Akaka bill debate: The Washington Times newspaper, series of 3 articles focusing on issues of concern nationwide, written by constitutional law attorneys and activists pro and con, October and November, 2004

In October and November, 2004 the nationally circulated Washington D.C. newspaper “The Washington Times” published a series of three articles about the Hawaiian recognition bill. The full text is provided below for all three articles.

(a) October 5, 2004: “A Race-Based Drift?” by columnist Bruce Fein, a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
http://www.washingtontimes.com/commentary/20041004-103825-2598r.htm

(b) November 28, 2004: “Hawaii bill in line with U.S. political tradition” This response to Mr. Fein’s article was published by a team of three lawyers after a delay of more than six weeks, although a similar reply by the same three lawyers was published in the Honolulu Advertiser of October 17, 2004. Sherry P. Broder is an attorney in private practice who has litigated many lawsuits for the Office of Hawaiian Affairs for about twenty years. Her husband, Jon M. Van Dyke, is a professor of Constitutional and International Law at the University of Hawai’i law school; he has written numerous essays and legal documents for OHA and serves as occasional public spokesman for OHA in the media and the Legislature. Melody McKenzie is an attorney who wrote a handbook on Native Hawaiian rights many years ago, and has served as spokesman for OHA in various public forums.
http://washingtontimes.com/commentary/20041127-095623-2165r.htm

(c) November 30, 2004: “Playing Racial Politics in Hawaii” This reply to the November 28 article by the three OHA attorneys was published two days later by Kenneth R. Conklin, Ph.D. Dr. Conklin maintains a large website entitled “Hawaiian Sovereignty: Thinking Carefully About It” and has been vigorously opposing the Hawaiian recognition bill since it was first introduced in summer 2000. His website is at
https://www.angelfire.com/hi2/hawaiiansovereignty
This article in the Washington Times is at:
http://www.washtimes.com/op-ed/20041129-095028-6916r.htm

The full text of all three articles is copied below.

Note also that there is a five-paragraph summary of what’s wrong with the Hawaiian recognition bill, followed by extensive documentation of all the main points, at
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaNationalSummary2004.html

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The Washington Times
www.washingtontimes.com

A race-based drift?

By Bruce Fein
Published October 5, 2004

The nation's mindless celebration of multiculturalism and denigration of the American creed has reached a new plateau of destructiveness. A bill recently reported by the Senate Appropriations Committee (S. 344) would establish a race-based government for Native Hawaiians unconstrained by the restrictions of the U.S. Constitution. The bill's enactment would mark the beginning of the end of the United States, akin to the sack of Rome by Alaric the Great in 410 A.D. A country that wavers in its fundamental political and cultural values -- like a nation half slave and half free -- will not long endure.
    S. 344 would erect an independent government for the lineal descendants of Native Hawaiians to honor their asserted "rights as native people to self-determination and self-governance." Best estimates place their number at more than 400,000. Like Adolf Hitler's blood tests for Jews, a minuscule percentage of Native Hawaiian ancestry would establish an entitlement to participate in the new racially exclusive domain.
    The right to self-determination means the right of a people to choose their sovereign destiny, whether independence, federation, accession to another nation or otherwise. Thus, the bill would overturn the past and prevailing understanding of the Civil War. As Chief Justice Salmon Portland Chase lectured, Ulysses S. Grant's defeat of Robert E. Lee established an indivisible national unity among indestructible states.
    The Native Hawaiian government would be unbothered by the "irritants" of the U.S. Constitution. Thus, it might choose theocracy over secularism; summary justice over due process; indoctrination over freedom of speech; property confiscations over property rights; subjugation over equality; or, group quotas over individual merit. The Native Hawaiian citizens of the Native Hawaiian government would also be exempt from swearing or affirming allegiance to the United States of America or the U.S. Constitution.
    The race-based sovereignty created by S.344 is first cousin to a revolution against the United States. As the Declaration of Independence elaborates, revolutions may be justified by repression or deafness to pronounced grievances. Thomas Jefferson's indictment of King George III is compelling on that score. But S. 344 does not and could not find Native Hawaiians are oppressed or maltreated in any way. They are first-class American citizens crowned with a host of special privileges. Indeed, the proposed legislation acknowledges that, "Native Hawaiians... give expression to their rights as native peoples to self-determination and self-governance through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children's services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school."
    The annexation of Hawaii by the United States in 1898 has proven a bright chapter in the history of democracy and human rights. Native Hawaiians had failed for centuries to build a democratic dispensation and the rule of law. When Queen Lili'uokulani was ousted from power in 1893, the potentate was no more eager to yield monarchical powers than was the shah of Iran. Annexation and statehood in 1959 brought all Hawaiian residents irrespective of race or ethnicity the blessings of the U.S. Constitution -- government of the people, by the people, for the people. Native Hawaiians prospered far beyond the destiny available under Queen Lili'uokulani and her royal successors. Suppose Japan had attacked Pearl Harbor when under the queen's sovereignty. The Hawaiian Islands would have been colonized and brutalized as was Korea from 1910-1945.
    American civilization has been a boon, not an incubus, for the Native Hawaiians living today. Generally speaking, they thrive from the benefits of science, medicine, literature, higher education, free enterprise, private property and freedom of inquiry, amenities and enjoyments not found in lands untouched by Western values and practices. As elaborated in the report of Senate Committee of Indian Affairs accompanying S. 344, Native Hawaiians' nagging resistance to complete assimilation seems to explain their suboptimal demographics. Hawaiian law, for example, has invariably guaranteed subsistence gathering rights to the people to retain native customs and traditions.
    Not a crumb of legitimate grievance justifies the odious race-based government championed by S. 344. To borrow from Associate Supreme Court Justice Antonin Scalia in Adarand Construction vs. Pena (1995), in the eyes of the law and the creed of the United States, there is only one race in the nation. It is American. And to be an American is to embrace the values of freedom, individual liberty and equality acclaimed in the Declaration of Independence, Constitution and Gettysburg Address. S.344 would create a distinct race of Native Hawaiians subject to a race-based Native Hawaiian government with the purpose of creating and preserving non- American values: namely, "Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions."
    Native Hawaiians hold no more right to a race-based government than countless other racial or ethnic groups in the United States. They are no more entitled to secede from the jurisdiction of the U.S. Constitution than were the Confederate States of America. Enacting S. 344 would surrender the intellectual and moral underpinnings of the United States.

    Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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(b) November 28, 2004: “Hawaii bill in line with U.S. political tradition” This response to Mr. Fein’s article was published after a delay of more than six weeks, presumably to allow the vast bureaucracy of the Office of Hawaiian Affairs and a team of three of its long-time attorneys to compose the response. Sherry P. Broder is an attorney in private practice who has litigated many lawsuits for the Office of Hawaiian Affairs for about twenty years. Her husband, Jon M. Van Dyke, is a professor of Constitutional and International Law at the University of Hawai’i law school; he has written numerous essays and legal documents for OHA and serves as occasional public spokesman for OHA in the media and the Legislature. Melody McKenzie is an attorney who wrote a handbook on Native Hawaiian rights many years ago, and has served as spokesman for OHA in various public forums.
http://washingtontimes.com/commentary/20041127-095623-2165r.htm

The Washington Times
www.washingtontimes.com

FORUM: Hawaii bill in line with U.S. political tradition

Published November 28, 2004

Bruce Fein's commentary in the Washington Times (Oct. 5) denounced the Akaka Bill and other programs for Native Hawaiians as un-American and akin to the genocidal racial policies of Adolf Hitler's Third Reich.
    This outrageous diatribe ignored the special status that native people hold in the United States, grounded in the language of the U.S. Constitution and reaffirmed repeatedly in recent years. The federal government is authorized to establish preferential and separate programs for native peoples because of the "political" relationship between the U.S. government and its native peoples, based on the pre-existing sovereignty of native peoples, rather than any "racial" classification.
    For most of its first 150 years, the United States mistreated the natives living within its borders, taking their land, forcefully relocating many groups, killing many natives in battles and, through mistreatment and neglect, systematically trying to destroy their unique culture. Native Hawaiians had a different, but similarly tragic, relationship with the United States government.
    Despite several treaties pledging friendship and establishing commercial relationships between the United States and the Kingdom of Hawaii, U.S. military troops and diplomats gave crucial support to the efforts of Western settlers in Hawaii in 1893 to overthrow the kingdom. These U.S. officials and troops engaged in activities denounced by President Grover Cleveland in 1893 and that the federal government has more recently found morally wrong and illegal. In 1898, five years after the overthrow, despite the overwhelming opposition of the Native Hawaiian people and many other residents of Hawaii, the United States annexed the islands, using the unorthodox technique of a joint resolution because two-thirds of the U.S. Senate would not support a treaty of annexation.
    Through this maneuver, the United States took control of 1.8 million acres of land that had been controlled by the Hawaiian Kingdom, without the consent of and without any compensation to the Native Hawaiians. When Hawaii became a U.S. territory, the Hawaiian language was systematically suppressed, and schoolteachers even scolded parents for speaking Hawaiian to their children in their own homes.
    Congress established the Hawaiian Home Lands Program in 1921, which recognized Native Hawaiians as native peoples under U.S. law. But until recent years this program has been chronically underfunded and mismanaged. Congress again recognized the special relationship between the United States and Native Hawaiians in the 1959 law admitting Hawaii as the 50th state, and required the new state to administer the Hawaiian Home Lands Program and to use revenues from the lands transferred to the state "for the betterment of the conditions of native Hawaiians."
    In 1993, Congress formally apologized to the Native Hawaiian people for U.S. participation in the 1893 overthrow, which it characterized as "illegal" and a violation of "international law." This enactment instructed the executive branch to begin "reconciliation." The president signed this legislation, and initiated efforts by the Justice and Interior Departments to provide redress for the injuries imposed on Native Hawaiians. An important step in this process was the creation by Congress earlier this year of the Interior Department's Office of Native Hawaiian Relations.
    Enactment of the Akaka Bill would be an important next step. It would establish a process for re-establishing a Native Hawaiian governmental entity, which would receive formal federal recognition and would begin immediately to redefine the relationship between the United States and Native Hawaiians and to negotiate for return of land and resources to the Native Hawaiian people. This is in the American tradition, because it would recognize an autonomous native nation similar to the more than 560 native nations, tribes, villages and communities in the 48 contiguous states and Alaska.
    It is part of the U.S. national tradition to acknowledge its past mistakes, to responsibly compensate the victims, and to re-establish an honorable relationship with them. The compensation provided Japanese-Americans interned during World War II is an important example of our redressing such a wrong.
    During the past half-century, the United States has worked to improve the conditions of its native peoples, and many native groups now prosper and reinvigorate their culture. Resolving the legitimate claims of the Native Hawaiian people remains as unfinished business on our national agenda.
    Congress now appears ready to take action on the Akaka Bill during the summer of 2005. Its enactment is overdue, and it should allow Native Hawaiians to govern themselves once again and to regain control over their lands and resources.

    SHERRY P. BRODER
    JON M. VAN DYKE
    MELODY K. MCKENZIE
    Attorneys for the Office of
    Hawaian Affairs

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The Washington Times
www.washingtontimes.com

Letters to the editor

Published November 30, 2004

Playing racial politics in Hawaii
    Three attorneys for the Office of Hawaiian Affairs have defended a bill to give federal recognition to ethnic Hawaiians, comparing them to an Indian tribe ("Hawaii bill in line with U.S. political tradition," Forum, Sunday).
    This dangerous bill would badly damage not only Hawaii, but the entire United States. It will be introduced again in 2005. This bill is based on a new theory of the Constitution, that the Indian Commerce Clause empowers Congress to arbitrarily select any group of "indigenous people" and create a "tribe" for them out of thin air, regardless of the group's history and lack of continuity as a political entity.
    This theory would, for example, allow Congress to recognize a "Nation of Aztlan" comprised of all people having any Mexican/Aztec ancestry who live in California, Texas, Arizona, etc. It would also encourage hundreds, perhaps thousands, of additional phony "tribes" to seek recognition.
    Census 2000 says there are more than 400,000 "native Hawaiians," including 240,000 in Hawaii, 60,000 in California, and 100,000 in the other 48 states. This phony new "tribe" would be larger than any genuine tribe. "Native Hawaiians" make up 20 percent of Hawaii's population -- no other tribe has such a large percentage of a state's population.
    The Hawaiian recognition bill is, in effect, apartheid legislation that would carve Hawaii into separate racial jurisdictions. Twenty percent is a huge voting block when push comes to shove in disputes between a tribe and a state (tribal members also vote as citizens of a state).
    Ethnic Hawaiians are highly intermarried and widely dispersed throughout all neighborhoods of Hawaii. Their "tribal lands" would be similarly scattered, creating jurisdictional nightmares.
    The history of native Hawaiians is completely different from the history of American Indian tribes. There was never a unified political entity or nation whose members were exclusively native Hawaiian. Europeans and Americans helped create the kingdom of Hawaii. Because of decisions made by the sovereign kings of Hawaii exercising self-determination on behalf of their people, thousands of native-born and naturalized whites had voting rights and property rights as full-fledged citizens of the kingdom.
    Most cabinet officers, and many elected members of the legislature, were white. By the time the monarchy was overthrown, 60 percent of the population was white or Asian. Yet the Hawaiian recognition bill ignores that history and proposes to give political recognition exclusively to the 20 percent of Hawaii's people who have at least one native ancestor.
    The real purpose of this bill is to protect more than 160 racially exclusionary government programs that benefit ethnic Hawaiians. Of course, such race-based government programs are unconstitutional under the 14th Amendment equal protection clause; and they are now under attack in the courts. Large, wealthy ethnic Hawaiian institutions are spending millions to lobby for the Hawaiian bill so they can stay in business.
    The Hawaiian recognition bill is unconstitutional. It would lay a foundation for further ethnic balkanization of America. It would give encouragement to racial identity politics, racial entitlement programs, racial separatism, racial reparations for historical grievances, etc.

    KENNETH R. CONKLIN
    Kane'ohe, Hawaii

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