"The nail that sticks up is the one that gets pounded down."
For four years the Akaka bill kept a low profile in Congress. At first our federal delegation hoped to sneak the bill through, like an octopus gliding silently under the coral from one dark hole to another. But in 2005 the Akaka bill has gotten lots of attention in the national media. Sunshine on the bill is also lighting up the race-based programs the bill is intended to protect. Members of Congress are now finally beginning to challenge those programs.
Thus pushing the Akaka bill, which would create a racial separatist government, might paradoxically be helping to restore unity and equality to Hawai'i by focusing political attention on the need to dismantle long-standing racially exclusionary programs.
Below are
(1) A news report about a proposal in Congress on September 21, 2005 to eliminate $40 Million per year in "Native Hawaiian" programs;
(2) Analysis of why it is important to dismantle Hawai'i's race-based programs;
(3) Further information documenting the change in tactics by Hawai'i's federal delegation and Governor from stealth to open confrontation, as deception has been replaced by straightforward obstruction and bold-faced lying;
(4) Evidence that Senator Akaka, Senator Inouye, Governor Lingle, and Attorney General Bennett are betraying the United States and the people of Hawai'i by recklessly supporting a bill whose language they clearly know does not protect the United States and all Hawai'i's people against very real threats posed by a future Akaka tribe to our security, resources, property rights, and economic stability;
(5) Evidence that the House Republican Study Committee proposal to cut "Native Hawaiian" programs was not merely a fluke -- On October 1, Stephens Media group reported that the White House "objected to a Pentagon spending bill in part because it provides benefits to Native Hawaiians. ... The White House objected to a provision in the bill that bestows special benefits on businesses owned by American Indian tribes or Native Hawaiian organizations. 'To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts,' according to the statement.";
(6) On October 28, 2006 attorney H. William Burgess circulated the following announcement to the Aloha For All group he heads, showing that on October 26 Senator Jeff Sessions (R,AL) proposed an amendment to an appropriations bill to eliminate funding for the University of Hawaii School of Law for a Center of Excellence in Native Hawaiian law. Mr. Burgess believes Senator Sessions introduced the amendment because Sessions is concerned the money would be used to support the Akaka bill and race-based government programs which are contrary to law.
(7) $63 Million in racially exclusionary programs for ethnic Hawaiians is included in $125 Million federal spending bill passed by the Senate for health, education and social services in Hawaii. Thus, 20% of Hawai'i's people would be getting more than 50% of the money.
(8) $18 Million to increase federal racially exclusionary support for ethnic Hawaiian healthcare was blocked because Senator Inouye tried to use an inappropriate procedure to sneak it into the massive federal budget reconciliation bill. Ethnic Hawaiians are NOT treated like American Indians; this provision would have closed that gap on at least one issue.
(9) Honolulu Advertiser reports on February 15, 2007 that President Bush "has eliminated Native Hawaiian education and health care projects from the administration's proposed budget for the next fiscal year."
(10) "Indian Country Today" reported on February 16, 2007 that "Members of the Republican Study Committee supported an unexpected amendment to a bill reauthorizing Native Hawaiian housing programs at a Financial Services Committee hearing in the House of Representatives Feb. 13." The rejected amendment would have said ''Nothing in this title shall be construed to confer a constitutionally special political and legal relationship, based on Native Hawaiian race or ancestry, between the United States and the Native Hawaiian people for purposes of establishing a government-to-government relationship."
(11) Hawaii Congressmember Mazie Hirono's communications director issues press release on July 24, 2007 saying that Hirono rushed to the House floor to stop a Republican effort to strip funding for a Native Hawaiian housing program.
(12) February 5, 2008 newspaper reports that President Bush's newly published budget for the next fiscal year proposes to cut 151 programs nationwide including 2 specifically for "Native Hawaiian" education programs that had a total of about $40 Million in federal funding last year.
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(1) News Report
On September 21, 2005 the Republican Study Committee in the House of Representatives proposed eliminating about $40 Million per year in "Native Hawaiian" programs. The Hawaiian programs are included as part of a massive proposed cutback of pork barrel spending in order to pay for hurricane disaster assistance without raising taxes or worsening the budget deficit. Unlike the situation in 2002-2003 when the Justice Department reached out to Senate committee chairs to warn them to drop "Native Hawaiian" programs, but the committee chairs seemed hesitant or ambivalent (see details below); this time it is members of Congress themselves who are taking the initiative.
The 24-page House Republican Study Committee document can be downloaded from:
http://johnshadegg.house.gov/rsc/RSC_Budget_Options_2005.pdf
At the bottom of page 16 and top of page 17, that document proposes:
"Eliminate Native Hawaiian Funding. The FY06 Labor/HHS appropriations bill contained earmarks for as much as $40 million for various health and education programs for Native Hawaiians, although other programs allow funds to flow to them. Native Hawaiians are a racial group not a tribe and dispensing benefits to them would likely be subject to strict scrutiny in Federal courts. Savings: $557 million over ten years ($215 million over five years)."
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(2) Analysis of why it is important to dismantle Hawai'i's race-based programs
The Republican Study Committee report says "dispensing benefits to [Native Hawaiians] would likely be subject to strict scrutiny in Federal courts." That means that such race-based programs can survive legal attack only if they are narrowly tailored to meet a compelling governmental interest.
Narrow tailoring means the programs must be precisely focused on specific short-term objectives, and must be expected to end within a reasonable period of time. By contrast OHA, DHHL, and the numerous programs for housing, health, and education are regarded as permanent.
Courts have ruled that a government which previously discriminated against a racial group has a compelling interest in making up for past discrimination by temporarily engaging in reverse discrimination to restore the balance of how things would have been without any discrimination; but must do so in a way that is not completely exclusionary and which imposes the least possible burden on innocent individuals. Thus, for example, if a local government has a history of racial segregation in its public schools, then that government might have an obligation to force desegregation of the schools by busing black children across district lines to schools in white neighborhoods. Or an agency whose hiring practices have actively discriminated against blacks might be ordered to hire twice as many blacks as whites until a fair balance has been achieved. But in Hawai'i there has never been government discrimination against "Native Hawaiians." On the contrary, there is massive government discrimination in favor of "Native Hawaiians" at the expense of all other groups.
OHA has repeatedly crowed that there are over 160 federally funded racially exclusionary programs benefitting ethnic Hawaiians. For a description and list of some programs, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/listhawnentitlements.html
OHA reminds local politicians and ordinary people about these programs in order to claim that such programs must be defended because they are an important part of our economy.
OHA reminds judges and Washington politicians about the plethora of race-based programs in order to support its claim that there is a long-established "federal trust relationship" with "Native Hawaiians" that is tantamount to federal recognition as being like an Indian tribe. That argument was asserted by the State of Hawai'i in its legal brief and oral arguments before the Supreme Court in the Rice v. Cayetano case, when our state government tried to defend Hawai'i's racially segregated elections. It has been asserted in the Arakaki#1 and Arakaki#2 lawsuits seeking to dismantle OHA's racially exclusionary benefit programs; and in the Kamehameha desegregation case; and in the Akaka bill itself.
Of course we're all glad to see federal dollars flowing to Hawai'i. But race-based programs empower the race-focused bureaucrats who run them. Ethnic Hawaiian "beneficiaries" come to regard themselves as permanently "entitled" to race-based government money. Many see these programs as a small start to paying the huge "reparations" owed to "Native Hawaiians" for the overthrow of the monarchy and for more than a century of oppression under the yoke of American military occupation of the ancestral homeland -- the programs are merely downpayments on a debt so enormous it can never be repaid. Of course, these "Native Hawaiian" programs could be eliminated whether or not the Akaka bill passes, because Congress has plenary power to do whatever it wants with Indian tribes, including cutting their budgets and even confiscating their land without compensation.
We in Hawai'i who oppose racially exclusionary programs for "Native Hawaiians" do so not because we are "anti-Hawaiian," but because we are pro-unity and pro-equality. Such programs provide funding for large and growing bureaucracies committed to identity politics. Such programs encourage people to see themselves as members of a racial group first and foremost, rather than as fellow Americans. Dependency on government programs is like drug addiction, and we do not want to be enablers of behavior that is divisive to society and destructive to the individuals trapped by such addiction. The race-based programs create feelings of arrogant entitlement in those who benefit from them, and resentment from people of other races who are forcibly excluded.
Race-based programs must be ended to protect the unity of our rainbow society, and the principle of equality under law. By calling attention to these illegal programs, the Akaka bill is actually helping to bring an end to the programs it was created to protect. The law of unintended consequences can produce wonderful results.
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(3) A shift from stealth and deception to open confrontation, obstruction, and bold-faced lying; as more attention is focused on the Akaka bill
In 2000 the Akaka bill on its maiden voyage actually passed the "full" House of Representatives -- the only time it has passed either legislative chamber. But the House was by no means full! The bill had been hidden in the middle of a series of bills on the calendar of non-controversial legislation to be passed by unanimous consent on a voice vote under suspension of the rules at the dinner hour when only a handful of members were present. For example, the bill passed immediately before it was to transfer a small parcel of land in Gettysburg to the National Park Service from a different federal agency.
In both 2000 and 2001 Senator Inouye attempted stealth maneuvers which ultimately failed when they were exposed on the floor of the Senate by his disgusted colleagues. Inouye had hidden the Akaka bill in the form of a single sentence buried deep inside a massive Defense Appropriations bill. That sentence gave the title and number of the Akaka bill and said it "is hereby enacted into law." For astonishing details of the stealth and deception used by our federal delegation in 2000 and 2001, and continuing through 2004, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/StealthDeception.html
Those shenanigans alerted the Republican leadership in both the House and Senate, as well as high-ranking staffers in the Department of Justice, to the dangers of the Akaka bill and to the unconstitutionality of the race-based programs it is intended to protect.
From September 2002 to May 2003 the U.S. Department of Justice sent memos to several Senate committee chairpersons warning that "Native Hawaiians" should be deleted from pending legislation benefitting Indian tribes because "Native Hawaiians" is a racial group and not an Indian tribe. Those memos came to the attention of OHA, which then launched a massive propaganda campaign in Washington and in Hawai'i, in collaboration with lobbying by Governor Lingle and Hawai'i Attorney General Bennett. Eventually the Department of Justice caved in to political pressure, because perhaps Karl Rove wanted to throw a few bones to Hawai'i's new RINO Governor Linda Lingle. (Republican In Name Only) For details of that confrontation, including what was contained in those memos, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBushThreatenHawnProgs2003.html
A collection of major newspaper and magazine articles opposing the Akaka bill provides a rough measure of how much media attention there was over the years. For 2000 and 2001 combined there were fewer than 20 pages. For 2002 through 2004 there were perhaps an additional 25 pages. But for the first 9 months of 2005, there have been at least 130 pages. The collection of publications is at:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaPublishedOpposition.html
A history of the Akaka bill for 2005 already contains more than 700 pages of news reports and published commentary for the period of January through September, even though Congress was in recess for 5 continuous weeks including the entire month of August! See:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist109thCong.html
In addition to print media, the year 2005 has seen an unprecedented level of television and radio programming at the national level that, with one notable exception, can best be described as propaganda for the Akaka bill. A film produced and paid for by OHA, entitled "The Hawaiians," was nationally broadcast, portraying "Native Hawaiians" as an indigenous people with a beautiful culture everyone would surely want to preserve. A PBS "documentary" on the Massie case (70 years ago!) showed Native Hawaiians as victims of legal and social injustice. The propaganda film "A Nation Within" portrays the overthrow of the monarchy (112 years ago!) as a U.S. crime against "Native Hawaiians" to whom reparations are owed. National Public Radio had a series of broadcasts steeply slanted in favor of the Akaka bill. But let's not forget one bright spot -- Rush Limbaugh spent a major portion of his nationally syndicated 3-hour radio program on August 17 lampooning the Akaka bill:
http://www.hawaiireporter.com/story.aspx?title=Rush+Limbaugh+Sounds+Off+on+Akaka+Bill
Because of all that media attention to the Akaka bill, members of Congress are starting to sit up and take notice of tens of millions of dollars per year they negligently authorized for illegal race-based "Native Hawaiian" programs. Those megabucks were approved in the same sneaky way as most pork barrel spending -- Senators and Representatives "scratch each others' backs" and load up the Defense Authorization bill or the omnibus budget bill with pet projects too numerous for scrutiny.
Akaka and Inouye have both sat on the Indian Affairs Committee throughout their Senate careers despite the fact there have never been any Indian tribes in Hawai'i. Why? Hawai'i is the only state that ever had both Senators on that committee simultaneously. Why did they do that? They have used their committee membership to quietly insert the words "and Native Hawaiians" into bills intended to provide government help to genuine Indian tribes.
From September 2002 to May 2003 the U.S. Department of Justice sent memos to several Senate committee chairpersons warning that "Native Hawaiians" should be deleted from pending legislation benefitting Indian tribes because "Native Hawaiians" are a racial group and not an Indian tribe. Those memos came to the attention of OHA, which then launched a massive propaganda campaign in Washington and in Hawai'i, in collaboration with lobbying by Governor Lingle and Hawai'i Attorney General Bennett. Eventually the Department of Justice caved in to political pressure. For details of this confrontation, including what was contained in those memos, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaBushThreatenHawnProgs2003.html
On July 13, 2005 Assistant Attorney General William Moschella released a list of Department of Justice objections to the Akaka bill. These objections dealt only with relatively simple "practical" issues such as gambling, criminal jurisdiction, and prohibition of Native Hawaiian claims against military bases; but the DOJ objections did not address the deeper concerns about the bill's unconstitutionality. The July 13 DOJ memo is at:
https://www.angelfire.com/hi5/bigfiles3/AkakaMoschellaDOJ071305.pdf
Having been burned by Abercrombie stealth in 2000, House Republican leaders sent a letter to Speaker Hastert in 2001 alerting him that hearings were needed in the Judiciary Committee on the bill's unconstitutionality, and warning him not to allow stealth maneuvers.
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaSensenbrenner071901.html
As a result the bill lay dormant in the House until now.
But in 2005, as the Akaka bill appeared to be gaining momentum in the Senate, House Republicans decided to renew their opposition. The Akaka bill in the House had been referred to the Resources Committee in January. That committee has jurisdiction over all Indian legislation (thereby prejudicing any future hearing by already labeling "Native Hawaiians" as being like an Indian tribe). But even though the Resources Committee has not yet considered the Akaka bill, the Judiciary Committee pre-empted the Resources Committee by holding a hearing first, and on a bill falling outside its normal scope. The subcommittee on the Constitution met on July 19, 2005 to hear testimony on the bill's unconstitutionality. Also, a Senator took the unusual step of submitting testimony to this House hearing. For details about the hearing, including links to the testimony, see:
https://www.angelfire.com/hi5/bigfiles3/AkakaHearingHouseJudiciary071905.html
That hearing greatly increased the bill's visibility. Ten days later, on July 29 (the last day of Congress before the summer recess), a letter signed by 21 Representatives was sent to Speaker Hastert and Majority Leader De Lay asking them to kill the bill. See:
https://www.angelfire.com/hi5/bigfiles3/AkakaHseRepubLtrJuly2005.html
On September 16 our federal delegation, plus Governor Lingle and Hawai'i Attorney-General Bennett, announced they had reached agreement with the Department of Justice on all outstanding DOJ objections to the Akaka bill.
http://akaka.senate.gov/assets/Substitute%20Amendment%20Facts.pdf
At the same time Senator Akaka posted on his Senate website the language he claimed was the compromise with DOJ, which he claimed he would introduce as a substitute bill. But Akaka's document is actually an obstruction of open debate. This pdf document is encrypted so that nobody can copy any of its contents to be able to quote and discuss them! It's like a work of art in a museum -- we are permitted to look but cannot touch.
http://akaka.senate.gov/assets/s%20147%20substitute%209-2.pdf
This "trial balloon" has not yet been introduced in the Senate, thus raising doubts whether it is a serious proposal. Although the Senate has been busy with Hurricane Katrina and the confirmation of Chief Justice Roberts, there was nothing to prevent any Senator from introducing unrelated new legislation; and several have done so.
A few days after the announcement by our delegation that aggreement had been achieved with DOJ on all outstanding issues, the DOJ slapped our delegation in the face by issuing a public statement that, in effect, calls them liars. DOJ says it still has very serious concerns that the bill is unconstitutional. There was a delay of several days between the statement Hawai'i's delegation issued claiming that all DOJ objections had been resolved, and the DOJ statement saying serious issues remain. Hopefully that delay indicates that DOJ officials consulted with higher officials inside the White House and a decision has finally been made by the Bush administration to get off the fence and oppose the bill. An excellent analysis of the context of the DOJ statement was provided by Malia Zimmerman at:
http://www.hawaiireporter.com/story.aspx?3ce9c771-1c8a-4584-85a2-34a7d009c8e7
At the same time the DOJ statement was released, the Republican Study Committee in the House of Representatives on September 21 actually proposed eliminating about $40 Million per year in "Native Hawaiian" programs, as described above.
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(4) Evidence that Senator Akaka, Senator Inouye, Governor Lingle, and Attorney General Bennett are betraying the United States and the people of Hawai'i by recklessly supporting a bill whose language they clearly know does not protect the United States and all Hawai'i's people against very real threats posed by a future Akaka tribe to our security, resources, property rights, and economic stability
There can be no doubt Akaka and Inouye know exactly what they're doing with "Native Hawaiian" programs and with the deceptive language in the Akaka bill -- there is no doubt, precisely because they have sat on the Indian Affairs Committee for so many years and have seen so many bills dealing with tribal recognitions and tribal programs. They knew the "Native Hawaiian" programs were illegal because "Native Hawaiians" is a race and not a federally recognized tribe. They knew all along that the language of the Akaka bill introduced on January 25 did not satisfy the objections that would surely be raised by the Justice Department -- objections which anyone wanting to protect the people of Hawai'i would surely raise without being forced to do so by a federal agency.
For example, on the issue of gambling: the bill introduced on January 25 said that the Akaka tribe cannot make use of the Indian Gaming Regulatory Act to establish gambling casinos. Akaka/Inouye said that should reassure everyone the Akaka tribe cannot have a casino. But of course that's silly -- there are other ways besides IGRA to get a casino. On March 1 the Indian Affairs Committee held a hearing on the bill, and concerns were raised that the bill's language was not strong enough to prevent gambling. So on March 9, the committee reported the bill favorably, but with an amendment strengthening the anti-gambling language. Akaka/Inouye should have know all along that the stronger language was needed to satisfy their colleagues -- they were trying to "pull a fast one." Then on July 13, when the bill was ready to be debated on the floor, the Department of Justice published a memo raising concerns that the gambling language was still not strong enough; and several Senators placed holds on the bill because of concerns that the gambling language still was not strong enough. Those Senators don't care whether there's casino gambling in Hawai'i -- they are concerned that local branches of an Akaka tribe in their own states can buy land and open casinos competing against their own local tribes. Then in mid-September Akaka/Inouye produced even stronger language regarding gambling, which they said satisfies the DOJ concerns and which they said they would introduce but have still not done so. This repeated stonewalling, with multiple layers of obfuscation, has angered other Senators and has clearly shown that Akaka/Inouye do not deal honestly even with their colleagues.
Another example: conflicts between an Akaka tribe and the U.S. military bases in Hawai'i. Surely Akaka/Inouye are aware of the anti-military attitude of ethnic Hawaiian activists,
https://www.angelfire.com/hi2/hawaiiansovereignty/antiamerican.html
and lawsuits concerning military training at Makua,
https://www.angelfire.com/hi2/hawaiiansovereignty/makua.html
and also lawsuits to prevent the transformation of the Army to include a Stryker Brigade.
https://www.angelfire.com/hi2/hawaiiansovereignty/strykerlawsuit.html
But despite being aware of these concerns, Akaka/Inouye totally ignored the issue, showing that they place higher priority on "Native Hawaiian" sovereignty than they do on loyalty to America and the need for military readiness. Only when the DOJ forced the issue into the open -- only then did Akaka/Inouye put language into the bill to protect the U.S. military against lawsuits by an Akaka tribe. And in view of the history of stonewalling and repeated fallback on the gambling issue, there's no way ordinary citizens can know whether the new language allegedly to be proposed will actually protect the military.
Another example: conflicts between the jurisdiction of an Akaka tribe vs. the State of Hawai'i and the federal government, on both criminal and civil issues. Regarding just one small criminal issue, see: "Neighbors Living Under Different Laws -- Example of State Sex Offender Registry" at:
https://www.angelfire.com/hi5/bigfiles3/AkakaNbrsDiffrntLawsSexOffendRegistry.html
Regarding civil jurisdictional issues, see: "The Impact of Tribal Recognition On Local Businesses and Neighborhoods" at:
https://www.angelfire.com/hi2/hawaiiansovereignty/tribeimpactbizandcommunity.html
Every time opponents of the bill raised these concerns, OHA, Akaka, Inouye, Lingle, and Bennett kept saying opponents were using scare tactics. Nothing to worry about. But then the DOJ memo raised these same concerns, and Akaka/Inouye produced revised language to deal with them. Surely Akaka/Inouye, and Lingle/Bennett, knew all along that these issues are very serious. But they chose to ignore the need to protect all Hawai'i's people, and instead supported special rights for their favorite racial group.
Resistance to the Akaka bill is growing, in Congress and in Hawai'i; and now there is also a beginning of Congressional resistance to funding Hawai'i's race-based programs. So let's hear a round of applause for OHA, Akaka, Inouye, Abercrombie, Case, Lingle, and Bennett; for making Congress and the White House aware of their duty to protect our Constitution.
====================
(5) Evidence that the House Republican Study Committee proposal to cut "Native Hawaiian" programs was not merely a fluke -- On October 1, Stephens Media group reported that the White House "objected to a Pentagon spending bill in part because it provides benefits to Native Hawaiians. ... The White House objected to a provision in the bill that bestows special benefits on businesses owned by American Indian tribes or Native Hawaiian organizations. 'To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts,' according to the statement."
http://www.westhawaiitoday.com/articles/2005/10/01/local/local02.txt
West Hawaii Today (Kona), Saturday October 1, 2005
Akaka Bill questioned -- white house argues benefit status
by Samantha Young
Stephens Washington Bureau
WASHINGTON -- The White House on Friday objected to a Pentagon spending bill in part because it provides benefits to Native Hawaiians.
White House officials questioned whether Congress can give benefits to Hawaiian-owned businesses, echoing concerns that have been expressed about other Native initiatives -- most notably a sovereignty bill sponsored by Sen. Daniel Akaka, D-Hawaii.
"The Department of Justice advises that there is a substantial, unresolved question whether Congress has authority to deal with Native Hawaiians as it does Indian tribes," White House officials wrote in a five-page statement on a Defense Department spending bill the Senate is considering.
The White House objected to a provision in the bill that bestows special benefits on businesses owned by American Indian tribes or Native Hawaiian organizations.
"To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts," according to the statement.
The Bush Justice Department has consistently questioned whether Congress can recognize Native Hawaiians as an indigenous people similar to Indian tribes and Alaska Natives. That position is the foundation of the Akaka sovereignty bill awaiting Senate debate. The bill would establish legal guidelines for roughly 400,000 Native Hawaiians to organize and negotiate for self-rule from the state and federal governments.
Hawaii's four Democratic lawmakers and Republican Gov. Linda Lingle have lobbied the Bush administration to support their effort. Earlier this month, the congressional delegation rewrote the bill in hopes of satisfying Justice Department concerns over gaming, settlement claims and the legal jurisdictions of any new Hawaiian entity.
Despite the revisions, Justice attorneys continue to question whether the bill would pass Constitutional muster.
According to critics, the bill would establish a Hawaiian-only government based on bloodlines, a standard the Supreme Court rejected in 2000 regarding exclusive state elections for Hawaiians.
Akaka said Friday his bill would address the White House's concerns by clarifying the political and legal relationship between Native Hawaiians and the United States.
"The time has come for Native Hawaiians to be recognized by the federal government and I am committed to getting passage of my bill by Congress to ensure that takes place," Akaka said in a statement.
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http://starbulletin.com/2005/10/04/news/story06.html
Honolulu Star-Bulletin, October 4, 2005
Entitlements still at issue in Akaka Bill
By Richard Borreca
The Justice Department and the White House continue to raise questions about the constitutionality of federal programs to help native Hawaiians.
Last week, the Bush administration's Office of Management and Budget cited Justice Department questions about the constitutionality of native Hawaiian program funding in the military appropriations bill, H.R. 2863. The administration has raised similar questions about programs for native Hawaiians every year since 2002.
"The Department of Justice advises that there is a substantial, unresolved question whether Congress has authority to deal with Native Hawaiians as it does with Indian tribes. To the extent the definition of 'Native Hawaiian' constitutes a racial, rather than political, classification, such programs would be subject to strict scrutiny in Federal courts," OMB officials wrote last week.
Supporters of native Hawaiian recognition say the Justice Department is just looking for court guidance on the issues, and doesn't necessarily oppose passage of the measure known as the Akaka Bill, although it has harbored similar questions.
Spokespersons for Hawaii Sens. Daniel Akaka and Daniel Inouye interpreted the note to mean the administration is continuing to raise concerns, but not threatening to veto the bill.
"In its statement, the administration is noting that it is not objecting to the provision. If you read the paragraph closely, it referred to 'unresolved questions,'" said Mike Yuen, Inouye's press secretary.
Donalyn Dela Cruz, spokeswoman for Akaka, noted that the Akaka Bill is designed to answer concerns about the constitutionality of native Hawaiian programs. "The Akaka Bill is working to establish a political and legal relationship with the United States," she said.
The Justice Department has brought up the same concerns in discussing the Akaka Bill, saying that the courts have never dealt with the issue of Congress extending sovereign- ty to native Hawaiians.
Robert Klein, a former Hawaii Supreme Court justice and attorney for the Office of Hawaiian Affairs, also said the Akaka Bill was developed to handle such worries.
"It would be a concern if the administration had acted on the issue and denied the appropriation, but that has never happened. They are pointing out the question, can Congress extend this recognition?
"It is an open question, and we won't know the answer until a court of law answers it," Klein said.
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(6) On October 28, 2006 attorney H. William Burgess circulated the following announcement to the Aloha For All group he heads, showing that on October 26 Senator Jeff Sessions (R,AL) proposed an amendment to an appropriations bill to eliminate funding for the University of Hawaii School of Law for a Center of Excellence in Native Hawaiian law. Mr. Burgess believes Senator Sessions introduced the amendment because Sessions is concerned the money would be used to support the Akaka bill and race-based government programs which are contrary to law.
From the Congressional record:
TEXT OF AMENDMENTS -- (Congressional Record for the Senate - October 26, 2005) [Page: S11924] [Page: S11940]
SA 2302. Mr. SESSIONS submitted an amendment intended to be proposed by him to the bill H.R. 3010, making appropriations for the Departments of Labor, Health and Human Services, and Education, and Related Agencies for the fiscal year ending September 30, 2006, and for other purposes; which was ordered to lie on the table; as follows:
On page 182, beginning on line 4, strike ", and $1,250,000 shall be for a grant to the University of Hawaii School of Law for a Center of Excellence in Native Hawaiian law''.
Mr. Burgess' analysis:
Melody MacKenzie is the director of the new Center for Excellence in Native Hawaiian Law created last year. She was the chief editor of the Native Hawaiian Rights Handbook published in 1991 and is generally acknowledged to be the chief author of the erroneous Apology Resolution adopted without hearings or presentation of evidence in 1993 (which has been cited repeatedly ever since then as a confession of guilt by the United States for the "illegal" overthrow). She is also, among other things, one of the attorneys for Office of Hawaiian Affairs "OHA" in our Arakaki v. Lingle now pending in the Ninth Circuit.
(Arakaki v. Lingle is a suit by a multi-ethnic group of 14 Hawaii residents seeking, as state taxpayers and beneficiaries of Hawaii's public land trust, to dismantle OHA and the Hawaiian Homes program, the two major programs by which the government of the State of Hawaii discriminates in favor of some, and against other, of its citizens based solely on their ancestry.)
Senator Sessions' amendment is both wise and prudent since OHA's advocacy, litigation and lobbying are already generously funded by State of Hawaii tax dollars. (Over $900K to date for Patton Boggs; untold amounts for attorneys and lavish PR efforts and staging anti-American protests.) When the Nation is under attack by terrorists and reeling from natural disasters, higher priorities take precedence.
H. William Burgess
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(7) $63 Million in racially exclusionary programs for ethnic Hawaiians is included in $125 Million federal spending bill passed by the Senate for health, education and social services in Hawaii. Thus, 20% of Hawai'i's people would be getting more than 50% of the money.
http://starbulletin.com/2005/10/29/news/briefs.html
Honolulu Star-Bulletin, October 29, 2005
$63M for Hawaiians clears Senate hurdle
A federal spending bill containing more than $125 million for health, education and social services in Hawaii, including $63 million for native Hawaiians, has cleared the Senate.
Nearly $35 million of the money is earmarked specifically for native Hawaiian education, U.S. Sen. Daniel Inouye, D-Hawaii, said in a statement.
"These funds have tangible, positive results: teacher training and recruitment, scholarships for outstanding native Hawaiian students, and the repair and renovation of public schools with a significant number of native Hawaiians," he said.
The Senate voted Thursday to pass the massive measure covering health, education and labor programs, the largest of the spending bills Congress considers every year. It now goes to House and Senate negotiations.
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(8) $18 Million to increase federal racially exclusionary support for ethnic Hawaiian healthcare blocked because Senator Inouye tried to use an inappropriate procedure to sneak it into the massive federal budget reconciliation bill. Ethnic Hawaiians are NOT treated like American Indians; this provision would have closed that gap on at least one issue.
http://www.westhawaiitoday.com/articles/2005/11/04/local/local08.txt
West Hawaii Today, Friday November 4, 2005
Native Hawaiian health care bid blocked
by Samantha Young
Stephens Washington Bureau
WASHINGTON -- An effort by Sen. Daniel Inouye to boost federal health care support for Native Hawaiians was blocked from reaching a vote Thursday in the Senate.
Senators objected to the Hawaiian initiative on procedural grounds. Inouye had sought to add it to a massive federal reconciliation bill.
Inouye's amendment would have required the federal government to pay for Medicaid expenses incurred by Native Hawaiians who seek care through federally approved community health centers or the Native Hawaiian health care system. Currently, the state foots roughly 40 percent of the bill.
"Community health centers serve as the safety net for uninsured and medically underserved Native Hawaiians and other United States citizens, providing comprehensive primary and preventive health services to the entire community," Inouye said earlier this week when he filed the amendment.
Hawaii senators for several years have pursued legislation that would require the federal government to pay 100 percent of Medicaid costs for Native Hawaiians, as it does for Native Americans and Native Alaskans.
In 2003, Senators voted to cover Native Hawaiian costs for Medicaid as part of the government's new prescription drug program. However, the provision was dropped from the bill during final negotiations.
Hardy Spoehr, executive director of Papa Ola Lokahi, a Native Hawaiian health board, estimated the initiative would save the state up to $18 million per year.
"In California, Arizona or New Mexico, for American Indians who access their care through community health centers, those states do not have to pay Medicaid or Medicare (costs)," Spoehr said. "It relieves the state the burden of providing that insurance."
Inouye's bill also included a provision that would have enabled private doctors and hospitals to enter into agreements with the Native Hawaiian health care system. Those agreements would qualify their Native Hawaiian patients for full reimbursement from the federal government, Spoehr said.
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(9) Honolulu Advertiser reports on February 15, 2007 that President Bush "has eliminated Native Hawaiian education and health care projects from the administration's proposed budget for the next fiscal year."
http://the.honoluluadvertiser.com/article/2007/Feb/15/br/br0769521834.html
Honolulu Advertiser, Breaking news, Posted at 6:32 a.m., Thursday, February 15, 2007
Native Hawaiian programs get $62.5 million
Advertiser Staff
Nearly $62.5 million in Native Hawaiian initatives has been included into the final appropriations measure for the current fiscal year, members of the Hawai'I Congressional Delegation announced Thursday.
The fiscal year ends Sept. 30.
In a news release, politicians from Hawai'I called their advocacy of vital Native Hawaiian initiatives "even more crucial now because the President has eliminated Native Hawaiian education and health care projects from the administration's proposed budget for the next fiscal year."
They also expressed unhappiness with the president's 2008 fiscal year budget.
Senators Daniel K. Inouye and Daniel K. Akaka, and Representatives Neil Abercrombie and Mazie Hirono comprise the delegation.
The legislation cleared its final legislative hurdle the evening of Wednesday when the Senate voted 81 to 15 for passage. The measure, which was passed by the House of Representatives on Jan. 31 by a vote of 286 to 140, now moves to the White House to be signed into law.
The continuing funding resolution for the remainder of this fiscal year includes:
# Nearly $34 million for Native Hawaiian education programs, under the No Child Left Behind Act.
# Nearly $14 million for Native Hawaiian health care, under the Native Hawaiian Health Care Improvement Act.
# Nearly $9 million for Native Hawaiian Housing Block Grants
# Nearly $6 million through the Native Alaskan/Native Hawaiian Institutional Aid provision of the Higher Education Act.
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(10) "Indian Country Today" reported on February 16, 2007 that "Members of the Republican Study Committee supported an unexpected amendment to a bill reauthorizing Native Hawaiian housing programs at a Financial Services Committee hearing in the House of Representatives Feb. 13." The rejected amendment would have said ''Nothing in this title shall be construed to confer a constitutionally special political and legal relationship, based on Native Hawaiian race or ancestry, between the United States and the Native Hawaiian people for purposes of establishing a government-to-government relationship."
http://www.indiancountry.com/content.cfm?id=1096414515
Indian Country Today, February 16, 2007
Racially motivated Native Hawaiian housing amendment fails in committee
by: Jerry Reynolds
WASHINGTON - Members of the Republican Study Committee supported an unexpected amendment to a bill reauthorizing Native Hawaiian housing programs at a Financial Services Committee hearing in the House of Representatives Feb. 13. The amendment failed when several Republicans, including Rep. Rick Renzi, R-Ariz., co-chairman of the Congressional Native American Caucus, sided with Democrats against it. The committee went on to approve the reauthorization, as it had last year when Republicans, as the majority party in Congress at that time, didn't offer to amend despite controlling a majority of committee votes.
The change in attitude toward the bill reflects a strategic change within the Republican Party following the elections of last November, according to a Capitol Hill lobbyist. Speaking on condition of anonymity because clients would not want to be associated with statements that could be construed as anti-Republican, the lobbyist said the more conservative members of the congressional GOP, represented by the Republican Study Committee, took Republican losses last November as a mandate to move right on the political spectrum, on grounds that moderate Republicans took the heaviest losses. The cluster of more than 100 arch-conservative House members has already produced opposition to the Indian Health Care Improvement Act reauthorization as race-based legislation.
The failed amendment to the Native Hawaiian housing reauthorization bill, H.R. 835 in the House, concerned race: ''Nothing in this title shall be construed to confer a constitutionally special political and legal relationship, based on Native Hawaiian race or ancestry, between the United States and the Native Hawaiian people for purposes of establishing a government-to-government relationship.''
Rep. Barney Frank, D-Mass., said several times that nothing in the bill does so. The ranking member on the committee for the minority GOP, Rep. Spencer Bachus, R-Ala., responded that the amendment originated in concerns that the bill as written could be unconstitutional in view of a Supreme Court ruling that found Native Hawaiian voting preferences race-based, and therefore unconstitutional.
Democrats on the committee, led by Rep. Melvin Watt, D-N.C., were quick to discard that argument and suggest that if amended, the bill would fall within the jurisdiction of the Judiciary Committee.
The lobbyist referenced above said the intent behind the attempted referral to Judiciary was simply to kill the bill.
Brad Dayspring, a press officer in the office of Rep. Jeb Hensarling, R-Texas, one of the amendment's backers, said the only purpose of the amendment was to bring the bill into compliance with the 14th Amendment of the U.S. Constitution. On a day disrupted in Washington by inclement weather, he did not fulfill a request for further information.
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(11) Hawaii Congressmember Mazie Hirono's communications director issues press release on July 24, 2007 saying that Hirono rushed to the House floor to stop a Republican effort to strip funding for a Native Hawaiian housing program.
http://www.hawaiireporter.com/story.aspx?8c6d7d4d-bb08-4ca2-8332-04b70fc934dd
Hawaii Reporter, July 24, 2007
Hirono Says Republicans Planned 'Sneak Attack' on Funding for Hawaiian Housing Program
By Michael Levin
WASHINGTON, D.C. - Congresswoman Mazie K. Hirono, D-Hawaii, today rushed to the floor of the U.S. House of Representatives to fend off a surprise effort by Republicans to strip funding for an important Native Hawaiian housing program during consideration of the Transportation - Housing and Urban Development Appropriations bill.
"Clearly, there is now a concerted and persistent attack by some Republicans in Congress on Native Hawaiian programs. This is very troubling. I will challenge attacks of this sort on programs that benefit the people of Hawai'i, including Native Hawaiians," said Congresswoman Hirono.
Speaking on the House floor, Congresswoman Hirono observed that Native Hawaiians experience significant housing problems related to affordability, overcrowding and structural inadequacy. "Nineteen thousand individuals remain on a waiting list for leases, and many of our elderly, our kapuna, have died waiting for the dream of homeownership," she said. Congresswoman Hirono cited the example of Frances Segundo, whose father first applied for Hawaiian Home Lands in 1949. Her father passed away two years ago, and she claimed the lease awarded for the second phase of a Department of Hawaiian Home Lands project in Kapolei in 2006 - 57 years after her father had applied.
Today the House voted overwhelmingly to defeat an amendment proposed by a Republican that would have eliminated all funding for the Native Hawaiian Housing Block Grant. The block grant helps provide affordable housing for Native Hawaiian families who are eligible to reside on Hawaiian Home Lands, which were established in trust by the United States in 1921 under the Hawaiian Homes Commission Act.
Congresswoman Hirono noted that today's attempt to strip funding for Native Hawaiians follows similar Republican attempts during this Congress, including an earlier failed challenge to the previously uncontroversial Native Hawaiian Housing Act and an attempt last week to strike education funds for Alaska Natives and Native Hawaiians in the Labor, Health and Human Services, and Education Appropriations bill.
Congresswoman Hirono added, "America has a moral and legal obligation to support programs that provide housing, education and other important services for Native Hawaiians. Helping Native Hawaiians achieve and advance is in the best interest of all the people of Hawai'i and indeed our nation. I will continue to be a strong advocate on behalf of Native Hawaiians and all Hawaiians."
Michael Levin is the Communications Director for Congresswoman Mazie K. Hirono (HI-2).
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(12) February 5, 2008 newspaper reports that President Bush's newly published budget for the next fiscal year proposes to cut 151 programs nationwide including 2 specifically for "Native Hawaiian" education programs that had a total of about $40 Million in federal funding last year.
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080205/NEWS23/802050344/1173/NEWS23
Honolulu Advertiser, Tuesday, February 5, 2008
Two Native Hawaiian programs face ax
By Gordon Y.K. Pang and Dennis Camire
Advertiser Staff Writers
Two programs aimed at helping educate Native Hawaiians have been targeted for elimination in President Bush's $3.1 trillion budget proposal for next year.
The budget proposal was released yesterday, as officials from the U.S. Department of Education are in Honolulu this week seeking prospective grantees for one of the two programs - the Native Hawaiian Education Act.
The Native Hawaiian Education Act received $33.3 million this year for a variety of different programs, recruitment and training of teachers and the renovation of schools - both public and Hawaiian charter schools - with a high percentage of Native Hawaiian students.
More than $9.5 million is available through a competitive grant process, according to Colin Kippen, executive director of the nonprofit Native Hawaiian Education Association.
Bush's budget also proposes cutting the Native Alaskan and Native Hawaiian Higher Education Program, under which Hawai'i received $6 million this year to provide Native Hawaiians with secondary and vocational training.
The state Department of Education is assessing the impact of the proposed cuts, said DOE spokeswoman Sandra Goya.
The programs are among the 151 that Bush wants eliminated or cut back to save more than $18 billion in his budget plan.
Kippen noted that Bush has attempted to dismantle the programs several times in recent years but Congress restored the funding for the Native Hawaiian education after they were cut by the administration.
"And the reality is," he said, "it is the work of our (Hawai'i congressional) delegation that enables those programs to survive."
U.S. Sen. Daniel K. Inouye, D-Hawai'i, said his staff is going over the budget to ensure other Native Hawaiian programs aren't being cut.
"It is not surprising that the president continues to ignore the value of Native Hawaiian programs. Last year, he 'zeroed out' important educational, healthcare, and job-training initiatives for Native Hawaiians, who, while they are the state's 'first citizens,' lag in every socioeconomic measurement of Hawai'i's population," Inouye said. "But through the efforts of the Hawai'i congressional delegation and its supporters, the programs were restored."
"These are important programs, they serve Native Hawaiians in a number of different settings," Kippen said. "They fund early education, curriculum development, science, math and Native Hawaiian language programs for Native Hawaiians in a manner consistent with the cultural and language traditions of the Native Hawaiian students it intends to serve."
Not all in Hawai'i agree there should be programs or policies designed to help Hawaiians only, or primarily Hawaiians.
Attorney H. William Burgess, who heads the group Aloha for All, said while he does not know too much about these specific programs, "the proposed elimination of those programs is probably because they are race-based, that is they give special benefits based on racial ancestry."
"That's forbidden by the U.S. Constitution. Programs that are not based on merit or need sometimes have the opposite effect on the intended beneficiaries."
Kippen said the program is mandated by Congress, which recognizes the needs of Native Hawaiians that need to be addressed by the U.S. government.
Clyde Namu'o, administrator of the Office of Hawaiian Affairs, said: "The Office of Hawaiian Affairs believes the elimination of funding would have a negative impact on important educational programs which serve Native Hawaiians and which benefit all of Hawai'i. OHA is confident, however, that members of Hawai'i's congressional delegation will continue to support these programs as they have done in the past."
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