108th Congress
Committee on Indian Affairs,
United States Senate
Hearing scheduled for
Tuesday, February 25, 2003 9:30 a.m.
On S. 344, the Native
Hawaiian Recognition Bill ("Akaka Bill")
Testimony by H. William
Burgess on his own behalf and on behalf of Aloha for All1
Aloha
and good morning Chairman Ben Nighthorse Campbell, Vice Chairman Daniel
K. Inouye and members of the Senate Committee on Indian Affairs:
I
am an attorney who practiced law in Hawaii for 35 years until I retired
in 1994. For the last five years I have been advocating and litigating
for the basic democratic principle of equality under the law. S. 344
would enshrine inequality. It would draw a line of racial segregation
through all of Hawaii's intermingled, intermarried and integrated society.
It would destroy the delicate but durable racial harmony that has made
Hawaii a model for the world.
Introduction. This bill, commonly referred to as the "Akaka bill", was first
introduced in the year 2000 shortly after the Supreme Court, in
Rice v. Cayetano, struck down the racial restriction on voting
for the Office of Hawaiian Affairs. Because that decision threatened
many other laws and programs for the “benefit” of Hawaiians, Senator
Akaka with Senator Inouye’s endorsement, proposed candidly to circumvent
the Supreme Court’s decision by having Congress “recognize” Hawaiians
(defined substantially the same way the Supreme Court had held in
Rice to be "racial") as the equivalent of an Indian
tribe.
The
bill encountered resistance and did not pass in 2000, 2001 or 2002.
Efforts to attach it as a rider to appropriations bills in both 2000
and 2001 were defeated. But Hawaii's political leaders have resubmitted
the bill to the 108th Congress as S. 344 and H.R. 665.
A
radical change in existing law. Although the proponents assert
the bill will provide "parity in the Federal Government's interactions
with American Indians, Alaska Natives and Native Hawaiians", this
bill would in reality make a radical change in existing law. It would
grant members of one group, defined by ancestry, the right to organize
a new government. It would thereby give Native Hawaiians something
no American Indian has: the right to create the equivalent of a tribe
where none now exists. Congress may recognize tribes which have existed
continuously from historic times to the present but it has no power
to create tribes out of thin air (U.S. v. Sandoval, 231 U.S.
28 (1913)). Anyone who has lived in Hawaii knows that there is no "Native
Hawaiian tribe" here, or anything resembling a tribe. Since 1810,
when Kamehameha the Great unified the islands and established the Kingdom
of Hawaii, there has never been a government exclusively of, by or for
Hawaiians. The “nation” the Akaka bill proposes to “recognize” has
never existed. See Patrick W. Hanifin's
To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of
Citizenship and Voting Rights in Hawaii. (A copy is furnished with
this testimony.)
A
dangerous precedent. If descendants of "indigenous, native" Hawaiians are
entitled to organize a brand new native government and demand federal
recognition, why should descendants of "indigenous, native" persons who, at the time of European contact, inhabited other lands
that later became part of the United States, not have the same right?
For example, a group calling itself the "Provisional Government
of Aztlan"
now claims that since 1848 when the Mexican government signed the Treaty
of Guadalupe Hidalgo, the U.S. has been illegally occupying the northern
half of Mexico known as Aztlan. It seeks to have California, Arizona,
New
Mexico and Texas "liberated". If S. 344/H.R. 665 passes and
becomes law,
how could the U.S., bound to equal protection, deny descendants of Tenochca
Mexica-"Aztecs" the right to organize their own native government,
be recognized by the U.S., obtain the lands they seek and govern them
as an independent sovereignty?
Unfair
to real Indian tribes. The 2000 Census counted about 400,000 persons
of some degree of Hawaiian ancestry in the United States. (Printout
of Census 2000 data included with this testimony.) S. 344 would compel
the U.S to "reaffirm" that all or substantially all of these
persons have: "an inherent right to autonomy in their internal
affairs"; "an inherent right of self-determination and self-government";
and "the right to reorganize a Native Hawaiian governing entity." This would be by far the largest tribe in America.
Sixty percent, or about 240,000 of these persons live in Hawaii. The
other 40%, or about 160,000, live in other states. For example, 60
thousand live in California. The California branch of the Native Hawaiian
"tribe" would have almost nine times the combined total enrolled
membership of all of California's 103 tribes, 7,039. (www.nativeamericanonline.com/Pacific.htm )
Although
the bill's proponents added language that "Nothing contained in
this Act shall be construed as an authorization for eligibility" for BIA programs and services, how could adding 400,000 new "wards" to the Secretary of the Interior's guardianship responsibilities not
slice the pie thinner for members of real Indian tribes?
Bad
even for Hawaiians. Unlike American Indians and Native Alaskans,
all citizens of the former nation of Hawaii, including those of Hawaiian
ancestry, were given full United States citizenship under the Organic
Act in 1900 promptly after annexation. Members of Indian tribes have
no right to U.S. citizenship under the Constitution. It was not until
1924 that Congress, by statute, gave members of Indian tribes the right
to vote and other rights of U.S. citizenship. That right could still
theoretically be taken away by statute.
S.
344 would demote Native Hawaiians to the same constitutional status
as American Indians in recognized tribes. That would mean that Native
Hawaiians could be singled out for differential treatment without the
protection of the Equal Protection clause of the Fifth and Fourteenth
Amendments. Differential treatment can mean better treatment or worse
treatment.
This
is not just a hypothetical possibility. Hawaii's citizens are showing
resistance to the seemingly endless Hawaiian entitlement demands. The
Honolulu Advertiser of Sunday February 9, 2003 polled the priorities
of Hawaii's taxpayers about a number of current issues. Addressing
Native Hawaiian issues came in last. Fifty two percent of those polled
(more than on any other issue) would pay no more tax to address Native
Hawaiian concerns. (http://the.honoluluadvertiser.com/dailypix/2003/Feb/09/in03a3.gif .) The Honolulu Advertiser of February 21,
2003 quoted Regents of the University of Hawaii as "shocked" at $31 million of proposed tuition waivers, including 250 specifically
targeted for needy students of Native Hawaiian ancestry.
( http://the.honoluluadvertiser.com/article/2003/Feb/21/ln/ln02a.html .)
One
thing is certain. S. 344 would permanently put Native Hawaiians into
a status of dependency as wards of the Department of the Interior.
The most likely consequence would be similar to that experienced for
over a hundreds of years by the other wards of that Department, grinding
poverty and the highest rates of unemployment and alcoholism. It would
guarantee that Hawaiians will not be held to the same standards as other
citizens they compete against. This takes away their incentive and
motivation, the most important factor in economic betterment. It would
be a cruel hoax. It wouldn't do anything but insure failure, promote
resentment and reinforce stereotypes.
Hawaiians
have a right not to be patronized, not to be treated in some paternalistic,
condescending manner but as responsible, competent human beings, from
whom excellence is an expectation, not a surprise. American free market
democracy where all citizens follow the same rules is the best hope
for Native Hawaiians and all the rest of us.
Tax
free businesses & casinos. The Akaka Bill would turn anyone
with a drop of Hawaiian blood into a new kind of American Indian. It
would allow Hawaii to be carved up into separate sovereign enclaves, like Indian
reservations, that could have businesses free of federal and state taxes
competing unfairly with those that pay them. While the bill says it
does not authorize casinos, it does not prohibit them either, and almost
every state that has Indian reservations also now has casinos that pay
no taxes. This makes Indian casinos far more likely to be profitable
than casinos, such as those in Las Vegas and Atlantic City, who pay
federal and state taxes.
Unlimited
political contributions by Tribes. Indian tribes are not covered
by campaign financing laws. Since there also is no limit on what the
Indian tribes can contribute to political campaigns, if the Akaka bill
passes and recognition is given, the casino money (a tax exempt gambling
monopoly in the paradise of the Pacific) would flow and Hawaii certainly
would soon have casinos and the addictions, ruined lives and other social
ills that inevitably accompany them.
Rejection
of democracy and Aloha. Today the State of Hawai'i is, by law as
well as by aspiration, a multiracial, thoroughly integrated state.
The Akaka bill is a frontal assault on both Aloha and the American ideal
of equality under the law. It would elevate one racial group to the
status of a hereditary elite to be supported by citizens who are not
of the favored race. As U.S. District Judge Helen Gillmor said in Arakaki
I, "This Court is mindful that ours is a political system that
strives to govern its citizens as individuals rather than as groups.
The Supreme Court's brightest moments have affirmed this idea"
(citing Brown v. Board of Education and other cases); "while its
darkest moments have rejected this concept" (citing Dred Scott,
Plessy v. Ferguson, Bradwell v. Illinois and Korematsu).
See
Paul Sullivan's Killing Aloha, The Native Hawaiian Recognition Bill
is wrong for Native Hawaiians, wrong for the State of Hawaii and wrong
for the United States with a comprehensive section-by-section analysis
of the bill, submitted with this testimony
No
valid reason. 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. 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. 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.
Keep
Hawaii one state indivisible. Carving up Hawaii into separate sovereign
enclaves would hurt all of us, whether we are of Hawaiian or any other
ancestry. A house divided against itself cannot stand. The Constitution
“looks to an indestructible union, composed of indestructible States.”
Texas v. White, 7 Wallace 700 (1869).
Over
40 years ago, in keeping with the principle that a government should
be created only with the consent of the governed, the citizens of Hawaii
chose American statehood by an overwhelming margin. (Over 94% voted
Yes to Statehood in 1959.) The same choice would doubtless be made
today. We thank our lucky stars to be living in Hawaii with the freedom,
security, equal opportunity and Aloha for all that comes with being
citizens of the United States.
Please
say yes to equality under the law. Reject S. 344. Mahalo,
_____________________
H. William Burgess
2299C Round Top Drive
Honolulu, Hawaii 96822
Tel.: (808) 947-3234
Fax: (808) 947-5822
Email: hwburgess@hawaii.rr.com
1 Aloha for All, is a multi-ethnic group of men
and women, all residents, taxpayers and property owners in Hawaii who
believe that Aloha is for everyone and every citizen is entitled to
the equal protection of the laws without regard to her or his ancestry.
For further information about the Akaka bill see: https://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html or email hwburgess@hawaii.rr.com
.