** PREVIOUS YEARS' TESTIMONY, PUBLICATIONS, AND SPEECHES ON THE SENATE FLOOR:
A large collection of testimony in opposition from the previous 106th, 107th, 108th, and 109th Congresses can be found at
A collection of several hundred major published articles opposing the Akaka bill, grouped by historical periods from 2000 through 2007, can be found at
On June 7 and 8, 2006 the U.S. Senate spent about four and a half hours debating the merits of the Akaka bill prior to voting against a cloture motion. There were many speeches both pro and con. Transcripts of all of those speeches were printed in the Congressional Record, and have been collected on a webpage. The following Senators spoke in favor of the bill: Akaka (three), Dorgan, Inouye (two), Murkowski, Obama, Reid, Stevens. The following Senators spoke against the bill: Alexander(four), Cornyn(two), Craig, Enzi, Kyl, McConnell, Sessions(two), Sununu. In addition, a letter was delivered to the Senate from the Department of Justice expressing the Bush administration's strong opposition to the Akaka bill, and from Mr. Kirsanow of the U.S. Commission on Civil Rights opposing the bill. Those speeches and letters are all gathered at:
** THE MAY 3 2007 HEARING OF THE U.S. SENATE COMMITTEE ON INDIAN AFFAIRS REGARDING S.310 (AKAKA BILL) IS STORED ON THE COMMITTEE'S WEBSITE. IT CAN BE DOWNLOADED IN "REAL PLAYER" (AUDIO AND VISUAL, JUST LIKE TELEVISION). LENGTH: 2 hours 38 minutes (including a substantial recess between Panel 1 and panel 2). CLICK HERE:
** Written statements by each of the witnesses at the hearing can be downloaded in pdf format from the Indian Affairs Committee witness list as follows:
MR. GREGORY KATSAS
Principal Deputy Associate Attorney, U.S. Department of Justice (13 pages) [Used very strong language to explain why "the Administration strongly opposes passage of S.310" for both policy and Constitutional reasons. "... the Administration believes that tribal recognition is inappropriate and unwise for native Hawaiians. ... Whatever might be said about past injustices, generations of Americans have fought and died to achieve a single, indivisible country that respects the freedom, equality, and heritage of all of its citizens. Congress should avoid a path that will lead to its balkanization. Finally, S. 310 would create a race-based government offensive to our Nation's commitment to equal justice and the elimination of racial distinctions in the law. ... We are strongly opposed to a bill that would formally divide governmental power along lines of race and ethnicity." His prepared statement drew fire from Senator Lisa Murkowski (R, AK) during her opening remarks, even before Mr. Katsas testified. FOR MR. KATSAS' TESTIMONY CLICK HERE:
THE HONORABLE MARK BENNETT
Attorney General, State of Hawaii, Department of the Attorney General (8 pages)
Accompanied by: MR. MICAH KANE, Chairman, Hawaiian Homes Commission, Honolulu, HI
THE HONORABLE HAUNANI APOLIONA (12 pages)
Chair, Board of Trustees, Office of Hawaiian Affairs
Accompanied by: MR. WILLIAM MEHEULA, Legal Counsel to the Office of Hawaiian Affairs, Honolulu, HI
PROFESSOR VIET D. DINH (39 pages)
Professor of Law, Georgetown University Law Center
MR. H. WILLIAM BURGESS Aloha for All (7 pages)
** Here is an Index to the testimony below, for May 2007, with links. Full text of each item follows the index in the order listed. The order was chosen as follows: (A) Written testimony on the Akaka bill S.310 to be delivered in person (oral testimony will be a shorter summary) at the U.S. Senate Committee on Indian Affairs hearing on Thursday, May 3, 2007 -- these statements were published prior to the date of the actual hearing, as html documents; (B) Published testimony on S.310 sent to the committee; (C) Public statements regarding passage of the Akaka bill H.R.505 by the U.S. House of Representatives Committee on Resources on May 2, 2007. Approximate page number of start of each article is provided.
(1) H. William Burgess, [President of Aloha For All], oppose; pg. 6
(2) Mark J. Bennett [Hawaii Attorney General], support; pg. 14
** A rebuttal to Mr. Bennett by Ken Conklin is included as an addendum in Conklin's testimony, item (5) below.
(3) Micah Kane [Chair, Hawaiian Homes Commission], support; pg. 21
(4) Richard O. Rowland, Sam Slom, Chris Derry, Gregory Blankenship, Grover Norquist, John McClaughry, Elaine Willman, Matt Kibbe, Ron Williamson and Lewis Andrews [affiliations at end of their article], oppose; pg. 25
(5) Kenneth R. Conklin, Ph.D. [independent scholar], oppose; pg. 28
** Including addendum rebutting Mr. Bennett's testimony
(6) National Leadership Network of Conservative African-Americans, oppose Akaka bill and oppose House committee passing the bill without a hearing; pg. 39
(7) Congressmember Mazie Hirono (D, HI 2) press release on passage of Akaka bill H.R.505 by House of Representatives Resources Committee on May 2, 2007, support; pg. 41
(8) [Press release from Senator Akaka's office which includes downloadable audio segments from "demradio" of portions of the Senate Indian Affairs hearing's Q&A periods that are favorable to the Akaka bill, but nothing regarding the testimony of the two opponments of the bill, Department of Justice attorney Gregory Katsas and Aloha For All spokesman William Burgess.]; pg. 43
H. William Burgess, President of Aloha For All, oppose
Hawaii Reporter, May 2, 2007
The Akaka Bill Stumbles Over the U.S. Constitution Virtually Every Step it Takes
By H. William Burgess
'''This testimony will be presented to the United States Senate Committee on Indian Affairs at a Hearing on May 3, 2007 on the "Akaka bill" (S.319, the Native Hawaiian Government Reorganization Act of 2007) H. William Burgess of Aloha for All was invited to testify in opposition.'''
Aloha and thank you for inviting me to testify about this bill which would brush aside core underpinnings of the United States itself.
Two years and three months ago, Sen. Daniel Inouye, in his remarks on introduction of the then-version of the Akaka bill (S. 147) at 151 Congressional Record 450 (Senate, Tuesday, January 25, 2005) conceded that federal Indian law does not provide the authority for Congress to create a Native Hawaiian governing entity.
"Because the Native Hawaiian government is not an Indian tribe, the body of Federal Indian law that would otherwise customarily apply when the United States extends Federal recognition to an Indian tribal group does not apply."
"That is why concerns which are premised on the manner in which Federal Indian law provides for the respective governmental authorities of the state governments and Indian tribal governments simply don't apply in Hawaii."
There being no tribe, the Constitution applies. The Akaka bill stumbles over the Constitution virtually every step it takes.
As soon as the bill is enacted, a privileged class would be created in America. §§2(3) & (22)(D) and §§3(1) & (8) would "find" a "special political and legal relationship" between the United States and anyone with at least one ancestor indigenous to lands now part of the U.S. that "arises out of their status as aboriginal, indigenous, native people of the United States." Creation of a hereditary aristocracy with a special legal and political relationship with the United States is forbidden by the Anti-Titles of Nobility clause of the Constitution.
This "sleeper" provision would also have profound international and domestic consequences for the United States. For over 20 years, a draft Declaration of Indigenous Rights has circulated in the United Nations. The U.S. and other major nations have opposed it because it challenges the current global system of states; is "inconsistent with international law"; ignores reality by appearing to require recognition to lands now lawfully owned by other citizens." In November 2006, a subsidiary body of the U.N. General Assembly rejected the draft declaration proposing more time for further review. Enactment of the Akaka bill would undo 20 years of careful diplomatic protection of property rights of American citizens abroad and at home.
Also immediately upon enactment, superior political rights are granted to Native Hawaiians, defined by ancestry: §7(a) The U.S. is deemed to have recognized the right of Native Hawaiians to form their own new government and to adopt its organic governing documents. No one else in the United States has that right. This creates a hereditary aristocracy in violation of Article I, Sec. 9, U.S. Const. "No Title of Nobility shall be granted by the United States."
Also, under §8(a) upon enactment, the delegation by the U.S. of authority to the State of Hawaii to "address the conditions of the indigenous, native people of Hawaii" in the Admission Act "is reaffirmed." This delegation to the State of authority to single out one ancestral group for special privilege would also seem to violate the prohibition against hereditary aristocracy. The Constitution forbids the United States from granting titles of nobility itself and also precludes the United States from authorizing states to bestow hereditary privilege.
§7(b)(2)(A)&(B) Requires the Secretary of the DOI to appoint a commission of 9 members who "shall demonstrate
not less than 10 years of experience in Native Hawaiian genealogy; and
ability to read and translate English documents written in the Hawaiian language," This thinly disguised intent to restrict the commission to Native Hawaiians would likely violate the Equal Protection clause of the Fifth Amendment, among other laws, and would require the Secretary to violate his oath to uphold the Constitution.
§7(c)(1)(E) & (F) require the Commission to prepare a roll of adult Native Hawaiians and the Secretary to publish the racially restricted roll in the Federal Register and thereafter update it. Since the purpose of the roll is to deny or abridge on account of race the right of citizens of the United States to vote, requiring the Secretary to publish it in the Federal Register would cause the Secretary to violate the Fifteenth Amendment and other laws.
§7(c)(2) Persons on the roll may develop the criteria and structure of an Interim Governing Council and elect members from the roll to that Council. Racial restrictions on electors and upon candidates both violate the Fifteenth Amendment and the Voting Rights Act.
§7(c)(2)(B)(iii)(I) The Council may conduct a referendum among those on the roll to determine the proposed elements of the organic governing documents of the Native Hawaiian governing entity. Racial restrictions on persons allowed to vote in the referendum would violate the 15th Amendment and the Voting Rights Act.
§7(c)(2)(B)(iii)(IV) Based on the referendum, the Council may develop proposed organic documents and hold elections by persons on the roll to ratify them. This would be the third racially restricted election and third violation of the 15th Amendment and the Voting Rights Act.
§7(c)(4)(A) Requires the Secretary to certify that the organic governing documents comply with 7 listed requirements. Use of the roll to make the certification would violate the Equal Protection clause of the Fifth Amendment, among other laws, and would, again, require the Secretary to violate his oath to uphold the Constitution.
§7(c)(5) Once the Secretary issues the certification, the Council may hold elections of the officers of the new government. (If these elections restrict the right to vote based on race, as seems very likely) they would violate the 15th Amendment and the Voting Rights Act.)
§7(c)(6) Upon the election of the officers, the U.S., without any further action of Congress or the Executive branch, "reaffirms the political and legal relationship between the U.S. and the Native Hawaiian governing entity" and recognizes the Native Hawaiian governing body as the "representative governing body of the Native Hawaiian people." This would violate the Equal Protection clause of the 5th and 14th Amendments by giving one racial group political power and status and their own sovereign government. These special relationships with the United States are denied to any other citizens.
§8(b) The 3 governments may then negotiate an agreement for: transfer of lands, natural resources & other assets; and delegation of governmental power & authority to the new government; and exercise of civil & criminal jurisdiction by the new government; and "residual responsibilities" of the US & State of Hawaii to the new government.
This carte blanche grant of authority to officials of the State and Federal governments to agree to give away public lands, natural resources and other assets to the new government, without receiving anything in return, is beyond all existing constitutional limitations on the power of the Federal and State of Hawaii executive branches. Even more extreme is the authority to surrender the sovereignty and jurisdiction of the State of Hawaii over some or all of the lands and surrounding waters of some or all of the islands of the State of Hawaii and over some or all of the people of Hawaii. Likewise, the general power to commit the Federal and State governments to "residual responsibilities" to the new Native Hawaiian government.
§8(b)(2) The 3 governments may, but are not required to, submit to Congress and to the Hawaii State Governor and legislature, amendments to federal and state laws that will enable implementation of the agreement. Treaties with foreign governments require the approval of 2/3rd of the Senate. Constitutional amendments require the consent of the citizens. But the Akaka bill does not require the consent of the citizens of Hawaii or of Congress or of the State of Hawaii legislature to the terms of the agreement. Under the bill, the only mention is that the parties may recommend amendments to implement the terms they have agreed to.
Given the dynamics at the bargaining table created by the bill: where the State officials are driven by the same urge they now exhibit, to curry favor with what they view as the "swing" vote; and Federal officials are perhaps constrained with a similar inclination; and the new Native Hawaiian government officials have the duty to their constituents to demand the maximum; it is not likely that the agreement reached will be moderate or that any review by Congress or the Hawaii legislature will be sought if it can be avoided. More likely is that the State will proceed under the authority of the Akaka bill to promptly implement whatever deal has been made.
The myth of past injustices and economic deprivations. Contrary to the claims of the bill supporters, the U.S. took no lands from Hawaiians at the time of the 1893 revolution or the 1898 Annexation (or at any other time) and it did not deprive them of sovereignty. As part of the Annexation Act, the U.S. provided compensation by assuming the debts of about $4 million which had been incurred by the Kingdom. The lands ceded to the U.S. were government lands under the Kingdom held for the benefit of all citizens without regard to race. They still are. Private land titles were unaffected by the overthrow or annexation. Upon annexation, ordinary Hawaiians became full citizens of the U.S. with more freedom, security, opportunity for prosperity and sovereignty than they ever had under the Kingdom.
The political and economic power of Hawaiians increased dramatically once Hawaii became a Territory. University of Hawaii Political Science Professor Robert Stauffer wrote:
It was a marvelous time to be Hawaiian. They flexed their muscle in the first territorial elections in 1900, electing their own third-party candidates over the haole Democrats and Republicans...The governor-controlled bureaucracy also opened up to Hawaiians once they began to vote Republican.
By the '20s and '30s, Hawaiians had gained a position of political power, office and influence never before--nor since--held by a native people in the United States. Hawaiians were local judges, attorneys, board and commission members, and nearly all of the civil service. With 70 percent of the electorate--but denied the vote under federal law--the Japanese found themselves utterly shut out. Even by the late 1930s, they comprised only just over 1 percent of the civil service. This was "democracy" in a classic sense: the spoils going to the electoral victors.
Higher-paying professions were often barred to the disenfranchised Asian Americans. Haoles or Hawaiians got these. The lower ethnic classes (Chinese, Japanese and later the Filipinos) dominated the lower-paying professions. But even here an ethnic-wage system prevailed. Doing the same work, a Hawaiian got paid more per hour than a Portuguese, a Chinese, a Japanese or a Filipino--and each of them, in turn, got paid more than the ethnic group below them. Robert Stauffer, "Real Politics", Honolulu Weekly, October 19, 1994 at page 4. The alliance between Hawaiians, with a clear majority of voters through the 1922 election, and more than any other group until 1938, and the Republican party is described in more depth in Fuchs, Hawaii Pono: A Social History, Harcourt, Brace & World, Inc., 1961, at 158-161.
Hawaiians prosper without "entitlements" or the Akaka bill
The 2005 American Community Survey (ACS) for California, recently released by the U.S. Census Bureau, confirms Native Hawaiians' ability to prosper without special government programs. The estimated 65,000 Native Hawaiian residents of California, with no Office of Hawaiian Affairs or Hawaiian Homes or other such race-based entitlements, enjoyed higher median household ($55,610) and family ($62,019) incomes, relative to the total California population ($53,629 and $61,476 respectively) despite having smaller median household and family sizes. California is particularly appropriate for comparing earning power, because California has the greatest Native Hawaiian population outside of Hawaii; and it happens that the median age of Native Hawaiians residing in California (33.7 years) is almost identical to that of the general population of California (33.4 years).
The fact that Native Hawaiians are quite capable of making it on their own was suggested by Census 2000 which showed the then 60,000 Native Hawaiian residents of California enjoyed comparable relative median household and family incomes despite their 5 year younger median age.
See Jere Krischel, Census: Native Hawaiians Do Better When Treated Equally, CERA Journal Special Akaka Bill Edition included in our packets for Committee members.
Hawaiians today are no different, in any constitutionally significant way, from any other ethnic group in Hawaii's multi-ethnic, intermarried, integrated society. Like all the rest of us, some do well, some don't and most are somewhere in between.
The people of Hawaii don't want the Akaka bill
Grassroot Institute of Hawaii commissioned two comprehensive automated surveys of every household in the telephone universe of the State of Hawaii, one in July 2005 and the second in May 2006. Of the 20,426 live answers to the question, two to one consistently answered "No" when asked, Do you want Congress to pass the Akaka bill?"
In1959, in the Hawaii statehood plebiscite, over 94% voted "Yes" for Statehood.
Racial Tensions are simmering in Hawaii's melting pot
So said the headline on the first page of USA Today 3/7/07 describing the attack Feb. 19th 2007 in the parking lot of the Waikele mall on Oahu, when a Hawaiian family beat a young soldier and his wife unconscious while their three year old son sat in the back seat of their car. The attack, "unusual for its brutality," sparked impassioned public debate.
Tenured University of Hawaii Professor Haunani Kay Trask's picture is displayed in the USA today article and the caption quotes her, "Secession? God I would love it. I hate the United States of America."
The USA Today article and related links may be found at http://tinyurl.com/2jle2e . See also, The Gathering Storm, Chapter 1 of Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State by Kenneth R. Conklin, PhD http://tinyurl.com/2f7p8b.
The brutality at Waikele mall is a flashing red light. Over 1 million American citizens in Hawaii are under siege by what can fairly be called an evil empire dedicated to Native Hawaiian Supremacy.
Red shirted protesters march often and anti-American signs are regularly posted along King Street on the Grounds of Iolani Palace. Our Governor wears the red protest shirts and tells them she supports their cause. Last August at a statehood day celebration at Iolani Palace, thugs with bull horns in the faces of the high school band members there to play patriotic music, drove them away.
Passage of the Akaka bill would encourage the Hawaiian Supremacists. Even if the bill is declared unconstitutional after a year or two or more of litigation, it may well be too late to put the Aloha State back together again.
A firm rejection of the Akaka bill by this Committee would reassure the people of Hawaii that racial supremacy and separatism are not acceptable. That, in the eyes of government, there is only one race here. It is American.
'Reach Mr. Burgess via email at email@example.com
Mark J. Bennett [Hawaii Attorney General], support
Hawaii Reporter, May 1, 2007
Akaka Bill Provides Long Overdue Federal Recognition to Native Hawaiians
By Mark J. Bennett
'''This is the testimony of Hawaii Attorney General Mark J. Bennett before the U.S. Senate Committee on Indian Affairs, that he will present on Thursday, May 3, 2007, 9:30 a.m., in support of S.310, the Native Hawaiian Government Reorganization Act of 2007.'''
Good morning Chairman Dorgan, Vice-Chairman Thomas, and members of the United States Senate Committee on Indian Affairs. Thank you for giving me the opportunity to address this very important bill.
This legislation, which I will refer to as the "Akaka Bill," in honor of its chief author and this body's only Native Hawaiian Senator, simply put, provides long overdue federal recognition to Native Hawaiians, a recognition that has been extended for decades to other Native Americans and Alaska Natives. It provides Native Hawaiians with a limited self-governing structure designed to restore a small measure of self-determination. American Indians and Alaska Natives have long maintained a significant degree of self-governing power over their affairs, and the Akaka Bill simply extends that long overdue privilege to Native Hawaiians.
The notion of critics that S.310 creates some sort of unique race-based government at odds with our constitutional and congressional heritage contradicts Congress's longstanding recognition of other native peoples, including American Indians, and Alaska Natives, and the Supreme Court's virtually complete deference to Congress's decisions on such matters. It is for this Congress to exercise its best judgment on matters of recognition of native peoples. Although some have expressed constitutional concerns, those fears are unjustified. Congress should not let unwarranted fears of judicial overreaching curb its desire, and responsibility, to fulfill its unique obligation to this country's native peoples.
Native Hawaiians are not asking for privileged treatment--they are simply asking to be treated the same way all other native indigenous Americans are treated in this country. Congress has recognized the great suffering American Indians and Alaska Natives have endured upon losing control of their native lands, and has, as a consequence, provided formal recognition to those native peoples. Native Hawaiians are simply asking for similar recognition, as the native indigenous peoples of the Hawaiian Islands who have suffered comparable hardships, and who today continue to be at the bottom in most socioeconomic statistics.
The Constitution gives Congress broad latitude to recognize native groups, and the Supreme Court has declared that it is for Congress, and not the courts, to decide which native peoples will be recognized, and to what extent. The only limitation is that Congress may not act "arbitrarily" in recognizing an Indian tribe. United States v. Sandoval. Because Native Hawaiians, like other Native Americans and Alaska Natives, are the indigenous aboriginal people of land ultimately subsumed within the expanding U.S. frontier, it cannot possibly be arbitrary to provide recognition to Native Hawaiians. Indeed, because Native Hawaiians are not only indigenous, but also share with other Native Americans a similar history of dispossession, cultural disruption, and loss of full self-determination, it would be "arbitrary," in a logical sense, to not recognize Native Hawaiians.
The Supreme Court has never in its history struck down any decision by the Congress to recognize a native people. And the Akaka Bill certainly gives the Court no reason to depart from that uniform jurisprudential deference to Congress's decisions over Indian affairs. The Supreme Court long ago stated that "Congress possesses the broad power of legislating for the protection of the Indians wherever they may be," United States v. McGowan, "whether within its original territory or territory subsequently acquired." Sandoval, 231 U.S. at 46.
Critics, including some in the Justice Department, wrongly contend that the Akaka Bill creates a race-based government. In fact, the fundamental criterion for participation in the Native Hawaiian Governing Entity is being a descendant of the native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial. For example, Congress has expressly stated that in establishing the many existing benefit programs for Native Hawaiians it was "not extend[ing] services to Native Hawaiians because of their race, but because of their unique status as the indigenous people . . . as to whom the United States has established a trust relationship." Thus, Congress does not view programs for Native Hawaiians as being "race-based" at all. Accordingly, a Native Hawaiian Governing Entity by and for Native Hawaiians would similarly not constitute a "race-based" government. This is not just clever word play, but is rooted in decades of consistent United States Supreme Court precedent. The key difference between the category Native Hawaiians and other racial groups, is that Native Hawaiians, like Native Americans and Alaska Natives, are the aboriginal indigenous people of their geographic region. All other racial groups in this country are simply not native to this country. And because of their native indigenous status, and the power granted the Congress under the Indian Commerce Clause, Native Hawaiians, like Native Americans and Alaska Natives, have been recognized by Congress as having a special political relationship with the United States.
Those who contend that the Supreme Court in Rice v. Cayetano found the category consisting of Native Hawaiians to be "race-based" under the Fourteenth Amendment and unconstitutional are simply wrong. The Supreme Court's decision was confined to the limited and special context of Fifteenth Amendment voting rights, and made no distinction whatsoever between Native Hawaiians and other Native Americans.
Furthermore, Congress has already recognized Native Hawaiians to a large degree, by not only repeatedly singling out Native Hawaiians for special treatment, either uniquely, or in concert with other Native Americans, but by acknowledging on many occasions a "special relationship" with, and trust obligation to, Native Hawaiians. In fact, Congress has already expressly stated that "the political status of Native Hawaiians is comparable to that of American Indians." The Akaka Bill simply takes this recognition one step further, by providing Native Hawaiians with the means to reorganize a formal self-governing entity, something Native Americans and Native Alaskans have had for decades.
Importantly, when Congress admitted Hawaii to the Union in 1959, it expressly imposed upon the State of Hawaii as a condition of its admission two separate obligations to native Hawaiians. First, it required that Hawaii adopt as part of its Constitution the federal Hawaiian Homes Commission Act, providing homesteads (for a nominal rent) to native Hawaiians. Second, Congress required that the public lands therein granted to the State of Hawaii be held in public trust for five purposes, including "the betterment of the conditions of native Hawaiians." In admitting Hawaii on such terms, Congress obviously did not believe it was creating an improper racial state government, in violation of the Fourteenth Amendment, or any other constitutional command. Likewise, Congress should have no constitutional concern as to this bill, which simply (but importantly) formalizes the United States's longstanding special political relationship with the Native Hawaiian people.
Some opponents of the bill have noted that Native Hawaiians no longer have an existing governmental structure with which to engage in a formal government-to-government relationship with the United States. That objection is not only misguided and self-contradictory, but directly refuted by the Supreme Court's Lara decision just 3 years ago. It is misguided because Native Hawaiians do not have a self-governing structure today only because the United States participated in the elimination of that governing entity, by helping to facilitate the overthrow of the Hawaiian Kingdom, and later annexing the Hawaiian Islands. Unlike other Native Americans who were allowed to retain some measure of sovereignty, Congress did not leave Native Hawaiians with any sovereignty whatsoever. It cannot be that the United States's complete destruction of Hawaiian self-governance would be the reason Congress would be precluded from ameliorating the consequences of its own actions by trying to restore a small measure of sovereignty to the Native Hawaiian people.
The objection is also self-contradictory because one of the very purposes and objects of the Akaka Bill is to allow Native Hawaiians to re-form the governmental structure they earlier lost. Thus, once the bill is passed, and the Native Hawaiian Governing Entity formed, the United States would be able to have a government-to-government relationship with that entity.
Finally, and perhaps most importantly, the objection violates the Supreme Court's recent Lara decision, in which the Court acknowledged Congress' ability to "restore previously extinguished tribal status--by re-recognizing a Tribe whose tribal existence it previously had terminated." Indeed, Lara single-handedly eliminates this constitutional objection to the Akaka Bill, by recognizing Congress's ability to restore tribal status to a people who had been entirely stripped of their self-governing structure.
Those who say that Native Hawaiians do not fall within Congress's power to deal specially with "Indian Tribes" because Native Hawaiians are not "Indian Tribes," are simply wrong. For the term "Indian," at the time of the framing of the Constitution, simply referred to the aboriginal "inhabitants of our Frontiers." And the term "tribe" at that time simply meant "a distinct body of people as divided by family or fortune, or any other characteristic." Native Hawaiians easily fit within both definitions.
Finally, some opponents of the bill contend that because the government of the Kingdom of Hawaii was itself not racially exclusive, that it would be inappropriate to recognize a governing entity limited to Native Hawaiians. This objection is absurd. The fact that Native Hawaiians over one hundred years ago, whether by choice or coercion, maintained a government that was open to participation by non-Hawaiians, should not deprive Native Hawaiians today of the recognition they deserve. Indeed, it is quite ironic that those who oppose the Akaka Bill because they believe it contradicts our nation's commitment to equal rights and racial harmony would use the historical inclusiveness of the Kingdom of Hawaii, allowing non-Hawaiians to participate in their government, as a reason to deny Native Hawaiians the recognition other native groups receive.
In short, there is simply no legal distinction between Native Hawaiians and American Indians or Alaska Natives, that would justify denying Native Hawaiians the same treatment other Native American groups in this country currently enjoy.
The Akaka Bill, under any reasonable reading of the Constitution and decisions of the Supreme Court, is constitutional, just as is the Alaska Native Claims Settlement Act for Alaska Natives, and the Indian Reorganization Act for American Indian tribes--both of which assured their respective native peoples some degree of self-governance. The Supreme Court, as noted earlier, has made clear that Congress's power to recognize native peoples is virtually unreviewable.
At the very least, Congress should not refrain from exercising its authority and obligation to recognize native people because of a mere theoretical possibility the judicial branch could cast aside centuries of uniform precedent to assert judicial supremacy. Congress ought to act when it believes that what it is doing is just and right and within its constitutional authority. It should not allow unfounded fears of judicial activism to hamstring its responsibility to do the right thing.
And so I emphasize and repeat, that Native Hawaiians are not asking for privileged treatment--they are simply asking to be treated the same way all other native indigenous Americans are treated in this country. Congress long ago afforded American Indians and Alaska Natives formal recognition. The Akaka Bill would simply provide Native Hawaiians comparable recognition, as the indigenous peoples of the Hawaiian Islands. Formal recognition will help preserve the language, identity, and culture of Native Hawaiians, just as it has for American Indians throughout the past century, and Alaska Natives for decades.
To use the poignant words Justice Jackson employed 60 years ago: "The generations of [Native people] who suffered the privations, indignities, and brutalities of the westward march . . . have gone . . ., and nothing that we can do can square the account with them. Whatever survives is a moral obligation . . . to do for the descendants of the [Native people] what in the conditions of this twentieth century is the decent thing."
The Akaka Bill does not permit secession; it will not subject the United States or Hawaii to greater potential legal liability; and it does not allow gambling. Nor would passage of the bill reduce funding for other native groups, who, it should be noted, overwhelmingly support the bill. Instead, the Akaka Bill will finally give official and long overdue recognition to Native Hawaiians' inherent right of self-determination, and help them overcome, as the United States Supreme Court in Rice put it, their loss of a "culture and way of life." The Akaka Bill would yield equality for all of this great country's native peoples, and in the process ensure justice for all.
As the Attorney General of Hawaii, I humbly and respectfully ask that you support this important legislation.
** A rebuttal to Mr. Bennett by Ken Conklin is included as an addendum in Conklin's testimony, item (5) below.
Micah Kane [Chair, Hawaiian Homes Commission], support
Hawaii Reporter, May 2, 2007
Akaka Bill Passage Will Further Successes in State's Hawaiian Homelands Department
By Micah A. Kane
This is the testimony Micah A. Kane, chairman of the Hawaiian Homes Commission, in support of S.310, the Native Hawaiian Government Reorganization Act of 2007 before the U.S. Senate Committee on Indian Affairs on May 3, 2007
Aloha kakou, Chairman Dorgan, Vice Chairman Thomas, Senator Inouye, Senator Akaka and members of this committee.
I am Micah Kane, Chairman of the Hawaiian Homes Commission, and I thank you for this opportunity to express strong support for this bill and to address how federal recognition plays a critical role in sustaining our Hawaiian Home Lands program.
In 1921, the United States Congress adopted the Hawaiian Homes Commission Act and set aside more than 200,000 acres of land in Hawaii to rehabilitate the native Hawaiian people. With Statehood in 1959, the Hawaiian home lands program and its assets were transferred to the State of Hawaii to administer. The United States, through its Department of the Interior, maintains an oversight responsibility and major amendments to the Act require Congressional consent.
For more than 80 years, the Department of Hawaiian Home Lands has worked determinedly to manage the Hawaiian Home Lands trust effectively and to develop and deliver lands to native Hawaiians. Currently, there are over 35,000 native Hawaiians living in 25 homestead communities throughout the State. Although unique and distinct, our communities are an integral part of each state's economic, social, cultural, and political fabric. About one percent of our lands are dedicated to commercial and industrial uses, producing revenues to help sustain our programs. Passage of S. 310 will enable the Hawaiian Homes Commission to not only continue fulfilling the mission Congress entrusted to us, but to reach incredible successes that we are only starting to realize.
These five reasons are why we need this bill to be passed:
* Our housing program benefits the entire state.
Today, the Department of Hawaiian Home Lands is the largest single family residential developer in the State of Hawaii. In the past four years our program has provided more than 2,250 families a homeownership opportunity and we are planning several thousand more over then next four years. Each home we build represents one more affordable home in the open market or one less overcrowded home. Homeownership opportunities have also lead us to focus on financial literacy in order to ensure that our beneficiaries will be successful and responsible homeowners. In a state with high living costs and an increasing homeless population, there is no question that we are doing our part in raising the standard of living for all residents of our great state.
* The Department of Hawaiian Home Lands builds and maintains partnerships that benefit the entire communities.
We think regionally in our developments and we engage the whole community in our planning processes. Our plans incorporate people, organizations (e.g. schools, civic clubs, hospitals, homeowner associations), all levels of government and communities from the entire region not only our beneficiaries. It is a realization of an important Hawaiian concept of ahupuaa in order for our Hawaiian communities to be healthy; the entire region must also be healthy. This approach encourages a high level of cooperation, promotes respect among the community, and ensures that everyone understands how our developments are beneficial to neighboring communities and the region.
The Department of Hawaiian Home Lands is becoming a self-sustaining economic engine.
Through our general lease program, we rent non-residential parcels to generate revenue for our development projects. Since 2003, the Department has Passage of S. 310 will enable the Hawaiian Homes Commission to not only continue fulfilling the mission Congress entrusted to us, but to reach incredible successes that we are only starting to realize.
Hawaiian communities foster Native Hawaiian leadership.
Multi-generational households are very common in our Hawaiian homestead communities. This lifestyle perpetuates our culture as knowledge and values are passed through successive generations. These values build strong leaders and we are seeing more leaders rising from our homesteads and the Hawaiian community at-large. It is common to see Native Hawaiians in leadership positions in our state. Three members of Governor Lingle's cabinet are Hawaiian, as are almost one-fifth of our state legislators. Hawaiian communities grow Hawaiian leaders who make decisions for all of Hawaii.
''Hawaiian home lands have similar legal authority as proposed under S.310.''
Because of our unique legal history, the Hawaiian Homes Commission exercises certain authority over Hawaiian home lands, subject to state and federal laws, similar to that being proposed under S.310. The Commission exercises land use control over our public trust lands, but complies with State and County infrastructure and building standards. The Commission allocates land within its homestead communities for public and private schools, parks, churches, shopping centers, and industrial parks. Amendments to the trust document, the Hawaiian Homes Commission Act, require State legislative approval and, in some instances, Congressional consent. Hawaiian home lands cannot be mortgaged, except with Commission approval, and cannot be sold, except by land exchanges upon approval of the United States Secretary of the Interior. The State and Counties exercise criminal and civil jurisdiction on Hawaiian home lands. Gambling is not allowed and the Commission cannot levy taxes over Hawaiian home lands. Ultimately, I envision our program becoming so successful that we will work ourselves out of a job. I envision a time when we will not need the Department of Hawaiian Home lands, a time when our native people, as defined in the Hawaiian Homes Commission Act, will be fully rehabilitated. We will be self-sufficient, self-governing native Hawaiians contributing to an island society. The first step toward achieving this vision is passage of this legislation. The Hawaiian Home Lands Trust and our homesteading program are part of the fabric of Hawaii. It is part of the essence of Hawaii. On behalf of the Hawaiian Homes Commission, I ask that you approve this bill so we can work toward recognition and continue doing good work for all the people of Hawaii.
Richard O. Rowland, Sam Slom, Chris Derry, Gregory Blankenship, Grover Norquist, John McClaughry, Elaine Willman, Matt Kibbe, Ron Williamson and Lewis Andrews [affiliations at end of their article], oppose
Hawaii Reporter, May 2, 2007
Akaka Bill Divides People of Hawaii and Our Nation by Race
Open Letter to U.S. Senators and Representatives
By Richard O. Rowland, Sam Slom, Chris Derry, Gregory Blankenship, Grover Norquist, John McClaughry, Elaine Willman, Matt Kibbe, Ron Williamson and Lewis Andrews
We are writing to call your attention to a deeply important and controversial bill pending once again before Congress. It is the Akaka bill, (S. 310/H.R. 505, Native Hawaiian Government Reorganization Act Of 2007). It would create a separate sovereign government of, by and for one race (native Hawaiians); break up and give away much of the land owned by the State of Hawaii; and possibly set a precedent for similar separatist actions by other ethnic groups in the mainland United States.
The bill's supporters say it would just give native Hawaiians the same legal status as native Americans, who have their own sovereign tribal governments, with their own legislatures, laws, courts, taxation powers, and government officers. They want to use Indian legal precedents, but not necessarily results.
Opponents point out that U.S. courts have ruled that native Americans cannot qualify for tribal recognition merely because they share a common ancestry. They must also have a long-standing autonomous governing entity and reside in a separate, distinct community, neither of which requirements are met by native Hawaiians. Native Hawaiians have for over 150 years lived in racially mixed communities and have indeed intermarried to such an extent that Hawaii is widely known as one of the most racially integrated places in the entire world.
Supporters of the bill maintain that the grant of sovereignty, along with lands and other assets currently owned by the State Of Hawaii, would simply redress wrongs committed by non-native Hawaiians before the Hawaiian islands were annexed to the United States in 1898.
Opponents point out that those with less than one percent Hawaiian blood will qualify as "Native Hawaiians" and qualify for the benefits of citizenship in the new sovereign Hawaiian nation. In addition, the provisions of the bill open a pandora's box of potential problems because details are to be negotiated with no limits specified.
At present there is much uncertainty as to how much popular support exists in Hawaii for the sovereignty movement. Supporters point to polls that purport to show overwhelming popular support. Opponents point to other polls that show overwhelming opposition to the bill, and point out that there is at present no plan to give the citizens of Hawaii, who voted 94% in favor of statehood in 1959, an opportunity to vote on this issue.
We are finding that the more people are educated about this proposed bill, the more questions they ask about specific, real results should the bill pass. Most of those questions are unanswerable.
Because this is such a controversial and confusing issue, we are asking you to inform yourself very carefully about these issues and possibly propose constructive amendments, before you vote on the Akaka bill.
At the least, the bill should be amended to require a plebiscite of Hawaii voters before any separate nation could be approved at the national level.
* Richard O. Rowland, President, Grassroot Institute of Hawaii
* Chris Derry, President, Bluegrass Institute
* Sam Slom, President, Small Business Hawaii
* Gregory Blankenship, President, Illinois Policy Institute
* Grover Norquist, President, Americans for Tax Reform
* John McClaughry, President, Ethan Allen Institute
* Elaine Willman, President, Citizens Equal Rights Alliance
* Matt Kibbe, President, FreedomWorks
* Ron Williamson, President, Great Plains Public Policy Institute
* Lewis Andrews, Executive Director, Yankee Institute for Public Policy
Testimony opposing S.310 by Kenneth R. Conklin, Ph.D. [independent scholar]
SUMMARY: S.310, the Akaka bill, would legalize a host of illegal racially exclusionary programs now coming under court challenge. It would set up a recipe for racial conflict as bloods vs. non-bloods struggle over who gets which pieces of a dismembered State of Hawai'i. That's bad enough. But in the process it would give money and political power to radicals whose long-term goal is to rip the 50th star off the flag -- the secession of Hawaii from the U.S.A. And it would invent a new theory of the Constitution leading inevitably to the further balkanization of America into racial enclaves. Hawaii has already gone far down the road of racial separatism. It has over 160 federally funded programs, two state government agencies, and numerous private institutions, which are all racially exclusionary (including Kamehameha Schools with assets between $8-15 Billion). Some secessionists oppose the Akaka bill because they say it's a sell-out; but other leaders of the independence movement support it as a way to get "reparations" from the "oppressors" during a "transitional period." A book published March 1 explains all this in detail. "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" by Kenneth R. Conklin, Ph.D. See http://tinyurl.com/2a9fqa for a detailed table of contents and the entire Chapter 1 ("The Gathering Storm").
Aloha kakou e na po'e komike.
Ikaika loa ko'u ku'e i ka pila S.310, ka "palapala a Akaka."
Aloha committee members.
I am very strongly opposed to the bill S.310, the "Akaka bill."
I am Kenneth R. Conklin, Ph.D., a retired professor of Philosophy. Hawai'i has been my home for 15 years. I speak Hawaiian language with moderate fluency, and participate in some aspects of Hawaiian culture. My area of greatest scholarly expertise has now become the issue of Hawaiian sovereignty. In the election of November 2000 I was the first person with no native blood ever to run as a candidate for trustee of the Office of Hawaiian Affairs, placing 4th out of 20 candidates for one seat on the board.
In his Senate speech on January 17, 2007 while introducing S.310 Senator Akaka said: "Mr. President, a lack of action by the U.S. will incite and will only fuel us down a path to a DIVIDED Hawai'i. A Hawai'i where lines and boundaries will be drawn and unity severed. However, the legislation I introduce today seeks to build upon the foundation of reconciliation. It provides a structured process to bring together the people of Hawai'i..."
With all due respect, Senator Akaka got it backwards. The clear purpose of his bill is not to unite the people of Hawai'i but to divide us. It is not "to bring together the people of Hawai'i" but rather to separate us along racial lines. The bill authorizes creation of a government that is racially exclusionary, whose members and officers must meet a racial test by passing scrutiny of a committee of genealogists established in the bill itself. The bill then authorizes the newly created racial government to negotiate for money, land, and legal jurisdiction -- a recipe for "us vs. them" racial conflict as bloods vs. non-bloods fight to determine who gets which pieces of the dismembered State of Hawai'i.
This bill is about singling out by race a thoroughly assimilated and widely scattered group of individuals. They share nothing in common, and are indistinguishable from the rest of the people, except for the fact that they possess at least one drop of Hawaiian native blood.
Hawaiian culture and language are the core of Hawai'i's multiracial rainbow -- thousands of people with no native blood participate actively, while many "Native Hawaiians" choose not to participate at all. The Kingdom of Hawai'i was a multiracial nation in which only 40% of the population had any native blood at the time of the revolution of 1893. Throughout the history of the Kingdom most cabinet officers were Caucasian, nearly all the judges were Caucasian, and roughly 20-30% of all the members of the Legislature (both appointed and elected) were Caucasian. The right to vote and hold office was never restricted to ethnic Hawaiians alone. Yet S.310 proposes to create a "Native Hawaiian Governing Entity" unlike any that ever existed since Hawai'i became a unified nation in 1810. The Akaka bill violates the multiracial character of the Kingdom and of today's State of Hawai'i by requiring all the members and officers of the Akaka tribe to have native ancestry, as verified by a team of genealogists.
The Akaka bill repeatedly cites the apology resolution of 1993 (PL 103-150) as justification. That misguided resolution contains numerous historical falsehoods and half-truths which were never scrutinized by Congress, since it was passed without committee hearings and without debate on historical topics.
Congress has twice engaged in careful consideration of what the U.S. owes ethnic Hawaiians, especially in light of the events of 1893 that resulted in the overthrow of the Hawaiian monarchy. On both occasions Congress concluded that the U.S. owes "Native Hawaiians" exactly what it owes everyone else; nothing more and nothing less. (1) In 1894 the U.S. Senate Committee on Foreign Affairs held two months of hearings, taking sworn testimony in open session under cross-examination. Its 808-page "Morgan report" concluded that the U.S. neither conspired with the revolutionists beforehand, nor aided them during the revolution. (2) The Native Hawaiians Study Commission spent more than two years gathering expert comments from historians, cultural experts, and social scientists, and delivered its final report to the Senate and House on June 23, 1983. The Commission found that Native Hawaiians have higher rates than other ethnic groups for indicators of dysfunction in health, education, income, etc. The commission concluded that the U.S. has no obligation (and indeed it would be bad public policy) to remedy those problems in any way other than the usual assistance given by government to all people afflicted with difficulties. For discussion of both the NHSC and Morgan reports, and links to the full text of both documents, see http://tinyurl.com/f4cqt
S.310 is not about recognizing a small group of Indians on a contiguous patch of land in some remote area far from surrounding population. Ethnic Hawaiians comprise 20% of the entire population. They live in all neighborhoods, work at the same professions and jobs, pray in the same churches, and play the same sports, together with everyone else. Their "tribal" lands (the "ceded lands" plus Kamehameha Schools' land holdings) would comprise about 50% of the entire state, and would be located in a very large number of widely scattered enclaves throughout all the islands. The word "apartheid" seems quite appropriate for describing the situation, reminiscent of the race-based laws and Bantustans of pre-Mandela South Africa. The partitioning of India to create Pakistan comes to mind, as an exchange of populations would be needed (what has lately come to be called "ethnic cleansing") if "Native Hawaiian" lands were to be populated by a majority of "Native Hawaiians."
The primary purpose of this bill is not merely to recognize ethnic Hawaiians as an "indigenous people." It is not, as the bill's sponsors say, merely to provide equality or parity among Native Americans, Native Alaskans, and "Native Hawaiians."
The primary purpose of this bill is to suddenly make legal a plethora of illegal racially exclusionary institutions and programs. These institutions and programs have grown wealthy and powerful over the past 30 years, to the point where the entire political establishment of the State of Hawai'i has fallen under their domination. Of course the government of Hawai'i and its large institutions favor S.310 as a way to maintain their power structure and to ensure the continued flow of federal dollars through their overflowing coffers.
Hawai'i already has over 160 federally funded programs that are racially exclusionary, for the benefit of ethnic Hawaiians. In addition the State of Hawai'i has two government agencies providing benefits exclusively to ethnic Hawaiians, controlling perhaps a Billion dollars in financial assets plus over 200,000 acres of "Homelands" plus about 60 square miles now owned by the Office of Hawaiian affairs on two islands. In addition there are a large number of private institutions providing benefits exclusively for ethnic Hawaiians; most notably Kamehameha Schools whose assets are somewhere between 8-15 Billion dollars (depending how its vast land holdings are valued).
The Akaka bill is a brand new kind of bill, based on an unprecedented theory of the Constitution. It is not a simple federal recognition of an Indian tribe. The theory is that Congress has the power under the Indian Commerce Clause to single out any group of so-called "indigenous" people whose ancestral lands were ungulfed by the United States; authorize them to form a tribe-like governing entity even if they never were organized that way before; and empower them to negotiate for the transfer of money, land, and jurisdictional authority. If that can be done for ethnic Hawaiians then it can also be done for ethnic Mexicans seeking to establish a Nation of Aztlan -- all persons of Mexican ancestry possessing at least one drop of Aztec or Mayan blood and living in those portions of the U.S. that were formerly part of Mexico. Hundreds, perhaps thousands, of heretofore unknown Indian tribes would spring up as groups of "indigenous" people not now eligible to join an existing tribe would demand the right to form a new tribe of their own. Perhaps the concept could be extended to other groups not indigenous to America but whose history makes us sympathetic to the historical injustices they have suffered and their current neediness -- how about creating a Nation of New Africa for all descendants of America's African slaves?
Passing the Akaka bill would accomplish the following highly undesirable purposes: (1) It would give a legal stamp of approval to programs that are currently illegal and coming under court challenge; (2) It would give added financial and political power to virulent racial separatism which is already growing strong in Hawai'i; (3) It would fuel a drive for ethnic nationalism whose ultimate goal is the complete secession of Hawai'i from the United States; (4) It would put Congress on record supporting a new theory of the Constitution that would lead to further racial balkanization throughout America.
On March 1, 2007 my book was published: "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State." Please see http://tinyurl.com/2a9fqa for a detailed table of contents and the entire Chapter 1: "The Gathering Storm." I encourage every member of this committee to purchase the book and read it carefully.
As noted above, the government and large institutions of Hawai'i favor S.310. Please rescue our people from being dragooned into an apartheid regime by a bunch of "fat cats."
Repeated surveys have shown that 67% of all Hawai'i's people, including about half of all ethnic Hawaiians, are opposed to the Akaka bill. See results of a survey published July 5, 2005 which phoned every household in Hawai'i http://tinyurl.com/cwxgg and another similar survey released May 23, 2006 http://tinyurl.com/k5hxc . See also "Akaka Bill -- Roundup of Evidence Showing Most Hawaii People and Most Ethnic Hawaiians Oppose It" at http://tinyurl.com/omewe . Perhaps the strongest evidence that ethnic Hawaiians themselves do not support this bill is the fact that only about 15% of the 401,000 ethnic Hawaiians elibigible to sign up on a racial registry have done so during a period of more than three years of a massive outreach program that included perhaps millions of dollars of advertising on TV, radio, and newspapers, plus mailouts, signup tables at shopping malls and community events in Hawai'i and across America.
But why should you have to rely on surveys and reading of tea leaves to figure out whether Hawai'i's people want to partition their state? As you elected officials know very well, the most clear-cut survey of public opinion is the one provided by secret ballot voting on election day.
The Akaka bill is the most important piece of legislation affecting the State of Hawai'i since the 1959 statehood vote. Our people deserve the right to be heard on this issue before Congress forces something upon us that we do not want. While it is true that federal recognition of Indian tribes is never an issue for voter referendum, it is also true that no Indian tribe comprises 20% of a state's entire population (indeed, no state has 20% of its population being Indians of all tribes combined). Supporters of the Akaka bill will readily acknowledge that S.310 is not about creating an Indian tribe. Therefore the normal procedures for recognizing Indian tribes should not be applied to this bill, and a plebiscite is clearly in order.
For several years opponents of this bill have been demanding that a referendum be held on election day to determine the will of the people. Hawai'i has no procedure for voter-initiated referendum. But the Legislature has the power to place a referendum question on our ballot. Despite repeated demands for a referendum on the Akaka bill, our arrogant political leaders have refused. They said holding a referendum would cause a delay. But if they had agreed to a referendum in November 2004 or 2006, the results would now be known!
Here are my three wishes, in order of priority:
1. Please defeat S.310.
2. If you support S.310, please give respect to the people of Hawai'i by postponing any action on the Akaka bill until such time as a statewide ballot referendum has been held.
3. If you support S.310 and feel you cannot wait for a referendum to make your decision, then please at least insert an amendment into the bill requiring that the bill will have no force or effect unless the people of the State of Hawai'i approve it in a general election by a majority of all ballots cast (blanks on this question count as "no" votes).
Thank you for considering my views on S.310. Aloha.
Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St. Apt. 1205
Kane'ohe, HI 96744
tel/fax (808) 247-7942
To: U.S. Senate Select Committee on Indian Affairs
For: Hearing of May 3, 2007 regarding S.310
This is supplemental testimony, in response to the testimony of Hawaii Attorney General Mark Bennett.
Akaka Bill -- Bad Law and Bad Public Policy
Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St. Apt. 1205.
Kane'ohe, HI 96744.
tel/fax (808) 247-7942.
Mark Bennett holds the title of Attorney General of the State of Hawaii. He is supposed to represent ALL the people of Hawaii. Shame on him for supporting S.310, the Akaka bill, whose purpose is to divide the people, land, and resources of Hawaii between those who have native blood and those who do not. Shame on him for proposing to violate the civil rights of all who lack native ancestry and the civil rights of those with native blood who refuse to join the Akaka tribe. His testimony for the May 3 hearing of the Senate Indian Affairs Committee is an abomination. (Hawaii Reporter, May 1, 2007 http://tinyurl.com/yqsypr )
The Akaka bill explicitly calls for negotiations among the Native Hawaiian Governing Entity (tribal council) and the state and federal governments to see who will get which pieces of a shattered State of Hawaii. The negotiated agreement is not required to be ratified by either the members of the tribe nor by the citizens of Hawaii. Our legislature has been outrageously generous already in handing over enormous resources to OHA, DHHL, etc. Does anyone imagine they will have any backbone in defending the rights of non-natives?
So here's what happens. Those who join the tribe continue to be citizens of the state. Thus 20% of our population can participate on both sides of the negotiations. For example, state Senator Clayton Hee, formerly Chairman of OHA, can use his right hand (citizen of Hawaii) to take land and money from the state, and give it to his left hand (tribal member) on behalf of the tribe. Talk about conflict of interest!
Members of the tribe get all the benefits of the tribe AND all the benefits of the leftover state, while non-members get only the benefits of the leftover state. Thereby we have tribal members as first-class citizens while everyone else is merely a second-class citizen. This sets up a hereditary elite, vioilating the Constitution's prohibition against titles of nobility. Those people who have a drop of native blood but who reject racism make the very honorable choice not to join the tribe -- a decision which causes them and their descendants to lose the first-class status to which the Akaka bill entitles them. This is political extortion -- either join the tribe or lose your benefits!
Mr. Bennett spent a lot of his testimony to claim that the Akaka bill is not unconstitutional. Clearly he's worried about it. I'm not a lawyer, but I can see what's going on.
The Akaka bill is not a simple recognition of an Indian tribe. This is the creation of a brand new fake tribe out of thin air, where no tribe has ever existed before. Bennett says the Akaka bill would simply put Native Hawaiians on a par with Native Americans and Native Alaskans. But he fails to mention that neither "Native Americans" nor "Native Alaskans" are federally recognized. Recognition goes to about 562 individual tribes, each with their own separate and distinct membership rolls, tribal councils, and set of laws. "Indians" are not recognized as a racial group -- most Indians do not belong to any tribe and would not be eligible to join one. "Native Hawaiians" would be the only racial group to be recognized in its entirety, as one single entity. At more than 401,000 members (7 years ago in Census 2000) it would be America's largest "tribe."
Bennett cites legal decisions upholding the right of Congress to re-recognize a tribe which was previously de-recognized (terminated). He seems to say that the overthrow of the monarchy was the termination of the Native Hawaiian tribe which the Akaka bill would now re-recognize.
But the "tribe" which was the Kingdom of Hawaii was multiracial. All persons born in Hawaii or naturalized into the Kingdom were subjects (citizens). By the time of the revolution in 1893 only 40% of the population had any native blood.
Bennett dismisses this inconvenient truth by saying that the generosity of the Native Hawaiians in welcoming non-natives should not now be held against them to deny federal recognition to a racially exclusionary group. But it wasn't merely generosity by natives to newcomers. It was equity. It was an exchange of full equality in return for expertise and financial investment. The Kingdom was built with the help of Caucasians, and included Caucasians as cabinet members and legislators (both apponted and elected). Tens of thousands of Asian laborers contributed sweat-equity and some also became Kingdom subjects. There were non-natives among the King's closest advisers and governing officials from before the Kingdom was unified in 1810 right up until the revolution of 1893. Kamehameha The Great appointed Englishman John Young to be Governor of his home Hawaii Island.
In recent years there have been struggles within the Seminole and Cherokee tribes regarding the status of the Freedmen. There were black slaves owned by tribes, who later became free. The Freedmen were full members of those tribes, with voting rights and financial benefits. Just a few weeks ago there were court hearings over the Cherokees' expulsion of 2800 Freedmen descendants -- black people expelled by vote of the tribe because they lack Cherokee native blood. The Cherokee, and Seminoles, probably do not have the legal right to expel them. Mr. Bennett's careless dismissal of non-native rights to belong to an Akaka tribe puts him in the position of expelling the non-natives even before the extinguished tribe has been re-recognized and given a chance to exercise self-determination.
The Akaka bill actually relies on a whole new theory of the Constitution, which goes like this. Congress has the power to single out any group of so-called "indigenous people" whose lands have been engulfed by the United States, and create a tribe for them even though they were never organized as a tribe. Just think how many hundeds or even thousands of brand new Indian tribes will spring forth as millions of people with a bit of Indian ancestry who are not now eligible to join any tribe decide to band together and invent one. Just think about people with a drop of Mexican ancestry ("indigenous" because of Aztec or Mayan blood) living in those states which were formerly part of Mexico, deciding to come together and create a Nation of Aztlan (the organization MEChA is already pursuing that effort). That's the Pandora's box whose lid Mr. Bennett seems eager to open.
Two books are recommended, which focus directly on this issue of the balkanization of America in general and Hawaii in particular:
Elaine Willman, "Going to Pieces: The Dismantling of the United States of America." (privately published, 2006, Equilocus, P.O. 1280, Toppenish, WA 98948). The Citizens Equal Rights Alliance has its website at
. To obtain a copy of Willman's book go to
Kenneth Conklin, "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" (print-on-demand, E-Book Time, March 1, 2007). Detailed table of contents and entire Chapter 1 "The Gathering Storm" free at
or order book direct from publisher at
National Leadership Network of Conservative African-Americans, oppose Akaka bill and oppose House committee passing the bill without a hearing
National Leadership Network of Conservative African-Americans
Press Release, May 2, 2007
Black Activists Criticize Congressional Plan to Create a Race-Based Hawaiian Government Without a Hearing
Contact: David Almasi at 202/543-4110 x11
Without a hearing, the U.S. House of Representatives Committee on Natural Resources is expected to vote on the "Native Hawaiian Government Reorganization Act of 2007" (H.R. 505) on May 2.
Members of the black leadership network Project 21 are expressing concern that the legislation directly conflicts with the spirit of inclusion and equality that civil rights activists fought so hard to create.
Similar legislation in the U.S. Senate (S. 485) is scheduled to be the topic of a hearing in the Senate Committee on Indian Affairs on May 3.
"It's a shame that so many continue to risk and suffer so much in the fight for a colorblind and racially equal society only to suddenly have Congress appear so insistently willing to throw it all away," said Project 21 chairman Mychal Massie. "Paving the way for a race-based government to be set up in Hawaii is both immoral and offensive to the legacy of those who fought in the civil rights movement for people to be judged separate from race and ethnicity."
This legislation would create a native Hawaiian government with sovereign immunity akin to that enjoyed by Indian tribes. This proposed government, however, is likely to be determined on racial terms, restricting eligible voters exclusively to those of Hawaiian ancestry. Experts say this limits the voting pool to approximately 400,000 Americans nationwide - roughly 160,000 of whom do not even reside on the Hawaiian Islands. Critics say the proposal would create a virtual caste system on the Hawaiian Islands and might even allow those affiliated with this race-based government to ignore various laws and safety regulations.
A similar Hawaiian racial governance plan was ruled unconstitutional by the U.S. Supreme Court in the case of Rice v. Cayetano. A decisive seven-to-two decision that was handed down in 2000 overturned a "Hawaiian only" provision for voting for the trustees of the state's Office of Hawaiian Affairs (OHA), a quasi-governmental native Hawaiian lobbying organization.
While this proposal for a race-based government has found support among the Hawaiian political class and their paid advocates, a May 2006 poll commissioned by the Grassroots Institute of Hawaii found almost 67 percent of the population of Hawaii opposed this proposal as it was introduced in the previous session of Congress, and over 80 percent generally oppose race-based preferences. Almost 70 percent of Hawaiian residents would also prefer to see a statewide referendum on the issue rather than having it decided solely at the federal level.
"Liberals who support these proposals are simply continuing in their contemptible efforts to subvert and divide people along racial lines - even going so far as to incite racial acrimony where none exists," said Project 21's Massie. "Obfuscation through the use of seemingly innocuous verbiage and feel good language makes their intent no less wrong and certainly no less dishonest. This was wrong before, and it is just as egregious today."
Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 543-4110 x11 or Project21@nationalcenter.org, or visit Project 21's website at http://www.project21.org/P21Index.html.
Congressmember Mazie Hirono (D, HI 2) press release on passage of Akaka bill H.R.505 by House of Representatives Resources Committee on May 2, 2007, support
Hawaii Reporter, May 2, 2007
Hirono Applauds House Committee Approval of Akaka Bill
By Yvonne Lau [Yvonne Lau is a spokesperson for Congressmember Hirono in Washington DC.]
WASHINGTON, D.C. --- Calling the Hawaiian federal recognition bill constitutional and "the right thing to do," Congresswoman Mazie Hirono today applauded the decision by a key House committee to move the measure to the House floor for a vote.
Congressman Neil Abercrombie and Hirono are co-sponsors of the measure, known as the Akaka bill, in the House. Named after Senator Daniel Akaka, an identical measure is set for a hearing tomorrow before the Senate Indian Affairs Committee.
Abercrombie is a member of the House Natural Resources committee, which passed the bill out with a voice vote without any amendments.
The bill sets up a process for Native Hawaiians to organize a governmental entity of their own choosing. It will give Native Hawaiians federal recognition, similar to recognition Congress has granted to American Indians and Alaska Natives and protect programs benefiting Native Hawaiians from certain lawsuits.
Hirono said the bill is long overdue, and urged fellow House members to reject unfounded criticism that it will impact non-Hawaiians.
"There will be no loss of any personal, civil, legal, constitutional or property rights of any non-Hawaiian or Native Hawaiian alike," Hirono said. She also pointed out that Native Hawaiians are the only significant indigenous group not yet recognized by Congress. In written testimony to the Committee, Hirono stated: "Native Hawaiians have suffered too long and been deprived of rights allowed other Native Americans due to misinformation and misunderstanding by those who oppose this legislation. I urge this committee to favorably report out this bill which takes the first step in recognizing the inherent right of self determination of the Native Hawaiian people. It is not only legal and constitutional; it is the right thing to do."
[Press release from Senator Akaka's office which includes downloadable audio segments from "demradio" of portions of the Senate Indian Affairs hearing's Q&A periods that are favorable to the Akaka bill, but nothing regarding the testimony of the two opponments of the bill, Department of Justice attorney Gregory Katsas and Aloha For All spokesman William Burgess.]
Hawaii Reporter, May 3, 2007
Senate Indian Affairs Committee Holds Hearing on Akaka Bill
Inouye, Akaka and Fellow Senators on Committee Question Supporters and Opponents of Bill
By Jesse Broder Van Dyke
[Jesse Broder Van Dyke is a spokesperson for U.S. Sen. Daniel Akaka.]
Washington, D.C. The Senate Indian Affairs Committee, Chaired by Sen. Byron Dorgan (D-ND), held a hearing this morning on the Native Hawaiian Government Reorganization Act of 2007 (S.310). The hearing began at 9:30 a.m. Eastern Time in the Russell Senate Office Building on Capitol Hill.
"I am extremely pleased that the long plight of Native Hawaiians received a fair hearing in the Senate today," Sen. Akaka said. "We heard from supporters and opponents of the bill, and I hope their statements and our questions were educational for my colleagues and for observers in the islands and across the county. I want to thank Chairman Dorgan for holding this hearing today and for his longstanding support of indigenous rights. I want to thank my good friend and colleague, Senator Dan Inouye, for his tireless advocacy on behalf of the people of Hawaii and the original indigenous residents of the islands. I also wish to thank Congresswoman Hirono for attending today's hearing in show of support, and Congressman Abercrombie for his successful work in explaining this bill and the history of Hawaii to his colleagues in the House, and moving the bill through his committee yesterday. We will continue to build upon this momentus for the benefit of Native Hawaiians and all the people of Hawaii.
"Native Hawaiians have suffered for over a century as a direct result of the illegal overthrow of their sovereign government. They were disenfranchised from their culture, land, and way of life at the hands of foreigners committed to western values and conventions. Today, this loss of identity has left Native Hawaiians at the lowest levels of achievement by all social and economic measures. This bill will, at long last, provide a way forward for Hawaii's original residents to rebuild their vibrant culture and determine their own future as a people," Akaka said.
"This bill is important to ALL the citizens of Hawaii," Sen. Inouye said. "We share a deep gratitude to the native people who first welcomed us to their shores and gave us the opportunity to live in their traditional homelands. The United States has, for decades, recognized the rights of indigenous people to have self-determination and self-governance. This bill will provide Native Hawaiians the same rights provided to other indigenous groups: the full restoration of the government-to-government relationship they had with the United States. The time for reconciliation is long overdue, and the time for restoration is now."
"Native Hawaiians, just like the Indian Tribes, were the first Americans," said Senator Dorgan. "They deserve the opportunity for self-governance and self-determination. I support the efforts of my colleagues, Senators Inouye and Akaka, to provide them with a fair process to reorganize their own Native Hawaiian government."
Testifying at today's hearing were MR. GREGORY KATSAS, Principal Deputy Associate Attorney, U.S. Department of Justice; THE HONORABLE MARK BENNETT, Attorney General, State of Hawaii, Accompanied by: MR. MICAH KANE, Chairman, Hawaiian Homes Commission; THE HONORABLE HAUNANI APOLIONA, Chair, Board of Trustees, Office of Hawaiian Affairs, Accompanied by: MR. WILLIAM MEHEULA, Legal Counsel to the Office of Hawaiian Affairs; PROFESSOR VIET D. DINH, Professor of Law, Georgetown University Law Center; and MR. H. WILLIAM BURGESS, Aloha for All.
There was no vote scheduled during today's Senate hearing to report the bill. Chairman Dorgan is responsible for scheduling a markup at a later date, at which time a vote will be taken. The House Natural Resources voted and passed the companion bill out of committee yesterday.
Two mp3 audio news releases are available now.
Q&A session (in this order):
(trt 1:45) Akaka questions Hawaii AG Mark Bennett
(trt 1:20) Akaka questions OHA council William Meheula
(trt 1:00) Akaka questions Hawaiian Homes Commission Chair Micah Kane
(trt 0:20) Bennett says there is no possibility the bill could lead to succession from the U.S.
Opening statements (in this order)
The committee's Chairman, Sen. Byron Dorgan (D-ND),
The bill's sponsor, Sen. Daniel K. Akaka (D-HI),
Hawaii's senior Senator and bill co-sponsor, Daniel K. Inouye (D),
Mark Bennett, Attorney General, State of Hawaii,
Haunani Apoliona, Chair, Office of Hawaiian Affairs.
More information on the hearing can be found on the committee's website: http://indian.senate.gov/public/
See related story: "Hirono Applauds House Committee Approval of Akaka Bill"
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See a large collection of testimony in opposition from the previous 106th, 107th, 108th, and 109th Congresses, at
See a collection of several hundred major published articles opposing the Akaka bill, grouped by historical periods from 2000 through 2007, at
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