** Note: This essay was also published on Hawaii Reporter online newspaper on November 7, 2008 under a different title:
The Proposed Akaka Bill Gets a Boost from 2008 Elections
http://www.hawaiireporter.com/story.aspx?f2f925b6-5710-4afc-8bbb-edb9f1a4eb94
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The election of 2008 produced results disturbing and disheartening to supporters of unity and equality. Hawaii civil rights activists are facing an uncertain future. Both federal and state results are troubling. But all is not lost. Hope lives on. Let's look at how Congress and President Obama are likely to deal with the Akaka bill, what's happening inside Hawaii, and how the courts will play an important role. It's important to realize that civil rights are not only for African-Americans, or ethnic Hawaiians -- civil rights are for Asians and Caucasians as well. The essence of civil rights is that fundamental principles and laws should apply equally to all people regardless of race. Obama seems to agree, if we take his rhetoric seriously.
CONGRESS AND THE AKAKA BILL IN THE COMING YEAR 2009
The Hawaiian Government Reorganization bill, known informally as the Akaka bill, seems likely to be enacted and signed into law early in 2009.
The U.S. House passed the Akaka bill on October 24, 2007 by a vote of 261-153, which included every Democrat voting in lock-step plus a surprising number of left-leaning Republicans.
The Senate has never voted on the Akaka bill directly, throughout the entire history of the bill from 2000 through 2008. However, in June 2006 the Senate voted on a cloture motion to stop a Republican filibuster against the bill. Every Democrat Senator voted in favor of stopping the filibuster, plus several left-leaning Republicans (not counting a few Republicans who were bound by a vote-trading agreement from 2005 to vote in favor of cloture). There were 56 votes in favor of stopping the filibuster, but 60 votes were required; and as a result the bill remained bottled up. In 2007 the Akaka bill passed the Senate Committee on Indian Affairs, but has never been scheduled for floor debate (because of holds initially placed on it by Republican opponents and failure later to schedule it for a vote).
As a result of the election of November 2008, the Democrat majority in the House seems likely to increase by about 20. There's no way to stop the bill in the House in 2009.
It appears there will be at least 55 Democrat Senators, plus two independents who have always caucused with the Democrats. Three of the four Republican Senators whose contests for re-election remain too close to call the day after the election are actually co-sponsors of the Akaka bill: Norm Coleman (Minnesota), Gordon Smith (Oregon), and Ted Stevens (Alaska). So it would seem to make no difference for the Akaka bill whether those three so-called Republicans are re-elected or replaced by Democrats. Add the two RINOs (Republicans in name only) from Maine (Susan Collins and Olympia Snowe), and it might seem likely that the 60 votes needed for cloture will be available in 2009, even without a couple of other Republicans who previously voted for cloture. However, the Democrats newly elected in 2006 are thus far untested on the Akaka bill -- they and the Democrats newly elected in 2008 might be open to persuasion. There were also a few Democrats who voted in favor of cloture in 2006 but who indicated informally at that time that they might oppose the bill itself if it came to the floor. Senators Coleman and Smith might also be educable, because it was never clear why they originally agreed to co-sponsor the bill and they might not know very much about it.
Considering all the evidence, there is a small but significant possibility that cloture on the Akaka bill can be defeated in 2009 in the Senate, even with the increased Democrat majority.
If there wasn't already enough to worry about, consider this. The Akaka bill that passed the House and stalled in the Senate in the now-concluding 110th Congress was not the most dangerous version of the bill. The current version resulted from "negotiations" during 2005 and 2006 between the Bush administration's Department of Justice and the bill's supporters. The current version includes language that limits the powers of the proposed Akaka tribe in ways not found in previous versions. It says the Akaka tribe must get the approval of the state Legislature before it can get legal jurisdiction over any lands, or build a gambling casino; and that it cannot make claims for land or jurisdiction against military bases. It imposes legal restrictions prohibiting the federal government from "taking land into trust" and prohibiting Hawaii land from being treated as "Indian country." Considering how the state Legislature and Governor have always given the Office of Hawaiian Affairs and Kamehameha Schools whatever they want, these restrictions might not have much real effect in limiting tribal power. But previous versions of the Akaka bill were less restrictive. The version to be introduced in 2009 is likely to be much more "muscular" than the current one, or even more muscular than any previous version; because the increased Democrat majority in Congress and President Obama's pledge to support the bill will embolden the racial separatists to "shoot the moon" or "go for broke".
PRESIDENT OBAMA AND THE AKAKA BILL
Senator Barack Obama has repeatedly made public statements supporting the Akaka bill. During the debate on the cloture motion in June 2006 Obama made a short speech on the Senate floor supporting the bill. And during the primary campaign of early to mid 2008 he repeated his pledge to support the bill if elected. But consider Obama's publicly stated basic beliefs, below, which are clearly contrary to the Akaka bill. Is he a hypocrite, making pretty speeches whose principles he does not actually support? Or does he really believe in his statements of principle? Could he be persuaded that the Akaka bill is morally wrong? Here are some things Obama said publicly on two important recent occasions.
In Berlin in July 2008, in a speech attended by 200,000 cheering Germans in the shadow of the Berlin Wall, Obama said: "... the greatest danger of all is to allow new walls to divide us from one another. ... The walls between races and tribes; natives and immigrants; Christian and Muslim and Jew cannot stand. These now are the walls we must tear down. ... Not only have walls come down in Berlin, but they have come down in Belfast, where Protestant and Catholic found a way to live together; in the Balkans, where our Atlantic alliance ended wars and brought savage war criminals to justice; and in South Africa, where the struggle of a courageous people defeated apartheid."
In his election victory speech in Chicago's Grant Park on November 4-5, 2008, televised to all America and around the world, Obama said: "If there is anyone out there who still doubts that America is a place where all things are possible, who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy, tonight is your answer. ... more than two centuries later, a government of the people, by the people and for the people has not perished from this Earth. ... The road ahead will be long. Our climb will be steep. We may not get there in one year or even in one term. But, America, I have never been more hopeful than I am tonight that we will get there. I promise you, we as a people will get there. ... I will listen to you, especially when we disagree. ... In this country, we rise or fall as one nation, as one people. ... Let's remember that it was a man from this state who first carried the banner of the Republican Party to the White House, a party founded on the values of self-reliance and individual liberty and national unity. Those are values that we all share. And while the Democratic Party has won a great victory tonight, we do so with a measure of humility and determination to heal the divides that have held back our progress. As Lincoln said to a nation far more divided than ours, we are not enemies but friends. Though passion may have strained, it must not break our bonds of affection. ... This is our chance to answer that call. This is our moment. This is our time, to ... reclaim the American dream and reaffirm that fundamental truth, that, out of many, we are one; that while we breathe, we hope. And where we are met with cynicism and doubts and those who tell us that we can't, we will respond with that timeless creed that sums up the spirit of a people: Yes, we can."
It is inconceivable that a President who truly believes in these fundamental principles could allow the Akaka bill to become law. Regardless of our misgivings about his true beliefs, we civil rights activists in Hawaii must take President Obama at his word and work to persuade him to oppose this racist, terribly divisive bill.
HAWAII ELECTION RESULTS SOLIDIFY RACIAL SEPARATISM
The already-huge Democrat majority increased: it will now be 45-6 in the House in 2009, and 23-2 in the Senate. Not all Democrats are racial separatists. Several have said privately that they oppose the Akaka bill but dare not say so publicly. However, it doesn't really matter what they believe in their hearts or what they say privately -- what matters politically is only what they say in public and how they vote on bills and resolutions. The Hawaii Legislature has repeatedly passed resolutions supporting the Akaka bill unanimously except for one or two votes on one or two occasions. Governor Lingle (a RINO) has zealously pushed the Akaka bill, and has two more years in office. OHA has adopted a policy of pursuing "Plan B" -- a plan for implementing the Akaka bill inside the State of Hawaii, creating a state-recognized tribe, even if the bill does not pass Congress. The legislative and executive branches have repeatedly passed bills, resolutions, and amicus briefs giving land, money, power, and political support to racially exclusionary institutions and programs.
The state Constitution forces the government to put on the ballot once every ten years the question whether there should be a state Constitutional Convention for the purpose of proposing amendments to the Constitution to be ratified by the people in a later election. In November 2008 the voters had a chance to force a Con-Con. But powerful groups including labor unions and Office of Hawaiian Affairs opposed it, and persuaded voters that a Con-Con would cost too much money and would endanger their "rights." A Con-Con might have abolished the office of Hawaiian Affairs. It might have proposed amendments such as: "no public lands, money, or legal jurisdiction shall be given to public or private institutions which are racially exclusionary"; or: "the public lands of Hawaii belong to all the people of Hawaii without racial distinction." But the opportunity for a Con-Con has now been lost and will probably not be offered again until 2018.
Four incumbent trustees of the Office of Hawaiian Affairs were on the ballot for re-election. Three of them had opponents. The chairperson of OHA, Haunani Aponiona, had the strongest opponent she has ever faced. Colin Kippen ran on a platform opposing OHA's expenditures for lobbying the Akaka bill (although he favors the bill itself) and opposing OHA expenditures for advertising for the Kau Inoa racial registry; and pledging to clean up the corruption and nepotism at OHA. Kippen had numerous ads on TV, radio, and newspapers. But in the end all four incumbents won re-election by wide margins.
Hawaii election results said "Don't rock the boat" and "Give us even more of the same."
THE COURTS, AND MAINLAND INSTITUTIONS, OFFER HOPE FOR CIVIL RIGHTS IN HAWAII
The civil rights movement on the mainland, from the 1950s through the present, relied heavily on lawsuits. When the U.S. Supreme Court ruled in 1954 that schools in the South must desegregate, several Southern states resisted mightily. Governors "stood in the schoolhouse door" to stop black students from entering. Legislatures tried to convert public schools into private schools to avoid desegregation. The public used the power of the ballot to elect racist legislators and to exercise initiative or referendum to create racist laws. But courts ruled that segregationist laws were unconstitutional. In later decades Northern cities, where local school districts were all-black or all-white because of neighborhoods that were racially homogeneous, were ordered by federal judges to use buses to send children long distances across district lines in order to promote racial integration.
Courts have authority to overturn both executive decisions and legislated laws, if they are unconstitutional. When Southern state legislatures passed laws, or governors created regulations or administrative procedures, to protect segregation, courts over-ruled them. In recent years it has become more difficult for courts to intervene, because of increased restrictions on who has "standing" to bring lawsuits. It has become fashionable for some judges to dismiss civil rights lawsuits on grounds that certain issues are "political questions" where the courts must give way to decisions made by voters or legislatures. In a recent lawsuit to dismantle OHA, a misguided federal judge actually dismissed the case by ruling that the mere fact that the Akaka bill was sitting in Congress awaiting possible action made the existence of OHA a "political question" which the court should not consider. Nevertheless, the Marbury v. Madison Supreme Court decision from 1803 established the right of courts to review and overturn executive and legislative decisions; and such judicial review has a long and distinguished history of protecting civil rights. No matter how large a majority might try to strip groups or individuals of their civil rights, the courts have the authority to protect those rights.
In February 2000 the U.S. Supreme Court ruled in Rice v. Cayetano that it was unconstitutional for the State of Hawaii to prohibit people with no Hawaiian native blood from voting for trustees of the Office of Hawaiian Affairs. Thus the U.S. Supreme Court overturned a provision of the Constitution of the State of Hawaii that had been approved by a vote of the people on a ballot proposal coming from the state Constitutional Convention of 1978. Later in 2000 a federal court took another piece out of the state Constitution by ruling that race cannot be used to prohibit someone with no native blood from running as a candidate for OHA trustee. That should have been obvious from the Rice decision, but OHA and the state government fought tooth and nail against it until rulings came down from the U.S. District Court in Honolulu and, on appeal by the State, from the 9th Circuit Court of Appeals in San Francisco).
On December 5, 2002 Hawaii circuit court judge Sabrina McKenna ruled against OHA, concluding that the State of Hawaii has a right to sell ceded lands. OHA appealed Judge McKenna's decision. On January 31, 2008 the Hawaii Supreme Court ruled 5-0 that Judge McKenna was mistaken. The Hawaii Supreme Court ruled that the State of Hawaii is permanently prohibited from selling any ceded lands until such time as a settlement has been reached regarding the claims of Native Hawaiians, as suggested by the apology resolution passed by Congress in 1993. The State of Hawaii filed a petition for certiorari with the U.S. Supreme Court asking it to review and overturn the state Supreme Court decision. Twenty-nine other states shortly thereafter filed an amicus brief supporting Hawaii's petition for certiorari. On October 1, 2008 the U.S. Supreme Court granted the petition for certiorari, and will probably hear oral arguments (and perhaps issue a ruling) during the term that ends in June 2009.
The U.S. Supreme Court decision desegregating voting for OHA trustees, and federal court decisions on candidacy for OHA trustee, and Supreme Court decision to make a ruling in the ceded lands case, show that federal courts will come to the rescue to protect civil rights in Hawaii even when the voters, the state Legislature, or state Supreme Court try to violate those rights.
Mainland law firms and institutions have become increasingly involved in supporting civil rights in Hawaii. Local civil rights activists lost the Rice v. Cayetano voting rights case at both the U.S. District Court in Honolulu and the 9th Circuit Court of Appeals in San Francisco. Fortunately a mainland law firm led the way to victory at the U.S. Supreme Court. In the followup Arakaki lawsuit regarding candidacy, the Pacific Legal Foundation headquartered in California provided an important amicus brief. Mainland law firms and institutions helped with the Kamehameha Schools desegregation lawsuits. Attorneys General of 29 states filed an amicus brief asking the Supreme Court to take up the ceded lands case. U.S. Senators and Representatives have spoken against the Akaka bill and have fought valiantly to defeat it. The Heritage Foundation has repeatedly helped. The U.S. Civil Rights Commission held hearings and published a lengthy report opposing the Akaka bill. Numerous nationally syndicated magazine and newspaper writers have published articles opposing it.
The willingness of federal courts and mainland institutions to intervene on racial issues in the State of Hawaii shows an understanding that a violation of civil rights anywhere in America is a matter of great concern for all America's people. Civil rights activists in Hawaii do the same thing civil rights activists have done elsewhere: we speak truth to power and use the courts when necessary to defend our rights.
So even if the Akaka bill is enacted by Congress and signed by President Obama; even if the state Legislature tries to recognize an Akaka tribe or hand over money, land, and political power to a racially exclusionary government; we will fight in the courts and can reasonably hope to win. We will never give up. As OHA chair Haunani Apoliona wrote in a song she composed with opposite intent (E Mau Ana Ka Ha'aheo: Let the Pride Endure Forever): "E ho'a kakou i ka lama kupono no na hulu Hawai'i. E kukulu a'e kakou no ke ea o ka 'aina, me ke aloha a me ke ahonui." (Let's light the torch of justice for Hawaiians. Let's build up sovereignty, with love and patience.)
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Kenneth R. Conklin, Ph.D.
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