109th
Congress
Committee on Indian Affairs,
United States Senate
Hearing scheduled for
Tuesday, March 1, 2005 10:00 a.m.
On S. 147, the Native
Hawaiian Government Reorganization Act of 2005 ("Akaka Bill")
Testimony by H. William
Burgess on his own behalf and on behalf of Aloha for All1
Aloha
and good morning Chairman John McCain 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 seven years I have been advocating and litigating
for the basic democratic principle of equality under the law.
S. 147 would make the 400,000 Native
Hawaiians permanent wards of the DOI, divide the Aloha state into separate
racial jurisdictions and destroy the very quality that has made Hawaii
a model for the world.
Senator
McCain was absolutely right when he said in January that, when Hawaii
became a state, there was an implicit agreement that native Hawaiians
would not receive the same status as native Americans. In contrast
to all other states since the original thirteen, Hawaii’s organic governing
documents do not reserve from the State of Hawaii’s jurisdiction or
sovereignty any lands or members of any Indian tribes. There were then
and are now no Indian tribes or Hawaiian tribes or any other kind of
tribes in Hawaii. Unlike native Americans, who were denied U.S. citizenship
until 1924, Hawaiians have enjoyed full U.S. citizenship since 1900
when the Organic Act of the Territory of Hawaii became law.
Background
of the Akaka bill. The original version of S. 147, 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 or subsequently.
(It did pass a sparsely attended House in 2000 when Representative Abercrombie
included it in a vote on non-controversial items.) Efforts to attach
it as a rider to appropriations bills in 2000, 2001 and 2004 were defeated.
Hawaii's political leaders have resubmitted the bill to the 109th Congress as S. 147 and H.R. 309.
A
radical change in existing law. Although the proponents assert
the bill will simply give Native Hawaiians "parity” with the Federal
Government's treatment of American Indians and Alaska Natives, the bill
would in reality make a radical change in existing law. It would give
Native Hawaiians, defined solely by ancestry, something no American
Indian has: the right to create the equivalent of a tribe where none
now exists.
Congress may “acknowledge” or “recognize”
groups which have existed as tribes, i.e., autonomous quasi-sovereign
governing entities, continuously from historic times to the present
(25 C.F.R. 83.7) but it has no power to create a tribe arbitrarily.
(U.S. v. Sandoval, 231 U.S. 28 (1913)). One D.O.J. attorney
put it succinctly, “We don’t create tribes out of thin air.”2
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 Hawaiians-only
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
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. 147/H.R. 309 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?
What will become of the United States
if it can be endlessly subdivided into quasi-sovereign governing entities?
Where will it end?
Unfair
to real Indian tribes. Census 2000 counted about 400,000 persons
of some degree of Hawaiian ancestry in the United States. S. 147 would
compel the U.S to "reaffirm" that all or substantially all
of these persons, solely because each of them has a Hawaiian ancestor,
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." Sec. 4(a)(4). This would potentially be the largest tribe in America.
Sixty percent, or about 240,000, live in Hawaii. The other 40%, or
about 160,000, live in other states. Sixty thousand live in California.
The California branch of the make-believe Native Hawaiian "tribe" would potentially have more than the combined total enrolled membership
of all of California's 103 tribes.
The
bill provides that "Nothing contained in this Act shall be construed
as an authorization for eligibility" for BIA programs and services.
But the bill also would compel the U.S. to “reaffirm” that it has “a
special political and legal relationship with the Native Hawaiian people
which includes promoting the welfare of Native Hawaiians.” (Sec. 4(a)(2).
This Committee’s March 3, 2004 Views and Estimates of the 2005 budget
request notes that Indian agencies “have witnessed a pattern of under-funding
for decades”. How could adding 400,000 new "wards" to the
Secretary of the Interior's guardianship responsibilities not result
in decades more of under-funding 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. 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.
147 would demote Native Hawaiians from full U.S, citizenship 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 clauses 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 .) We approve of scholarships based on merit
and need but not based on race.
S.
147 would put Native Hawaiians into the permanent status of dependency
as wards of the Department of the Interior. The experience for over
a hundreds of years by the other wards of that Department? Grinding
poverty and the highest rates of unemployment and alcoholism. This
Committee’s March 3, 2004 Views and Estimates of the 2005 budget request
notes that “the vast majority of Native economies are moribund” (page
3) “with unemployment averaging 45%” and “per capita income for Indians
averages $8,284.” (page 4).
By contrast Census 2000 shows per capita
income for Native Hawaiians in Hawaii at $14,199 and median family income
of $49,282. For the 60,000 Native Hawaiians residing in California,
where they are free from the incentive-smothering entitlement programs
provided in Hawaii, the per capita income of Native Hawaiians is $19,881
and median family income is $55,770. Striking evidence that Native
Hawaiians are fully capable of prospering, without being wards of the
DOI and without entitlements from Hawaii, is shown in the Census 2000
reports of median per capita income of Male, full time, year round Native
Hawaiian workers: $33,258 in Hawaii and $38,997 in California.
Native
Hawaiians have a right not to be patronized and 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, being submitted separately by Mr. Sullivan.
The
myth of past injustices. 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. 147. Mahalo,
Honolulu, Hawaii February 27, 2005.
___________________________
H. William Burgess
299C 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: http://www.aloha4all.org
and https://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html or email hwburgess@hawaii.rr.com .
2.
Connecticut v. Babbitt, U.S. Court of Appeals, Second Circuit, January
6, 2000. Alice Thurston arguing on behalf of the Interior Secretary,
“When the Department of Interior recognizes tribes, it is not saying,
‘You are a tribe.’ It is saying, ‘We recognize that your sovereignty
exists.’ We don’t create tribes out of thin air.” Without Reservation,
Benedict, page 352.
