Q&A

The Akaka bill – H.R. 2314/S. 1011
Native Hawaiian Government Reorganization Act of 2009

What is the recent history and status of the bill now?

Updated 12/30/2009

Several versions of the Bill were introduced int the U.S. House in 2009. The HR 2314 version has been advancing through the House, having passed  at a hearing of the House  Resources  Committee on December 15, 2009. At an earlier hearing representatives of the new Obama Justice Department reversed prior Justice Department testimony in opposition to the Bill and actively supported it.

The Senate companion Bill was drastically revised on December 16, 2009 and passed by voice vote in the Senate Indian Affairs Committee, despite strong objections from Governor Lingle and Attorney General Bennett.  See the “Akaka Bill News” tab for details on the revised version, which would treat native Hawaiians as an Indian tribe exempt from State oversight.

In August, 2009, the U.S. Commission on Civil Rights repeated its 2006 recommendation that Congress reject the Akaka bill, stating that” The Commission recommends against passage of the Native Hawaiian Government Reorganization Act…or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American People into discrete subgroups accorded varying degrees of privilege.”

June 7, 2006 President George W. Bush’s administration wrote to Senator Bill Frist, “strongly opposing” the Akaka bill and “we must … honor the great American tradition of the melting pot, which has made us one nation out of many peoples.”;

June 8, 2006 The United States Senate rejected cloture on the Akaka bill. This killed the bill for the remainder of the 109th Congress.

On January 17, 2007, the Akaka bill was re-introduced in the 110th Congress as the Native Hawaiian Government Reorganization Act of 2007, S. 310 in the Senate and H.R. 505 in the House.

Legislative background?

The original version of the Akaka bill was introduced in the year 2000 shortly after the Supreme Court, in Rice v. Cayetano, struck down the racial restriction on voting for the Office of Hawaiian Affairs. Because that decision threatened other laws and programs for the “benefit” of Hawaiians, Senator Akaka with Senator Inouye’s endorsement, proposed candidly to circumvent the Supreme Court’s decision by having Congress “recognize” Native Hawaiians as the equivalent of an Indian tribe. (The bill defines “Native Hawaiians” solely by ancestry substantially the same as the ancestral definition the Supreme Court held in Rice to be an impermissible racial classification.)

All versions of the bill have been based, as S.147 and H.R.309 are, on the dubious proposition that Congress should protect unconstitutional race-based entitlements against court challenges by converting an entire racial group into a make-believe Indian tribe.

The bill encountered resistance and did not pass in 2000 or subsequently. (It did pass a sparsely attended House in 2000 when Representative Abercrombie included it in a vote on non-controversial items.) Efforts to attach it as a rider to appropriations bills in 2000, 2001 and 2004 were defeated. Hawaii’s political leaders resubmitted the bill to the 110th Congress as S. 310 and H.R. 505.

What would the Akaka bill do?

It would effectively create a new privileged class in America: anyone with an indigenous ancestor. Upon enactment, the bill would find that the U.S. has a special trust, political and legal responsibility to American Indians, Alaska Natives and Native Hawaiians that “arises out of their status as aboriginal, indigenous, native people of the United States.”

It would declare that “Native Hawaiians” (defined as anyone with at least one ancestor indigenous to Hawaii) have an inherent right to self-determination and self-governance and would require the U.S. to assist them in creating their own new separate government.

The bill provides for preparation of a roll of persons, Native Hawaiians only, eligible to participate in the process; election by persons on that roll of an interim governing council and another election by those persons-only to adopt organic governing documents. Thus, the first two elections called for by the bill would be restricted to Native Hawaiians-only, the same racial restriction prohibited by the 15th Amendment and struck down by the Supreme Court in Rice v. Cayetano.

Upon the election of the first officers, the new government would automatically be recognized by the U.S., without further action of Congress or the Executive branch, as “the representative governing body of the Native Hawaiian people.”

The 3 governments (US, State and new Native Hawaiian governing entity) would then negotiate an agreement for:

transfer of lands, natural resources & other assets,
delegation of governmental power & authority,
exercise of civil & criminal jurisdiction, and
“residual responsibilities” of the US & State of Hawaii.

The 3 governments may, but are not required to, then submit to Congress and to the Hawaii State Governor and legislature amendments to federal and state laws that will enable implementation of the agreements.

When would the new governing entity come into existence?

It would come into existence only after a series of actions by native Hawaiian representatives as laid out in the Bill. This could take months or years, depending on the extent of opposition within the native Hawaiian community

What will Hawaii be like if the Akaka bill becomes law?

The State of Hawaii will be diminished. As a result of the negotiations, it will probably lose over 40% of the public lands it owns and the population, territory and natural resources over which it has jurisdiction will be reduced.

The State of Hawaii will probably lose about $1 billion in cash, suffer a large shrinkage of its tax base and its ability to earn money in the future will be impaired. Its bond ratings will almost certainly be lowered and its cost of borrowing will rise.

Its law enforcement, homeland security, environmental, health and other services will be less effective and more expensive because of lack of, or restricted, access and jurisdiction over the sovereign territories of the new Hawaiian government.

It is reasonable to anticipate that the new Hawaiians-only government and its territory will have at least all of the sovereignty, jurisdiction, governing powers and authority of American Indian tribes and reservations.

Unlike typical contiguous Indian reservations, the “reservation” in Hawaii will likely be a checkerboard of sovereign enclaves on all islands and in neighborhoods, urban and rural, residential, commercial and conservation. (Click on Landmap.)

While all Indian reservations do not have the characteristics listed below, all of these powers are available to all and in place in various reservations and unless specifically excluded in the legislation, which is not now the case, could be imposed by the new Hawaiian government.

• Tax-free, regulation-free tribal businesses will cripple local businesses;
• Citizens of the sovereign governing entity will use state and county infrastructure without paying their full share of state or local taxes or following present zoning regulations;
• The new government can control traffic, entries and exits on streets and highways through its territory, charge tolls, install traffic cameras, halt or regulate the passage of cars, trucks, busses, bicycles and pedestrians, and air traffic, cell phone and other communications transmissions overhead, as it sees fit;
• The new tribe can control water quality, air quality, underground water, underground minerals, streams, rivers, beaches, reefs, submerged lands, electricity, telephone, water and gas lines and fiber optic cables running through its territory;
• State and county governments will lack full civil and criminal process, law enforcement and homeland security jurisdiction on the sovereign territory and over “tribal” members;
• The “tribal” government will be immune from suit in state or federal courts for breach of contract or personal injuries or other misconduct;
• The new government will be able to make unlimited campaign contributions of untaxed dollars to “buy” political dominance;
• Conveyance of Kaho’olawe to the new sovereign entity would trigger claims for jurisdiction over the reefs, submerged lands and ocean and exclusive fishing rights within a 200 mile radius of Kaho’olawe;
• It is reasonable to expect the new government will or might seek sovereignty or jurisdiction over Mauna Kea, Haleakala and Kokee and also Pohakuloa, Makua and other areas and bases used by the military as well as airports and harbors;
• Some Indian reservations have harbored drug traffic, illegal immigration and anti-American activities;
• Although the bill says it does not authorize gaming under IGRA, the bill does not prohibit gaming. Once the new sovereign government is formed, with tax-free money and unlimited campaign contributions, casinos will follow;
• Other consequences? At a minimum, the new government would generate major social costs, loss of efficiency and intergroup polarization.

To those concerned about what might actually happen, as distinguished from what was expected or hoped would happen, the history of another island state is chilling. Sri Lanka’s well deserved reputation as a country with exemplary relations between its majority and minority populations in the middle of the 20th century has become a bitter mockery in the course of the decades long civil war, marked by hideous atrocities. See Sowell, Affirmative Action Around the World at 187.

Wouldn’t the Akaka bill affect only the State of Hawaii?

It would also be a dangerous precedent for all states. If descendants of indigenous inhabitants of Hawaii, for no other reason than that, can form a brand new separate government, why should the millions of descendants of indigenous inhabitants of other states not have the same right? No state would be safe. Indeed the precedent of the Akaka bill could be seen as empowering a group calling itself the “Provisional Government of Aztlan” that now seeks to “liberate” California, Arizona, New Mexico and Texas.

What will become of the United States if it can be endlessly subdivided into quasi-sovereign governing entities? Where will it end?

Didn’t Native Hawaiians suffer injustices like America’s other indigenous people?

Proponents of sovereignty/entitlements/reparations and the Akaka bill strain to liken Hawaiians’ history to Indians’ but it does not wash.

Stolen lands? Under the Kingdom of Hawaii, the public lands (then called “Crown” and “Government” lands) were held for the benefit of all subjects, not just for those of one ancestry. They still are. Neither the overthrow of the monarchy in 1893 or annexation in 1898 disturbed private land titles.

Genocide? The Hawaiian population had probably started to decline before Captain Cook arrived; declined throughout all the years of the Kingdom; then reversed and has increased steadily since annexation in 1898. Today, Hawaiians are the fastest growing population in Hawaii, according to OHA’s website.

Culture? Religion? In 1819, shortly after the death of Kamehameha the Great, his son Liholiho, the new King, broke the Kapu, dismantled the Heiau and burned the wooden idols. The first missionaries arrived the next year, 1820, and soon Kaahumanu took charge of Christianity and made it the official religion of the Kingdom of Hawaii. Hawaiians themselves rejected their ancient culture and legal system and, for good reasons, replaced them with Western religion and culture and legal institutions.

Loss of Sovereignty? Under the Kingdom, as in most countries then, the common people had no sovereignty. All sovereignty was vested in the King and Ali’i. Hawaiians first achieved sovereignty when they became citizens of the United States in 1900 when the Organic Act became law.

The U.S. has treated Native Hawaiians as equals from the beginning. In Hawaii, our Native Hawaiian neighbors, friends, calabash cousins, aunties, nephews, nieces, fellow workers and spouses, are assimilated into all levels of the social, economic and political life of Hawaii’s intermarried multi-ethnic population. Census 2000 shows they are dispersed throughout all census districts and, like everyone else, some do well, some don’t and most are somewhere in between. Indeed, most Native Hawaiians as defined in the Akaka bill are mostly of non-Hawaiian ancestry.

The bill’s proponents say the bill is the right thing for America to do.

American citizenship is defined by common ideals and aspirations of equality rather than by blood or ancestry. The grandeur of the United States has been a history of escape from ugly racial, ethnic or class distinctions. The Akaka bill would turn us back to that dark side. It would divide forever, not only the people of Hawaii but the people of the United States, on grounds the Supreme Court has termed odious to a free people.

Would the bill affect real Indian tribes?

By disregarding existing requirements for tribal recognition, the bill would create, out of thin air, a phony new tribe with the potential of over 400,000 members, making it probably the largest “tribe” in the nation. This would unfairly slice the pie thinner for real tribes.

Does the Akaka bill require the consent of the people?

No. Despite the permanent racial segregation it would impose on the State of Hawaii, and the radical diminution it could cause in the lands, natural resources, jurisdiction, governing power and sovereignty of the Hawaii State government, the Akaka bill makes no provision for approval by the citizens of the State. This violates the bedrock principle on which the United States is based: A government derives its legitimacy from the consent of the governed.

Long ago, even before the Kingdom of Hawaii was created in 1810, Native Hawaiians relinquished the reins of government exclusively of, by and for Native Hawaiians. The Akaka bill would violate the expectations of descendants of subjects of the Kingdom of Hawaii which unified the islands and gave naturalized subjects the same rights, privileges and immunities as natives. It would also disrupt the justifiable expectations of the citizens who have lived in Hawaii during the last 107 years, and in 1959, voted over 94% Yes for one state government with jurisdiction over all the Hawaiian islands and with equal protection of the laws for all the people of Hawaii.

At the minimum, the bill should be amended to first require a plebiscite asking Hawaii’s citizens whether they want a new, separate, Hawaiians-only government, with sovereign territories, civil and criminal jurisdiction, and governmental powers and authorities, carved out of the State of Hawaii.

Where can I find more information about the Akaka bill?

Paul Sullivan’s Killing Aloha is an excellent section-by-section analysis of S. 147/ H.R. 309 with Cagle cartoons.

Ken Conklin’s website has a wealth of published editorials at Oppose Akaka bill.

Also, call, FAX or email:

H. William Burgess and Sandra Puanani Burgess
Tel: (808) 947-3234
Fax: (808) 947-5822
Email: Aloha4all.

What to do?

If you don’t like this picture, speak up before it is too late. Let our leaders know you want Hawaii to stay one state undivided with equal opportunities and Aloha for all.