Testimony for the Senate Select Committee on Indian Affairs for its Hearing on February 25, 2003 regarding S.344 (the Native Hawaiian Recognition Bill)



(c) Copyright 2003 Kenneth R. Conklin, Ph.D. All rights reserved


The Native Hawaiian Recognition bill S.344 and H.R.665 was introduced on February 11, 2003, following two months of secret meetings among a handful of bill supporters. They could not agree on how to revise it, so the newly-introduced bill is identical to the bill that died in the 107th Congress. Like a mummy rising from its tomb, this tattered and disreputable proposal is back, identically dangerous, identically racial to its rotten core, and identically undeserving of support.

A hearing on February 25, 2003 in the Senate Select Committee on Indian Affairs was carefully controlled to allow live testimony only by supporters of the bill, including Hawai'i Governor Linda Lingle, trustees of the Office of Hawaiian Affairs, and other defenders of Hawaiian racial entitlements. No attempt was made to obtain written testimony from the general public, or even to notify people that such testimony could be submitted. Nevertheless, numerous testimonies were submitted in opposition. Below is a summary, followed by four of the testimonies:
(a) testimony by attorney H. William Burgess on behalf of himself and the Aloha For All organization which he heads;
(b) individual testimony by Ken Conklin, editor of this website;
(c) individual testimony by attorney Paul M. Sullivan, whose lengthy section-by-section analysis of the bill is offered elsewhere as noted in these testimonies;
(d) individual testimony by attorney Patrick W. Hanifin, who represented plaintiffs in three lawsuits to overturn Hawai’i laws containing racial exclusions on candidacy for public office and racial exclusions on beneficiaries in government programs

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, Senators Akaka and Inouye 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 would be a radical change in existing law. It sets a dangerous precedent of converting a racial minority into a politically recognized entity and setting up a racially exclusionary government for them (in this case the racial group is a thoroughly assimilated, widely scattered, and genetically diluted set of individuals descended from people who might have seemed indigenous two centuries ago). The purpose is to defend racially exclusionary government programs now under court challenge because they are unconstitutional under the 14th Amendment. The bill is actually a way of getting taxpayers throughout America to bail out the State of Hawai'i from an unwise decades-long policy of sponsoring such programs. The political establishment of Hawai'i, of both parties, supports the bill because the racial programs are firmly entrenched throughout Hawai'i's economic and political structure.

The phony tribe to be created does not meet the customary standards for tribal recognition. Nevertheless, it would be the largest "tribe" in the United States, at 400,000. The California branch of the Native Hawaiian "tribe" (60,000 strong) would have almost nine times the combined total enrolled membership of all of California's 103 tribes. Carving up Hawaii (and perhaps other states) into separate sovereign enclaves would hurt all of us, whether we are of Hawaiian or any other ancestry.

Supporters of this bill say it is needed as a form of racial reparations for past misdeeds of the United States. They say it is about protecting the indigenous rights or self-determination of a poor downtrodden group. But in reality it is a grab for money and power to provide a legal basis to preserve and expand racially exclusionary government programs deeply entrenched in Hawai'i's economy and political structure.

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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 .


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To: U.S. Senate Select Committee on Indian Affairs
From: Kenneth R. Conklin, Ph.D.
Re: S.344 Native Hawaiian Recognition Bill, testimony
Date: Submitted February 23, 2003 for Hearing on February 25

Aloha!

I am a retired professor of philosophy and teacher of mathematics. Hawai'i has been my home for eleven years, and will remain my beloved homeland forever. I deeply respect the Hawaiian-Americans of native ancestry, and all of Hawai'i's multi-ethnic people. Like many Hawaiians with no native blood, I study and participate in aspects of Hawaiian culture, and speak Hawaiian language with moderate fluency. These matters are of such importance to me that I stepped into public life to make my first run for elective office as a candidate for trustee of the Office of Hawaiian Affairs in year 2000, finishing 4th out of 20 candidates for one seat on the board. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/ohacandidacy.html

I oppose S.344 primarily because it would balkanize Hawai'i, fragmenting our beautiful rainbow into splinters competing against each other for money, land, and power. We want to stay together and not be divided by racial separatism.

Please reject S.344. Here are some reasons I hope will be persuasive.

(1) THE BILL IS UNCONSTITUTIONAL, as your own colleagues in both the House and Senate have previously stated. This is the same bill that was known in the 107th Congress as S.746 and H.R.617. On July 19, 2001 Chairman Sensenbrenner of the House Judiciary Committee, alarmed that the bill had passed the House Resources Committee and might be placed on the calendar of non-controversial bills for unanimous consent on voice vote under suspension of the rules, wrote a letter to Speaker Hastert asking that the bill should be killed, or else should be referred to his Judiciary Committee to hold hearings on its unconstitutionality. Chairman Sensenbrenner's letter to Speaker Hastert can be found at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSensenbrenner071901.html

Later that year, Senator Larry Craig, Chairman of the Senate Republican Policy Committee, sent a lengthy memorandum to all Republican Senators and to the Democrat leaders on December 6, 2001 describing the unconstitutionality of the bill and warning that stealth tactics might be used to try to pass it "by reference" as had been attempted in the 106th Congress. Chairman Craig's complete memorandum is at:
https://www.angelfire.com/hi2/hawaiiansovereignty/oliphantcraig120601.html

(2) THE BILL WOULD BE VERY BAD PUBLIC POLICY. It seeks to create a phony Indian tribe solely for the purpose of protecting racial entitlement programs under court challenge based on the 14th Amendment equal protection clause. This concept is affirmative action gone berserk; or racial reparations run amok. This is not a suppressed or forgotten Indian tribe buried in the sands of time and suddenly being rediscovered; this is a totally fake Indian tribe being created out of thin air for a purpose that has nothing to do with "indigenous rights" to "self-determination." See:
https://www.angelfire.com/hi2/hawaiiansovereignty/afacracentakaka.html

(3) THIS BILL IS ACTUALLY A WAY OF GETTING TAXPAYERS THROUGHOUT THE UNITED STATES TO BAIL OUT THE STATE OF HAWAI'I FROM AN UNWISE DECADES-LONG POLICY OF SPONSORING UNCONSTITUTIONAL RACIAL ENTITLEMENT PROGRAMS. That's why the political establishment in Hawai'i, both Republican and Democrat, supports this bill. There are more than 160 racial entitlement programs currently in place, and more get enacted each year. How can elected state officials say "no" to a 20% swing-vote? Many of these programs are not means-tested. Government help is given to all members of a racial group regardless of need -- the opposite of the proper policy of giving government help to needy people regardless of race. For a list of many of these racial entitlement programs with dollar values for some of them, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/listhawnentitlements.html
and for a list of some of the new racial entitlement bills currently in the Legislature of the State of Hawai'i, with testimony against them, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/hawnbillsleg2003.html

(4) SO-CALLED "NATIVE HAWAIIANS" DO NOT MEET THE CRITERIA FOR BEING FEDERALLY RECOGNIZED AS AN INDIAN TRIBE -- they are not a separate and distinct people living apart from surrounding populations, and they do not have a governing body or tribal council that exercises substantial authority over its members either at present or during the last 110 years. Indeed, from the time of Kamehameha I through the end of the Kingdom in 1893, native Hawaiians had a history of welcoming non-natives into high governmental positions. There were numerous non-native elected members of the Kingdom Legislature, and most of the cabinet members (appointed by the King or Queen and confirmed by the Legislature) had no native blood. Has there ever been an Indian tribe whose chiefs were mostly non-Indians? The Kingdom of Hawai'i operated under a social contract where Euro-Americans were welcomed as full partners with voting rights and property rights equal to those of the natives, in return for their massive investment of capital and expertise. By the time of Annexation only 26% of the population of Hawai'i had any native blood whatsoever. All persons born in the Kingdom had full rights equal to natives, so that if the Kingdom had continued long enough for plantation-workers' children to attain adulthood, the great majority of voters would have been native-born Hawaiian subjects of entirely Japanese or Chinese ancestry. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html
and
https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html

(5) HISTORICAL, LEGAL, AND MORAL CLAIMS MADE BY SUPPORTERS OF THE BILL ARE FALSE, MISLEADING, OR IRRELEVANT. Such claims include the following: Ethnic Hawaiians are indigenous people, who should be entitled to the same special treatment given to American Indians and Alaska natives; Ethnic Hawaiians have a culture based on their close and special relationship to the land, so that preservation of their culture requires that ethnic Hawaiians have political control over the land (i.e., race-based political sovereignty); Ethnic Hawaiians are a separate and distinct "people" entitled to separate self-determination; The beautiful Hawaiian culture (and language) is a great treasure of the world which, like an endangered species, requires special protection and nurturing to flourish. In addition to being false or misleading, such claims are intended to divert attention from the primary purpose of the bill, which is to protect racial entitlement programs and establish a legally-sanctioned permanent hereditary elite. Some additional claims, if true, would form a basis for secession for an independent nation of Hawai'i but are irrelevant as arguments to support federal recognition as an Indian tribe. Such claims include: the U.S. staged an armed invasion of Hawai'i in 1893 and overthrew the Hawaiian monarchy; a few years later, the U.S. illegally annexed Hawai'i, against the will of the Native Hawaiians and without compensation to them; a century later the Congress of the United States passed a joint resolution of apology to the Native Hawaiian people, which the President signed; common decency requires that an apology should be followed by restitution and reconciliation; international law regards the apology bill as a statement against interest -- a confession of a crime for which the United States owes reparations to Native Hawaiians and restoration of their government. The claims stated in this paragraph, item #5, are further discussed and refuted at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaRaceNotNation.html It should be noted that there is a convergence between racial separatism and ethnic nationalism in the Hawaiian sovereignty movement. Both branches of this movement are based on an anti-American view of history that portrays America as an invader and occupier of the Hawaiian homeland; both branches demand racial reparations; both branches claim a right to racial supremacy for ethnic Hawaiians on the basis of "indigenous rights"; and increasingly the two branches are coming together politically under a theory that tribal recognition will provide a procedure for racial reparations during a transitional period leading to complete independence of a nation of Hawai'i encompassing all the territory of the archipelago. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/sepnatcommoncore.html

(6) A THOROUGH SECTION-BY-SECTION ANALYSIS OF THE BILL by Honolulu attorney Paul M. Sullivan, with special attention to the "findings" preambles, can be seen at:

https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSullivan040601.html

(7) THE PHONY TRIBE TO BE CREATED WOULD BE THE LARGEST IN THE UNITED STATES, competing against genuine tribes for scarce government resources. More than 400,000 people checked the box for "Native Hawaiian" in Census 2000. About 240,000 live in Hawai'i, comprising more than 20% of Hawai'i's population. Another 160,000 are scattered among the other states, including 60,000 in California (thus comprising California's largest "tribe"). The bill says Native Hawaiians cannot automatically have gambling casinos and cannot automatically participate in BIA benefit programs; but neither does the bill prohibit such things. Since recognized tribes can build wealth without paying state or federal taxes, and since as sovereign entities they can make political contributions to federal and state candidates without obeying normal campaign contribution limits, it is to be expected that this 400,000-pound gorilla can grab all the bananas it wants. For a spreadsheet showing the state-by-state population of "Native Hawaiians," see:
https://www.angelfire.com/hi2/hawaiiansovereignty/population2000.html

Please reject S.344. Thank you for considering this testimony.

Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St.
Kane'ohe, HI 96744
e-mail Ken_Conklin@yahoo.com

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United States Senate

Committee on Indian Affairs 

Testimony by Paul M. Sullivan on S. 344

The Native Hawaiian Recognition Bill

Tuesday, February 25, 2003 

Aloha and good morning, Chairman Campbell and members of the Committee.  

I first offered testimony to this Committee (or more precisely, to a subset of this committee) at the turbulent and controversial hearings in Honolulu in August of 2000 on S. 2899/H.R. 4904, the earliest of several versions of what is now S. 344. To the great relief of many of us in Hawai'i, those bills failed to pass.  

They reappeared in the 107th Congress in several versions. The favored two were S. 746 and H.R. 617. I sent each member of this Committee a sixty-page booklet entitled "Killing Aloha" which provided a section-by-section analysis of those bills explaining why they would impose unconstitutional racial segregation on Hawai'i, why their factual and legal foundations were invalid, why they would fail to achieve their intended purposes even if those purposes were legitimate, why they would set a dangerous precedent with respect to American Indians, and why they would cause grave political, legal and social harm to Hawai'i and the United States. Once again, the bills failed to pass. 

Now we are at it again. This tattered and disreputable proposal is back. The current bill, S. 344, is apparently identical to S. 746/H.R. 617. It is therefore identically dangerous, identically racial to its rotten core, and identically undeserving of your support.  

I will not burden you today with another copy of "Killing Aloha," but you can find it online at
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSullivan.html .
Its central arguments were also published as a law review article in the University of Hawai'i Law School's on-line Asian-Pacific Law and Policy Journal at
www.hawaii.edu/aplpj/pdfs/v3-13-Sullivan.pdf .
 

I note from the witness list for this hearing that the committee will not have the opportunity to listen to any of the bill's many opponents. This is unfortunately consistent with past hearings in Washington, DC on this bill's predecessors. I therefore ask that you take a deeply skeptical approach to the testimony you hear and that you schedule future hearings at which the bill's opponents as well as its supporters can be heard. 

Sincerely, 

 

Paul M. Sullivan


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Patrick W. Hanifin

patrick.hanifin@ihplaw.com 

February 25, 2003 

The Honorable Ben Nighthorse Campbell

Chairman, Committee on Indian Affairs 

United States Senate 

Dear Senator Campbell: 

S.344 should be rejected because it would create a racially discriminatory agency. Although this bill is being described as a purely local matter and a routine exercise of Congress’ power to recognize an “Indian tribe,” S.344 is actually of national significance because it would put the federal government in the business of promoting racial discrimination.  

1. S.344 is racially discriminatory and unconstitutional. The bill defines a privileged class of “Native Hawaiians” that the Supreme Court has held is a racial class. In Rice v. Cayetano, 528 U.S. 495 (2000), the Supreme Court held that Hawaii cannot restrict voting for state offices to people who can trace at least one ancestor back to Hawaii in 1778, before Captain Cook ended Hawaii’s long isolation from the rest of the world. The Supreme Court held that the State’s definitions of “Hawaiian” and “native Hawaiian” in terms of ancestry were racial definitions used for a racial purpose. 528 U.S. at 515. Although the definition of the privileged class in S.344 is more convoluted, it comes down to the same group: anyone who can trace even one ancestor back to Hawaii in 1778 is in; everyone else is out. This bill, like the laws Rice held unconstitutional, would use “ancestry as a racial definition for a racial purpose.”  

S.344 tries to overrule Rice and the rule against racial discrimination by invoking Congress’ power under the Commerce Clause to regulate commerce with “Indian tribes.” However, in Rice, the Supreme Court said that an agency created by the State of Hawaii that restricted voting rights to ethnic Hawaiians was an unconstitutional state agency, not an Indian tribe. Although the bill provides for “recognition” of a “Native Hawaiian governing entity,” no such entity exists to be recognized. The bill directs the Secretary of the Interior to foster a race-based association and transform it into a racial government. The result would be an unconstitutional instrumentality of the federal government, not a real Indian tribe.  

2. The bill would manufacture a fake Indian tribe bigger than any real tribe. According to Census 2000 figures, more than 400,000 people would qualify as members of a “Native Hawaiian” tribe if this bill passes. Of these people, over 160,000 live outside Hawaii. Nearly all of these people can claim descent from one or more of the many people who have migrated to Hawaii since 1778. The great majority of so-called “Native Hawaiians” are of less than half Hawaiian ancestry. Even more people might recall distant Hawaiian ancestors if the government rewards them by converting this entire group into America’s biggest Indian tribe.  

As such, they could compete with existing tribes for government benefits. The bill would authorize the Interior Department to transfer federal land and assets to a race-based “Native Hawaiian” government. Hawaii Governor Linda Lingle was quoted in today’s Honolulu Advertiser as saying that racial Hawaiians are entitled to be treated the same as all “indigenous people” in the country. She apparently means that they should get all the benefits and entitlements of federally recognized Indian tribes. Although S.344 would not immediately give racial Hawaiians these benefits and entitlements, its proponents will return to demand “equal rights” to all the federal programs for Indians as well as the “equal right” to run casinos. If they do not get everything they demand from Congress, they will go to court, invoking the “federal recognition” of Hawaiians as an “indigenous people” and demanding “equal rights” under the Constitution. Real Indian tribes will have to share their benefits with a huge fake tribe.  

“Native Hawaiians” as defined in S.344 are not an Indian tribe. There never has been a Hawaiian tribe. There was a Kingdom of Hawaii in the 19th century. However, regardless of race, everyone born in the Kingdom was a citizen. Everyone who came to Hawaii could become a naturalized citizen. By the end of the Kingdom, most people living in Hawaii and most of the Kingdom’s cabinet ministers, legislators, and judges were not ethnic Hawaiians. (Has there ever been an Indian tribe in which chiefs were not Indians?) Under the Kingdom, people who could trace their ancestry in Hawaii back to 1778 had no special rights. They did not own Hawaii’s public land any more than American citizens who can trace their American ancestry back to 1776 have any special ownership of America’s public lands. When the United States annexed Hawaii, all citizens of Hawaii, regardless of race, became American citizens. American citizens of Hawaiian ancestry, like all their fellow citizens, participate equally in the democratic self-determination of the American people and the state of Hawaii.  

The favored class in S.344 is exclusively racial, not tribal. It is not the descendants of the citizens of the Kingdom of Hawai`i. The plaintiff in Rice is descended from citizens and office-holders of the Kingdom but would be excluded by ancestry under S.344, just as he was excluded from voting in the state elections that the Supreme Court held unconstitutional. The favored class is not defined by adherence to any “indigenous” Hawaiian culture. A person can be fluent in the Hawaiian language from infancy, be raised as an adopted child of a family of Hawaiian ancestry, earn a doctorate in Hawaiian studies, but if he lacks Hawaiian racial ancestry he is excluded. On the other hand, a person who is born and raised outside Hawaii, speaks no Hawaiian, knows nothing of any culture that anyone would call “Hawaiian,” and does not care to learn qualifies if he shows even “1 possible ancestor out of 500,” as Justice Breyer noted in Rice. People of Hawaiian ancestry are culturally, politically and economically integrated into modern America. S.344 uses a racial definition of “Native Hawaiian” because only a racial definition can isolate the racial class it seeks to benefit.  

The historical reasons why the racial class of Hawaiians is not an “Indian tribe” or an “indigenous people” are examined in more detail in three law review articles I have published which are posted on the Internet at:

https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf

https://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

http://www.hawaii.edu/aplpj/pdfs/v3-12-Hanifin.pdf 

3. The bill is divisive and encourages racial antagonism. While proponents of this bill are telling Congress that they are a routine exercise of Congress’ power over Indian tribes, some of its proponents are describing it as the first step towards taking Hawaii out of the Union. The U.S. Commission on Civil Rights’ Hawaii Advisory Committee has endorsed legislation such as this bill that would give ethnic Hawaiians a race-based government, noting that they should then be able to use their recognized “sovereignty” to cause Hawaii to secede from America. Hawaii Advisory Committee to the U.S. Commission on Civil Rights, Reconciliation at a Crossroads, 49-52 (June 2001), www.usccr.gov/hisac/main.htm. 

Of course this is nonsense. Hawaii is not going to secede from the Union. The real threat of this bill is that it tries to buy off racial separatists by giving them a government and federal money and land will encourage racial divisions. Anyone can assert, “I deserve special treatment because some of my ancestors were treated badly.” When the government subsidized cheese production, the warehouses were overflowing with cheese. If the government pays anyone who feels racial resentment because of his ancestors’ experiences, the community will soon be overflowing with racial resentment.  

Other ethnic groups could demand racially exclusive privileges. Any of the millions of Americans who can claim at least one ancestor who was in America before 1492 could claim special political privileges, even though they are not members of Indian tribes. Because the bill severs the link between Congress’ Commerce Clause power and the continuing existence of a real Indian tribe, it would be a precedent for every ethnic group to demand its own sovereign government, money and land. For instance, descendants of black slaves could demand reparations. Hispanics descended from the people who lived in the Southwest before the U.S. annexed the area could demand return of “their land.” With far more justification than ethnic Hawaiians, these people can say that their ancestors never chose to become Americans. 

S.344 would re-create the exclusive “self-government” for a racial group that the Supreme Court struck down in Rice. As American citizens, we are all sovereign now. Race-based government is un-American and undemocratic. “When racial . . . lines are drawn by the State, the multiracial . . . communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race . . . rather than to political issues are generated; communities seek not the best representative but the best racial . . . partisan. Since that system is at war with the democratic ideal, it should find no footing here.” Shaw v. Reno, 509 US 630, 649 (1993) quoting Wright v. Rockefeller, 376 U.S. 52, 66-67 (1964) (Douglas, J. dissenting). 

Government of the race, by the race, and for the race has no place in American democracy. I urge you to reject S.344.  

Patrick W. Hanifin



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