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Sunday, August 7, 2005



PERSPECTIVES ON THE AKAKA BILL

Hawaiians deserve
recognition like
other indigenous groups

Bill concerns their political, not racial, status


Boyd P. Mossman, an Office of Hawaiian Affairs trustee, is a retired Maui circuit court judge, Hawaiian and graduate of the U.S. Air Force Academy, Class of 1965.

The United States Senate next month will make a decision that will affect all of Hawaii.

On Sept. 6, the Senate will decide the fate of the Akaka Bill upon which the continued existence of a whole people now depends. The results will undoubtedly affect the Arakaki vs. Lingle and John Doe vs. Kamehameha Schools cases in which the Office of Hawaiian Affairs and the Kamehameha Schools are being sued by equal rights adherents from within and without Hawaii.

In the coming weeks, opponents of this bill will try to mislead you by tossing around phrases like "race based" and "unconstitutional." It is neither.

I and many fellow Hawaii residents, both Hawaiian and non-Hawaiian, support the Akaka Bill, and here's why.

The Akaka Bill provides an opportunity and process within the United States Constitution for native Hawaiians to receive recognition similar to the American Indians and Alaska Natives and not available to any other people in America.

It is not surprising that opponents focus on the idea that Akaka is a race-based bill since it affects an indigenous people, the first people of this land, who happen to be a race; however, that is the extent of it. No further mention of "race" need be repeated since the basis upon which Akaka rests is "political" pursuant to the U.S. Constitution's grant to Congress of plenary powers.

The Akaka Bill is based on the trust relationship established by Congress following the overthrow of Hawaii's sovereign government with the assistance of U.S. armed forces in 1893 and the subsequent annexation in 1898. Congress' decision to create this trust relationship with American Indians, Alaska Natives and Hawaiians was not based on "race" but on the unique "political" relationship each native group had to the United States prior to being taken over by U.S. forces.

If we now say classifying indigenous people as such is a racial category, we would need to erase an entire title of the U.S. Code and centuries of cases from the U.S. Supreme Court. Congress has reaffirmed this status over and over again by enacting more than 165 federal laws that extend the status of American Indians and Alaska Natives to native Hawaiians.

To now deny Hawaiians this status while continuing to recognize the other two indigenous groups is to undermine the political status of Hawaiians as well as their defense in the federal courts of their identity, language, culture and traditions, let alone their equality with the other indigenous peoples of America.

Claims by opponents that enactment of the Akaka Bill will divide us, will add confusion and chaos to our communities, will allow confiscation of our homes and land, will increase our taxes and more, are simply false and are meant to spread fear in our community and concern in our nation's Capitol.

The new native nation formed by Hawaiians would be no different from the more than 500 native nations that already exist in the United States and co-exist with local and federal governments. No private lands will be affected, and no public lands could be transferred unless the state and federal governments agreed to it. The Akaka Bill does not allow for secession or the eviction of the U.S. military. The Akaka Bill would uphold the Bill of Rights and all other federal laws as it creates a native government within the confines of U.S. law, not outside of it. Next-door neighbors would not exist under different legal regimes. Just like American Indians co-exist with non-Indians and follow the same body of laws throughout the United States, so would Hawaiians and their non-Hawaiian neighbors exist under the same legal regime if the Akaka Bill were to pass.

Those Hawaiians who demand complete independence and a return to 1893 will undoubtedly continue to agitate for all or nothing with or without the passage of Akaka. It is disappointing, however, that they place in jeopardy the vast majority of Hawaiians nationwide by collaborating with those who would as soon see the complete elimination of "native Hawaiian" from the laws of the land.

The Akaka Bill will provide federal recognition to native Hawaiians and is simply a matter of fairness and equality on the one hand and survival of a whole native people on the other. It would allow Hawaiians to address their own needs and does not ask for anything except to keep the status quo regarding benefits now being received from the federal and state governments and to provide for reconciliation. Once passed, it will put to rest the charges of "race based" and "unconstitutional." For a country that seeks freedom and fairness in the world, federal recognition here at home for Hawaiians is not only fair, but long overdue.

Senator made
several mistakes
in conception
of race-based bill

People should be able to openly debate its merits, flaws


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.


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Editor's note: The Star-Bulletin's "Big Q" question about the Akaka Bill was not a poll. It was an unscientific survey of some of our readers' opinions.



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