make the same claim upon the same basis. This is why this precedent is so dangerous and the ramifications could be quite profound.

Another aspect of the bill is that it circumvents democracy completely. Within 180 days of the passage of the bill the Secretary of the Interior will appoint 9 members to a commission that determines who qualifies for this lineage and who doesn't. There is no choice in this matter for the people of Hawaii or the native Hawaiians themselves. Other than the Secretary no one has a say who these people will be. No doubt, the most extreme groups that advocate the loudest will be given first option.

No plebiscite will be instituted to determine if the people of Hawaii want this bill to be enacted, nor will there be one among native Hawaiians either. Ironically, many native Hawaiians oppose the bill precisely for this reason since it locks them out of the process and resulting decisions. And these decisions are many and far reaching.

The commission and the resulting native Hawaiian government is to be given control of the "ceded lands" that are now controlled by the state. Since there has never been an extensive audit of what these lands comprise, no one really knows what this entails. It is known that about 40 percent of state lands would become the property of the new "nation within a nation" government.

Because of the way these lands were originally divided they are not contiguous but are a patchwork, sometimes within neighborhoods. Thus it could literally be true that one could walk across the street and be subject to a completely different set of laws and subject to a completely separate jurisdiction. And all of these distinctions being race based. Thus it could be legal for a native Hawaiian to run a poker parlor in the neighborhood but no one else.

While there is no aspect of the Akaka Bill that specifically authorizes gambling there is nothing that prevents it. The "Reorganization Commission" can request of the federal government any laws or policies it deems fit and if the federal government approves them, then they become law. The operative word here is "any." And again without any plebiscite or approval of the general populace, no one gets to vote on any of this.

The repercussions statewide and nationally could be astounding. For the state of Hawaii a general uncertainty in the economic community will take place, making it a very unwise place to invest. Which lands belong to whom? Which laws will prevail in what areas, those of the state or those of the "native Hawaiian" governing body? Who would want to invest in such a climate?

What taxes will be levied? If a "native Hawaiian" business opens in one part of town, subject to only a minimal "Hawaiian" tax rate because it is on "ceded lands" while others are subject to the state's onerous General Excise Tax, who will be more competitive? Which business will be favored?

Since the newly reorganized native Hawaiian government can request any changes in federal laws, what happens if they request exemption from the Jones Act? Although this is an archaic law that needs to be repealed, if native Hawaiians open a port on their newly acquired "ceded lands" and declare themselves a separate nation they could, theoretically, circumvent the Jones Act. What precedent would this set nationally?

Roughly half of those that qualify for "native Hawaiian" status under the Akaka Bill live on the mainland. No one knows what their status there is or could be. If a group of them pool together and buy land in Michigan, can they then claim that as Hawaiian Homelands? Since the Akaka Bill is wide open to any claims that could be made, this is not as farfetched as it seems. Hawaiians could begin seeking to acquire land in ways as yet unforeseen.

They may also be able to make unlimited campaign contributions as Native Americans have in the past. Subject to their own set of laws they wouldn't have to abide by federal laws, especially if they had already requested and were granted special dispensation. This is a movement that could spread across the nation as every "indigenous" group became infatuated with the concept. Especially if the Akaka Bill succeeds.

The racial component of the Akaka Bill cannot be overstated. Based entirely upon ancestry it is reparations with a vengeance. Once this principle is established in U.S. law there is no imagining where it might end. Any number of "indigenous American" tribes could make the same claim. African-Americans would certainly have a shot at it. Mexicans could dispute who really owns the Alamo. The permutations are endless.

The Akaka Bill is bad precedent for America. It should not pass. If by chance it does, before it does it needs to be modified. It needs to have the prerequisite that a plebiscite of Hawaii state residents approve it, and it needs to limit the scope of claims that can be lodged on behalf of native Hawaiians. Without these provisos, it will be open season on America.

Don Newman, senior policy analyst for the Grassroot Institute of Hawaii, Hawaii's first and only free market public policy institute focused on individual freedom and liberty, can be reached at: mailto:newmand001@hawaii.rr.com

---------------------

http://www.hawaiireporter.com/story.aspx?4590d9b2-951c-4f52-b790-6095b4c0b83f
Hawaii Reporter (on-line), July 13, 2005

Thoughts on the Akaka Bill -- A Libertarian View

By Tracy A. Ryan

Libertarians are opposed to the so-called "Akaka" bill aimed at granting ethnic Hawaiians the status of an Indian tribe. There are lots of issues involved in this bill, but we believe it runs contrary to the equal protection clause of the US Constitution. America does not have a record on race relations that many of us are proud of. The Fourteenth Amendment that aimed to undo racial discrimination was passed in the 1860's following the Civil War. Yet it wasn't until the 1960's that African-Americans began to receive the protections it promised. Much struggle was involved. Let's not go backwards. If Hawaiians have grievances to discuss, let's look to other ways than Akaka to respond to them.

The Politics

In my 2002 campaign for Governor, I was clear in opposing the Akaka Bill. In television programs filmed for Olelo, I repeated my position. I was open to discussing it with Hawaiian groups, finding many of them opposed to this bill as well. Other Libertarian candidates have been no less frank on the issue. Had I had more support from the many Akaka bill opponents who voted for our current pro-Akaka bill governor, I might have been invited to appear in the one major televised debate that went out over all the broadcast channels. This might not have changed the election results, but it would have given viewers a more balanced view.

During the 2002 campaign it was clear that Hawaiians constituted a swing vote. Candidates were jumping over themselves to appear pro-Hawaiian. Campaign managers made professional estimates regarding where the most votes could be had for their candidates and candidates developed positions accordingly. Libertarians create their positions based on applying the principals of libertarianism to the issues of the day. We do not develop positions by counting noses.

The role of OHA

The Office of Hawaiian Affairs, commonly referred to as OHA, (oh-ha), was created by the State of Hawaii in 1979 to administer programs aimed at ethnic Hawaiians. OHA could have done a perfectly fine job of this without establishing blood quantum tests for radical discriminatory purposes. Based on their own publications it is clear that ethnic Hawaiians constitute a large proportion of the people in need of the kinds of services to be offered by their agency. The overlap between OHA clients and people of Hawaiian ancestry would always have been high.

The State blindly decided to conduct public elections for OHA trustees based on allowing the franchise to only those persons who could prove Hawaiian ancestry. Everyone should have known this was unconstitutional. The surprise is that it took until 2000 before the US Supreme Court ruled it so. The Court also eliminated the race qualifications for serving as an OHA trustee. It should be clear that if OHA is an organ of the state they must abide by the Fourteenth Amendment. If they insist on race basing themselves they would have to first become some sort of private entity. No plan, even a theoretical one, has been advanced explaining how OHA could divorce itself from the State of Hawaii and become private. This is because OHA has chosen to seek an end around the Supreme Court decisions through Senator Akaka's bill.

The Akaka's bill is not a child of, what for lack of a better term I will describe as, the Hawaiian sovereignty movement. It was dreamed up to help a State agency continue to act in violation of the Constitution. The bill may discuss native government and other issues, but I believe this language is simply aimed at tapping into the political strength of Hawaiian activists. Not surprisingly to those familiar with Hawaiian activists it has had quite a different effect. For the most part the Hawaiian activists do not support this bill. They certainly do not view it as establishing Hawaiian sovereignty.

The race issue at its core

Suppose you were a black man applying for a job and the employer told you "sorry, we don't hire blacks here". You have been discriminated against. You have suffered potential economic loss by the actions of another individual. There are no ambiguities. Now say that many generations ago you had a Hawaiian ancestor. He represents 1/64th of your genetic makeup. The rest of your genes are all European. Can you now claim damages for the harm done to your 1/64th Hawaiian ancestor from people living today who cannot be shown to have ever done you any harm at all? The fact is it was probably some of your other 63/64th ancestors who did the harm to begin with. So should one part of you sue the other?

The sovereignty groups

Republicans have used the Akaka bill as an opportunity to direct criticism at the various Hawaiian sovereignty groups. Since the Akaka bill talks about creating a native government this may not be entirely inappropriate. Libertarians have other views in some of these areas. Beyond the clear issues I have outlined above there is no consensus among Libertarians on Hawaiian sovereignty. Add to this that there are dozens of Hawaiian groups advocating dozens of differing views on sovereignty.

Libertarians believe that life, liberty, and the pursuit of happiness, are universal human rights. So to a libertarian thinker all sovereignty starts with self sovereignty. To argue as Republicans have that Hawaiians have no standing to ask for sovereignty because under the Hawaiian monarchy the King and not the people was sovereign flies in the face of this most basic of American principals. Any government that acts without the sovereign consent of its people should be regarded as illegitimate. To do otherwise legitimizes the acts of every dictatorship and totalitarian regime that has ever existed.

Sanford P Dole on Annexation

Shortly after the 1898 annexation of Hawaii the former president of the Republic of Hawaii, Mr. Sanford P. Dole, wrote an article published in Harper's Pictorial History of the War With Spain. Mr. Dole wrote that there were 109 thousand people living in Hawaii at the time of the 1896 census. Native Hawaiians and part Hawaiians represented more than a third of the population. Dole stated clearly that the majority of this group had opposed annexation. He also states "naturally the part-whites have a hereditary superiority over the pure Hawaiians, and are, as a rule, more progressive." I quote this to point out the strong undercurrents of racial prejudice that underlay white writers of Dole's time. It should be a warning to those who wish to accept all the writings of his contemporaries at face value.

Dole's article is clear on how various ethnic groups viewed annexation. According to him the Anglo-Saxons and Portuguese supported it. These groups, if I read his figures correctly, made up less than 15% of the population. The majority of the people in Hawaii were Japanese and Chinese immigrants strongly opposed to becoming part of the United States. So if we follow Dole's article it would seem that any vote that accorded the franchise to all adult residents of Hawaii would have defeated annexation. (i.e. 35 percent Hawaiian vote strongly opposed, 50 percent Chinese/Japanese mostly opposed, and 15% Anglo-Saxon/Portuguese mostly in favor). A vote that included only citizens of the Republic would have been anti-annexation in that the Hawaiians would have outvoted the Anglo-Saxons. A vote of all adults would have defeated annexation by an even larger number if Dole's estimations of the sentiments of the Asian population were accurate. As a supporter of annexation he would have had no reason to overestimate opposition.

America's annexation debate

The annexation of Hawaii was a controversial issue in American politics during the 1890's. It bitterly divided the Republican Party between pro-annexationists like Theodore Roosevelt and anti-annexationists like House Speaker Thomas Reed. Roosevelt felt that American needed oversees colonies to demonstrate US importance in world leadership. Reed felt that becoming a colonial power violated the spirit of our founding fathers and the rights of all people to self determination.

During the annexation negotiations between the United States and the Republic of Hawaii the issue of who would have voting rights in the new Territory was a point of some disagreement. Some of the Republic's people felt that the franchise should be limited based on property ownership. Such a scheme might have allowed the white population to control the ballot box even though they constituted a small fraction of the resident population. To its credit the US government rejected this. Hawaiians probably faired better in many ways under the Territory and the Constitution of the United States than they might have under a continuing Republic dominated by white planters. Sadly, many other groups, particularly the Japanese, had to wait for decades to get the full rights of citizenship.

The question of the legitimacy of American annexation of Hawaii without a vote of support from the people of Hawaii came up in our Federal Courts a few decades ago. The courts skirted the issue as moot. The Court held that no matter what public sentiment had been in 1898 support for Statehood in 1959 was fairly determined.

Libertarians regret that such a contentious issue has befallen our islands. The Akaka bill is bad for our dedication to equal protection under the law. It has upset many of the designated beneficiaries in the Hawaiian community to boot. I am saddened that many other issues relating to Hawaiians have been mixed up in this sorry debate. I hope the bill is defeated in the US Senate so we can move on towards more constructive ways of dealing with problems many Hawaiians, (both those who are Hawaiian by ancestry and those who are Hawaiian in spirit), wish to see addressed.

Tracy Ryan, chair of the Libertarian Party of Hawaii, can be reached by email at: mailto:tracy.ahn.ryan@worldnet.att.net

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Three articles published in the national media on Friday, July 15, 2005 just days before the U.S. Senate is scheduled to hold a debate and floor vote on the Akaka bill.

1. Bruce Fein, "New Racism in New Bottles", The Washington Times

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

2. Ed Meese and Todd Gaziano, "The 'Native Hawaiian' bill", Townhall

Ed Meese was the Seventy-Fifth Attorney General of the United States, serving under President Ronald Reagan. Todd Gaziano worked as an attorney in all three branches of the federal government. Meese and Gaziano now direct the Center for Legal and Judicial Studies at The Heritage Foundation.

3. Brian McNicoll, "Trouble in paradise?", Townhall

Brian McNicoll is contributing columnist for Townhall.com and a senior writer at The Heritage Foundation, a TownHall.com member group.

All three articles are available at
https://www.angelfire.com/hi5/bigfiles3/Akaka3ArticlesFeinMeeseMcNicoll071505.html


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