The battle for
the Akaka Bill

Whether the bill passes won't
diminish the accomplishment
of getting to the Senate

MENTION the Akaka Bill and you're likely to get a response of strong support, overwhelming opposition or an admission that the issue is too complicated to take a position.

Simply put, the proposed legislation means different things to different people.

As federal lawmakers prepare for debate -- and a possible vote -- on the bill in the Senate this week, reasonable minds seem to agree on only one thing: Anything could happen.

"There's a lot of hype about it, but it's very difficult to see where everybody stands on it," says Rick Castberg, chairman of political science at the University of Hawaii-Hilo. "I wouldn't want to predict how the vote would go. It'll probably be close."

At issue is whether native Hawaiians should be able to organize into their own collective body that would be governed by its own constitution and laws. The Native Hawaiian Government Reorganization Act of 2005, known as the Akaka Bill after its key sponsor, U.S. Sen. Daniel Akaka, would allow native Hawaiians to form that collective body, which is referred to as the "native Hawaiian governing entity."

Once formed, the governing entity would negotiate with the federal and state governments on issues such as land and resources that it would control, and governmental powers it would have.

Supporters call it a long-overdue step in addressing wrongs committed against native Hawaiians by U.S. settlers. Opponents call it a racist measure that creates two classes of people in Hawaii and would signal the beginning of the state's secession from the Union.

But the concept of a native Hawaiian governing entity has the support of Hawaii's top political leaders, including Republican Gov. Linda Lingle and the four Congressional Democrats.

Lingle has lobbied congressional leaders and even President Bush on the merits of the bill and plans to be in Washington this week as the bill moves closer to a historic vote on the Senate floor.

"The Akaka Bill -- which affords native Hawaiians the same type of recognition afforded American Indians and Alaska Natives -- neither further balkanizes the United States nor sets up a race-based separate government in Hawaii," Lingle and state Attorney General Mark Bennett argue in a position paper. "It provides a simple measure of justice and fairness to native Hawaiians."

Critics call such support nothing more than political correctness.

"Why is it supported by the entire establishment in Hawaii? That's a question I've asked myself many, many times," said H. William Burgess, a Honolulu attorney who has worked on lawsuits challenging preferences for native Hawaiians.

"It's almost like the political equivalent of a perfect storm, where you have the swing vote and everybody -- every politician in Hawaii -- considers it suicide to stand up and say 'No' to anything that's wanted or requested or demanded by Hawaiians."

Burgess points to polls taken by the Grassroots Institute of Hawaii, a conservative nonprofit group, that shows people in Hawaii oppose the Akaka Bill by a margin of 2-to-1.

"Sooner or later the politicians are going to get the word from the people," Burgess said, "and that is that they don't want to do this."

Lingle points to a resolution passed in both the state House and Senate this year that shows overwhelming support for the Akaka Bill. House Concurrent Resolution 56, urging the president and Congress to support the measure, passed out of both chambers with only one vote in opposition.

State Sen. Sam Slom (R, Diamond Head-Hawaii Kai) said he opposed the resolution because he feels the current version of the Akaka Bill has not been discussed thoroughly enough in public hearings. He added that Lingle's support of the bill also may have stifled opposition from her own party.

"Because the governor was so tremendously popular 30 months ago and thereafter, there was not going to be anybody saying, 'Well, maybe the governor is acting too hastily,'" Slom said. "I've talked to a number of my Republican colleagues and they felt pressured at the time to go along and they felt it was supporting the governor to support Akaka.

"I think there's a great deal of peer pressure, a great deal of political pressure not to appear that you are A, against the governor, or B, that if you took a position in opposition to the Akaka Bill that you were opposed to native Hawaiians, and of course that's not true."

For observers such as UH-Hilo's Castberg, it's more difficult to take a staunch position for or against the bill.

"I have mixed feelings about it," Castberg said. "I question the constitutionality of it, but at the same time I understand what it's trying to accomplish."

If approved, the Akaka Bill could face a constitutional challenge based on the U.S. Supreme Court's landmark decision in Rice v. Cayetano, which struck down Hawaiians-only voting for Office of Hawaiian Affairs elections.

"The bill limits eligible voters (in the native Hawaiian governing entity) to those who could trace their genealogy prior to Captain Cook's discovery of the islands," former Gov. Ben Cayetano wrote in an e-mail to the Star-Bulletin.

He noted the Supreme Court ruled that "genealogy can be a proxy for race," meaning that the process set up in the Akaka Bill could be considered race-based, and "the Akaka bill seems to violate this ruling."

Despite those concerns about the constitutionality of the bill, Cayetano wrote, "I support it because if passed it may strengthen the legality of the existing Hawaiian Program such as Hawaiian Homes, etc.

"I do not support the bill being used to promote Hawaiian sovereignty."

Supporters also argue that native Hawaiians, as an indigenous group, should be afforded the same rights that have been given to American Indians and Native Alaskans.

"Once Hawaii became a territory, there was a systematic effort to destroy the Hawaiian culture," says Jon M. Van Dyke, a constitutional law professor at the University of Hawaii's William S. Richardson School of Law. Van Dyke also has assisted the Office of Hawaiian Affairs with legal arguments defending Hawaiians-only programs and services.

"The United States, at a very official level, participated in the destruction of the Hawaiian kingdom and the Hawaiian culture," he added. "We try now, with other natives, to rectify these wrongs, and (the Akaka Bill) is our attempt to rectify this wrong."

That hasn't stopped criticism at the federal level from the likes of Arizona Republican U.S. Sen. Jon Kyl, chairman of the Republican Policy Committee who previously blocked a vote on the bill. Kyl has said he plans to introduce an amendment to the Akaka Bill calling for a statewide referendum before the federal government recognizes a native Hawaiian governing entity.

Castberg said he thinks opposition at the federal level is partly based on a fear that funds and resources that might go to American Indians could be diverted to native Hawaiians. Arizona has a large Indian population.

"I think some of the other concerns are strictly from a racial basis, that it does create two groups of people based on race," Castberg said.

That there now seems to be enough support to bring the Akaka Bill to the Senate floor for a vote is a testament to the lobbying efforts of Hawaii's political leaders, he said.

"For the vast majority of the senators and representatives, this is a minor -- if even that -- issue, so the real task of our senators and representatives is to gather support for this. If they've been effective in doing that, well that's credit to them.

"On the other hand, they may know that it's not likely to pass at least in its current form, but if it just gets on the floor for debate, then they've accomplished something that hasn't happened before, so either way I think there may be something positive coming out of this."