History of The Akaka Bill November - December 2005

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November 1: Honolulu Advertiser commentary by attorneys H. Christopher Bartolomucci and Viet Dinh arguing that Congress does have jurisdiction under the Constitution to create a government for ethnic Hawaiians. Hawaii Reporter article by Ken Conklin reporting on 8 joint hearings on 5 islands in 9 days by two committees of the state Legislature to discuss how the Legislature might circumvent the Arakaki and Kamehameha decisions by the 9th Circuit Court, while waiting for the Akaka bill to pass.


Honolulu Advertiser, Tuesday, November 1, 2005

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051101/OPINION03/511010355/1110/OPINION COMMENTARY

Congress has jurisdiction on Hawaiians

By H. Christopher Bartolomucci and Viet Dinh

Does Congress have the authority to treat Native Hawaiians as it does American Indians and Native Alaskans? That is the legal question raised by legislation now pending before Congress.

Constitutional text, Supreme Court precedent and historical events provide the answer: Congress' broad power in regard to Indian tribes allows Congress to recognize that Native Hawaiians have the same sovereign status as this country's other indigenous peoples.

The proposed Native Hawaiian Government Reorganization Act would establish a process by which Native Hawaiians would reconstitute their aboriginal government. Before Hawai'i became a state, the kingdom of Hawai'i was a sovereign nation recognized as such by the United States.

In 1893, American officials and the U.S. military aided in the overthrow of the Hawaiian monarchy. A century later, in 1993, Congress formally apologized to the Hawaiian people for the U.S. involvement in this regime change.

Congress has ample authority to reaffirm the government-to-government relationship with Native Hawaiians and their current effort to reorganize their governing entity. Congress' broadest constitutional power — the power to regulate commerce — specifically encompasses the power to regulate commerce "with the Indian tribes."

Based upon the commerce clause and other constitutional provisions, the Supreme Court has acknowledged Congress' plenary power to legislate regarding Indian affairs. In the 1998 Venetie case, the court did not question Congress' power to enact legislation for Native Alaskans.

Congress has used that power in the past to restore the relationship with tribal governments terminated by the United States. In 1954, Congress terminated the Menominee tribe in Wisconsin. In 1973, Congress reversed course and enacted a law restoring the federal relationship with the Menominee and assisted in its reorganization. The bill before Congress is patterned after that law and would do for Native Hawaiians what Congress did for the Menominee and for Alaska's natives.

The bill does not run afoul of Rice v. Cayetano, a 2000 Supreme Court opinion often touted by the bill's opponents. In Rice, the court ruled that the state of Hawai'i could not limit the right to vote in a state election to Native Hawaiians. But Rice did not address whether Congress may treat Native Hawaiians as it does its other indigenous groups — Indian tribes and Alaska natives.

Indeed, the court's opinion clearly left open the possibility that Congress could so treat Native Hawaiians. The Supreme Court has long held that congressional legislation dealing with indigenous groups is political, not racial, in character and therefore is neither discrimination nor unconstitutional.

Likewise, the constitutionality of the bill is not affected by the recent lower federal court decision that the prestigious Kamehameha Schools in Hawai'i cannot completely bar admission by non-Native Hawaiians. That case involved the obligations of a private school under the civil rights statutes. The question here is whether Congress has the constitutional authority to restore the government-to-government relationship with Native Hawaiians.

The answer to that legal question is yes.

When Congress enacts laws for indigenous peoples, it does so on a government-to-government basis. Scores of federal laws and regulations exist relating to American Indians, Native Alaskans and Native Hawaiians, and none has ever been struck down as racially discriminatory. Indeed, a review of the current state of the law makes clear that laws focused upon any of these indigenous peoples are within Congress' powers.

At the end of the day, a decision by Congress to treat Native Hawaiians like other native groups is a political decision, one that courts are not likely to second-guess. In a 1913 case involving the New Mexico Pueblos, the Supreme Court ruled that Congress could treat the Pueblos as Indians, even though their culture, customs and assimilation into the community differed from that of other Indian tribes.

The court decided that Congress' judgment was not arbitrary and that judicial review should end there. The legislation now before the Senate concerning Native Hawaiians easily passes that legal test.

H. Christopher Bartolomucci, a lawyer in Washington, D.C., and Viet D. Dinh, a Georgetown law professor, are consultants to the state of Hawai'i. They wrote this commentary for The Advertiser.

Hawaii Reporter, November 1, 2005


State Legislature Hearings on How to Circumvent Court Decisions Unfavorable to OHA and Kamehameha Schools

By Kenneth R. Conklin

Two state of Hawaii legislative committees primarily focused on ethnic Hawaiians held a series of eight public hearings on five islands during a 9-day period at the end of October 2005.

The purpose of the hearings was to get public input regarding two decisions of the 9th Circuit Court of Appeals. In Doe v. Kamehameha, the Court ruled that Kamehameha Schools' racially exclusionary admissions policy (ethnic Hawaiians only) is illegal.

In Arakaki v. Lingle, the Court ruled that state taxpayer plaintiffs have standing to sue the Office of Hawaiian Affairs to stop the spending of tax dollars for a racially exclusionary group of beneficiaries (ethnic Hawaiians only). Complete coverage of the Arakaki lawsuit, including all legal briefs by plaintiffs and all 5 defendants, can be found at: http://tinyurl.com/3pkgg

This article describes the Legislature's hearings; including my testimony, and discussion of legal issues by attorneys and Legislators, at the hearing in Kahaluu, Oahu on Oct. 28.

The intention of the hearings was to help the Legislature figure out what state laws might be passed to overcome or circumvent the federal Court decisions.

The schedule of hearings (intentionally set in communities with high percentages of ethnic Hawaiians), and comments by the committee chairs encouraging ethnic Hawaiians to attend (what about everyone else?), were published by the Honolulu Advertiser ahead of time (in effect, a free advertisement encouraging identity politics) at: http://tinyurl.com/c6kqh

Only about 50 people attended a hearing at Nanakuli High School on Monday night Oct. 24, despite the advance publicity and large numbers of ethnic Hawaiians living in that area.

The Honolulu Advertiser reported that "Kamehameha Schools and the state Office of Hawaiian Affairs were bashed for failing to address the needs of the Wai'anae Coast communities" and "Six of the first nine public speakers were critical of Kamehameha." What was probably expected to be a stage-managed propaganda exhibition turned out to be quite the opposite. http://tinyurl.com/83mgx

The hearing on Friday night Oct. 28 at the Key Project on Waihee Road in Kahaluu had chairs set up to accommodate about 100 people. But only 16 people showed up, including four Legislators, official representatives of two government agencies and Kamehameha Schools, and the author of this article.

The Senate Committee on Judiciary and Hawaiian Affairs was represented by Chair Colleen Hanabusa, Vice-Chair Clayton Hee (who is also the former long-term chairman of OHA), and member Kalani English (Maui). The House Committee on Hawaiian Affairs was represented by Chair Scott Saiki.

Testimony was presented first by Assistant Attorney General Girard Lau; followed by OHA attorney Ernie Kimoto; and then two spokespeople for Kamehameha Schools, Kekoa Paulsen and Crystal Rose. Then three members of the public testified including myself and two kupuna (elders) from Waimanalo Hawaiian Homestead. Former Sen. Bob Nakata (an active supporter of Hawaiian race-based programs) showed face but remained silent. A representative of the Department of Hawaiian Homelands was expected to testify but did not appear.

Here's my testimony:

The question posed by the Senate and House committees is: What legislation, if any, should be introduced to deal with the decisions by the 9th Circuit Court of Appeals in the Arakaki and Kamehameha lawsuits?

My answer is: The Legislature should not in any way attempt to override or circumvent those court decisions. The Legislature has an obligation to respect court decisions, just as the Legislature expects the courts to respect legislative decisions on political questions.

District Court Judge Mollway gave extraordinary deference to Congress (the national Legislature) when she finally dismissed the Arakaki lawsuit on grounds that it focuses on a political question -- merely because the Akaka bill has been introduced in Congress (not passed). That's silly, of course, because that theory would allow any illegal government policy or program to be insulated from Court scrutiny merely by introducing a bill. But Judge Mollway's rationale illustrates the great deference shown by the courts to the legislative process. So now it's time for the Legislature to show the same respect to the Court.

Instead of trying to undercut the Court, the Legislature should place two questions on the ballot for the 2006 general election so that the people of Hawaii can exercise their democratic right to make important decisions.

  • 1. Should the Native Hawaiian Government Reorganization bill, S.147, commonly known as the Akaka bill, be enacted by Congress?
  • 2. Should the Office of Hawaiian Affairs be abolished?

The second question, if answered "yes," would require a Constitutional amendment.

Which reminds me. Fortunately, the 10-year period is rapidly coming to maturity, when the Legislature will be forced to place on the ballot a question whether there should be a Constitutional Convention. Such a con-con would provide Hawaii's people a wonderful opportunity to finally correct the errors of the 1878 con-con -- to put an end to OHA; to convert Hawaiian Homestead leases to fee-simple and abolish the no-longer-needed DHHL; to make clear that the ceded lands are the property of all Hawaii's people without racial restriction or encumbrance; and that shoreline access, water allocation and gathering rights are not based on race and must respect the rights of property owners.

It would be an abomination for the Legislature to try to defend racial separatism in government programs under the auspices of OHA or the Akaka bill, or to defend racial segregation at Kamehameha Schools.

I recently saw a televised panel discussion, including Sen. Colleen Hanabusa, discussing how the Legislature can help ensure the independence of the Judiciary, to guarantee that judges can make correct legal decisions without being intimidated by political pressure. Yet here is Sen. Hanabusa, as chair of the Judiciary committee, leading a political process to figure out how the Legislature can interfere with Court decisions in the Arakaki and Kamehameha lawsuits. The Legislature needs to back off.

In February 2000 the U.S. Supreme Court handed down its decision in Rice v. Cayetano. Immediately there was an uproar in the Legislature, as everyone scrambled to figure out how to undercut that decision.

How about letting OHA pay for its own elections? How about privatizing OHA? Etc. Exactly the way politicians in the Southern states behaved 50 years ago after the Brown v. Board of Education school desegregation decision.

It's time to move into the 21st Century, and stop looking like Alabama, Mississippi, and Arkansas of 1950s.

Kenneth R. Conklin, Ph.D., is an independent scholar in Kaneohe, Hawaii. His Web site on Hawaiian Sovereignty is at: http://www.angelfire.com/hi2/hawaiiansovereignty

He can be contacted at: Ken_Conklin@yahoo.com

Note: A more detailed version of this report can be found at: http://www.angelfire.com/hi5/bigfiles3/HawnAffrsLegislHrngOct2005.html