(c) Copyright 2001 Kenneth R. Conklin, Ph.D. All rights reserved
On January 22, 2001 Senator Dan Akaka introduced into the United States Senate for the 107th Congress the same bill which had failed to pass the Senate five weeks previously at the end of the 106th Congress. On this occasion he gave a short speech. His speech (copied from the Congressional Record) is printed below, interspersed with red-letter comments by Kenneth R. Conklin, Ph.D.
By Mr. AKAKA (for himself and Mr. INOUYE):
S. 81. A bill to express the policy of the United States regarding the United States relationship with Native
Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the
United States of the Native Hawaiian government, and for other purposes; to the Committee on Indian Affairs.
NATIVE HAWAIIANS LEGISLATION
Mr. AKAKA. Mr. President, I rise today to introduce a bill on behalf of myself and my friend and colleague,
Senator INOUYE. This measure is of significant importance to the people of Hawaii, particularly to the indigenous
peoples of Hawaii, Native Hawaiians. This measure clarifies the political relationship between Native Hawaiians and
the United States
There is not and never has been such a political relationship between the United States and the race of Native Hawaiians. There was a political relationship between the United States and the multiracial nation known as the Kingdom of Hawai’i and subsequently the Republic of Hawai’i
by extending the federal policy of self-determination and self-governance to Native Hawaiians.
The United States has declared a special responsibility for the welfare of the native peoples of the United States,
including Native Hawaiians. Congress has
incorrectly
recognized Native Hawaiians as the aboriginal, indigenous, native peoples
of Hawaii and has passed over 150 statutes addressing the conditions of Native Hawaiians.
Congress has been very generous toward this racial minority, but all such statutes establishing government programs that are racially restricted are unconstitutional under the 14th Amendment equal protection clause unless they pass strict scrutiny as being narrowly tailored to meet a compelling governmental interest. None of these programs have been justified in this way.
The measure that we are
introducing today extends the federal policy of self-determination and self-governance to Native Hawaiians by
authorizing a process of reorganization of a Native Hawaiian government for the purposes of a federally recognized
government-to-government relationship with the United States. This measure establishes parity in federal policies
towards American Indians, Alaska Natives and Native Hawaiians.
Native Hawaiians are not entitled to such parity, because they do not meet the customary requirements for federal recognition as an Indian tribe, and they do not live in separate villages distinct from the rest of the population (as Alaska Natives do). Ethnic Hawaiians are thoroughly assimilated, integrated, intermarried, and interspersed among the entire population of Hawai’i. Three-fourths of them have less than 50% native blood quantum, and many have less than 1/32 or as low as 1/512.
The political relationship between Native Hawaiians and the United States has been a topic of discussion in Hawaii
for many, many years. A significant portion of the discussion has centered around the history of Hawaii's indigenous
peoples and the role of the United States in that history. In 1993, Congress passed Public Law 103-150, the Apology
Resolution, which extended an apology on behalf of the United States to Native Hawaiians for the United States' role
in the overthrow of the Kingdom of Hawaii. The Apology Resolution also expressed the commitment of Congress and
the President to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support
reconciliation efforts between the United States and Native Hawaiians.
The Apology Bill was merely a resolution of sentiment carrying no legal weight, and was passed without hearings. But even if Congress wished to apologize for its small role in supporting the Revolution of 1893 in Hawai’i, the apology would be owed not to the race of Native Hawaiians, who were only a minority of the population, but to today’s descendants of all then living in Hawai’i.
Mr. President, I am pleased to inform you that the reconciliation process is ongoing. The reconciliation process is an
incremental process of dialogue between Native Hawaiians and the United States to address a number of longstanding
issues arising out of the overthrow of the Kingdom of Hawaii. I look forward to working with the Bush
Administration as we continue this important process.
On October 23, 2000, a joint report was issued by the Departments of the Interior and Justice on the reconciliation
process. The report was based on public consultations held in Hawaii in December 1999 between officials from the
Interior and Justice Departments and Native Hawaiians. The report recommends that Native Hawaiians have
self-determination over their own affairs within the framework of federal law, as do Native American tribes. The
measure we are introducing today, Mr. President is consistent with this recommendation.
The vast majority of Native Hawaiians who attended those public meetings in December 1999 were opposed to any sort of Indian tribe status, and protested loudly. The meetings were held following the Supreme Court granting of certiorari in the case of Rice v. Cayetano, for the purpose of creating the (false) impression that the proposal of Indian tribe status was a federal response to pleas for help from Native Hawaiians.
This measure does not create a political relationship between Native Hawaiians and the United States. The political
relationship has existed since Hawaii's inception as a territory. Rather, the measure we introduce today clarifies the
existing political relationship between Hawaii's indigenous peoples and the United States.
There is not and never has been such a political relationship between the United States and the race of Native Hawaiians. There was a political relationship between the United States and the multiracial nation known as the Kingdom of Hawai’i and subsequently the Republic of Hawai’i
This measure authorizes a process for the reorganization of the Native Hawaiian government for the purposes of a
federally recognized government-to-government relationship.
There cannot be a “reorganization” of a Native Hawaiian government, because there has not been any purely native government in Hawai’i for two centuries. Following Kamehameha the Great’s conquest of the Hawaiian islands, he appointed his close friend and advisor John Young, an Englishman, to be governor of Kamehameha’s home island of Hawai’i. As the years went by, non-natives came to greatly outnumber natives in high government positions, and were elected to the legislature under the constitutional monarchy established in 1840. By the time the monarchy was overthrown in 1893, only 40% of the population had even one drop of native blood.
The measure authorizes Native Hawaiians to resolve
many issues in developing the organic governing documents, including the issue of membership or citizenship in the
reorganized government. This bill also establishes an office within the Department of the Interior to focus on Native
Hawaiian issues. The office would serve as a liaison between Native Hawaiians and the United States during the
reconciliation process and would provide assistance during the process of reorganization of the Native Hawaiian
government. Federal programs currently administered with other federal agencies would remain with those agencies.
An identical version of the measure was introduced during the 106th Congress. The House of Representatives
passed the measure with bipartisan support. The Senate Committee on Indian Affairs reported the measure favorably.
Unfortunately, the Senate did not consider the measure prior to the adjournment of the last Congress.
The entire history of development of this bill was filled with stealth and deception. In the House, this bill was placed on the calendar of non-controversial legislation to be voted on by voice vote with unanimous consent at the dinner hour when only a handful of Representatives were present. In the Senate, the sponsors tried to include the bill by reference in the final appropriations bill on December 15, where the bill number buried in the fine print of hundreds of pages was the only indication of the bill’s presence. Fortunately, a staffer discovered this deception and a disaster was averted at the last minute. For the full story, please see
https://www.angelfire.com/hi2/hawaiiansovereignty/StealthDeception.html
Mr. President, I would like to clarify some misconceptions regarding this important measure. First, this measure is
not being introduced to circumvent the 1999 United States Supreme Court decision in the case of Rice v. Cayetano.
The Rice case was a voting rights case whereby the Supreme Court held that the State of Hawaii must allow all citizens
of Hawaii to vote for the Board of Trustees of a quasi-state agency, the Office of Hawaiian Affairs.
The Office of Hawaiian Affairs was established by citizens of the State of Hawaii as part of the 1978 State of Hawaii
Constitutional Convention. The State constitution was amended to create the Office of Hawaiian Affairs as a means to
give expression to the right of self-determination and self-governance for Hawaii's indigenous peoples, Native
Hawaiians. The Office of Hawaiian Affairs administers programs and services for Native Hawaiians. The State
constitution provided for 9 trustees who were Native Hawaiian to be elected by Native Hawaiians. Following the
Supreme court's ruling in Rice v. Cayetano, the elections were not only open to all citizens in the State of Hawaii, but
non-Hawaiians were deemed eligible to serve on the Board of Trustees.
This last statement conceals the truth. The only reason the election for OHA trustees was opened to candidates of all races was because a lawsuit was filed in U.S. District Court in Honolulu, the case of Arakaki v. State of Hawai’i. Judge Gillmor ruled that the racial restriction on candidacy for public office violates not only the 15th Amendment but also the 14th Amendment equal protection clause. The State of Hawai’i has appealed that decision to the 9th Circuit. The decision in the Rice case clearly identified “Native Hawaiian” as a racial category, not a political one. That is why all racial entitlement programs for Native Hawaiians are now under challenge. And that is the only reason why the present bill was hastily put together six weeks after the Rice decision. This legislation is an attempt to circumvent the Rice decision by making “Native Hawaiian” a political rather than a racial designator. It attempts to invent a phony Indian tribe solely for the purpose of saving racial entitlement programs. Two other cases pending in U.S. District Court in Honolulu, known as the Barrett and the Carroll cases, cite Rice and Arakaki to challenge the constitutionality of the Office of Hawaiian Affairs, the Department of Hawaiian Homelands, and so-called “native” gathering rights; and by extension all other racial entitlement programs for Native Hawaiians.
Whereas the
Rice case dealt with voting rights and the State of Hawaii, the measure we introduce today addresses the federal
policy of self-determination and self-governance and does not involve the Office of Hawaiian Affairs.
Indeed, it does involve the Office of Hawaiian Affairs. OHA has spent perhaps a million dollars already fighting the Rice decision, running advertisements in the newspapers, TV, and radio supporting this legislation, and sending lobbyists to Washington to support this legislation both in the 106th Congress and in the 107th Congress. OHA’s bloated bureaucracy depends on the success of this legislation to continue receiving their paychecks if the Barrett and Carroll lawsuits are successful. OHA is spending public funds (income from the public lands of Hawai’i) to support this lobbying effort in defense of racial entitlements.
This measure does not establish entitlements or special treatment for Native Hawaiians based on race. This measure
focuses on the political relationship afforded to Native Hawaiians based on the United States' recognition of Native
Hawaiians as the aboriginal, indigenous peoples of Hawaii. As we all know, the United States' history with its
indigenous peoples has been dismal. In recent decades, however, the United States has engaged in a policy of
self-determination and self-governance with its indigenous peoples. Government-to-government relationships provide
indigenous peoples with the opportunity to work directly with the federal government on policies affecting their lands,
natural resources and many other aspects of their well-being. While federal policies towards Native Hawaiians have
paralleled that of Native American Indians and Alaska Natives, the federal policy of self-determination and
self-governance, has not yet been extended to Native Hawaiians. This measure extends this policy to Native
Hawaiians, thus furthering the process of reconciliation between Native Hawaiians and the United States.
This measure does not impact program funding for American Indians and Alaska Natives. Federal programs for
Native Hawaiian health, education and housing are already administered by the Departments of Health and Human
Services, Education, and Housing and Urban Development.
Of course this bill does not directly impact funding for genuine Indian tribes -- as long as the United States has unlimited resources to spend on Indian tribes. But there are an estimated 200,000 so-called Native Hawaiians in Hawai’i, and perhaps a total of 300,000 in the entire U.S. and the rest of the world. Native Hawaiians would become by far the largest Indian tribe in existence, overshadowing all other tribes and demanding the lion’s share of resources. Part of the problem is that Native Hawaiians want to include everyone with at least one drop of native blood as a tribal member, and this legislation clearly permits that right from the beginning of this fake tribe.
In addition, this measure has strong support from indigenous peoples within the United States. The National
Congress of American Indians and Alaska Federation of Natives have both passed resolutions in support of a
government-to-government relationship between Native Hawaiians and the United States. Similar resolutions have
been passed by the Japanese American Citizens' League and the National Education Association. The measure is also
supported by the Hawaii State Legislature, which passed a resolution supporting a federally recognized
government-to-government relationship.
The political and economic power structure in Hawai’i support this legislation because they see billions of dollars of federal funds flowing to Hawai’i through a permanent funnel. They also see a shifting to the federal government of the increasing costs of state-sponsored racial entitlement programs unwisely enacted over the last 20 years.
This measure does not preclude Native Hawaiians from seeking alternatives in the international arena.
This short sentence, referring to a similarly short disclaimer in the actual bill, conceals a very large problem. Many Native Hawaiians voiced strong opposition to this bill throughout the year 2000 and beyond, because they are demanding a reinstated nation of Hawai’i that would be totally independent from the United States. They want the 50th star removed from the flag, arguing that Hawai’i is either colonized or militarily occupied as a result of an illegal overthrow of the monarchy and illegal annexation. They are pursuing their case in the United Nations and at the court of arbitration in the Hague. This sentence was included to try to relieve the concerns of these racial separatist Hawaiian nationalists. Many supporters of this bill see it as only the first step toward obtaining a trillion dollars in reparations on the way to total independence, while others are worried that establishing a Native Hawaiian Indian tribe under the authority of the U.S. would forever waive their “rights” to independence under “international law.” What Abraham Lincoln held together, let not this 107th Congress tear assunder.
Instead, this
measure focuses on self-determination within the framework of federal law and seeks to establish equality in the
federal policies extended towards American Indians, Alaska Natives and Native Hawaiians.
This measure is critical to the people in Hawaii because it begins a process to address many longstanding issues
facing Hawaii's indigenous peoples and the State of Hawaii. By resolving these matters, we begin a process of
healing, a process of reconciliation not only within the United States, but within the State of Hawaii. These issues are
deeply rooted in the history of Hawaii. The time has come for us to begin to resolve these differences in order to be
able to move forward together as one.
On the contrary, this legislation will rip Hawai’i apart along racial lines.
Mr. President, I cannot emphasize enough how significant this measure is for the State of Hawaii.
Mr. President, I cannot emphasize enough how strongly I agree with Senator Akaka on this point. This measure is very significant for Hawai’i and for the entire United States. In an extremely negative way. Please defeat it.
I look forward to
working with my colleagues to enact this critical measure for the State of Hawaii and indigenous peoples in the United
States.
Mr. President, I request unanimous consent that the text of this measure be printed in the RECORD.
There being no objection, the bill was ordered to be printed in the RECORD, as follows:
S. 81
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
[and then the full text of the bill was printed]
(c) Copyright 2001 Kenneth R. Conklin. All rights reserved.
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