PATRICK W. HANIFIN'S TELEVISION AND RADIO APPEARANCES (Chronological order)
Sunday, August 6, 2000 attorneys Patrick W. Hanifin and H. William Burgess were the guests on an hour-long program that was one in a series of ten such programs about the Rice v. Cayetano decision and its effects on the future of Hawai'i. The series was broadcast on Hawai'i Public Radio and hosted by reporter Bob Rees and University of Hawai'i Professor Neal Milner.
Sunday, February 18, 2001 (and several rebroadcasts): 'Olelo Community Television one-hour program "Counterpoint." Host Bob Rees and guests Kenneth Conklin and attorney Patrick Hanifin discussed Hawaiian sovereignty, Native Hawaiian rights, the 14th Amendment (equality under the law), Rice v. Cayetano, Arakaki v. State of Hawai'i.
Friday, November 2, 2001 (and several rebroadcasts): “You and the Law” 90-minute panel discussion on the Akaka bill, hosted by Professor Bob LeClair (Kapiolani Community College). Panel consisted of 4 attorneys. Opposing the bill: Patrick Hanifin and H. William Burgess. Favoring the bill: Sherry Broder (attorney for OHA) and Beadie Dawson (head of construction contracting firm The Dawson Group, and a leading member of the group that wrote the bill).
Sunday, October 13, 2002: 'Olelo Community Television one-hour program "Counterpoint." Host Bob Rees and guests Kenneth Conklin and attorney Patrick Hanifin discussed the freedom of speech and academic freedom issues surrounding Conklin's controversial outreach course on Hawaiian sovereignty at University of Hawai'i Manoa; also general issues of Hawaiian sovereignty, indigenous rights, the 14th Amendment (equality under the law), Rice v. Cayetano, Arakaki#1, Arakaki#2.
Tuesday, October 22, 2002: Hawai'i Public Radio, "Talk of the Islands," host Bob Rees. Guests Ken Conklin, Patrick Hanifin. 1-hour call-in discussion, same topics as 10/13/02 TV show.
Tuesdays, April 8 & 15, 2003: Hawai'i Public Radio, "Talk of the Islands," host Bob Rees. Guests Ken Conklin, Patrick Hanifin, Hayden Burgess (alias Poka Laenui), Roy Dahlin. 1-hour call-in discussion. Topics: Hawaiian sovereignty, overthrow, annexation, statehood, colonialism, apology bill, indigenous rights, Rice v. Cayetano, Akaka bill, Hawaiian nationalism.
==========================
HANIFIN TESTIMONY BEFORE THE HAWAI'I ADVISORY COMMITTEE TO THE U.S. COMMISSION ON CIVIL RIGHTS, September 29, 2000, Regarding the Rice v. Cayetano decision and the Akaka bill
The Hawai'i Advisory Committee to the U.S. Commission on Civil Rights held a day-long public hearing on Friday, September 29, 2000 at Hilton Hawaiian Village, regarding the effects of the Rice v. Cayetano decision on the status of Native Hawaiians. Three of the eight national Commissioners were active participants. The national commission at that time was heavily leftist in political orientation, and the local Hawai'i Advisory Committee is dominated by Hawaiian activists favorable to the Akaka bill. This bias can be clearly seen in their report, and in the list of persons invited to give testimony. The clear purpose of the “hearing” was to provide “evidence” that the Rice decision violates the civil rights of Native Hawaiians, and that the remedy is to pass the Akaka bill. Patrick Hanifin testified in Panel #5. Unfortunately, his individual testimony is not available on the internet. The final report is entitled “Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians (June 2001)” and is available at:
https://www.angelfire.com/hi5/bigfiles/usccrhac0601.pdf
and also directly from the USCCR at:
http://www.usccr.gov/pubs/sac/hi0601/hawaii.pdf
=================
PATRICK W. HANIFIN'S PUBLISHED NEWSPAPER ARTICLES AND LETTERS (Chronological order)
The Honolulu Star-Bulletin, October 28, 2000 Letter to Editor
http://starbulletin.com/2000/10/28/editorial/letters.html
Bill would make Indians out of Hawaiians
People who read the Akaka bill as trying to invent a "Hawaiian tribe" are right. Either it will convert ethnic Hawaiians into an Indian tribe, or it will create an unconstitutional federal agency.
In Rice v. Cayetano, the U.S. Supreme Court held that an agency that limits voting to Hawaiians unconstitutionally discriminates based on race. The Akaka bill would impose the same racial discrimination.
The Constitution bars discrimination by Congress, as well as by the states. If the Akaka bill merely creates a federal agency, it is unconstitutional.
The bill tries to evade the constitutional principle of equality by invoking Congress' power to "regulate commerce" with "Indian tribes." This is dubious at best, but it certainly won't work if Congress doesn't even try to create a Hawaiian "Indian tribe."
If Congress tries and succeeds, then the members of the "Hawaiian tribe" will be entitled to benefits now extended to Indian tribes. Congressmen who fear that the new tribe would dip into the pork barrels labeled for Indians are right.
If Congress can make Hawaiians an exception to the rule of constitutional equality, then it could treat them worse than their fellow citizens instead of better. How much would you sell your constitutional rights for?
A better, fairer reading of the Constitution is that Congress cannot make Hawaiians a tribe any more than it can make Mexicans a tribe. Congress shouldn't duplicate Office of Hawaian Affairs' discrimination. Government should remain open to everyone, regardless of ancestry.
Patrick Hanifin
----------------------------------
The Honolulu Star-Bulletin, December 20, 2000 Letter to Editor
http://starbulletin.com/2000/12/20/editorial/letters.html
Akaka bill wasn't worthy of being passed
It is fortunate for Hawaii that the Akaka bill failed. It would have given federal support to racial discrimination.
It had the same fatal constitutional flaw that the U.S. Supreme Court detected in the Office of Hawaiian Affairs discriminatory voting laws: a racial definition of "Hawaiians" used to create an exclusive voting roll and disenfranchise most of Hawaii's citizens.
Congress could not have avoided the unfairness of that scheme by manufacturing a Hawaiian imitation of an Indian tribe. But Hawaiians never were organized as tribes, so there is no tribe that can be recognized or revived.
Rather, ever since Kamehameha I, Hawaii has had a long tradition of including as citizens people who came here from all over the world and who have been born on the aina.
Patrick W. Hanifin
----------------------------
The Honolulu Advertiser, Sunday April 8, 2001
[Viewpoint article responding to article by sovereignty activist Alani Apio “Kanaka Lament” of March 25]
http://the.honoluluadvertiser.com/article/2001/Apr/08/op/op05a.html
When 'nation' is given five meanings with inconsistent use, that's confusion
By Patrick W. Hanifin
Alani Apio ("Kanaka lament," March 25) admits to being in a "place of ... confusion" and then proves it: The Hawaiian nationalism he advocates is indistinguishable from the racism he denounces.
His confusion arises from using the word "nation" in five inconsistent ways:
1. A government — specifically, the monarchical government of Hawai'i that was overthrown in 1893.
2. An independent country — specifically, the country that Kamehameha I founded and that endured until 1898 when America annexed the Republic of Hawai'i.
3. An Indian tribe — without precedent in Hawaiian history, because there has never been a Hawaiian Indian tribe.
4. A territory — the 'aina that he loves and that was here millions of years before any human.
5. A group of individual citizens.
The last use of "nation" is the most confused. He never explicitly tells us how the members of this group can be identified.
Apio does say that the "nation" that he wants to restore is the one that Kamehameha I created — the Hawaiian Kingdom. He acknowledges that "the Hawaiian Kingdom wasn't race-based." Kamehameha created the kingdom by conquering his rivals with the help of immigrants like Englishman John Young (Queen Emma's grandfather). Under the kingdom's rule of citizenship, anyone born here was a citizen and anyone who came here could become a citizen.
Many immigrants and their children became judges, legislators and government executives.
Like the multi-ethnic kingdom, its multi-ethnic successors, the state of Hawai'i and the United States, follow the rule of citizenship by birth and naturalization. Apio shares with his fellow citizens the equal right to participate in a sovereign government. He has an equal right to try to learn whatever he thinks is deepest and most valuable in human culture and so make it his own culture. (Like the rest of us, he gets no guarantee of success.)
He has what he says he wants. Why is he so angry?
Equality isn't good enough for Apio. He claims to belong to a group that deserves more than equality with the rest of us.
In his superior group he includes himself, his family, and other people he calls "Kanaka." What these "Kanaka" have in common is "shared genealogy"and "shared ancestors." He also mentions a "shared culture," but he describes people as "Kanaka" even though they are happily "assimilated" into American culture. He ignores people who participate in Hawaiian culture but lack "Kanaka descent." Thus, living a distinctly Hawaiian culture is neither necessary nor sufficient to be "Kanaka."
Ancestry is necessary and sufficient. Anyone who can trace his ancestry in Hawai'i back to 1778, before the first non-"indigenous" people arrived, gets to be a member of Apio's "nation." This definition picks out the same individuals as the state's definition of "Hawaiian," which the Supreme Court held in Rice v. Cayetano is racial. Only the label has changed.
Apio defines "racism" as a doctrine of "inherent differences" among groups and "the idea that one's own race is superior." The moral evil of racism is that it divides people into superior and inferior groups based on ancestry.
As the Supreme Court said in Rice, "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit." The evil is the same regardless of the size of the hereditary group: a race, a nationality, a tribe or an aristocracy.
Apio rightly attacks the Hawaiian Homes program as racist because it requires a certain blood quantum. But so does his "nation." He reverts to "the racist ideology of blood quantum" that he denounces: A member of Apio' s "nation" must have Hawaiian blood. As the Supreme Court said: "Ancestry can be a proxy for race; it is that proxy here."
The nationalism Apio advocates is actually another one of those alien imports he despises. It is the blood nationalism invented in central and eastern Europe in the 19th century. Blood nationalism excludes everyone who lacks the blood of the indigenous group; for instance, a Jew or a Turkish immigrant can never be a true indigenous German.
Governments based on blood nationalism claim to "preserve and perpetuate" the nation's culture, as Apio hopes to do, but ultimately they destroy culture. If you want to see where blood nationalism leads a multi-ethnic society, look at the bloody ruins of what used to be Yugoslavia.
Interpreting Hawaiian culture in terms of a blood nationalism that is alien to Hawaiian history is what keeps Apio in his "place of anger and confusion." He rejects the "infuriating implication that we as Kanaka are not capable of handling life" but claims that some people commit suicide — the most extreme case of not being capable of handling life — because they are "Kanaka."
Apio sincerely believes his gut feelings about Hawai'i's history. But where historical facts are at issue, gut feelings aren't enough. The courts are full of plaintiffs who sincerely believe that they have been wronged. Some are right; some are wrong. That's why we hire judges and juries: to look beyond feelings and find the facts.
Once the confusion created by using "nation" in five different ways is sorted out, all the rhetoric about an "oppressed nation" demanding the return of a "stolen nation" comes down to this story: A group defined by ancestry — the "Kanaka" — exclusively controlled the government of the independent country of Hawai'i. In 1893, America invaded and stole from the Kanaka group that government and the territory it owned.
But Apio admits this story is false: "because the Hawaiian Kingdom wasn't race-based, therefore it's wrong under both nations' laws for America to acknowledge only indigenous Kanaka" as entitled to privileged status.
An oligarchy of the richest Hawaiian and haole men governed the kingdom in 1893. Most ethnic Hawaiians could not even vote. Ethnic Hawaiians were a minority in Hawai'i. They did not own the Government Lands, the government did. As Apio admits, they did not have any special group rights to land or power. When you've got nothing, you've got nothing to lose.
Apio's admission of error is not altered by his anti-American diatribe.That is merely "yo' momma" rhetoric (as in, "I'm wrong, but yo' momma's an [expletive deleted].")
Apio abhors racism, yet he advocates superior privileges for his own group defined by ancestry. He tries to reconcile his confused feelings by advocating a Kanaka "nation." But at bottom his "nation" amounts to a demand that Hawai'i should be torn out of the American Union so that a minority defined by racial ancestry can have a privileged position over their million fellow citizens.
Ultimately, Apio faces a choice: Does he stand by what he calls "the ideals of America — truth, justice, equality," that "provide the groundwork for the denial of any and all inequalities and discrimination"? Or does he stand with the Confederacy of the Civil War — for secession, division and racial privilege?
Like Apio, Hawai'i faces a choice. In Apio's words, will we "continue to fight and divide ourselves and 'ohana over an arbitrary, baseless, racist notion of koko — blood"? Or will we pursue the American ideal of equal rights for all — never fully achieved but still worth striving for?
Patrick W. Hanifin is a Honolulu attorney.
------------------------------
The Honolulu Star-Bulletin, February 18, 2002, Letter to Editor
http://starbulletin.com/2002/02/18/editorial/letters.html
OHA discrimination underscores hypocrisy
The Office of Hawaiian Affairs used to deny that it discriminates. Now it demands a special exemption from the procurement code so it can continue to discriminate. Procurement regulations forbid discrimination based on race, ancestry or family relationships. If OHA has to play by the rules, it refuses to issue any grants.
Kamehameha Schools officials used to deny that they discriminate. Now they say that because the federal government insists on a nondiscriminatory JROTC program in a nondiscriminatory school, they will shut down their JROTC program. If they have to play fair, they won't play at all.
Sen. Daniel Akaka used to deny that his famous bill would discriminate by creating a racially exclusive government for blood Hawaiians. His latest version would create a special exemption from federal ethics laws to authorize Hawaiian employees of this new federal office to discriminate in favor of themselves and their relatives. If they had to act ethically, they couldn't do their jobs.
These programs cannot advance their purposes if they cannot discriminate. But they should not be granted exceptions to the law. Discrimination is illegal because it is immoral -- without exceptions.
Patrick W. Hanifin
---------------------------
The Honolulu Star-Bulletin, January 10, 2003 Letter to Editor
http://starbulletin.com/2003/01/10/editorial/letters.html
Akaka bill would be discriminatory, too
As one of the attorneys for the plaintiffs in Arakaki vs. State of Hawaii, I read with interest your Jan. 5 editorial on the Akaka bill. The editorial rightly criticized the state's denial of the equal right to vote in Office of Hawaii Affairs elections and to be an OHA trustee as "racial discrimination." Then you advocated the same racial discrimination in federally sponsored elections and programs, provided the federal government creates a "sov- ereign Hawaiian entity" and calls it a "tribe."
Racial discrimination is wrong whoever commits it. Calling a racial group a "sovereign entity" or "tribe" does not justify racial discrimination. Regardless of ancestry, each of us has an equal right to vote, serve in public office and apply for government programs.
As the federal government said in its brief in the school desegregation case Brown vs. Board of Education, "Under the Constitution every agency of government, nation and local, legislative, executive and judicial, must treat each of our people as an American and not as some member of a particular group classified on the basis of race." The Supreme Court heeded that advice and held segregation unconstitutional in both state and federal schools.
I predict that passage of the Akaka bill would only ensure more litigation until the new segregation falls like the old. Segregation in voting booths, government boards and programs is wrong, whether perpetrated by the state or the United States.
Patrick W. Hanifin
==============================
PATRICK W. HANIFIN TESTIMONY SENT TO CONGRESS REGARDING THE AKAKA BILL [Note that these letters use old bill numbers to refer to the Akaka bill. During the 106th Congress in year 2000, the Senate bill was S.2899. The correct bill numbers for the 107th Congress, 2001-2002, were S.81 and H.R.617; and for the 108th Congress 2003-2004, S.344 and H.R.665. There were other bill numbers also, which need not concern us now]
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaLettersTestimony.html
[Following is a letter sent from Patrick W. Hanifin individually to both Senator Inouye and Senator Akaka.]
September 13, 2000
Senator Daniel K. Inouye
United States Senate
722 Hart Building
Washington, D.C. 20510-1102
BY MAIL AND E-MAIL
Dear Sen. Inouye:
I urge you to withdraw your sponsorship of S2899, locally known as the “Akaka Bill,” which would create a federal agency exclusively for ethnic Hawaiians. I realize that, in sponsoring that bill, you believe that you are merely protecting federal benefits for some of your constituents. However, the proposal is racially discriminatory, racially divisive, and, in the end, injurious to the people it is intended to help.
S2899 is racially discriminatory. It is intended to evade Rice v. Cayetano, 120 S.Ct. 1044 (2000), which held that “Hawaiian” and “native Hawaiian” as used in Hawai`i state laws are racial classifications. The bill is reminiscent of the South's “massive resistance” against the Supreme Court's decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Cutting through the verbiage, S2899 uses essentially the same definitions that the Office of Hawaiian Affairs used to unconstitutionally discriminate against most of the voters of Hawai`i on grounds of race. It seems to be designed to ensure that, no matter what the U.S. Constitution says, government of the race, by the race, and for the race shall not perish from Hawai`i. Such a government is anathema to the principles of American democracy.
This bill would divide the people of Hawai`i along racial lines, and in the long run could undercut much of the social progress that you have worked for through your career. That great liberal justice, William O. Douglas, discussing what he believed was a racial gerrymander, pointed out the fundamental conflict between racially divided government and American democracy:
Racial electoral registers, . . . have no place in a society that honors the Lincoln tradition – “of the people, by the people, for the people.” Here the individual is important, not his race, his creed or his color. . . . The racial electoral register system, . . . by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. . . . [G]overnment has no business designing electoral districts along racial or religious lines. . . .
When racial or religious lines are drawn by the state, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.
Wright v. Rockefeller, 376 US 52, 66-67 (1964) (Douglas, J. dissenting). Justice Douglas drew the analogy to the race-based voting systems in Cyprus, Lebanon, and colonial India. All three countries have been torn apart by bloody internecine war when racial or religious groups demanded divided shares of the government. No one wants Hawai`i to head in that direction. But the cries of outrage from some OHA trustees at the thought that their constituents must share the voting booth with all of their fellow citizens suggests that some people in Hawai`i are beginning to “seek, not the best representative but the best racial . . . partisan.” S2899 would encourage that trend, a trend that should have no place in our multiracial society.
In the long run, the bill could harm ethnic Hawaiians, too. The constitutional principle of equal protection applies as much to Congress as to states. S2899 seeks to evade that principle by classifying ethnic Hawaiians as a kind of Indian tribe and then invoking Congress' power over Indian tribes. To evade Rice and other cases holding that the Equal Protection Clause equally protects all of us, it would not be enough to interpret Congress' power as being based on relationships with tribal governments that were not created by Congress or the states. See Rice, 120 S.Ct. at 1057-59. There never was a Hawaiian tribe. Congress has no power to create a tribe. The agency that would be created in S2899 would be a creature of Congress, subject to federal Constitution as every federal agency is. The bill could survive constitutional attack only if the Supreme Court went back to old cases interpreting Congress' power over Indians as being based on Indians being a distinct and distinctly inferior racial group that needs the civilizing tutelage of the Great White Father unlimited by equal protection. See United States v. Sandoval, 231 U.S. 28, 39-47 (1913) (relied on by the State and OHA in Rice). The basis of that doctrine was not a special privilege of Indians, but a special plenary power of Congress over Indians. If it worked at all, S2899 would strip Hawaiians of the protection of the Equal Protection Clause. How much would you sell your constitutional rights for?
History has shown that when the government racially discriminates, it usually hurts minorities. A minority that claims exclusive privileges would be especially vulnerable to popular resentment. The Hawaiian opponents of S2899 have a good point: being reclassified as a pseudo-Indian to get government benefits would be dangerous. Every time that Congress has passed a program relating to Indians, it has asserted that the program is for really for their benefit: e.g. round them up and put them on the reservation to civilize them; or break up the reservations, take most of their land, and turn them into farmers, etc. Of course you would do whatever you could to fight programs harmful to your constituents, but you will not always be in Congress and Hawai`i will always have a small delegation. It may seem unlikely that Congress would ever abuse its new plenary power over Hawaiians, but who would have predicted in 1937 that, only five years later, the American government would imprison over 100,000 people because of their ancestry?
Please reconsider your sponsorship of this discriminatory and divisive bill.
Very truly yours,
Patrick W. Hanifin
------------------------------
September 13, 2000
Senator John McCain
United States Senate
241 Russell Senate Office Building
Washington, D.C. 20510
BY MAIL AND E-MAIL
Dear Sen. McCain:
As a citizen who supported you in your campaign and who has joined your continuing efforts in Straight Talk America, I would like to draw your attention to S2899, a bill presently scheduled for an expedited hearing in the Senate Indian Affairs Committee. The bill would create a special federal entity using a rule that the United States Supreme Court recently described as “corruptive of the whole legal order democratic elections seek to preserve.” I urge you to oppose the bill.
Although at first glance S2899 might seem to be a purely local matter, the bill is of national importance and illustrates the need for campaign reform. Not only is the bill being pushed by large amounts of lobbying money, but the taxpayers of Hawai`i are being forced to pay for that lobbying from state revenue. Worse, the bill would create a governmental organization of a kind that the Supreme Court has condemned as racially discriminatory.
The bill is disguised as a routine federal recognition of an Indian tribe, in this case so-called “native Hawaiians.” However, the bill would really create an exclusive race-based government, denying all but one favored group the right to vote and to hold public office. There is not now and there never has been a Hawaiian tribe. Congress has neither the power nor the right to create a tribe out of a racially defined group of American citizens. Ethnic Hawaiian citizens of Hawai`i, like the rest of us out here, are equal participants in the government of the State of Hawai`i and the United States. As your distinguished colleague Sen. Akaka demonstrates, ethnic Hawaiians are fully integrated into the political and economic life of Hawai`i. In the 19th century, there was a multiracial Kingdom of Hawai`i. Everyone born here was a citizen of the Kingdom, and anyone who moved here could become a citizen, regardless of their race. When the United States annexed Hawai`i all citizens of Hawai`i became citizens of the United States. S2899 is not a bill that recognizes, protects or restores an Indian tribe.
S2899 is designed to evade the United States Supreme Court's recent decision striking down laws that deny equal voting rights to citizens who are not ethnic Hawaiians. Hawai`i has a state agency called the Office of Hawaiian Affairs (“OHA”). It has an elective board. State law prohibited people who are not ethnic Hawaiians from voting in OHA elections or running for OHA offices. In Rice v. Cayetano, 120 S.Ct. 1044 (2000), the Supreme Court held that denying the right to vote in OHA elections because of race violates the 15th Amendment. In August the federal District Court issued a preliminary injunction against denying people the right to run for office because of their race.
OHA has become a very wealthy agency due to racially discriminatory laws that siphon off revenue from state lands into its coffers. OHA's officials have expended a great deal of money to preserve their privileged position by trying to get Congress to create a federal equivalent of OHA. That is what S2899 is intended to do: enact into federal law the same racially discriminatory election laws that the Supreme Court condemned in Rice as “corruptive of the whole legal order democratic elections seek to preserve.” 120 U.S. at 1057. Only ethnic Hawaiians could vote or hold office in the new federal agency. Proponents of the bill hope that it will immunize their exclusive race-based program against further constitutional challenge.
I have great respect for Hawai`i's senators, Daniel Inouye and Daniel Akaka, but in supporting this bill they have allowed their understandable interest in protecting the special interests of some of their constituents to lure them into ignoring a basic principle: A government of the race by the race and for the race has no place in American democracy. When racial lines are drawn by the government, the multiracial communities that our Constitution seeks to weld together begin to fall apart. The government has no business creating agencies and elective offices along racial lines.
You can find a legal analysis of S2899 and a discussion of the relevant history and law on the Web at www.angelfire.com/hi2/hawaiiansovereignty. Thank you for your attention to this matter.
Very truly yours,
Patrick W. Hanifin
-------------------------------------
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaLettersOppose.html
August 29, 2001
Honorable Dennis Hastert
Speaker of the House
2369 Rayburn HOB
Washington DC 20515
Re: H.R. 617
To create a race-based government for ethnic Hawaiians
Dear Speaker Hastert:
Please oppose the above referenced bill that seeks to establish a federal governmental program for the exclusive benefit of a group defined solely by racial ancestry. While this bill is being described as a purely local matter, it is actually of national significance because it would set a precedent for racial discrimination by the federal government.
1. H.R. 617 is unconstitutional. The bill is intended to overturn the U.S. Supreme Court's decision in Rice v. Cayetano, 120 S.Ct. 1044 (2000). Rice held that a government agency with voting rights limited to ethnic Hawaiians amounted to unconstitutional racial discrimination. Last year, the federal District Court in Hawaii followed Rice and held that restricting the right to run for office on grounds of race is also unconstitutional. Arakaki v. State of Hawaii, Civil No. 00-00514 HG. The racial classification struck down in Rice and Arakaki is essentially repeated in H.R. 617.
H.R. 617 tries to evade 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 speaks in terms of “recognition” of a “Native Hawaiian governing entity,” no such entity exists to be recognized. There are many voluntary political associations with ethnic Hawaiian members but no voluntary political association can turn itself into a government. H.R. 617 directs the Secretary of the Interior to transform a race-based association into a government of the race, by the race and for the race. (Many associations may apply for this power.) The result of the Secretary's decision would be an unconstitutional instrumentality of the federal government, not a real Indian tribe.
2. H.R. 617 would create 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 H.R. 617 passes. Of these, over 160,000 live outside Hawaii. (See www.census.gov, sum of state-by-state data in the Census' American Fact Finder Detailed Table PCT10.) Nearly all of these people have other ancestries as well. Even more people might recall distant Hawaiian ancestors if the government rewards those who do. H.R. 617 would create such an incentive by converting this entire group into America's biggest Indian tribe. As such, they could compete with existing tribes for government benefits, either through the Bureau of Indian Affairs or through special legislation advocated by the “interagency task force” the bill would create. The bill gives the Department of the Interior open-ended authority to transfer federal land and assets to a race-based “Native Hawaiian” government.
Ethnic Hawaiians 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 many 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?) When the United States annexed Hawaii, all citizens of Hawaii, regardless of race, became American citizens. (For historical details, see www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html.)
3. H.R. 617 is divisive and would encourage racial antagonism. While proponents of H.R. 617 are telling Congress that it is a routine exercise of Congress' power over Indians, some of its proponents are describing it to others as the first step towards taking Hawaii out of the Union. The U.S. Commission on Civil Rights' Hawaii Advisory Committee has endorsed legislation giving 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.
The Civil Rights Commission recently earned bad publicity by publishing a biased report on the 2000 Florida vote. The majority concealed their report from the Commission's Republican members and then leaked it to the press. The majority even denied the minority's right to publish its dissent along with the majority's report. True to this style of doing business, the Commission's majority has packed its Hawaii Advisory Committee with leftists.
The Hawaii Advisory Committee's report draws the logical conclusion from H.R. 617's false assertion that ethnic Hawaiians are a “people [who] never directly relinquished their claims to their inherent sovereignty as a people over their national lands.” H.R. 617, §1(13). The bill, §8(b), provides that, “Nothing in this Act is intended to serve as a settlement of any claims against the United States.” The Advisory Committee noted that this would allow ethnic Hawaiians to pursue their claims “in the international arena,” even if “that international resolution would necessarily involve secession.” Advisory Comm. Rep. at 51. Under the “international oversight by nonaligned observers of international repute,” the “federal government should engage in negotiations with the sovereign Hawaiian entity” and then pay for whatever the “sovereign Hawaiian entity” decides to do. Id. at 52. Dismissing the Constitution as mere “existing domestic law,” the Advisory Committee backs the “important proposition . . . that those who would choose to swear their allegiance to a restored sovereign Hawaiian entity be given that choice,” even if it means secession from the Union. Id. at 51-52.
Of course this is nonsense. Hawaii is not going to secede from the Union. The real threat of H.R. 617 is that trying 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 federal agencies and subsidies. Any of the millions of Americans who can claim at least one ancestor who was in America before the “white men” could claim special political privileges, even though they are not members of Indian tribes. Because the bill breaks the connection between Congress' regulatory power and the prior existence of an Indian tribe, it would be a precedent for every ethnic group to claim its own sovereign government, money and land. For instance, Hispanics descended from the people who lived in the Southwest before the U.S. annexed the area or descendants of black slaves could claim reparations and special privileges. Like ethnic Hawaiians, these people can say that their ancestors never chose to come to the United States.
Government of the race, by the race, and for the race has no place in American democracy. I urge you to vigorously oppose H.R. 617 and to ask your colleagues to do the same.
Very truly yours,
Patrick W. Hanifin
--------------------------------
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaTestimony022503.html
Testimony for the Senate Select Committee on Indian Affairs for its Hearing on February 25, 2003 regarding S.344 (the Native Hawaiian Recognition Bill)
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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