SUMMARY: In late May and early June, 2003 Hawai'i newspapers reported that the federal Department of Justice had previously sent memos to U.S. Senate committees questioning whether it is Constitutionally permissible to include "Native Hawaiians" as beneficiaries in pending legislation to provide benefits to Indian tribes and Alaska Natives. The news reports were accompanied by a carefully orchestrated local scare campaign and propaganda effort by the State of Hawai'i Office of Hawaiian Affairs and other ethnic Hawaiian institutions to gain public support for the Native Hawaiian Recognition bill. OHA, together with Governor Lingle and other state officials also massively increased their lobbying efforts in Washington, D.C. both to roll back the Justice Department challenges to existing racial entitlement programs and also to pass the Native Hawaiian Recognition bill S.344/H.R.665. On June 13 it was reported that the Washington lobbying effort had succeeded in restoring the inclusion of "Native Hawaiians" as beneficiaries in pending legislation to reauthorize existing programs. But it remains unclear how it can be permissible to include "Native Hawaiians" in legislation for recognized Indian tribes when "Native Hawaiians" have never been given federal recognition, and when the granting of such recognition is the subject of extremely controversial legislation now offered in Congress.
-------------------
On June 4, 5, and 6, 2003 three different daily newspapers in Hawai'i published four articles on various policy statements of the Bush administration regarding the probable unconstitutionality of several race-based Hawaiian programs. To be more precise, is appears the Department of Justice is raising doubts whether "Native Hawaiians" can lawfully be included as a beneficiary group in legislation providing benefits to American Indian tribes and Native Alaskan villages or corporations. The newspaper articles are copied below, and provide details about the Hawaiian programs and the administration statements about them. These newspaper articles and an editorial clearly show the sense of urgency felt by OHA and by state government officials to pass the Akaka bill as soon as possible, to avoid losing huge amounts of money in federal grants given to race-based Hawaiian programs that are now finally coming to be recognized as unconstitutional. Another article describes a series of propaganda festivals to be held throughout Hawai'i by large groups of ethnic Hawaiian beneficiaries who claim they will lose 3,100 local jobs and $147 million a year in federal programs unless the Akaka bill passes soon. A brief timeline is provided to show the sequence of events linking Bush administration challenges, legislation in Congress, lobbying, local propaganda in Hawai'i, and a court challenge to OHA. An attempt is made to reconstruct the language of the letter from the federal Department of Justice to Senator Snowe, that provided the excuse for all this lobbying.
As reported by the Honolulu Advertiser:
The Justice Department sent a letter on Sept. 11, 2002, to Sen. Dan Inouye, D-Hawai'i, at the time the chairman of the Indian Affairs Committee, that cited constitutional concerns over a bill providing federal grants to OHA for affordable housing for low-income Native Hawaiian families.
A White House policy statement on May 8, 2003 raised questions about provisions in an energy bill that provide certain preferences based on race. The Washington Post reported that the administration's concerns included defining Native Hawaiian organizations exclusively by race.
The Department of Justice sent a letter on May 16 to Sen. Olympia Snowe, R-Maine, chairwoman of the Senate Small Business and Entreprenuership Committee, recommending that Native Hawaiians be removed from a bill that would provide federal grants for small business development because of "significant constitutional concerns.''
Naturally OHA immediately became aware of those policy statements and letters. OHA then held secret strategy sessions, and decided on an urgent plan to flood Hawai'i's media with propaganda in favor of the Akaka bill and to intensify its lobbying effort in Congress. The local media propaganda began with lengthy essays by OHA Administrator Clyde Namu'o and OHA trustee Boyd Mossman on May 25, 27, and 28. Those essays are available, with a rebuttal by Ken Conklin, at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaPorkArticles.html
On Friday June 6 the Advertiser reported that five OHA trustees (probably accompanied by numerous retainers) would be in Washington over the weekend to participate in special cultural events staged for the media, and then would lobby Senators and Representatives the following week. On Sunday June 8 the Star-Bulletin reported that three groups of beneficiaries of racial programs will be holding a series of propaganda festivals ("community information meetings") throughout the islands.
The sequence of events during May and June clearly shows the urgent motive behind a series of local Hawai'i newspaper propaganda essays by OHA officials (free advertising, actually) and intensified lobbying activities in Washington. Those events are placed into a somewhat longer sequence of events, here:
11/11/02: DOJ letter to Inouye about housing bill (at this time Inouye is chairman of Senate Indian Affairs Committee because Democrats control the Senate; but Akaka bill is dormant and 107th Congress is nearly finished)
02/11/03: Akaka bill introduced into the new 108th Congress, simultaneously in both Senate and House, as S.344 and H.R.665.
02/24/03: OHA opens its own lobbying office in Washington D.C.
02/25/03: Senate Indian Affairs Committee carefully scripted "hearing" on S.344 includes in-person testimony from Governor Lingle, OHA Chair Apoliona, and other Hawai'i officials.
05/08/03: White House policy statement opposing racial preferences in an energy bill
05/14/03: Senate Committee on Indian Affairs markup of Akaka bill, reported to Senate floor
05/16/03: DOJ letter from Assistant Attorney General Moschella to Senator Snowe opposing racial preferences in a grant program for small businesses
05/24/03: OHA hires powerful Washington D.C. lobbying firm Patton Boggs on 2003 retainer fee of $450,000 to lobby the Akaka bill
05/25/03: OHA trustee Mossman lengthy plea to pass Akaka bill in The Maui News
05/27/03: Mossman plea, nearly identical, in Honolulu Star-Bulletin
05/28/03: OHA administrator Clyde Namu'o very lengthy plea to pass Akaka bill, in The Honolulu Weekly
[Note: to see the Mossman and Namu'o articles, and a rebuttal by Ken Conklin, go to:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaPorkArticles.html
]
06/04/03 to 06/06/03: four articles in three newspapers about the Bush administration letters from May, and describing OHA lobbying activities
06/08/03: Advertiser editorial characterizing Bush administration attitude toward Hawaiian race-based programs as "fuzzy" and urging better organization and intensified lobbying to pass the Akaka bill
06/07/03 to 06/13/03: OHA trustees attend weekend seminar on self-determination at the Smithsonian's National Museum of American History for Hawaiians who live on the East Coast, stressing the urgency in passing federal legislation before the courts consider further legal challenges to Hawaiian programs. The trustees then meet with lawmakers the following week to push for Senate consideration of the recognition bill.
06/08/03: 3 large groups of ethnic Hawaiian beneficiaries of racial programs announce plans to blanket Hawai'i with propaganda festivals warning that 3,100 local jobs and $147 million a year in federal programs will be lost unless the Akaka bill passes soon.
06/16/03: Hearing in U.S. District Court in Honolulu, on motions by the State of Hawai'i (and OHA and DHHL) to dismiss Arakaki 2 lawsuit challenging the constitutionality of the Office of Hawaiian Affairs and Department of Hawaiian Homelands. For information about this lawsuit, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html
--------------
The usual pattern of stealth and deception appears to be at work in these events. The now-famous letter from DOJ to Senator Snowe was apparently delivered May 16, and OHA apparently knew about it almost immediately. But the general public knew nothing about it until 12 days later, when OHA Administrator Clyde Namu'o mentioned it in his Honolulu Weekly article of May 28 (an alternative leftist newspaper distributed free of charge on O'ahu). That Namu'o article came 4 days after published news about OHA hiring the lobbyist. Major newspapers did not start mentioning the DOJ letter for another week after the Namu'o article, by which time the propaganda blitz was already well underway.
It's a good question how OHA can get a copy of a letter from a DOJ Assistant Attorney General to Senator Snowe; and apparently the Hawai'i newspapers got the letter only when OHA chose to give it to them (or did the newspapers "sit" on it to allow OHA's propaganda campaign to get underway?). The full text of the letter has not yet been published as of June 13 and remains unavailable to opponents of the Akaka bill. An attempt to cobble together some of the language of the letter, by relying on bits and pieces as quoted in several newspaper articles, is offered below.
The amended language of the Akaka bill from the Indian Affairs Committee markup on May 14 is also strangely difficult to obtain. it was circulated immediately to bill supporters in draft form, but when people known to be bill opponents request printed copies from Senator Akaka's office they are told it is not yet available [three weeks after the fact!]. After three requests, Senator Akaka's office finally sent a copy of the May 12 draft that was submitted to the Indian Affairs Committee for the May 14 markup meeting; but it is unclear whether that was the actual language approved on May 14. A staffer at the "Thomas" website of the Library of Congress explained they have not yet posted the amended language because they have not received it from the Government Printing Office; and when the staffer called the GPO he was told that the Indian Affairs Committee never delivered a copy to them to be printed! It would not be an exaggeration to call this "stonewalling."
------------------
The following is website editor Ken Conklin's effort to cobble together the scattered bits and pieces of the DOJ letter to Senator Snowe from four articles published in four different newspapers (Honolulu Advertiser, Honolulu Star Bulletin, West Hawaii Today, and Honolulu Weekly). Contents in [square brackets] are paraphrases of what the newspapers paraphrased but did not quote, while "quoted contents" were published in the newspapers as actual quotes, enclosed in quote marks. Presumably the newspaper reporters were looking at an actual copy of the letter to create their quotes. This is only "hearsay" evidence, but it is the best we can do in the absence of a copy of the actual letter which so many supporters of the Akaka bill seem to have had no trouble getting.
[From: Assistant Attorney General William Moschella]
[To: Senator Olympia Snowe, Chair, Senate Committee on Small Business and Entrepreneurship]
[Date: May 16, 2003]
[Subject: Concerns About the Constitutionality of Including Race-Based Beneficiary Group "Native Hawaiians" in Pending Legislation to Provide Small-Business Grants, S.xxx [bill #]]
[The proposed bill authorizes business grants to federally recognized Indian tribes and Native Alaskan groups. However, including Native Hawaiians]
"raises significant constitutional concerns."
"Congress has not recognized any group of Native Hawaiians as an Indian tribe, and there is a substantial, unresolved question 'whether Congress may treat the Native Hawaiians as it does the Indian tribes.' " [Rice v. Cayetano 528 U.S. 495 (2000)]
[Where the bill's grants are to members of federally recognized Indian tribes and Alaska Native corporations,]
"courts would likely uphold them as constitutional. To the extent, however, that the bill could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria, rather than tribal affiliation ... the grants would be subject to strict scrutiny. To avoid this constitutional concern, the bill should be amended to include only those individuals who have a close affiliation with a recognized tribal entity. In the absence of findings demonstrating that the bill's authorization of benefits for native Hawaiians is narrowly tailored to serve a compelling government interest, we recommend that the term 'native Hawaiians' be deleted."
[Furthermore, the Department of Justice is not aware of any Hawaiian lands that would satisfy the definition of "Indian lands" in the bill.]
--------------------
The following items are provided below, in this order:
(1) Article in "West Hawai'i Today" of June 4, 2003 says that on May 6 Assistant Attorney General William Moschella sent a letter on behalf of the Department of Justice to Senator Olympia Snowe, Chairwoman of the Senate Committee on Small Business and Entrepreneurship, questioning the constitutionality of legislation that would give small business grants to Native Hawaiians.
(2) Article in "Honolulu Advertiser" of June 5, 2003 providing additional information about the DOJ memo to Senator Snowe, and its political impact.
(3) Article in Honolulu Star-Bulletin of June 5, 2003, provides additional information about the Departmentof Justice letter to Senator Snowe, and describes some lobbying activities of Governor Lingle, Hawai'i Attorney General Bennett, Hawaiian Homes Director Kane, Republican Party National Committeewoman Hellreich.
(4) Article in "Honolulu Advertiser" of June 6, 2003 provides Hawai'i's first report about other Bush administration challenges to race-based Hawaiian programs besides the DOJ letter to Senator Snowe; and reports on the upcoming week-long Washington D.C. lobbying trip by five OHA trustees and others.
(5) Editorial in Honolulu Advertiser of June 8, 2003 takes note of Bush administration opposition to affirmative action in general and its questioning of race-based Hawaiian programs in particular; editorial then urges Governor Lingle and Native Hawaiians to get better organized and work harder to pass the Akaka bill.
(6) Article in Honolulu Star-Bulletin, Sunday June 8, 2003 says three large groups of beneficiaries of Hawaiian racial programs will hold numerous propaganda festivals throughout Hawai'i, to tell ethnic Hawaiians they will lose 3,100 local jobs and $147 million a year in federal programs unless the Akaka bill passes soon.
(7) June 13, 2003 Honolulu Advertiser reports that the federal Departmentof Justice has backed away from challenges to the Constitutionality of including Native Hawaiians in legislation to provide benefits to Indian tribes. Hawai'i Attorney General quoted as saying that ethnic Hawaiians already have a special trust relationship with the federal government, and that ethnic Hawaiians already fall under the plenary power of Congress to provide benefits to Indian tribes. [But, of course, those claims are far from settled, and constitute the core of the highly controversial Akaka bill]
(8) June 13, 2003 Star-Bulletin reports Governor Lingle and Hawai'i Attorney General persuade federal Department of Justice to back away from challenging the inclusion of "Native Hawaiians" in legislation that benefits Indian tribes. One possible reason cited for why the "Native Hawaiian" programs might be acceptable is that they might tangentially benefit a few people with no Hawaiian ancestry.
-----------------------
(1) Article in "West Hawai'i Today" of June 4, 2003 says that on May 16 Assistant Attorney General William Moschella sent a letter on behalf of the Department of Justice to the chairwoman of a Senate committee, questioning the constitutionality of legislation that would give small business grants to Native Hawaiians.
http://www.westhawaiitoday.com/daily/2003/Jun-04-Wed-2003/news/news1.html
Wednesday, June 04, 2003
Native Hawaiian funding snag
Justice raises questions about constitutionality
By Samantha Young/ Stephens Washington Bureau
WASHINGTON - The Justice Department has raised questions over whether Native Hawaiians should qualify for special treatment in awarding small business grants because they are not a formally recognized group.
A letter the department issued May 16 concerning small business legislation has sparked the attention of Hawaii lawmakers, activists and Native Hawaiian trustees.
Apart from its potential impact on native grants, the opinion is being scrutinized for clues as to whether or not the Bush administration will support efforts to grant sovereignty to Hawaiians.
Assistant Attorney General William E. Moschella sent a letter to a Senate chairwoman saying legislation authorizing business grants to Native Hawaiians "raises significant constitutional concerns."
"The bill could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria rather than tribal affiliation," Moschella wrote to Sen. Olympia Snowe, R - Maine, chairwoman of the Small Business and Entrepreneurship Committee.
Because Congress has not recognized Native Hawaiians as a sovereign people, Moschella said it is unclear whether lawmakers can award Native Hawaiians special grants as it does for Native Americans and Native Alaskans.
Sen. Daniel Inouye, D - Hawaii, called the Justice Department's view a "powerful statement" carrying implications for roughly $45 million Native Hawaiians receive annually through federal housing, employment, health and education programs. "If that position should prevail in the United States then all programs we have would be in jeopardy," Inouye said.
Inouye and others also are scrutinizing whether the opinion signals the Bush administration's leanings on the larger issue of Native Hawaiian sovereignty. Hawaii lawmakers are pushing legislation that authorizes a process for Native Hawaiians to win formal recognition as a sovereign nation.
Inouye said he has met with White House officials about the recognition bill, but declined to reveal more details of the discussions.
Inouye said the views expressed by the Justice Department "have not been adopted as the official position of the United States. I'm trying to convince them that position is not right."
Craig Orfield, a spokesman for the Senate Small Business Committee, said the grant bill is being reviewed by the panel's attorneys because of the Justice Department's concerns. "We don't know how the reservations from the Justice Department might be worked out. We are exploring it," Orfield said.
Neither the Justice or Interior departments have taken a position on the Native Hawaiian bill, spokesmen said Thursday. Justice Department spokesman Blaine Rethmeier said he could not assume the department's views are the same for the grant bill and the Native Hawaiian bill.
"What's not clear is whether this letter demonstrates the department's position regarding this legislation," Office of Hawaiian Affairs administrator Clyde Namuo said of the recognition bill. "It leaves it in doubt. We're hopeful this letter is isolated but nonetheless we are concerned."
Five OHA trustees are traveling to Washington on Friday to lobby officials at the Justice and Interior departments, the White House and lawmakers on Capitol Hill.
Groups opposing the Native Hawaiian bill say the Justice Department is right on the mark.
Honolulu attorney William Burgess said Native Hawaiians are a ethnic population of people and giving them special rights would violate equal rights protections of the Constitution. "It's very disturbing that the state and the Office of Hawaiian Affairs are using our taxpayer money to lobby for such a blatantly unconstitutional bill," said Burgess, president of Aloha For All.
Opponents of the Native Hawaiian bill say they are looking out for behind - the - scenes attempts by Inouye and Sen. Daniel Akaka, D - Hawaii, to add the measure to unrelated legislation, as is sometimes done with controversial bills.
"I don't think if there were an honest vote on this bill it would pass because the overwhelming majority of senators oppose preferential treatment," said Roger Clegg, vice president of Virginia-based Center For Equal Opportunity.
"The Supreme Court made clear that preferences based on being a Native Hawaiian are preferences based on ethnicity," Clegg said of the Rice v. Cayetano case. "We believe that's correct and we don't believe Congress has the authority to override a constitutional provision."
-----------------------
(2) Article in "Honolulu Advertiser" of June 5, 2003 providing additional information about the DOJ memo to Senator Snowe, and its political impact.
http://the.honoluluadvertiser.com/article/2003/Jun/05/ln/ln13a.html
The Honolulu Advertiser, Thursday, June 5, 2003
Letter worries Hawaiian advocates
By Bruce Dunford
Associated Press
A U.S. Justice Department letter to a Senate committee could signal that the Bush administration will oppose continuing federal programs for Native Hawaiians, Sen. Dan Inouye said.
The letter says a reference to Native Hawaiians should be deleted from a bill benefitting Native American small businesses because it "could be viewed as authorizing the award of government benefits on the basis or racial or ethnic criteria."
Gov. Linda Lingle yesterday said she's seen a copy of the letter, but doubts it represents a policy by the administration to shut off Hawaiian programs. The May 16 letter seems to address a very specific case, she said. "Some person down in an office who wrote a letter does not represent the policy of the Bush administration," Lingle said.
The letter from Assistant Attorney General William Moschella to Sen. Olympia Snowe, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship, said including Native Hawaiians in a bill to assist in small business startups and expansions for Native Americans "raises significant constitutional concerns." Moschella heads the department's Office of Legislative Affairs, which "articulates the views of the department" on congressional legislation, according to its Web site.
"We'll let the letter speak for itself," Justice Department spokesman Blaine Rethmeier told the Associated Press in a telephone interview from Washington yesterday, when asked if the Bush administration has established a policy regarding Hawaiian programs. He would not elaborate.
"If that position should prevail in the United States, then all programs we have would be in jeopardy," Inouye told West Hawaii Today's Washington bureau. He referred to $45 million in federal money for housing, employment, health and education programs for Native Hawaiians.
The Justice Department letter cites the U.S. Supreme Court's Rice v. Cayetano ruling in 2000 that Hawaiians-only voting for Office of Hawaiian Affairs trustees was unconstitutional racial discrimination. The Rice ruling is the basis for several legal and administrative challenges to federal and state programs specifically benefiting Hawaiians, such as OHA and the Department of Hawaiian Home Lands.
Where the bill's grants are to members of federally recognized Indian tribes and Alaska Native villages, "courts would likely uphold them as constitutional" Moschella's letter said. But "in the absence of findings demonstrating that the bill's authorization of benefits for Native Hawaiians is narrowly tailored to serve a compelling government interest, we recommend that the term 'Native Hawaiians' be deleted."
Inouye said he has met with White House officials about the Hawaiian recognition bill, but didn't elaborate on those discussions. Rethmeier said the Justice Department has taken no position on the recognition bill now before the Senate.
-----------------------
(3) Article in Honolulu Star-Bulletin of June 5, 2003, provides additional information about the Department of Justice letter to Senator Snowe, and describes some lobbying activities of Governor Lingle, Hawai'i Attorney General Bennett, Hawaiian Homes Chairman Kane, Republican Party National Committeewoman Hellreich.
http://starbulletin.com/2003/06/05/news/story4.html
Honolulu Star-Bulletin, Thursday, June 5, 2003
Letter on Hawaiians sets off policy talk
Sen. Inouye and Gov. Lingle differ over the U.S. Justice Department missive
By Bruce Dunford
Associated Press
A U.S. Justice Department letter to a Senate committee could signal that the Bush administration will oppose continuing federal programs for native Hawaiians, U.S. Sen. Daniel Inouye said.
The letter says a reference to native Hawaiians should be deleted from a bill benefiting native American small businesses because it "could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria."
Gov. Linda Lingle said yesterday she has seen a copy of the letter but doubts it represents a policy by the administration to shut off Hawaiian programs. The May 16 letter seems to address a specific case, she said. "Some person down in an office who wrote a letter does not represent the policy of the Bush administration," Lingle said.
The letter from Assistant Attorney General William Moschella to Sen. Olympia Snowe, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship, said including native Hawaiians in a bill to assist in small-business start-ups and expansions for native Americans "raises significant constitutional concerns." Moschella heads the department's Office of Legislative Affairs, which "articulates the views of the department" on congressional legislation, according to its Web site.
"We'll let the letter speak for itself," Justice Department spokesman Blaine Rethmeier said yesterday in a telephone interview from Washington when asked if the Bush administration has established a policy regarding Hawaiian programs. He would not elaborate.
"If that position should prevail in the United States, then all programs we have would be in jeopardy," Inouye told West Hawaii Today's Washington bureau. He referred to $45 million in federal funding for housing, employment, health and education programs for native Hawaiians.
The Justice Department letter cites the U.S. Supreme Court's Rice vs. Cayetano ruling in 2000 that Hawaiians-only voting for Office of Hawaiian Affairs trustees was unconstitutional racial discrimination. The Rice ruling is the basis for several legal and administrative challenges to federal and state programs specifically benefiting Hawaiians, such as OHA and the Department of Hawaiian Home Lands.
Where the bill's grants are to members of federally recognized Indian tribes and Alaska Native villages, "courts would likely uphold them as constitutional," Moschella's letter said. "To the extent, however, that the bill could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria, rather than tribal affiliation ... the grants would be subject to strict scrutiny. To avoid this constitutional concern, the bill should be amended to include only those individuals who have a close affiliation with a recognized tribal entity," the letter said. "In the absence of findings demonstrating that the bill's authorization of benefits for native Hawaiians is narrowly tailored to serve a compelling government interest, we recommend that the term 'native Hawaiians' be deleted," Moschella said. He also noted that the department is not aware of any Hawaiian lands that would satisfy the definition of "Indian lands" in the bill.
Office of Hawaiian Affairs Administrator Clyde Namuo sounded the alarm about Moschella's letter in an article in last week's edition of Honolulu Weekly, saying it demonstrates the importance of gaining federal recognition for native Hawaiians. "As long as Hawaiian remains classified as a 'race' in the eyes of the federal government, our people will remain vulnerable to legal attacks such as those currently making their way through the courts, which seek to deprive us of our rights as an indigenous population with a well-established history of sovereign nationhood," Namuo wrote.
Inouye said he has met with White House officials about the Hawaiian recognition bill, but did not elaborate on those discussions.
Rethmeier said the Justice Department has taken no position on the recognition bill now before the Senate.
Lingle is banking on the so-called "Akaka Bill" for federal recognition of Hawaiians to thwart constitutional challenges to Hawaiians-only programs. The Republican governor said she, Attorney General Mark Bennett, Hawaiian Homes Chairman Micah Kane and Republican National Committeewoman Miriam Hellreich are working with the White House on the Hawaiians issue. "Actually, I feel a little more optimistic than I did a few weeks ago on the Akaka Bill," Lingle said, noting that Alaska's Republican U.S. Sen. Ted Stevens has signed on as a co-sponsor, which should help. She said she is also contacting all GOP senators to explain the issue.
"It's a difficult issue to explain on the mainland," Lingle said. "People try to make a false case that it's somehow race-based. It's just the opposite of that. It's simply treating them fairly the same way other native Americans have been treated."
Lingle said the attorney general has a good case to take before U.S. District Judge Susan Mollway on June 16, asking her to dismiss a lawsuit that challenges OHA and the Department of Hawaiian Homes Lands as being unconstitutional because of racial discrimination.
H. William Burgess filed the lawsuit last year, representing a multiethnic group. "These two programs make the state of Hawaii the only state in the entire nation that grants homesteads on its public lands exclusively to one race, and in the case of OHA it grants what amounts to all the income from the public lands of Hawaii to one race," he said.
----------------------
(4) Article in "Honolulu Advertiser" of June 6, 2003 provides Hawai'i's first report about other Bush administration challenges to race-based Hawaiian programs besides the DOJ letter to Senator Snowe; and reports on the upcoming week-long Washington D.C. lobbying trip by five OHA trustees and others.
http://the.honoluluadvertiser.com/article/2003/Jun/06/ln/ln27a.html
The Honolulu Advertiser, Friday, June 6, 2003
OHA lobbies for Akaka bill
By Derrick DePledge
Advertiser Washington Bureau
WASHINGTON Trustees from the state Office of Hawaiian Affairs will arrive here tomorrow to rally support for Native Hawaiian sovereignty and to lobby Congress for a federal recognition bill.
OHA will hold a seminar on self-determination at the Smithsonian's National Museum of American History for Hawaiians who live on the East Coast, stressing the urgency in passing federal legislation before the courts consider further legal challenges to Hawaiian programs. The trustees then plan to meet with lawmakers next week to push for Senate consideration of the recognition bill.
Patton Boggs, the influential lobbying firm hired by OHA to advance the bill, has lawyers preparing a detailed response to arguments from conservative Republicans that the bill would validate unconstitutional race-based preferences for Hawaiians. The analysis is part of the firm's broader strategy to present a substantive case for the bill for lawmakers and the Bush administration.
The Senate Indian Affairs Committee approved the bill, sponsored primarily by Sen. Daniel Akaka, D-Hawai'i, in May and it is awaiting debate before the full Senate. The Bush administration has not announced its position, despite strong appeals from the Hawai'i congressional delegation and Gov. Linda Lingle, a Republican.
"Each day, we feel more and more comfortable,'' said Micah Kane, the director of the state Department of Hawaiian Home Lands, who will travel here in mid-June to speak with lawmakers and administration officials. "It's not going to be an easy road, but I'm confident."
Despite this optimism, supporters of the bill both here and in Hawai'i are concerned by statements from the Bush administration over the past several months that could offer hints to the administration's thinking on Native Hawaiian sovereignty:
The Department of Justice sent a letter on May 16 to Sen. Olympia Snowe, R-Maine, chairwoman of the Senate Small Business and Entreprenuership Committee, recommending that Native Hawaiians be removed from a bill that would provide federal grants for small business development because of "significant constitutional concerns.''
The letter, by Assistant Attorney General William Moschella, who leads the department's Office of Legislative Affairs, said the courts would likely uphold grants to federally recognized Indian tribes and Native Alaskan villages or corporations but questioned whether it would be constitutional to award grants to Hawaiians on the basis of racial or ethnic criteria.
"Congress has not recognized any group of Native Hawaiians as an Indian tribe,'' Moschella wrote, "and there is a substantial, unresolved question 'whether Congress may treat the Native Hawaiians as it does the Indian tribes.' "
Moschella was referring to Rice v. Cayetano, the 2000 Supreme Court case that held that it was unconstitutional for OHA to bar non-Hawaiians from voting in trustee elections. The case prompted other legal challenges to Native Hawaiian programs.
A White House policy statement on May 8 raised questions about provisions in an energy bill that provide certain preferences based on race. The Washington Post reported that the administration's concerns included defining Native Hawaiian organizations exclusively by race.
The Justice Department sent a letter on Sept. 11, 2002, to Sen. Dan Inouye, D-Hawai'i, at the time the chairman of the Indian Affairs Committee, that cited constitutional concerns over a bill providing federal grants to OHA for affordable housing for low-income Native Hawaiian families.
Like the letter to Snowe, the Justice Department questioned whether Native Hawaiians should be treated like Indian tribes and whether the government should provide benefits based on race or ethnicity. Assistant Attorney General Daniel Bryant noted that a federal recognition bill for Native Hawaiians was pending but wrote that "we have some concern as to whether the Supreme Court would hold that Native Hawaiians constitute a 'distinctly Indian community.' "
Native Hawaiians already receive health, education and other assistance from the federal government, but the administration's correspondence suggests that the Justice Department holds a skeptical view of race-based preferences.
Lingle dismissed the May 16 Justice Department letter in an interview Wednesday with the Associated Press.
Clyde Namu'o, administrator for the Office of Hawaiian Affairs who is en route to Washington for more rounds of lobbying, said criticism from the Justice Department takes aim at legislation benefiting Hawaiians who do not yet have special status under federal law. It doesn't signal the administration position for or against giving them that federal recognition, he said.
"The signals are telling us, 'You better hurry up and get this federal recognition through,' " he said. "What they're saying is, absent federal recognition, Hawaiians should not be included in this bill. But indirectly, they're saying if there were federal recognition for Hawaiians, there would be no problem."
Conservative Republicans have blocked Hawaiian recognition for the past two sessions of Congress, and at least a handful of Senate Republicans remain strongly opposed to the Akaka bill.
The bill would authorize the Department of Interior to compile a list of Hawaiians eligible for a new government and create a process for Native Hawaiians to achieve federal recognition similar to American Indians and Native Alaskans. Federal recognition may provide legal protection for existing Hawaiian programs, and a greater voice for Hawaiians over land use and cultural issues in the Islands, although it is likely that any new law would be contested in court.
Political hurdles
Several Republicans see the bill as an end run around Rice v. Cayetano and are hopeful that the Justice Department will go on record in opposition. The lawyer who argued the Supreme Court case on behalf of Harold "Freddy" Rice, the Big Island rancher who fought OHA over voting rights, was Theodore Olson, now the U.S. solicitor general who represents the government before the high court.
Ideally, for the Akaka bill's supporters, the Justice Department would either endorse the bill or take no position at all. If the Justice Department opposes the bill, Lingle and Hawai'i Democrats could still appeal to the White House, but the political hurdle would be higher.
Paul Sullivan, a Honolulu attorney who has written a widely circulated legal analysis against a Native Hawaiian recognition bill, said many Hawaiians have been "swayed by this idea that they are like Indians and deserve special treatment.''
Sullivan said the bill would undermine Hawaii's unique multi-cultural society by creating separate classes of people under the law. "I don't think the Akaka bill has any chance of surviving a court challenge,'' he said.
--------------------
(5) Editorial in Honolulu Advertiser of June 8, 2003 takes note of Bush administration opposition to affirmative action in general and its questioning of race-based Hawaiian programs in particular; editorial then urges Governor Lingle and Native Hawaiians to get better organized and work harder to pass the Akaka bill.
http://the.honoluluadvertiser.com/article/2003/Jun/08/op/op01a.html
The Honolulu Advertiser, EDITORIAL, Sunday, June 8, 2003
Hawaiian status fuzzy under Bush regime
For decades, tens of millions of federal dollars have gone to Native Hawaiian health, education, housing, economic development and more. Sen. Dan Inouye made sure of that.
Then along came Harold "Freddy" Rice, a Big Island rancher who filed a lawsuit contended that OHA's Hawaiians-only elections violated the 15th Amendment's ban against race-based voting restrictions. And the U.S. Supreme Court agreed. Aside from opening OHA elections to all Hawai'i voters, the case though technically restricted to voting issues threw the constitutionality of all Hawaiians-only programs into doubt.
"As long as Hawaiians remain classified as a 'race' in the eyes of the federal government, our people will remain vulnerable to legal attacks such as those currently making their way through the courts, which seek to deprive Hawaiians of our rights as an indigenous population with a well-established history of sovereign nationhood," wrote OHA administrator Clyde Namu'o.
Indeed, the uncertain status of Native Hawaiians is not lost on the Bush administration. The Justice Department has asked that Native Hawaiians be removed from a bill benefitting Native American small businesses because it "could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria."
Gov. Linda Lingle who has said she will champion federal recognition of native Hawaiians shrugs off the letter as an isolated case. But one would have to be blind not to notice that the reluctance to include Native Hawaiians in federal native American programs fits the Bush administration's resistance to racial and gender preferences.
A recent White House policy statement questioned an energy bill that provides racial preferences, particularly in its inclusion of Native Hawaiian organizations. And last September, the Justice Department sent a letter to Inouye raising concerns over a bill to provide affordable housing grants to low-income Native Hawaiians.
As far as the federal government goes, Native Hawaiians don't fit neatly into any box. But that could change if the Akaka bill ever gains momentum. Even if Congress passes it, the obstacles in the Bush administration are formidable. For starters, there's U.S. Solicitor General Theodore Olson, who, before he took office, successfully argued against Hawaiian entitlements in the Rice case.
Olson has made it clear that he does not consider Native Hawaiians to be in the same political class as American Indians and Alaska natives. As for affirmative action, Olson urged the court to reject the University of Michigan's admissions system as "a thinly disguised quota" that relied on racial and ethnic "stereotypes."
So if Lingle means to fulfill her campaign promise to Native Hawaiians, she's going to have to work a lot harder on her GOP connections on Capitol Hill. And if Hawaiians truly want federal recognition and it's not clear how many do they're going to have to become a lot more organized.
-----------------------
(6) Article in Honolulu Star-Bulletin, Sunday June 8, 2003 says three large groups of beneficiaries of Hawaiian racial programs will hold numerous propaganda festivals throughout Hawai'i, to tell ethnic Hawaiians they will lose 3,100 local jobs and $147 million a year in federal programs unless the Akaka bill passes soon.
http://starbulletin.com/2003/06/08/news/story6.html
Groups trumpet Akaka bill
Supporters will hold community meetings around the state to address the bill's impacts
By Pat Omandam
Supporters of the Akaka bill for federal recognition of native Hawaiians are taking their message on the road, locally and nationally.
The State Council of Hawaiian Homestead Associations, Hui Kako'o Aina Ho'opulapula and the Association of Hawaiian Civic Clubs are sponsoring community workshops on the Akaka bill on every island throughout June and July.
"We are standing together to educate all of the people of Hawaii," said Charlie Rose, president of the Association of Hawaiian Civic Clubs. "The issues at hand, the outcome of the lawsuits and the legislation pending in the Congress will touch every single person in Hawaii, not just native Hawaiians," Rose said.
The trio's educational effort will examine recent lawsuits against Hawaiian programs, the economic and social impacts of the congressional legislation and how public policy is formed. The groups believe 3,100 local jobs and $147 million a year in federal programs for native Hawaiians are at risk if the Akaka bill does not pass Congress or is not signed by President Bush.
"The lawsuits filed against Hawaiian agencies are serious threats to the existence of the Hawaiian Homes programs," said Blossom Feiteira, Hui president. The group represents the nearly 20,000 applicants on the homestead waiting list. Tony Sang, president of the Council of Hawaiian Homestead Associations, added the workshops will be begin Tuesday.
The bill, introduced by U.S. Sen. Daniel Akaka, would set up a process upon which Hawaiians can form their own government that could be certified by the U.S. secretary of the interior. Such action would give them similar political status as American Indians and Alaskan Natives. Moreover, it would help nullify arguments of racial discrimination in ongoing lawsuits against the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands.
And there remains concerns the Bush administration may not support the Akaka bill. Last month, a U.S. Justice Department letter to a U.S. Senate committee had stated a reference to native Hawaiians should be deleted from a bill benefiting native American small businesses because it "could be viewed as authorizing the award of government benefits on the basis of racial or ethnic criteria." But Gov. Linda Lingle and others doubt it represents a policy by the Bush administration.
OHA officials returned to Washington, D.C., on Friday to push for passage of S. 344, the most current version of the Akaka bill. Trustees and staff will meet with members of Congress and their staff, as well as with community groups such as the East Coast region of the Kamehameha Schools Alumni Association and the Hawaii State Society of Washington, D.C.
----------------------
(7) June 13, 2003 Honolulu Advertiser reports that the federal Departmentof Justice has backed away from challenges to the Constitutionality of including Native Hawaiians in legislation to provide benefits to Indian tribes. Hawai'i Attorney General quoted as saying that ethnic Hawaiians already have a special trust relationship with the federal government, and that ethnic Hawaiians already fall under the plenary power of Congress to provide benefits to Indian tribes. [But, of course, those claims are far from settled, and constitute the core of the highly controversial Akaka bill]
http://the.honoluluadvertiser.com/article/2003/Jun/13/ln/ln14a.html
The Honolulu Advertiser, Friday, June 13, 2003
Feds clear grants for Native Hawaiians
By Vicki Viotti
Educators whose programs benefit Hawaiians are celebrating now that a kink in the pipeline supplying them with federal money an estimated $31 million for the next fiscal year has been cleared.
The wheels of the federal government that churn out grants under the Native Hawaiian Education Act ground to a halt about a month ago. Top state officials believe the hang-up stemmed from concerns about the constitutionality of Hawaiian-only programs.
Attorney General Mark Bennett said he and Gov. Linda Lingle spoke by phone with officials in the Bush administration in the White House, budget office and the education and justice departments to persuade them that the grants had passed constitutional muster.
Bennett said none of the attorneys he consulted at the U.S. Department of Justice would give a detailed explanation about the delay in issuing grants, but added that "it was clear to me that there were some concerns ... over the constitutionality of these statutes."
"I got the word (Wednesday) that whatever problems there were have been cleared," he said.
Bennett said he made the case that Hawaiians-only programs were based not on race but on "a special trust relationship established between Native Hawaiians and the U.S."
"Congress has the right and plenary power to provide benefits to Native Hawaiians," he said.
Programs receiving these funds include Ka'ala Farm's Cultural Learning Center in Wai'anae Valley, the Hawaiian immersion program Aha Punana Leo, the early-education and parent-education services of Keiki O Ka Aina Family Learning Center and several University of Hawai'i programs.
The potential shutdown of these programs would affect people other than Hawaiians, said Momi Durand, executive director of the learning center, which she said targets serving Hawaiian communities but serves students and parents of other ethnicities as well.
"The worst thing that would have happened, families would have been dropped with no time for transition to other programs," Durand said.
The agency was told in May that the call for grant proposals for new projects had been delayed and that the usual request for annual reports on long-term projects reports needed to get continuing grants renewed each year also had been held up.
"I think that if we didn't have a Republican governor this time, this may not have turned around," said Vicky Draeger, the agency's early-childhood program director.
--------------------
(8) June 13, 2003 Star-Bulletin reports Governor Lingle and Hawai'i Attorney General persuade federal Department of Justice to back away from challenging the inclusion of "Native Hawaiians" in legislation that benefits Indian tribes. One possible reason cited for why the "Native Hawaiian" programs might be acceptable is that they might tangentially benefit a few people with no Hawaiian ancestry.
http://starbulletin.com/2003/06/13/news/indext.html
The Honolulu Star-Bulletin, Friday, June 13, 2003
Federal grants toHawaiians restored
A hold on funding was removed after phone calls were placed to officials
By Pat Omandam
Gov. Linda Lingle says she has persuaded the Bush administration to resume $31 million in federal grants for native Hawaiian education after funding was held up for unknown reasons.
Lingle said the money for the Native Hawaiian Education Act was held up after U.S. Assistant Attorney General William Moschella sent a letter to U.S. Sen. Olympia Snow, R-Maine, chairwoman of the Committee on Small Business and Entrepreneurship, that raised concerns about the constitutionality of government programs giving native Hawaiians special benefits.
U.S. Sen. Daniel Inouye (D-Hawaii) said last week the letter could signal that the Bush administration will oppose continuing federal programs for native Hawaiians.
Once Lingle learned the funding was being held up, the governor said she and state Attorney General Mark Bennett contacted high-level officials in the Justice Department, Department of Education, White House and Office of Management and Budget.
Lingle said she was told on Wednesday the hold on the $31 million has been removed, and future funding should continue as usual.
"We are pleased to have been able to convince key members of the Bush administration that funding under existing programs should not be held up, but this is just a first step on a longer journey," Lingle said.
The governor said her administration will continue to go "all out" to lobby a federal recognition bill for native Hawaiians, which remains pending final passage before the U.S. Senate.
Vicky Draeger, director of early childhood programs at Keiki O Ka Aina Family Learning Center in Kalihi, said the organization was preparing for cutbacks due to the possible loss of federal funds, such as reducing its staff to 11 from 79.
She thanked the Lingle administration for its intervention.
"People don't realize how important these funds are not just for native Hawaiians, but also for many other children and family education programs as well," Draeger said.
Several Hawaiian organizations will hold an "Awareness March" at the Prince Kuhio Federal Building between 8 a.m. and noon Monday.
The march is in response to a lawsuit in federal court that threatens all Hawaiian entitlement programs.
A hearing on motions to dismiss the Arakaki vs. Lingle case is set for 9 a.m. Monday morning.
================================
You may now
or
SEE MORE INFORMATION ABOUT THE AKAKA BILL
or
GO BACK TO OTHER TOPICS ON THIS WEBSITE
(c) Copyright 2003 Kenneth R. Conklin, Ph.D. All rights reserved