Major Articles Opposing the Hawaiian Government Reorganization bill (Akaka bill) -- July 18 through August 31, 2005. John Fund, Wall Street Journal; U.S. House of Representatives, Committee on the Judiciary, Subcommittee on the Constitution; Wall Street Journal Editorial; Letter by 21 members of House to Speaker; Michael Barone, U.S. News and World Report; Former U.S. Senators Slade Gorton and Hank Brown, Wall Street Journal; Rich Lowry, The National Review; Gail Heriot, San Diego Herald-Tribune and personal blog; Linda Chavez, Center for Equal Opportunity; others in Honolulu newspapers including Jerry Coffee, Bruce Fein, James Kuroiwa, Andrew Walden

Here is a table of contents of the articles in the order they appear lower on this webpage. To see the actual articles, scroll down.

http://www.opinionjournal.com/diary/?id=110006981
Wall Street Journal Opinion Journal (on-line), Monday, July 18, 2005

JOHN FUND ON THE TRAIL

Volcanic Politics
Congress considers setting up a race-based government for Native Hawaiians.

Full text available below (chronological order)

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http://www.hawaiireporter.com/story.aspx?afba19b6-cb1c-4377-84b0-0f62d89b7a4e
Hawaii Reporter, July 18, 2005 (Special from Hawaii Free Press)

Huge Poll Shows Strong Opposition to Akaka Bill

By Andrew Walden

An audacious polling effort, calling every single household in Hawaii, and gaining responses from 39,000 of the total 280,000 households, shows strong opposition to passage of the Akaka Bill S147/HR 309.

The poll was commissioned by the Grassroot Institute of Hawaii. Polling was conducted by FEC Research between June 29 and July 10. When asked, "Do you want Congress to approve the Akaka Bill?" only 28.2 percent of registered voters answered "yes," 56.8 percent said "no," and 15.0 percent did not answer. Counting noes over only those who responded to the question, 66.8 percent oppose the passage of the Akaka Bill.

*** Full text of this article is copied below (chronological order). Spreadsheets showing the results of both the sample survey and the comprehensive survey, together with the actual questions asked; plus the results of surveys conducted in previous years regarding Hawaiian sovereignty; can be seen at:
https://www.angelfire.com/hi5/bigfiles3/AkakaScientificSurvey070505.html

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Debating Hawaii State Attorney General Bennett On the Merits of the Akaka Bill

By Bruce Fein

Hawaii Reporter, July 18, 2005

http://www.hawaiireporter.com/story.aspx?6d529354-a995-457e-b463-2c5e0cd66c66

Full text available below, in chronological order

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On July 19, 2005 the House of Representatives, Committee on the Judiciary, Subcommittee on the Constitution, held a hearing regarding the issue whether the Akaka bill is unconstitutional. Some of the testimony presented at that hearing is available at:
https://www.angelfire.com/hi5/bigfiles3/AkakaHearingHouseJudiciary071905.html

It is very unusual for a Senator to participate in a subcommittee hearing in the House of Representatives. But Senator Kyl (R, AZ) feels so strongly opposed to the Akaka bill that he submitted a 14-page statement regarding that bill's unconstitutionality. The statement, on official stationery, can be downloaded in pdf format from:
https://www.angelfire.com/hi5/bigfiles3/AkakaKylToHseJudicry071905.pdf

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http://www.hawaiireporter.com/story.aspx?8ec93f34-f5a8-4082-bd87-a8e56c18a86b
Hawaii Reporter, July 21, 2005

Inouye Stumbles Over the Akaka Bill

By Bruce Fein

Full text below, in chronological order

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http://online.wsj.com/article/0,,SB112191569507491833,00.html

The Wall Street Journal, July 21, 2005

REVIEW & OUTLOOK, Page A10

Goodbye, Hawaii

Full text below, in chronological order

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MidWeek (O'ahu), July 27, 2005, page 23 (No internet archive)

"Coffee Break" (weekly column by Jerry Coffee)

[** Note by Ken Conklin: Jerry Coffee (Captain, U.S. Navy, Retired) was the pilot of a reconnaissance aircraft flying over North Vietnam when shot down in 1966. He was held as a prisoner of war until released in 1973. He ran unsuccessfully as the Republican candidate for a seat in the Legislature from an overwhelmingly Democrat district in 2004, but made a strong showing; hopefully he will try again in 2006.]

"Arguing Against the Akaka Bill"

** Full text available below, in chronological order **

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July 29, 2005: 21 Members of Congress send letter to House of Representatives Speaker Hastert and Majority Leader Tom DeLay asking them to kill Akaka bill
https://www.angelfire.com/hi5/bigfiles3/AkakaHseRepubLtrJuly2005.html

Text of letter is copied below, in chronological order

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On Friday, July 29, 2005 Senator Akaka gave a short speech on the floor of the Senate at the time he filed his cloture petition to be voted September 6. His short speech contained numerous errors and distortions of history.

On Sunday, August 7, 2005 Constitutional law expert Bruce Fein published a rebuttal to Senator Akaka's floor speech.
http://starbulletin.com/2005/08/07/editorial/special.html

** Full text available below, in chronological order

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http://opinionjournal.com/diary/?id=110007076

WSJ.com Opinion Journal from the Wall Street Journal Editorial Page

Monday, August 8, 2005

JOHN FUND ON THE TRAIL

Aloha, Apartheid

A court strikes down a race-based policy in Hawaii, while Congress considers enshrining one.

** Full text available below, in chronological order

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Akaka Bill Will Have Negative Impact on Hawaii's Construction Industry, Economy

By James I. Kuroiwa, Jr.
Director, Hawaii Laborers-Employers Cooperation Education Trust (HI-LECET)

Hawaii Reporter, August 9, 2005
http://www.hawaiireporter.com/story.aspx?f24b15e0-7d16-4768-ac2e-21196a2bb893
** Full text available below, in chronological order

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A bad idea whose time has come
by Michael Barone
U.S.News & World Report
August 10, 2005
http://www.usnews.com/usnews/opinion/baroneblog/columns/barone_050810a.htm?track=rss

** Full text available below, in chronological order

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http://online.wsj.com/article/0,,SB112415838738514082,00.html?mod=opinion%5Fmain%5Fcommentaries

Wall Street Journal on-line, commentary; August 16, 2005 (URL still valid but only for paid subscribers)

Also reprinted with different title in Hawaii Reporter (no charge) at:
http://www.hawaiireporter.com/story.aspx?f182b614-6360-4197-8f37-22d3e70c2aae

E Pluribus Unum? Not in Hawaii.

By SLADE GORTON and HANK BROWN

These two former Senators, from Washington and Colorado, led the fight against the Apology Resolution of 1993. In this article they point out that the Apology Resolution is now cited three times in the Akaka bill as a justification for creating a race-based government and race-based communal money and land; despite the fact that Senator Inouye had assured them on the Senate floor that the resolution would never be used that way. ** Full text below, in chronological order.

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"Thirteen Stripes and Forty-Nine Stars?"
By John Fund [Wall Street Journal Editorial Writer], 8/19/2005
http://www.hawaiireporter.com/story.aspx?093172c8-bfa6-4247-ae3a-12b557f90d6c

"Manifest Destiny in Reverse -- Toward a race-based government in Hawaii."
The National Review, August 19, 2005
by Rich Lowry, Editor
http://nationalreview.com/script/printpage.p?ref=/lowry/lowry200508190812.asp

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** Outstanding article summarizing Akaka bill issues for national audience which may be unfamiliar with them **

Trouble from Paradise: Hawaii's Divisive Racial Politics Hits the National Agenda

San Diego Herald-Tribune, Sunday August 28, 2005
Published in the Sunday newspaper but not included on newspaper website.
Posted by its author on Monday August 29 on her blog at
http://therightcoast.blogspot.com/2005/08/trouble-from-paradise-hawaiis-divisive.html

By Gail Heriot
Professor of Law, San Diego State University

** Full text below, in chronological order **

Midweek Newspaper (O'ahu), August 31, 2005
Coffee Break, by Jerry Coffee
Reverse Racism is Alive and Well

COMMENTARY
Indian precedents won't boost Akaka bill
By Bruce Fein
Honolulu Advertiser, Wednesday, August 31, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050831/OPINION03/508310303/1110/OPINION

Time to Stand for Unity
by Linda Chavez, President, Center for Equal Opportunity
TownHall, August 31, 2005
http://www.townhall.com/columnists/lindachavez/lc20050831.shtml
and also
GOP USA, September 1, 2005 http://www.gopusa.com/commentary/lchavez/2005/lc_09011.shtml

==================

http://www.opinionjournal.com/diary/?id=110006981
Wall Street Journal Opinion Journal (on-line), Monday, July 18, 2005

JOHN FUND ON THE TRAIL

Volcanic Politics
Congress considers setting up a race-based government for Native Hawaiians.

Some congressional staffers are calling it "the worst bill most voters have never heard of." Hyperbole aside, the Senate is preparing to take up legislation that would create an independent, race-based government for Native Hawaiians. If this bill becomes law an entrenched racial spoils system will hand benefits to as many as one-fifth of the state's population and could inspire mainland groups such as Hispanic separatists to seek similar spoils, should they ever gain enough political leverage.

This isn't how it was supposed to be in Hawaii. In 2000, the U.S. Supreme Court voted 7-2 to undo a previously established race-based system. Under that system non-Native Hawaiians were barred from voting for trustees overseeing the state's Office of Hawaiian Affairs. The ruling, which was joined by liberal Justices David Souter and Stephen Breyer, found that a Hawaiian law requiring that the trustees be Native Hawaiians and elected only by other Native Hawaiians was obviously discriminatory. "There can be no such thing as either a creditor or a debtor race," wrote Justice Antonin Scalia. "In the eyes of government, we are just one race, it is American."

Rather than accept colorblind government, however, supporters of racial restrictions have tried for five years to negate the court's ruling by pushing a measure called the "Native Hawaiian Reorganization Act" or, for short, the "Akaka bill," after Hawaii's Sen. Daniel Akaka, a Democrat. The bill would skirt the Fifteenth Amendment's constitutional ban on race-based governments by requiring that Washington, D.C., recognize Native Hawaiians in the same manner it recognizes separate governments for American Indians and Alaska natives.

That comparison, however, quickly falls apart. It's true that the Founders (and the British before them) recognized Indian tribes to be separate, sovereign governments. They signed treaties with tribes and carved out territory for tribes to occupy--a system of separation that never led to equality. But in Hawaii, the history is demonstrably different. When the island chain became a state in 1959, there was a broad consensus in Congress that Native Hawaiians would not be treated as a separate racial group, and that they would not be transformed into an "Indian tribe." Indeed, Native Hawaiians have never asked to be recognized as an Indian tribe; they not only lack their own system of laws, but are widely geographically distributed throughout Hawaii and have a high rate of intermarriage with other groups.

Reversing this policy with what would amount to federal recognition of a "tribe" for Native Hawaiians today would create an independent state within a state that would lie outside the Constitution and laws of the United States as well as those of the state of Hawaii. The Akaka bill would also authorize the transfer of a portion of Hawaii's state-owned lands, natural resources and other assets to the new race-based government (at no cost to that new government, of course). Hawaiians would also be unable to fight back, as the state does not allow for referendums. And, just as on American Indian land, a shopkeeper who is part Hawaiian could claim exemption from state taxes and other laws, giving him an advantage over his next-door, non-Native Hawaiian competitor.

Not surprisingly, there is strong public skepticism in Hawaii about the establishment of what would amount to racial enclaves. "It's telling that there have been no public hearings organized by the state, the University of Hawaii, the state's congressional delegation or the Office of Hawaiian Affairs to determine if there actually is support for the Akaka Bill," says Malia Zimmerman, the editor of the news service HawaiiReporter.com. "There is a complete atmosphere of silence in the state government and mainstream media about this bill's weaknesses."

Even with debate smothered, a poll conducted by the Grassroot Institute of Hawaii this month found that two out of three state residents oppose the Akaka bill, including 48% of Native Hawaiians. While some natives oppose the Akaka bill because they support complete independence, most native opponents see no need for a new layer of government ruling over them. Native Hawaiians have never experienced the kind of oppressive treatment American Indians have had to endure. The U.S. did overthrow Queen Lydia Liliuokalani in 1893, something Congress has since apologized for, but what followed in no way compares to the plight of many tribes in the continental United States, in part because Native-Hawaiians weren't pushed into reservations. Also, for the past 30 years, Native Hawaiians have been the beneficiary of many targeted housing, education and welfare benefits.

But guilt is a powerful political weapon, and Hawaii's major politicians have fallen completely into line as lobbyists for the Akaka bill. Among them is Republican Gov. Linda Lingle, who is said to have convinced herself that her party's ability to compete for Native Hawaiian votes is linked to support of the Akaka bill. She claims to have helped convince six Republican senators, including Norm Coleman of Minnesota and Lindsey Graham of South Carolina, to support the measure. If she is right, that means there will be a bare 51 vote majority for the Akaka bill when the full Senate votes on it next week. Since the House has previously passed similar versions of this bill, it is likely to approve this one as well. The Bush administration has remained neutral on the bill, although it suggested it be amended to better protect the interests of U.S. military bases and to limit casino gambling.

Some opponents of the Akaka bill argue that no great tragedy would result from its passage. They confidently predict that even if President Bush signed the measure into law its race-based provisions would again be declared unconstitutional by the Supreme Court. But that is what many observers said would happen to the similarly dubious restrictions on political speech in the McCain-Feingold campaign-finance reform bill, which President Bush reluctantly signed. In a surprise, the Supreme Court then waved McCain-Feingold onto the statute books.

Creating a race-based government in Hawaii would create a dangerous precedent for groups in other states to also seek special status, whether they be African-Americans or Hispanics who believe that many of the Western states were illegitimately seized from Mexico and should be accorded a special status as an entity called Aztlan. The Akaka bill would carve out a path of racial balkanization that is fraught with constitutional peril and political mischief.

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http://www.hawaiireporter.com/story.aspx?afba19b6-cb1c-4377-84b0-0f62d89b7a4e
Hawaii Reporter, July 18, 2005 (Special from Hawaii Free Press)

Huge Poll Shows Strong Opposition to Akaka Bill

By Andrew Walden

On July 15, after Grassroot released the complete results, Congressman Ed Case (D-HI) responded to news that the U.S. House Judiciary Subcommittee on the Constitution will debate the constitutionality of the Akaka Bill. In spite of the poll results, Case blamed opposition to the Akaka Bill on outside forces, telling The Honolulu Advertiser, "Either the external opposition prevailed upon that chair to at least hold the hearing, or the members of that committee on the majority side have some opposition to the bill. But thus far, there's no reason to conclude that." Rep. Neil Abercrombie (D-HI), the Bill's House sponsor, echoed Case and blamed "extremists" adding, "Given that most of Hawaii's elected officials of various ideological stripes support it, those raising the question, it seems to me, are on the extreme margins -- rather obsessively I would think -- on this issue."

Grassroot's poll results contain several surprises. The result from the 3,176 respondents identifying themselves as Native Hawaiians is that only 1,518 (48 percent) indicate support for Akaka, 1,375 (43 percent) indicate opposition and 283 (9 percent) did not respond to the automated polling question. These results are in stark contrast to a 2003 poll of 303 Native Hawaiians, which is often pointed to by Akaka supporters.

That 2003 poll, commissioned by the pro-Akaka, Office of Hawaiian Affairs (OHA), and conducted by Ward Research, asked the 303 Native Hawaiians a less specific question: "Do you think that Hawaiians should be recognized by the U.S. as a distinct group, similar to the special recognition given to Native Americans and Alaska Natives?" According to OHA Trustees Chair, Haunani Apoliona, writing in the Honolulu Star-Bulletin, April 3, 2005, 86 percent said "yes." Apoliona says the OHA poll also showed, "Of the 301 non-Hawaiians polled, almost eight in 10 (78 percent) supported federal recognition, 16 percent opposed it, with 6 percent unsure." Her "Another Perspective" editorial in the Honolulu Star-Bulletin came in response to a non-scientific March 2005 Honolulu Star Bulletin "Big Question" online survey, which asked, "Would you like to see the Akaka bill become law?" Seventy-five percent -- 1,301 voted "no" and only 436 voted "yes."

The Grassroot Institute's President Dick Rowland immediately released to the media the full poll questions and raw polling results. In contrast, OHA has announced only parts of its polling result.

The full wording of the Grassroot poll question is, "The Akaka Bill question, now pending in Congress, would allow Native Hawaiians to create their own government not subject to all the same laws, regulations and taxes that apply to other citizens of Hawaii. Do you want Congress to approve the Akaka Bill?"

The full wording of the OHA poll question was, "The Akaka-Stevens bill proposes that Hawaiians be formally recognized as the indigenous people of Hawaii, giving them the same federal status as 560 Native American and Alaska Native tribes already recognized by the U.S. government. Do you think that Hawaiians should be recognized by the U.S. as a distinct group, similar to the special recognition given to Native Americans and Alaska Natives?"

The Grassroot poll is the only one which directly asks, "Do you want Congress to approve the Akaka Bill?" The direct question OHA asks is more general: "Do you think that Hawaiians should be recognized by the U.S. as a distinct group, similar to the special recognition given to Native Americans and Alaska Natives?"

Other criticism of the Grassroot poll is focused on the poll question immediately preceding the Akaka question, "Do you support laws that provide preferences for people groups based on their race?" This, say poll critics, skews the results by associating Akaka with racial preferences in the mind of respondents.

But in spite of official denials that Akaka is a racial preference bill, the Grassroot poll results show that to many Akaka Bill supporters, racial preferences are a good thing. Of 2,933 Grassroot poll respondents who indicate they "support racial preferences" 1,748 indicated support for the Akaka Bill. At 60 percent, this is more than double the percentage of Akaka Bill support found in the general public. Of the 13,050 respondents who oppose "racial preferences", support for the Akaka Bill is only 2,868 (22 percent) -- a lower level than in the population as a whole.

Akaka Bill support is also concentrated among those who favor tax increases. Of 3,954 who indicated support "for an Excise Tax increase of $450 per year," 1617 (41 percent) also support the Akaka Bill -- almost half again more than the support in the population as a whole. Overall, 73.3 percent of registered voters oppose an Excise Tax increase.

Some 44.9 percent of Hawaii registered voters polled say they are less likely to support a pro-Akaka Bill candidate.

The poll comes in time to impact the Senate debate scheduled to begin Monday, July 18, 2005, on the Akaka Bill and the House Committee debate on the July 19th. The results bring into question the reasons for near-unanimous support for the Akaka Bill among Hawaii elected officials including Republican Gov. Lingle, Republican Lt. Governor Aiona and all of Hawaii's four Democratic congressional representatives. Politicians are usually known to go where the votes are. Why are almost no Hawaii politicians staking out an anti-Akaka position? Why are Hawaii elected officials working so hard to push through an unpopular measure?

Andrew Walden is the publisher and editor of Hawaii Free Press, a Big Island-based newspaper. He can be reached via email at mailto:andrewwalden@email.com

*** Spreadsheets showing the results of both the sample survey and the comprehensive survey, together with the actual questions asked; plus the results of surveys conducted in previous years regarding Hawaiian sovereignty; can be seen at:
https://www.angelfire.com/hi5/bigfiles3/AkakaScientificSurvey070505.html

=================

http://www.hawaiireporter.com/story.aspx?6d529354-a995-457e-b463-2c5e0cd66c66
Hawaii Reporter, July 18, 2005

Debating Hawaii State Attorney General Bennett On the Merits of the Akaka Bill

By Bruce Fein

Attorney General Mark J. Bennett's high-voltage polemic against my adamant opposition to the Akaka Bill -- "The Akaka Bill is Fair, Just, Long Overdue and Constitutional"

http://www.hawaiireporter.com/story.aspx?title=The+Akaka+Bill+is+Fair%2c+Just%2c+Long+Overdue+and+Constitutional

-- displays an alarming ignorance of Jim Crow, American history, and constitutional law. In the manner of Al Jazeera and Middle East tyrants, Hawaii's premier legal officer tacitly deplores the democratization of Hawaii under the umbrella of the United States Constitution after the Hawaiian Monarchy was replaced by a republic in 1893. As Goethe warned, nothing is as dangerous as ignorance in action.

[The original article that Bennett was responding to was: "New Racism in New Bottles"

http://www.hawaiireporter.com/story.aspx?title=New+Racism+in+New+Bottles

Contrary to Mr. Bennett, the Akaka Bill is worse than Jim Crow. At least a handful of blacks were permitted to vote despite racist "grandfather" and "good character" clauses in southern voting laws held unconstitutional by the Supreme Court in such cases as Lane v. Wilson (1939) and Hunter v. Underwood (1985). Indeed, the race-based disenfranchisement of all non-Native Hawaiians in the Akaka Bill is indistinguishable from the alteration of the boundaries of Tuskegee, Alabama, to exclude all but a handful of its black voters and held odious to the Fifteenth Amendment in Gomillion v. Lightfoot (1960). The Akaka Bill's embrace of Jim Crow in voting is exceptionally squalid because the right to vote is preservative of other basic civil and political rights, as the Supreme Court amplified in Reynolds v. Sims (1964).

The Attorney General falsely insists that "Native Hawaiians�have suffered substantial [racial] discrimination for more than a century�from outright prejudice in all walks of life, and wholesale deprivations of their native lands, to bans on speaking their native tongues�." Not a syllable in either the 1993 Apology Resolution or the Akaka Bill itself suggests racial discrimination was ever official or unofficial state policy. No race-based law is cited by Mr. Bennett to substantiate his discrimination claim. No Native Hawaiian lost a single square inch of land because of race or otherwise with the 1893 overthrow of Queen Liliuokalani or with annexation. The Native Hawaiian language was never banned. It was routinely used in churches and private affairs, but was not permitted as an official state government language until 1978, or in public education until 1987. The language limitation was akin to the preeminence of the French language in France.

Mr. Bennett errantly maintains that Congress, like the Pope, can declare ex cathedra that the ancestral inquiry required under the Akaka Bill as a condition to participation in the new Native Hawaiian entity is non-racial.

The United States Supreme Court categorically repudiated that proposition in Rice v. Cayetano (2000): "Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification. . . . In the interpretation of the Reconstruction era civil rights laws we have observed that "racial discrimination" is that which singles out "identifiable classes of persons . . . solely because of their ancestry or ethnic characteristics."

The very object of the statutory definition in question . . . is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose."

The Attorney General ridiculously insists that the United States Constitution, federal laws, and state laws would apply in full force to the Native Hawaiian governing entity. If that were true, the entity could not exclude non-Native Hawaiians from the vote or deny them any right or and privilege afforded Native Hawaiians because of the Fifth, Fourteenth and Fifteenth Amendments and federal civil rights laws.

The whole purpose of the Akaka Bill is to evade the color-blind mandates of the Constitution, the 1964 Civil Rights Act, the 1965 Voting Rights Act, and sister non-discrimination laws.

The Supreme Court in United States v. Sandoval (1913) declared that congressional power to recognize Indian tribes was not plenary, but subject to judicial review for arbitrariness. And from the beginning of the Kingdom of Hawaii in 1810, Native Hawaiians were never organized or governed as Indian tribes. They were ruled by a common sovereign with non-Native Hawaiians. Intermarriage and assimilation was non-coercive and substantial.

The United States in its treaties antedating annexation dealt with Hawaii as a foreign nation, not as an Indian tribe. The authoritative historian of the Hawaiian Kingdom, R.S. Kuykendall, has observed: "[W]e can see that the policy being followed [in the Kingdom] looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king."

Mr. Bennett also stumbles in asserting that the Akaka Bill permits neither secession nor the eviction of the U.S. military from Pearl Harbor. The negotiating agenda authorized by section 8 of the legislation is unlimited. No subject is out of bounds, and in Hawaii succession is openly discussed.

The Attorney General outlandishly asserts that Native Hawaiians have suffered like Indian tribes. But the history of Native Hawaiians chronicles no Sand Creek massacre, no echo of General Phil Sheridan's "The only good Indians I ever saw were dead," and, nothing like government bounties paid for Indian scalps. Indeed, Native Hawaiians have never been treated as less than equal with non-Native Hawaiians.

Finally, Mr. Bennett insinuates that Native Hawaiians were harmed by the non-violent overthrow of the Monarchy provoked by the Queen's unconstitutional and anti-democratic designs. What was the harm? The priceless freedoms and liberties conferred by American citizenship and the United States Constitution?

The right to celebrate Native Hawaiian culture as guaranteed by the Bill of Rights? Economic prosperity equivalent to that of non-Native Hawaiians? As Queen Lilioukalani understood better than Mr. Bennett in communicating to Senator George Hoar: "The best thing for [Native Hawaiians] that could have happened was to belong to the United States."

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and The Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

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http://www.hawaiireporter.com/story.aspx?6d529354-a995-457e-b463-2c5e0cd66c66
Hawaii Reporter, July 18, 2005

Debating Hawaii State Attorney General Bennett On the Merits of the Akaka Bill

By Bruce Fein

Attorney General Mark J. Bennett's high-voltage polemic against my adamant opposition to the Akaka Bill -- "The Akaka Bill is Fair, Just, Long Overdue and Constitutional"

http://www.hawaiireporter.com/story.aspx?title=The+Akaka+Bill+is+Fair%2c+Just%2c+Long+Overdue+and+Constitutional

[The original article that Bennett was responding to was: "New Racism in New Bottles"
http://www.hawaiireporter.com/story.aspx?title=New+Racism+in+New+Bottles

The whole purpose of the Akaka Bill is to evade the color-blind mandates of the Constitution, the 1964 Civil Rights Act, the 1965 Voting Rights Act, and sister non-discrimination laws.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and The Lichfield Group and a consultant to the Grassroot Institute of Hawaii.

-------------------

http://www.hawaiireporter.com/story.aspx?8ec93f34-f5a8-4082-bd87-a8e56c18a86b
Hawaii Reporter, July 21, 2005

Inouye Stumbles Over the Akaka Bill

By Bruce Fein

The customarily unerring U.S. Sen. Daniel Inouye stumbled in marshalling a defense of the Akaka Bill to constituent George L. Berish of Honolulu in a letter dated June 13, 2005. The senior Senator from Hawaii mischaracterized the ending of the Monarchy in 1893, the right of revolution, and the Native Hawaiian flowering after annexation in 1898.

Sen. Inouye's errors, however, impugn only the Akaka Bill, not his spotless integrity and bravery. As Alexander Pope versified, "to err is human, to forgive divine."

The Senator stumbled twice in opining "that agents and officials of the United States knowingly participated in the wrongful overthrow of Queen Liliuokalani."

The United States remained strictly neutral. It offered neither arms nor any other assistance to the Hawaiians involved in the domestic dispute with the Queen. Marines landed to protect American lives and property, as is customary when strife in a foreign nation is afoot, but no bullets were fired and no menacing gestures were made against the Monarchy.

Not a single person either died or was injured. A Hawaiian participant in the 1893 overthrow, W.O. Smith, declared without contradiction to James Blount, investigating on behalf of President Grover Cleveland: "[United States Minister] Stevens ... emphasized the fact that while he would call for the United States troops to protect life and property, he could not recognize any government until actually established. He repeated that the troops when landed would not take sides with either Party, but would protect American life and property."

The Queen was the architect of her own overthrow. She plotted to replace the Kingdom's balanced separation of powers and rule of law with a monarchy reminiscent of French King Louis XVI. Judges, ministers, the House of Nobles, and the Constitution itself would have been made dependent entirely on her will. The Queen further aimed to issue opium and lottery licenses. Even her Cabinet balked.

The venerated Declaration of Independence of the United States recognized the right of Hawaiians to revolt against Queen Liliuokalani's impending oppressions. As Thomas Jefferson wrote for the ages: "But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

The American grievances against King George III presaged the indictments of Hawaiians against the Queen: compromising judicial independence and unilaterally altering fundamentally the forms of their governments. In sum, the Queen's overthrow was every bit as legal as was the American Revolution, the 1689 Glorious Revolution in Britain, or the 1789 French Revolution.

Sen. Inouye further erred in declaring that "the royal lands were taken without due process of law and without just compensation." The right of revolution against Queen Liliuokalani and other would-be usurpers includes the right of the successor government to assert jurisdiction or ownership over crown lands. Accordingly, King George III lost his American colonies to the United States, King Charles I forfeited royal lands to Oliver Cromwell, and King James II yielded crown lands to William of Orange.

And King Kamehameha I never returned a single square inch of land to rival chiefs captured by force and violence. In any event, the United States assumed approximately $4 million in debt incurred primarily by the Monarchy at the time of annexation, a sum in excess of the market value of the Queen's crown lands.

The honorable Senator slips again in asserting that "Native Hawaiians have suffered" from the Queen's overthrow. But the Queen maintained otherwise in communicating with Sen. George Hoar (R. Mass.): "The best thing for [Native Hawaiians] that could have happened was to belong to the United States."

Sen. Inouye as recently as 1994 boasted that Hawaii was "one of the greatest examples of a multiethnic society living in relative peace." The median family income of Native Hawaiians is virtually the same as for non-Native Hawaiians. Native Hawaiians celebrate their culture under the umbrella of the United States Constitution like the Amish, Irish Americans, Polish Americans, and all other racial, ethnic, or religious groups. They have never been treated as less than equal in the eyes of the law or otherwise.

Hawaii today is the pinnacle of a policy of inclusiveness and fusion begun under the Kingdom more than 150 years ago. R.S. Kuykendall, the definitive historian of the Hawaiian Kingdom, has elaborated: "[T]he policy being followed looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king."

The Akaka Bill would be a stiletto in Hawaii's grand success. That is why a commanding 2-1 majority of Hawaiians oppose the race-based legislation.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group. He is advising the Grassroot Institute of Hawaii.

-------------

http://online.wsj.com/article/0,,SB112191569507491833,00.html

The Wall Street Journal, July 21, 2005

REVIEW & OUTLOOK, Page A10

Goodbye, Hawaii

Sometime in the next few days, Congress may endorse secession. If this is the first you've heard of it, that suits Hawaii's Democratic Senator Daniel Akaka and Republican Governor Linda Lingle just fine.

We exaggerate, but not by much. On Tuesday, the Senate debated Mr. Akaka's Native Hawaiian Government Reorganization Act, which would grant de facto sovereignty to the 400,000 or so people who identify themselves as native Hawaiians, aka "Kanaka Maoli." To listen to the Akaka bill's supporters, that means nothing more than extending a polite gesture to Native Hawaiians by giving them a kind of parity with other Native Americans such as the Navajo or Cherokee. Yet according to the Office of Hawaiian Affairs, a state agency, under the terms of the bill this new tribe could declare "complete legal and territorial independence from the United States and the re-establishment of a Hawaiian nation-state." Jefferson Davis rides again.

A bit of background: Back in 2000, the U.S. Supreme Court ruled 7-2 that a Hawaii practice that allowed only Native Hawaiians to elect Office of Hawaiian Affairs trustees was a violation of the Constitution, which forbids abridging the right to vote on account of race. (The losing side was represented by one John Roberts.) The ruling paved the way for further challenges to various entitlement programs that benefited Native Hawaiians exclusively. In order to skirt the clear language of the 14th and 15th Amendments, supporters of the old system had to resort to the current gambit of turning Native Hawaiians into a "tribe."

However, there's a problem: Just who, exactly, are Native Hawaiians? Because of a high rate of intermarriage between the state's various ethnic and racial groups -- Polynesians, Japanese, Chinese, whites -- there are almost no "pure-blooded" Native Hawaiians left. The 400,000 figure cited above is a product of the U.S. Census, in which people self-select their identity. By what formula are we now to ascertain who really is a Native Hawaiian and who is just writing himself into an entitlement? The idea of the U.S. government devising a precise racial test -- will 1/128th "Native Hawaiian" do, or does it have to be at least 1/16th? -- has unpleasant connotations, to say the least.

Then, too, unlike Native Americans, who govern reservations and often live on them, Native Hawaiians live commingled among the broader Hawaiian population. Under the Akaka bill, next-door-neighbors would suddenly coexist under different legal regimes, a clear violation of the 14th Amendment's equal protection clause. At the same time, vast tracts of land, possibly even whole islands, could be set aside as Native Hawaiian domains. By what law, and by whom, would these places be governed? The Justice Department is still trying to figure this out even as the bill nears a vote, just as it is trying to resolve the little matter of gambling, which the bill neither authorizes nor expressly forbids.

But the greatest problem with the Akaka bill is that Hawaiians -- by which we mean residents of the Aloha state -- oppose it by a 67% margin according to a recent poll; only 18% support racial preferences for Native Hawaiians. With a little more time, perhaps, a plebiscite could be called to drive this point home to Hawaii's political classes. In the meantime, the least the Senate owes the people of Hawaii is to vote this unconstitutional, and un-American, bill down.

-------------------

Mid-July, 2005: Members of Congress send letter to House of Representatives Speaker Hastert and Majority Leader Tom DeLay asking them to kill Akaka bill
https://www.angelfire.com/hi5/bigfiles3/AkakaHseRepubLtrJuly2005.html

-----------------

MidWeek (O'ahu), July 27, 2005, page 23 (No internet archive)

"Coffee Break" (weekly column by Jerry Coffee)

"Arguing Against the Akaka Bill"

Last March I wrote a column on the Akaka Bill. I referenced Paul Sullivan's treatise on the bill, "Killing Aloha�" and how aptly it was titled. My concluding paragraph read: "Thirty years ago I made Hawaii my home by choice because of the Hawaiian people and the culture of Aloha, a people and culture that have literally thrived in union with the United States of America. As U.S. citizens, the vast majority of native Hawaiians enjoy freedom, dignity, respect, prosperity, opportunity, and promotion of their culture far surpassing that available even under their own Monarchy, and unequaled anywhere else in the world today. With all of this, why would anyone want to go back to being a 'tribe'?"

But then I thought that last line may have been too sarcastic, too harsh, so I deleted it. However, after learning even more about the Akaka Bill and the tribal model it seeks, I think I now know why some would take Hawaii "back to being a tribe." It's all about money, power, and guilt -- "you took our land and you owe us!"

There are currently 562 federally recognized Indian tribes, with another 217 waiting their turn, so it can't be too bad a deal. It isn't, at least not for the 20 percent or so who are the tribal leaders and elites. And lest you confuse "leaders" with Chiefs in colorful feathered head gear, I'm talking "corporate" leaders wheeling and dealing with millions in profits from casinos and other tax exempt enterprises. I'm talking teams of lawyers and lobbyists in Washington. I'm talking millions in unlimited campaign donations to federal, state and local officials; a proven way to ensure the enabling legislation needed to reclaim "historical tribal boundaries" -- never mind that U.S. citizens find themselves displaced from generations-old homesteads. I'm talking about the acquisition of and jurisdiction over land, water, natural resources, game, National Parks, hydro-electric power sources and transmission. I'm talking about big tribal money used to purchase hotels and shopping centers far from the reservation, and then, with Department of the Interior's facilitation, moving them into tribal "trusts" exempt from taxes, zoning regs, and environmental standards. I'm talking about the co-opting of the federal Bureau of Indian Affairs by stacking it with Native American staffers and Directors. Don't look there for fair resolution of Indian/non Indian disputes. Ex Menominee Tribal Chairwoman, Ada Deer, who took a key position at the BIA once commented, "We have learned to use the (federal) system to beat the system!"

All of this is documented by Elaine Willman in her recent book, "Going to Pieces: The dismantling of the United States of America." Elaine is of Cherokee ancestry but chooses not to enroll in the tribe and reservation that surrounds her small town in Washington state. She chairs the Citizens Equal Rights Alliance (CERA), "an organization seeking Constitutional and civil rights for individuals on or near Indian reservations." Her book documents "the aggressive expansion of tribalism across America." She confirms and reports on "the catastrophic consequences" of federal Indian policy that has contributed to "the loss of constitutional protections for tribal members and millions of other citizens."

Chapter 18 of her book is titled, "Hawaii; last star on, first star off?" Of the Akaka Bill she writes, "The Bill is intentionally vague as to the type of Hawaiian entity that will be designed. The short range goal is to be free of all state interference. The long range goal is to restore a (sovereign) nation of, by, and for Hawaiians defined by race alone."

It is shibai when Akaka asserts a plebiscite is built into the Bill. He only suggests voters may get a chance to weigh in if the state constitution needs to be amended. Willman, who is pursuing a Doctorate in Federal Indian Policy, knows of no case where a state constitution had to be amended to accommodate Indian policy. So much for the non Hawaiian citizens having any vote on the future social, economic, and governmental structure of our state.

Log onto www.citizensalliance.org

** Note from website editor Ken Conklin: To read about the actual impact of tribal recognition on local businesses and neighborhoods in some of the mainland states, as described by the people who actually live there, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/tribeimpactbizandcommunity.html

------------------

July 29, 2005: 21 Members of Congress send letter to House of Representatives Speaker Hastert and Majority Leader Tom DeLay asking them to kill Akaka bill. For background information and the text of the letter, see:
https://www.angelfire.com/hi5/bigfiles3/AkakaHseRepubLtrJuly2005.html

The text of the letter was also published on August 10, 2005 in Hawaii Reporter, with commentary, as follows:

http://www.hawaiireporter.com/story.aspx?dd3880b2-5b1f-41f4-9ea8-1bf98315f00a

U.S. Representatives Document Akaka Bill Concerns

Letter to House Speaker and Majoirty Leader Raises Questions About the Constitutionality of the Bill, Now Pending a Vote Before the U.S. Senate

By Twenty-one U.S. Representatives

Editor's note [by Hawaii Reporter editor Malia Zimmerman]: The Akaka Billl, named for U.S. Senator Daniel Akaka, D-Hawaii, is scheduled for a vote in the U.S. Senate on September 6, 2005. The bill will have to pass the Senate, House and the president's desk before it can become law. Gov. Linda Lingle, who wants the bill to pass, recently received word of support from one U.S. Representative outside Hawaii for the passage of this legislation. Congressman Tom Cole, R-Oklahoma, issued a letter to Speaker Dennis Hastert and Majority Leader Tom Delay, encouraging his colleagues to "allow the timely consideration of this important, historic, and long-overdue piece of legislation." Lingle met with Congressman Cole earlier this week in Washington. The letter below is from 21 Congress members who are opposed to the bill and don't want it to have a hearing in the House.

July 29, 2005

Dear Speaker J. Dennis Hastert, R-Illinois, and Majority Leader Tom DeLay, R-Texas:

We have serious concerns about the long-term implications S. 147 and H.R. 309, the Hawaiian Government Reorganization Act, would have on our Constitution and on our nation's hopes for a color-blind society. We ask that you carefully consider the implications S. 147 and H.R. 309 might have on our Constitution and on our commitment to equal protection under the laws. These bills would authorize the creation of a race-based government for Native Hawaiians living throughout the United States. The result will be that different laws could be applied to people of differing races in the same communities. That result would be contrary to fundamental American values, and would set a dangerous precedent for our nation.

Our concerns are several.

First, we have grave concerns about whether the Constitution even allows Congress to create a wholly separate sovereign race-based government exempt from the protections our Constitution affords. The worlds of the Constitution that give Congress the power to recognize tribes clearly do not extend to the arbitrary designation of a group of people as an Indian tribe.

According to the Constitution, Supreme Court precedent and federal law, only groups of people who have long operated as an Indian tribe, live as a separate and distinct community based on their geography and culture and have a preexisting political structure can recognized as a tribe.

Native Hawaiians do not meet these criteria. The Hawaiian Government Reorganization Act would likely be struck down by the U.S. Supreme Court on the basis of the Rice v. Cayetano decision in 2000. As Justice Kennedy noted in his opinion in Rice, the equal protection principle enshrined in the Constitution is now the shared "heritage of all the citizens of Hawaii." We believe that fact ought to be the lens through which we weigh any legislation dealing with the people of Hawaii.

Second, these bills raise practical questions that simply have not been addressed. For example, would a race-based government in Hawaii have the power to disrupt our nation's military operations there? Will gambling expand in Hawaii, given this legislation's vague language? Would the new race-based government have new rights to file lawsuits against the federal government under "breach of trust" theories? Will Native American appropriations be depleted when the 400,000 Native Hawaiians across the nation to seek to participate in the same programs? How could Hawaii function if people living in the same neighborhood are subject to different laws, regulations, and taxes?

Consider for example, two small businesses in Hawaii competing against one another. One is owned by a Native Hawaiian, and the other is owned by one who is not. The former will be exempt from state taxes, state business regulations, and zoning and environmental laws, and the latter will not. These problems and many other questions deserve answers.

Third, our historical commitments do not support special government for Native Hawaiians. When Hawaii became a state in 1959, there was broad congressional consensus and assurances given by the State of Hawaii that Native Hawaiians would not seek to be treated as a separate racial group and transformed into an "Indian tribe." There has never been a government in Hawaii for Native Hawaiians alone since Kamehameha established the Kingdom in 1810.

Today, in the great success of the Hawaiian melting pot, 240,000 Native Hawaiians and other citizens live in harmony as a model for other racially diverse communities � with all accorded the protections of the United States Constitution. The Hawaiian Government Reorganization Act takes certain Hawaiians out of this melting pot and creates divisions between Hawaiians based on race.

For these reasons, we respectfully urge you to not schedule the Hawaiian Government Reorganization Act, or any similar legislation, for consideration.

Sincerely,

Representatives Steve King, 5th District of Iowa, Dana Rohrabacher, 46th District of California, Jeff Flake, 6th District of Arizona, Louie Gohmert, 1st District of Texas, Gil Gutknecht, 1st District of Minnesota, Virgil H. Goode Jr., 5th District of Virginia, Ernest J Istook Jr., 5th District of Oklahoma, Lynn A. Westmoreland, 8th District of Georgia, Mike Pence, 6th District of Indiana, Jeb Hensarling, 5th District of Texas, Dave Weldon, 15th District of Florida, Chris Chocola, 2nd District of Indiana, Thomas G. Tancredo, 6th District of Colorado, Ron Paul, 14th District of Texas, John Kline, 2nd District of Minnesota, John J. Duncan Jr., 2nd District of Tennessee, Zach Wamp, 3rd District of Tennessee, Todd W. Akin, 2nd District of Missouri, Charlie Norwood, 9th District of Georgia, Wally Herger, 2nd District of California, and Scott Garrett, 5th District of New Jersey.

------------------------

On Sunday, August 7, 2005 Constitutional law expert Bruce Fein published a rebuttal to Senator Akaka's floor speech..

http://starbulletin.com/2005/08/07/editorial/special.html
Honolulu Star-Bulletin, Sunday, August 7, 2005

PERSPECTIVES ON THE AKAKA BILL

Senator made several mistakes in conception of race-based bill
People should be able to openly debate its merits, flaws

By Bruce Fein

Bruce Fein is an attorney, a columnist for the Washington Times and an adviser to the Grassroot Institute of Hawaii.

Sen. Daniel Akaka (D, Hawaii) is an honorable man. His intentions in championing the Akaka Bill to give birth to an exclusive Hawaiian governing entity operating outside the limitations of the U.S. Constitution are not sinister. But the senator's multiple mistakes in defending the creation of a race-based government disserve the goal of an enlightened political decision. To paraphrase Thomas Jefferson in the Declaration of Independence, let facts speak to a candid state and national audience.

On July 29, Akaka spoke on the floor of the Senate in support of a cloture motion to force a vote in September on his bill. His first mistake was asserting that the race-based legislation is "widely supported in Hawaii." Reasonably reliable polls taken by the Grassroot Institute of Hawaii and the Honolulu Star-Bulletin (see "Editor's note" at end of column) indicate that the people of Hawaii are in opposition by a 2-1 margin or more. In contrast, the Office of Hawaiian Affairs, a vocal proponent of the legislation, refused to disclose the full results of its survey, a tacit concession of popular hesitation or reluctance to embrace a race-based government.

Akaka does not deny the clear evidence of popular rejection, but instead points to the support from Gov. Linda Lingle, three resolutions passed by the Democrat-dominated Hawaii state Legislature, and nine Senate co-sponsors, including five Republicans. Elected officials, however, regularly miscalculate public support. Consider, for example, the recent Terri Schiavo debacle of Congress and President George W. Bush. Akaka's adamant opposition to an amendment that would require a plebiscite in Hawaii as a condition to creating a racially exclusive native Hawaiian sovereign evidences his disbelief that the Akaka Bill is "widely supported."

Akaka's second mistake was in maintaining that Congress "has always treated native Hawaiians in a manner similar to that of American Indians and Alaska Natives because of its recognition of native Hawaiians as indigenous peoples." Congress never negotiated treaties with a native Hawaiian tribal authority (the Kingdom of Hawaii was treated as a foreign nation like France or Great Britain), and bestowed U.S. citizenship and constitutional protections on Hawaiians upon annexation in 1898 and the Hawaii Organic Act in 1900. American Indians were then non-citizens.

Akaka thus fell into a third mistake in declaring, "There is no doubt that native Hawaiians had a governing structure and entered into treaties with the United States, similar to that of their American Indian and Alaska Native brethren." From its inception in 1810 under King Kamehameha I, the Kingdom of Hawaii uniformly featured a common governing structure for native Hawaiians and non-Hawaiians alike. Both voted and served in the Legislature, executive and judiciary.

Akaka's fourth mistake was in insisting that "native Hawaiians, following the overthrow of the Hawaiian Kingdom, were forbidden from maintaining their government." The Hawaiian Kingdom was a government for all the people of Hawaii. It was not in the service of native Hawaiians alone. After the overthrow, a common sovereign for all the people continued under the republic, the territorial government and then statehood.

Akaka's fifth mistake was in declaring that non-native Hawaiians attempted to "extinguish" Hawaiian communities, customs, tradition and culture. Native Hawaiian monarchs abolished the kapu system and feudal land tenure. Native Hawaiians have never been treated as less than equal compared with non-native Hawaiians in the eyes of the law or in society. Intermarriage has been the norm. The U.S. Constitution since annexation has scrupulously protected Hawaiians like other groups in celebrating their traditions and culture. That is why Sen. Daniel Inouye (D, Hawaii) exuded on the 35th anniversary of statehood that "Hawaii remains one of the greatest examples of a multiethnic society living in relative peace."

Akaka's sixth mistake was in denying that his bill would create a "new relationship" between the federal government and native Hawaiians. That is the whole purpose of the legislation! Congress has never dealt with a race-based Hawaiian governing entity because none has ever existed. If a "new (sovereign) relationship" were not intended, the Akaka Bill would be superfluous, akin to pushing water downhill.

Akaka concluded his remarks by saluting "a full and thorough debate on this bill in September." The best way to honor that pledge would be to arrange for a series of debates in Hawaii before the people he has been tasked to represent. The First Amendment remedy for mistakes is more speech, not silence or evasiveness.

----------------------

http://opinionjournal.com/diary/?id=110007076

WSJ.com Opinion Journal from the Wall Street Journal Editorial Page

Monday, August 8, 2005

JOHN FUND ON THE TRAIL

Aloha, Apartheid

A court strikes down a race-based policy in Hawaii, while Congress considers enshrining one.

HONOLULU--For the seven million people who vacation in Hawaii every year, it is a magical island destination. For its 1.2 million residents, the 50th state is, in the words of its senior senator, Daniel Inouye, "one of the greatest examples of a multiethnic society living in relative peace."

But that peace is fraying as tensions rise over a bill the U.S. Senate will vote on next month that would create an independent, race-based government for Native Hawaiians. What some see as redress for past injustices, others see as the creation of a racial spoils system that could treat neighbors differently depending on whether or not they have a drop of native blood.

A Saturday rally of several thousand people here brought the state's divisions to the surface in raw terms. The protestors were angry at a decision last week by the Ninth U.S. Circuit Court of Appeals striking down the Hawaiians-only admissions policy of the exclusive private Kamehameha Schools. The court ruled that the policy violated federal civil rights laws by imposing "an absolute bar to admission of those of the non-preferred race." Supporters of the racial preference policy say any change will reduce the chances of Native Hawaiians, many of whom are from poor backgrounds, getting a good education.

Amid a sea of upside-down state flags and signs challenging the legitimacy of the U.S. government in Hawaii, school trustee Nainoa Thompson told the crowd that the Kamehameha schools are "the last hope of the Hawaiian people." Donna Downey, one of those attending the rally, told me that the court decision was only the latest example of "greedy" people trying to "take all the privileges" now accorded to Native Hawaiians.

No one denies that Native Hawaiians have grievances from the prestatehood era, when the islands were controlled by big sugar and pineapple plantation owners who gave the rights of natives short shrift. But nearly a half century after statehood it is naive to think that federal civil rights laws don't apply to the islands simply because of the 2,500 miles of water separating them from the mainland.

Cooler heads have advised Kamehameha trustees that they should return to the original wording of the 1884 will of Hawaii's Princess Bernice Pauahi Bishop, which established the school. The Ninth Circuit ruling noted that the princess's will did not "require the use of race as an admission prerequisite" and indeed stipulated that instruction should be in English.

"The school is now backed by a $6.2 billion trust that is more than enough money to fund scholarships for anyone they wanted to admit while at the same time charging full tuition to non-Native Hawaiians," says Bobbie Slater, a former teacher at Kamehameha. But instead the school plans to appeal the Ninth Circuit ruling. Eric Grant, a California lawyer who is representing a student challenging the Kamehameha admissions policy, says the school has rejected suggestions that it admit the boy, now entering his senior year, pending outcome of the appeal. Last Friday he said he got a call from the school and "the trustees didn't give me a reason; they just said no--or rather, they said, 'Hell no.' " Mr. Grant says the school's behavior reminds him of the late George Wallace standing in the schoolhouse door.

Far from recognizing the school's weak legal position, almost every politician in the state has scrambled to stand in solidarity with it. Gov. Linda Lingle, a Republican, introduced herself at the rally on Saturday as a "haole"--a foreigner--angry at the court ruling. But she carefully skirted the issue of whether or not the school's admissions policy violated civil rights law. "Regardless of the legal basis for this position, this is not a just position," she told the crowd. She later told the Honolulu Advertiser that she believed the school's admissions policy is "not about race, it's about a political relationship between the Hawaiian people and the American government."

Noting that many students at the Kamehameha school are 95% white or Chinese and only 5% Hawaiian, the governor claims "the school is a perfect example of the great diversity" of the state. She says the Ninth Circuit ruling makes it all the more imperative for Congress to pass a bill by Sen. Daniel Akaka that would create a separate "government entity" for Native Hawaiians. Then entities such as Kamehameha would have more protection from civil rights lawsuits.

But the very fact that so few students at the Kamehameha school are recognizably Native Hawaiian raises the issue of how much a separate government as envisioned by the Akaka bill is possible or desirable. While everyone in the state professes to admire Polynesian culture and many ethnicities study it, only about 240,000 of Hawaii's people classify themselves as Native Hawaiians. Just 5,000 or so--less than 0.5% of the state's population--are of pure native blood. Over 90% of self-described natives are more than half some other ethnicity.

But that hasn't stopped an explosion in funding for those who have Native Hawaiian blood. Anyone with even one drop of blood qualifies for Office of Hawaiian Affairs programs and have access to exclusive schools such as Kamehameha. Haunani Apoliona, chairman of the board of trustees of the state's Office of Hawaiian Affairs, told me that passage of the Akaka bill is essential to expand to help the 18% of Native Hawaiian families with children who are living in poverty.

But she has also told National Public Radio that if the bill passes, the new "native Hawaiian governing entity" will enter into discussions with the state and federal governments "as to any transfer of land and/or natural resources and/or any other assets." Such talk prompted the Grassroot Institute, a local free-market think tank, to take out a newspaper ad last Saturday showing all the lands it said "are on the table for transfer to the new government."

All of the talk about privileges and land transfers saddens Rubellite Johnson, a scholar who has been named a "Living Treasure of Hawaii" for her work in translating early Hawaiian-language documents. Born in 1932 to a Native Hawaiian family on Kauai, Ms. Johnson helped establish the Hawaiian studies program at the University of Hawaii and taught there for many years. "It doesn't promote harmony to expect others today to pay you constantly for what was wrong back then," she told me. "When does it stop?"

Ms. Johnson laments that more people in Hawaii are giving up on integration and listening to those with "hate in their hearts." She says much of the history taught at her old university and now used to justify the Akaka bill is "a distortion of the truth." For example, her studies convince her that the U.S. was "not directly involved" in the forced abdication of Queen Liliuokalani in 1893 and that indeed much of the Hawaiian monarchy supported the annexation of the islands. She believes that "rather than talk about how haoles stole the land, people should take responsibility for their own actions and work with others of good will to better themselves."

While her advice might be the best way to preserve the famous "aloha" spirit and racial harmony for which Hawaii is justly famous, current trends are moving towards further politicization and polarization. If the Akaka bill creating a separate race-based government in Hawaii becomes law, look for other racial and ethnic groups on the mainland to view it as a model for their own bids for political spoils.

[** Note from website editor Ken Conklin: Professor Rubellite Kawena Johnson's testimony against the Akaka bill, and her accompanying biography, can be seen at:
https://www.angelfire.com/hi5/bigfiles/AkakaRubelliteKawenaKinneyJohnsonTest030105.html **]

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http://www.hawaiireporter.com/story.aspx?f24b15e0-7d16-4768-ac2e-21196a2bb893
Hawaii Reporter, August 9, 2005

Akaka Bill Will Have Negative Impact on Hawaii's Construction Industry, Economy

By James I. Kuroiwa, Jr.
Director, Hawaii Laborers-Employers Cooperation Education Trust (HI-LECET)

The "Akaka Bill," now pending before the U.S. Senate, will have a negative impact on Hawaii's construction industry and the state's economy if approved without the amendments presented by six U.S. Senators who last month put a hold on the bill after voicing concerns over its impact on Hawaii.

The construction industry is a by-product industry. Hawaii's basic industries, such as the visitor, military (Federal), agriculture, technology, research, communications, and bio-technology must grow before the construction industry can expand.

Hawaii's three part strategic plan was first, to get a commitment by the Department of Defense to assign one of the Stryker Brigades to Hawaii and with it some $700 million over two years for construction on Oahu and the island of Hawaii.

Part two of the strategy was to obtain a commitment by the Department of Defense to home-port a carrier group at Pearl Harbor, bringing with it some $3 billion in construction over six years to the islands of Oahu, Kauai and Hawaii.

The third major project would be the approval by the Department of Commerce to designate South Hilo-Puna a Foreign Trade Zone, bringing in private investors to Hawaii and about $2 billion in construction a year for the next 20 years. The sustainability of the military and the foreign trade would generate approximately $2 to $3 billion a year into Hawaii's economy through payrolls and other related expenditures.

But the land that could be transferred if the Akaka Bill is passed to the new Hawaiian sovereign government could affect these and other projects vital to the construction industry and the economy.

Here is why. The Akaka Bill states, "The 3 governments (U.S., State and new Native Hawaiian governing entity) would then negotiate an agreement for: Transfer of lands, natural resources and other assets, delegation of governmental power and authority, exercise of civil and criminal jurisdiction, and �residual responsibilities' of the U.S. & State of Hawaii."

The "transfer of lands" includes ceded lands (several thousand acres of public lands now owned by the state and federal government), the Alii trusts lands (such as the Kamehameha Schools/Bishop Estate), and other lands to be placed in trust that are approved by the U.S. Department of Interior.

The inventory of the ceded lands is not completed, but is estimated to total about 2 million acres, about 46 percent of all the State of Hawaii land area. This inventory includes the Hawaiian Home Lands with about 203,000 acres, Federal Lands with about 409,939 acres, and the State Lands of approximately 1,274,886 acres.

Most recently, the state learned the Pearl Harbor Shipyard was being considered for closure by BRAC, but that issue for now is allayed. However, Pearl Harbor and its shipyard are located on ceded lands. Three of the four Republican senators representing Portsmouth Naval Shipyard, who sit on the Republican Policy Committee chaired by U.S. Sen. Kyle of Arizona, know of the possible future impact on this shipyard and the entire Pearl Harbor from the Akaka Bill. They presented the potential risk to the security of the United States if Portsmouth was closed.

In a July 13, 2005, document, the U.S. Department of Justice wrote to U.S. Sen. John McCain, who chairs the Indian Affairs Committee: "S. 147 should be amended to make clear that the consultation process contemplated in section 5(b) and 6(d) may not be applied so as to interfere in any way with the operations of U.S. military facilities on Hawaii or otherwise affect military readiness."

The Justice Department is aware of the impact of the Akaka Bill on all U.S. military operations. The potential impact of a Native Hawaiian Entity forcing negotiations with the U.S. military, effecting operations by taking control of the military properties and/or imposing a "tax" and "lease" for the use of such property would add cost and loss of control, causing the military to down size or even pull out of Hawaii.

The Justice Department also wrote, "The potential for such interference is well illustrated by litigation currently pending in the U.S. Court of Appeals for the Ninth Circuit (Lilioukalani Coalition v. Rumsfeld) challenging a proposed base expansion." This challenge against base expansion for training required for the Strykers will cost Hawaii the lost of the Stryker Brigade and some $700 million in construction projects already negotiated.

The U.S. House of Representatives also have their concerns. In a letter to House Speaker Dennis Hastert and Majority Leader Tom DeLay from Representatives Steve King, Mike Pence, Gil Gutknecht, Dana Rohrabacher, Virgil Goode, Jeff Flake, Ernest Istook, Barbara Cubin, Lynn Westmorland, Jeb Hensarling, Dave Weldon, and others who signed on between July 20 and July 22, 2005, they presented questions about the bill.

Second, these bills raise practical questions that simply have not been addressed. For example, would a race-based government in Hawaii have the power to disrupt our nation's military operations there? Will gambling expand in Hawaii, given this legislation's vague language? Would the new race-based government have new rights to file lawsuits against the federal government under "breach of trust" theories? Will Native American appropriations be depleted when the 400,000 Native Hawaiians across the nation seek to participate in the same programs? How could Hawaii function if people living in the same neighborhood are subject to different laws, regulations, and taxes?

Consider for example, two small businesses in Hawaii competing against one another. One is owned by a Native Hawaiian, and the other is owned by one who is not. The former will be exempt from state taxes, state business regulations, and zoning and environment laws, and the latter will not. These problems and many other questions deserve answers.

The review of ceded lands also includes Hawaii's harbors, airports, highways, schools, state buildings, and others that are public lands. The Akaka Bill could place all the ceded lands on the table for negotiations and transfer them to a Native Hawaiian Entity.

Finally, the Akaka Bill will have a huge impact to the potential of developing the South Hilo-Puna Foreign Trade Zone, establishing Hawaii as the gateway between East and West; the maintaining of military forces, and the visitor industry.

Ultimately, the changes brought by the Akaka Bill will negatively impact the construction industry and Hawaii's present growing economy.

-------------------

http://www.usnews.com/usnews/opinion/baroneblog/columns/barone_050810a.htm?track=rss

U.S. News & World Report

August 10, 2005

A bad idea whose time has come

by Michael Barone

Sen. Daniel Akaka's bill for Native Hawaiian sovereignty is expected to come up for a vote in the Senate in September. It would give Native Hawaiians the same status as American Indians. It would create a separate, race-based independent government for Native Hawaiians. Never mind that there are very few people of entirely Native Hawaiian descent or that they are not living in separate enclaves but are thoroughly interwoven into the fabric of Hawaiian life. Never mind that Indian reservations have grave problems.

This is a hugely regressive step, away from the Aloha welcoming spirit that has been one of the glories of Hawaii for many decades and toward racial separatism. It seems directly contrary to the spirit and intent of the 14th Amendment and the civil rights laws. The U.S. Supreme Court in 2000 struck down a Hawaii law providing that only people of Native Hawaiian descent could vote in elections for the state Office of Hawaiian Affairs. The Ninth Circuit Court of Appeals recently struck down the policy of the Kamehameha School (funded by the $6.2 billion Bishop Estate) to limit admissions to students of Native Hawaiian descent. The thought behind these policies and the Native Hawaiian sovereignty bill is that Native Hawaiians are so disadvantaged that they need special privileges and a special status.

But that claim is pretty thin gruel. In 1995, in an interview with the head of the Office of Hawaiian Affairs, I observed that Native Hawaiians (however defined) are better off in every material way than any other people of Polynesian descent. But he insisted on their victim status. "Native Hawaiians"�I'm quoting from memory, perhaps inexactly�"have lower incomes and education levels than any other ethnic group in Hawaii, except of course the Filipinos." I love the "of course."

For more thorough explanations of why the Akaka bill is a bad idea, read John Fund and Tim Chapman. Nonetheless the bill seems likely to pass. Senator Akaka is a nice man, well liked by other senators; Hawaii's Republican Gov. Linda Lingle has strongly supported the bill; several Senate Republicans support it. The attitude of many members of the Senate and of the House is to defer to members from Hawaii on what seems, on its face, to be a purely local issue�even if polls in Hawaii have shown majorities or pluralities against the bill. Republican Sen. Jon Kyl of Arizona has been trying to rally opposition. Good luck to him.

Michael Barone is a senior writer for U.S.News & World Report and principal coauthor of The Almanac of American Politics. He has written for many publications � including the Economist and the New York Times.

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http://online.wsj.com/article/0,,SB112415838738514082,00.html?mod=opinion%5Fmain%5Fcommentaries

Wall Street Journal on-line, commentary; August 16, 2005 (URL still valid but only for paid subscribers)

Also reprinted with different title in Hawaii Reporter (no charge) at:
http://www.hawaiireporter.com/story.aspx?f182b614-6360-4197-8f37-22d3e70c2aae

E Pluribus Unum? Not in Hawaii.

By SLADE GORTON and HANK BROWN

The Senate is poised to sanction the creation of a racially exclusive government by and for Native Hawaiians who satisfy a blood test. The new race-based sovereign that would be summoned into being by the so-called Akaka Bill would operate outside the U.S. Constitution and the nation's most cherished civil rights statutes. Indeed, the champions of the proposed legislation boast that the new Native Hawaiian entity could secede from the Union like the Confederacy, but without the necessity of shelling Fort Sumter.

The Akaka Bill classifies citizens by race, defying the express provisions of the 14th Amendment. It also rests on a betrayal of express commitments made by its sponsors a decade ago, and asserts as true many false statements about the history of Hawaii. It should be defeated.

The Akaka Bill's justification rests substantially on a 1993 Apology Resolution passed by Congress and signed by President Clinton when we were members of the Senate representing the states of Washington and Colorado. (We voted against it.) The Resolution is cited by the Akaka Bill in three places to establish the proposition that the U.S. perpetrated legal or moral wrongs against Native Hawaiians that justify the race-based government the legislation would erect. These citations are a betrayal of the word given to us -- and to the Senate -- in the debate over the Apology Resolution.

We specifically inquired of its proponents whether the Apology would be employed to seek "special status under which persons of Native Hawaiian descent will be given rights or privileges or reparations or land or money communally that are unavailable to other citizens of Hawaii." We were promised on the floor of the Senate by Daniel Inouye, the senior senator from Hawaii and a personage of impeccable integrity, that, "As to the matter of the status of Native Hawaiians . . . [t]his resolution has nothing to do with that. . . . I can assure my colleague of that." The Akaka Bill repudiates that promise of Sen. Inouye. It invokes the Apology Resolution to justify granting persons of Native Hawaiian descent -- even in minuscule proportion -- political and economic rights and land denied to other citizens of Hawaii. We were unambiguously told that would not be done.

The Apology Resolution distorted historical truths. It falsely claimed that the U.S. participated in the wrongful overthrow of Queen Liliuokalani in 1893. The U.S. remained strictly neutral. It provided neither arms, nor economic assistance, nor diplomatic support to a band of Hawaiian insurgents, who prevailed without firing a single shot, largely because neither the Native Hawaiian numerical majority nor the Queen's own government resisted the end of the Hawaiian Kingdom. The Queen authored her own ouster by planning a coup against the Hawaii Constitution to recapture monarchical powers that had been lost in a strong democratic current. She later confided to Sen. George Hoar that annexation to the U.S. was the best thing that could have happened to Native Hawaiians.

The Resolution falsely asserted that the Kingdom of Hawaii featured a Native Hawaiian government exclusively for Native Hawaiians prior to the 1893 events. In fact, the Kingdom was a splendid fusion of both native and non-native elements in both government and society. The definitive historian of the Kingdom, R.S. Kuykendall, elaborated: "The policy being followed looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king."

The Apology falsely declared that Native Hawaiians enjoyed inherent sovereignty over Hawaii to the exclusion of non-Native Hawaiians. To the extent sovereignty existed outside the monarch, it reposed equally with all Hawaiians irrespective of ancestry. The Apology falsely maintained that Native Hawaiians never by plebiscite relinquished sovereignty to the U.S. In 1959, Native Hawaiians voted by at least a 2-1 margin for statehood in a plebiscite. Finally, the Apology Resolution and its misbegotten offspring, the Akaka Bill, betray this nation's sacred motto: E Pluribus Unum. They would begin a process of splintering sovereignties in the U.S. for every racial, ethnic, or religious group traumatized by an identity crisis. Movement is already afoot among a few Hispanic Americans to carve out race-based sovereignty from eight western states because the U.S. "wrongfully" defeated Mexico in the Mexican-American war.

The U.S. Constitution scrupulously protects the liberties and freedom of Native Hawaiians. It always has. It always will. Native Hawaiians have never been treated as less than equal by the U.S. Their economic success matches that of non-Native Hawaiians. Intermarriage is the norm. Sen. Inouye himself boasted in 1994 that Hawaii was "one of the greatest examples of a multiethnic society living in relative peace." In other words, E Pluribus Unum is a formula that works. We should not destroy it.

Messrs. Gorton and Brown are former senators for Washington and Colorado, respectively.

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http://www.hawaiireporter.com/story.aspx?093172c8-bfa6-4247-ae3a-12b557f90d6c

Thirteen Stripes and Forty-Nine Stars?

Political Diary

By John Fund [Wall Street Journal Editorial Writer], 8/19/2005

Today is Statehood Day in Hawaii. It marks the day in 1959 when the island territory became the 50th state after a public referendum in which residents -- by a margin of 17 to 1 -- expressed a desire to join the U.S. There used to be parades, fireworks, speeches and U.S. flags flying high. But five years ago, then-Democratic Governor Ben Cayetano put the kibosh on official celebrations. Now, in the words of the Web site HawaiiReporter.com, there is only a "sad, embarrassing silence." Recently, the streets were taken over instead by demonstrators crusading for "Native Hawaiian rights" and the Akaka bill now before the U.S. Senate.

For five years, Hawaii Senator Dan Akaka has been pushing a bill to recognize Native Hawaiians as an indigenous people with their own race-based, sovereign government, as many mainland Indian tribes have. He has finally won the right to a vote in the U.S. Senate on Sept. 6. He claims the support of 51 Senators, including six Republicans led by John McCain of Arizona. Since the House previously passed a version of his bill, it has a chance of becoming law since the Bush administration refuses to take a position on it.

While Native Hawaiians deserve better than what they have, the Akaka bill is a profound mistake. The people of Hawaii are a true melting pot, living in remarkable harmony. Native Hawaiians have so intermarried with people of other ethnicities that over 90 percent of those who claim Hawaiian heritage do so by virtue of ancestry that is less than 50 percent Hawaiian. Creating a separate government that would subject people who pass a test for "Hawaiian blood" to a different set of legal codes would not produce racial reconciliation. It would be a recipe for permanent racial conflict.

Those who doubt this only have to listen to Sen. Akaka himself, who acknowledges that his bill would open a can of worms. On Monday, National Public Radio reported the Senator as saying that the sovereignty granted Native Hawaiians in the bill "could eventually go further, perhaps even leading to outright independence." Sen. Akaka was quoted as adding: "That could be. That could be. As far as what's going to happen at the other end, I'm leaving it up to my grandchildren and great-grandchildren."

Yesterday, after a storm of criticism, Sen. Akaka sought to clarify his remarks. No, he doesn't support "independence or secession," he said in a press release. But he carefully avoided clarifying whether or not secession was possible. "After the Native Hawaiian governing entity is recognized, these issues will be negotiated between the entity and the Federal and State governments," he wrote. "This is an inclusive and democratic process that cannot be predetermined by those who seek to influence the outcome of the process before it's even started."

Fellow Senators ought to think hard before voting for a bill whose most fervent supporters -- and perhaps even its chief Senate sponsor -- ultimately aim at Hawaiian independence.

John Fund is an editorial writer with the Wall Street Journal and OpinionJournal.com He can be reached via email at mailto:John.fund@wsj.com This is reprinted with permission.

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http://nationalreview.com/script/printpage.p?ref=/lowry/lowry200508190812.asp
The National Review, August 19, 2005

Manifest Destiny in Reverse

Toward a race-based government in Hawaii.

by Rich Lowry, Editor

If Jefferson Davis could reach from the grave to co-sponsor congressional legislation, he would presumably want to plug the Native Hawaiian Government Reorganization Act. He would love the idea of creating a new government separate and distinct from the federal government � without firing a shot. That the enterprise is premised on a blatant racialism might please him too.

The U.S. Supreme Court said, shortly after the Civil War, that we have "an indestructible Union, composed of indestructible states." But that was so 1868. In 2005, Congress is preparing to allow anyone with Native Hawaiian blood to pick up and leave. That this is even being discussed shows that multiculturalism, if its logic is fully played out, is the ideology of national suicide.

The bill, sponsored by Hawaii Sen. Daniel Akaka, defines as a "Native Hawaiian" anyone who is a direct descendant of the aboriginal people living there before 1893. This is a version of the old, infamous "one drop" test. These Native Hawaiians � roughly 240,000 in Hawaii � would convene an interim governing council, a little like in Iraq. It would write a constitution establishing a Native Hawaiian government that would then negotiate with the federal government over, among other things, what lands would be transferred to it.

The bill has six Republican cosponsors in the Senate, and a real chance to pass. Apparently, a deal was cut between the Alaskan and Hawaiian delegations, with the Hawaiians supporting drilling in the Arctic National Wildlife Refuge in exchange for Alaskan support for Native Hawaiian secession. Too bad the deal wasn't for the new entity to be located in the far reaches of ANWR, where asphalt-happy Alaska Rep. Don Young could have then funded its very own four-lane highway. As it is, the Hawaiian proposal strikes at our integrity as a nation.

It is spectacularly unconstitutional. The 15th Amendment forbids racial restrictions on voting. The Akaka bill is wholly dependent on such restrictions. The Supreme Court in 2000 struck down an arrangement that permitted only Native Hawaiians to vote for board members of a state agency providing services to Native Hawaiians. The Akaka scheme takes the unconstitutional principle from that arrangement and makes it the basis for a new government.

The conceit of the bill is that Native Hawaiians will merely get the same status as American Indian tribes, which exist as sovereign, extraconstitutional governments. But such tribal governments weren't created by congressional legislation. They already existed when territory around them was incorporated into the U.S. Congress can recognize new tribes, but they have to meet standards, including existing as a distinct community and exercising sovereignty. Native Hawaiians do neither.

As Arizona Sen. Jon Kyl, a staunch opponent of the measure, points out, they are not geographically segregated, but live throughout the state intermixed with non-natives. Indeed, Native Hawaiians live everywhere in the U.S. Intermarriage rates have been high for more than a century, and almost half of marriages in Hawaii are interracial. This is one reason the Akaka bill would create chaos, with neighbors potentially subject to different governments and rules based solely on their race.

Native Hawaiians never exercised sovereignty either, since the late, not-so-great monarchy of Queen Liliuokalani ruled over everyone in Hawaii regardless of race (how broad-minded of her). The bill leans heavily on a historically tendentious Apology Resolution that passed Congress a decade ago and blamed the U.S. for the queen's overthrow in 1893, an event that supposedly so victimized Native Hawaiians they now need their own government more than 100 years later. Since when do we feel badly about the fall of monarchs?

The bill represents manifest destiny in reverse, as the cult of ethnic victimization acts to undermine the legitimacy of America and pull it apart at the seams. If it passes, it may well lend support to Hispanic revanchist groups who want to take back the American Southwest. Sound crazy? Give it time.

=============

Trouble from Paradise: Hawaii's Divisive Racial Politics Hits the National Agenda

By Gail Heriot
Professor of Law, San Diego State University

America's 50th State has always been known for its friendly and welcoming "Spirit of Aloha." But for the last decade or so, Hawaii has begun to earn a reputation for something else entirely: the nation's most divisive racial politics. And with the proposed "Native Hawaiian Government Reorganization Act" (known as the Akaka bill) currently pending before the U.S. Senate, it may only get worse. A prelimnary vote is scheduled for September 6.

Put simply, the Akaka bill will allow the nation's approximately 400,000 ethnic Hawaiians to organize themselves into one vast Indian tribe--the largest in the nation. A commission appointed by the U.S. Secretary of the Interior and consisting of nine "Native Hawaiian" commissioners with "expertise in the determination of Native Hawaiian ancestry" will sit as judges to ensure that only those who can prove their Native Hawaiian bloodline are permitted to join.

Why would 400,000 American citizens want to retroactively declare themselves an Indian tribe? There's a good chance they don't. The only full-scale poll indicates that ethnic Hawaiians reject the notion of a tribe�48% to 43%�when they are informed that under a tribal government they would not be subject to the same laws, regulations and taxes as the rest of the state. And Hawaiians generally oppose the so-called "reorganization" by an astonishing 2 to 1 ratio. But vocal leaders in the ethnic Hawaiian community, many of whom no doubt fancy that they will be the tribal leaders themselves, consider tribal status a top priority. And politicians are falling in line behind them. Senator Daniel Akaka, for whom the bill is named, claims to have the votes he needs to pass the bill.

To understand why ethnic Hawaiian leaders want tribal status, one must know a bit about Hawaiian racial politics. In an age in which racial entitlements are an unfortunate feature of the political landscape in so many parts of the country, Hawaii is in a league by itself. The State's Office of Hawaiian Affairs administers a huge public trust�worth billions�which in theory benefits all Hawaiians, but for reasons that are both historical and political, actually provides a bonanza of benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for special home loans, business loans, housing and educational programs. On the OHA web site, the caption proudly proclaims its racial goal, "Office of Hawaiian Affairs: For the Betterment of Native Hawaiians."

The problem for supporters of special benefits came in 2000, with the Supreme Court case of Rice v. Cayetano. Unsurprisingly, the Court ruled that the Constitution's Fifteenth Amendment, which prohibits States from discriminating on the basis of race in voting rights, applied to Hawaii just as it does to every other state in the union. Hawaii could not prohibit non-ethnic Hawaiians from voting in state elections for OHA trustees.

That ruling caused an uproar in Hawaii that has not yet subsided. If the Fifteenth Amendment prohibits Hawaii from limiting voting rights to ethnic Hawaiians, the Fourteenth Amendment's Equal Protection Clause and other civil rights laws might prohibit all or part of the OHA's massive system of exclusive benefits. Cases like the Ninth Circuit's decision last month prohibiting the Kamehameha Schools from operating for the exclusive benefit of ethnic Hawaiians only added to this controversy. The whole racially-exclusive system is in legal jeopardy.

That's where the Indian tribe idea comes in. States cannot discriminate on the basis of race except in extraordinary cases. But Indian tribes can. They are essentially exclusive racial groups and are not directly (or in many respects even indirectly) bound by the U.S. Constitution (or by most civil rights laws). If ethnic Hawaiians can be morphed into an Indian tribe, and the State of Hawaii can then transfer the OHA's functions (and the vast acres of real estate and other property it administers) to the tribe, the racial spoils system can be preserved�or so its advocates hope.

There are many reasons that the Akaka bill is a bad idea�including a strong likelihood that both the bill and the overall plan to transfer the OHA's functions and property to the "tribe" are simply unconstitutional. If the State of Hawaii cannot confer preferential benefits on its citizens based on race, it cannot give away land and property to a newly-minted tribe created for the purpose of conferring benefits based on race. The Constitution's requirements cannot be by-passed that easily.

But perhaps the most important reason to oppose the Akaka bill is the disturbing precedent it sets. The United States has long recognized the sovereign status of Indian tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Our policy towards them was simply a bow to reality.

By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground. If ethnic Hawaiians can be an Indian tribe, why not Chicanos in the Southwest? Cajuns in Louisiana? Religious groups�like Orthodox Jews in New York or the Amish in Pennsylvania�may be particularly interested in gaining tribal status, since doing so will arguably allow them to take on governmental authority without being subject to Constitutional prohibitions on the establishment of religion. Who will say no to these (and other) groups?

Earlier this month, Senator Akaka was asked in a National Public Radio interview whether the sovereign status granted in the bill "could eventually go further, perhaps even leading to outright independence." The question might have seemed extraordinary for anyone unfamiliar with how strong the push for Hawaiian independence has become. Back in the 1970s, its supporters were considered kooks and lunatics. But today, although by no means a majority, they are a political force to be reckoned with. It's hard to drive down a Hawaiian road without seeing an upside down Hawaiian flag, the symbol of the movement, flying over someone's home. Even more extraordinary was Akaka's answer: "That could be. That could be. As far as what's going to happen at the other end, I'm leaving it up to my grandchildren and great-grandchildren."

Akaka's fellow Senators should think long and hard about the whether the Akaka bill will, in the long run, lead to greater harmony among Hawaiians and among Americans�or less. Is our "One Nation" indivisible or not?

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Midweek Newspaper (O'ahu), August 31, 2005
Coffee Break, by Jerry Coffee

Reverse Racism is Alive and Well

On Tuesday, August 23rd, during the debate on the pending "Akaka Bill," an extraordinary thing happened. In spite of the fact that the debate, sponsored by the Hawaii Institute for Public Affairs, and League of Women Voters of Hawaii, exemplified the best of the democratic process, ironically, for the first time since making my home in Hawaii thirty years ago, I felt like I was living in a Third World country.

Featured were Moderator, Judge Michael Broderick, and four individuals representing differing points of view. Pro Akaka Bill were the State Attorney General, Mark Bennett, and former Hawaii Supreme Court Justice, Robert Klein.

Against the Akaka Bill were Constitutional Lawyer, historian, and representative of Grassroot Hawaii, Bruce Fein; and Native Hawaiian journalist/filmmaker, Anne Keala Kelly. Technically it was a two against two debate, however, Kelly spoke against the bill not because it would divide the state according to race, but because, in her view and that of her supporters present, it would pre-empt the total secession from the United States and total independence. So she supported neither the positions of Bennett and Klien nor that of Fein, effectively pitting three against Fein.

Kelly's opening and subsequent comments reflected her writings which have been stridently anti-military and apparently anti-tourism as well. She appears to be against anything non "hawaiian" that has helped transition the state into the modern world in which it is thriving.

At the outset of the debate, Judge Broderick reminded the audience that we are in Hawaii, that we should be respectful of all opinions, and that Aloha should prevail. Nevertheless, the separatist faction represented by the views of Kelly -- which made up perhaps a fifth of the audience of 400 or so -- seemed to assume the moderator's reminder pertained to all but them. During Kelly's comments, her supporters would make audibly enthusiastic comments of agreement and encouragement, but when her opponents were speaking -- especially Mr. Fein -- the comments were sarcastic, rude, and even louder.

During each participant's two minute wrap up the noise increased to the point where, during Justice Klein's and Mr. Fein's comments, catcalls and shouts -- "Liar! Liar!" � "Yankee Go Home!", "White Man Go Home!" -- drowned out their words.

It occurred to me then and there that if the Akaka bill should pass, these are the extremists who could just as well shift gears in accordance with the new reality, infiltrate the new "Native Hawaiian Governing Entity" by joining the process, and pursue their goals of secession and independence, ironically, under the protection of the U.S. Government. Senator Akaka himself acknowledged this past week that the passage of his bill could eventually lead to Hawaiian independence.

Paul Sullivan wrote a factual and well reasoned anti-Akaka Bill treatise, "Killing Aloha." Even before the bill is voted upon in the U.S. Senate next week, at that debate we were seeing the eyes of Aloha begin to cloud over.

Dear Reader, if you want to see Native Hawaiian programs preserved on the basis of need rather than race, and don't want to see our state divided into two separate governments, one for the tax favored, the zoning favored, the justice favored the economic favored, and the governmental largess favored, and the other for the non favored non Native Hawaiians who will nevertheless be paying for all the favors, DO SOMETHING ABOUT IT!

The most comprehensive poll on the issue with 16,000 respondents showed we are against the Akaka Bill by 2 to 1. But since our own "representatives" are a lost cause, write, phone, FAX, or email your friends throughout the mainland, ask them to contact their Senators (any way possible, but FAX being the most effective) urging them to vote NO on Akaka.

The way things are shaping up, if the bill passes, we run the risk of "Last Star On, First Star Off" being more than just an extremist slogan.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050831/OPINION03/508310303/1110/OPINION
Honolulu Advertiser, Wednesday, August 31, 2005

COMMENTARY

Indian precedents won't boost Akaka bill

By Bruce Fein

The constitutionality of Congress establishing a sovereign government by and for Native Hawaiians alone under the Akaka bill is assisted neither by Menominee Restoration Act of 1973 nor the Supreme Court's decision in United States v. Lara (2004), contrary to Charles Wilkinson ("Wisconsin tribe faced those same arguments," commentary, Aug. 21).

Indeed, these precedents discredit any attempt to liken Native Hawaiians to an Indian tribe.

In Lara, one tribe prosecuted an Indian of a different tribe based on a congressional statute authorizing the same. Earlier Supreme Court rulings had declared that inherent tribal sovereignty was confined to prosecuting its own members.

Writing for the court in Lara, Justice Stephen Breyer reasoned that Congress was empowered to enlarge or contract the powers of Indian tribes in experimenting with varying degrees of autonomy. The decision was exceptionally narrow. The court cautioned: "[W]e are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any state. Nor do we now consider the question whether the Constitution's due process or equal protection clauses prohibit tribes from prosecuting a nonmember citizen of the United States."

The questions raised by the Akaka bill bear no resemblance to the narrow issue decided by Lara.

The Akaka bill would sanction creation of a Native Hawaiian governing entity that would displace laws of Hawai'i and the United States, not expand or contract the power of a recognized and functioning Indian tribe. In Montoya v. United States (1901), the Supreme Court explained that "[b]y a 'tribe' we understand a body of Indians of a same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." The over 400,000 Native Hawaiians living throughout all 49 Census districts of the state of Hawai'i and throughout all 50 states of the United States fall decisively outside that definition.

From the inception of the kingdom in 1810 under King Kamehameha I, both Native Hawaiians and non-Native Hawaiians enjoyed a common sovereign. The races were indissolubly linked. They served in the legislative, executive and judicial branches side by side. They voted on common rolls. Intermarriage was commonplace. Racial fusion and equal treatment rather than division was the kingdom's signature.

In its diplomacy and negotiation of treaties, the United States dealt with the kingdom as a foreign nation, not as an Indian tribe. A foreign nation is not an Indian tribe under the Indian Commerce Clause � The Cherokee Nation v. Georgia (1831).

The Supreme Court saluted the power of Congress to afford existing Indian tribes, as quasi-sovereign political entities located within the jurisdiction of the United States, the extraordinary authority to operate outside the constraints of the United States Constitution because of the convergence of three factors: Members of Indian tribes were not citizens; they lacked training in the arts of democracy; and, they were the subjects of oppression at the hands of state governments and private individuals.

In Board of County Commissioners of Creek County v. Seber (1943), the court elaborated in part: "In the exercise of war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent qualified members of the modern body politic."

Native Hawaiians, however, have been citizens of the United States from the moment the Organic Act of 1900 created the territory of Hawai'i. They were literate, conversant, skilled and experienced in democratic arts. They were never the subjects of systematic plunder or official subjugation. To the contrary, Native Hawaiians dominated Hawai'i's political landscape in the first decades of the territory and since then have continued to wield political influence beyond their numbers.

When Queen Lili'uokalani was overthrown in 1893, Native Hawaiians were neither killed nor injured nor molested nor dispossessed of property. Crown and government lands of the kingdom had been held for the benefit of all subjects. That common dedication continued. None of the extraordinary circumstances that occasioned the indulgence of Indian tribes operating outside of constitutional limitations applies to Native Hawaiians.

The Menominee Restoration Act is as lame as Lara in justifying a Native Hawaiian sovereign state. The Menominee Indians were a recognized tribe. In pursuing a policy of assimilation, Congress withdrew recognition in 1961 and transferred all real and personal property held in trust in the expectation that the tribe would prove economically viable. When these hopes proved faulty, Congress restored autonomy in 1973 to the Menominee Tribe that had never disappeared.

In sum, the feeble precedents enlisted by professor Wilkinson to find constitutional authority for the Akaka bill substantiate that it will be mired in litigation for years with incalculable convulsions for the people and economy of Hawai'i.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group. He is an adviser to the Grassroot Institute of Hawaii. He wrote this commentary for The Advertiser.

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http://www.townhall.com/columnists/lindachavez/lc20050831.shtml
TownHall, August 31, 2005
and also
http://www.gopusa.com/commentary/lchavez/2005/lc_09011.shtml
GOP USA, September 1, 2005

Time to stand for unity

Linda Chavez, President, Center for Equal Opportunity

Do Republicans actually stand for anything? I wonder sometimes, especially when GOP lawmakers make appeals to traditionally Democratic voters by trying to out-pander the Democrats.

A handful of Senate Republicans are set to do so when Congress comes back after Labor Day and takes up a bizarre bill that could not only give the imprimatur to odious racial classifications but set the stage for secession for one state: Hawaii.

The bill, S. 147, has been bottled up for months, thanks to the efforts of Sen. Jon Kyl, R-Ariz., who has valiantly fought the legislation for years without much help from his fellow Republicans. The legislation would grant so-called native Hawaiians status akin to that of American Indian tribes, including a measure of self-government.

Hawaii became a state in 1959. At the time, Americans were firmly committed to the idea of the Melting Pot. There was broad consensus that Hawaii's multi-racial population -- which included the descendants of Europeans, Asians, and the Polynesian inhabitants who came to islands from the South Pacific -- would be treated the same. Intermarriage among the various ethnic groups living on the island was widespread, and there was no effort to treat native Hawaiians as a separate racial group, much less a tribe. But nearly 50 years later, multiculturalism and racial preferences have permeated American society, and the push is now on to grant special status to some of Hawaii's citizens, depending on their racial lineage.

The legislation defines as "Native Hawaiian" anyone who is one of the "indigenous, native people of Hawaii," and who is a "direct lineal descendant of the aboriginal, indigenous, native people" who resided in the Hawaiian Islands before Jan. 1, 1893, when the United States took possession of the island from the reigning monarch, Queen Liliuokalani. The definition is simply a racial classification of the kind normally suspect under the 14th Amendment to the U.S. Constitution. Its purpose is to define members of a group who would be given special status -- including the right to self-government. The bill even empowers the new entity established by Native Hawaiians to "negotiate" with the existing state and federal governments over lands and natural resources, civil and criminal jurisdiction, and the "delegation of governmental powers" from the United States and the state of Hawaii to the new governing entity.

Is it too far-fetched to imagine some enterprising group of "Native Hawaiians" deciding to demand all waterfront property be turned over to the new "tribe," or perhaps just to demand that existing owners pay a new tax to the new governing entity for the privilege of keeping their property? Perhaps the group would demand that those not of "native" status simply leave the islands altogether. Unimaginable? Perhaps not. A group of irredentists in Arizona once tried to get legislation passed that would have barred anyone whose ancestors were not living in Arizona at the time of the Treaty of Guadalupe Hidalgo, which ended the war between the United States and Mexico in 1848, from living in most areas of the state.

But rather than fight similar mischief, a number of Republicans appear ready to jump on the Native Hawaiian bandwagon. The bill's chief sponsor is Sen. Daniel Akaka, who has tried to get the legislation through Congress for several years. In the past, he's been given a boost by Sen. Ted Stevens, R-Alaska, who has also pushed for legislation to make Puerto Rico a state, but most mainstream Republicans have steered clear. Not so of late. Now Stevens is joined by his Alaska colleague Sen. Lisa Murkowski, as well as Sens. Lindsey Graham (SC), Norm Coleman (MN) and Gordon Smith (OR). In addition, Ben Ginsburg, former general counsel of the Republican National Committee, is one of the chief lobbyists for the bill.

Let's hope their fellow Republicans -- as well as sensible Democrats -- see the folly in this legislation.

================================

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