[Congressional Record (Bound Edition), Volume 151 (2005), Part 4]
[Senate]
[Pages 5281-5283]
[From the U.S. Government Publishing Office, www.gpo.gov]




       OPPOSING THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT

  Mr. KYL. Mr. President, it has come to my attention that persons 
outside of the Senate have told Senators that I do not oppose S. 147, 
the latest incarnation of a bill that would create a tribal government 
for Native Hawaiians. This is untrue; it is probably being said because 
I agreed that the issue could be brought to the Senate floor for a 
vote. I continue to believe that this bill is profoundly 
unconstitutional and poses serious moral and political problems. I 
oppose this bill, and urge my colleagues to do so.
  I ask unanimous consent that the following three news columns by 
Bruce Fein, constitutional scholar and former Reagan administration 
Justice Department official, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Mar. 11, 2005]

                        The Pineapple Time Bomb

                            (By Bruce Fein)

       It is not because Native Hawaiians should be cherished less 
     but that equality under the law should be loved more that the 
     Akaka Bill to create a race-based government should be 
     opposed. The Senate Committee on Indian Affairs blithely 
     approved the legislation Wednesday without seriously 
     examining its constitutionality. The bill previously passed 
     the House in 2000 as a ``noncontroversial,'' like treating 
     South Carolina's firing on Fort Sumter as a July Fourth 
     celebration.
       The proposed legislation would ordain a Native Hawaiian 
     Governing Entity cobbled together by Native Hawaiians meeting 
     a threshold of Native Hawaiian blood. The Entity would 
     negotiate with the United States and the State of Hawaii for 
     lands, natural resources, civil and criminal jurisdiction, 
     and other matters within the customary purview of a 
     sovereign. It would be a race-based state within a state: a 
     government of Native Hawaiians, by Native Hawaiians, for 
     Native Hawaiians. It does not deserve birth.
       The grandeur of the United States has been a history of 
     escape from ugly racial, ethnic or class distinctions. The 
     nation celebrates equality of opportunity and merit rather 
     than birth as the touchstone of destiny. American citizenship 
     is defined by common ideals and aspirations unstained by 
     hierarchy: no divisions between patricians or clergy, nobles 
     and commoners. Indeed, the Constitution forbids titles of 
     nobility.
       Accordingly, Supreme Court Justice Antonin Scalia 
     instructed in Adarand Constructors v. Pena (1995): ``To 
     pursue the concept of racial entitlement--even for the most 
     admirable and benign of purposes--is to reinforce and 
     preserve for future mischief the way of thinking that 
     produced race slavery, race privilege and race hatred. In the 
     eyes of government, we are but one race here. It is 
     American.''
       The United States has flourished by overcoming stains on 
     its creed of equality. Black slavery was ended by the 13th 
     Amendment, and Jim Crow died with the Civil Rights Act of 
     1964 and Voting Rights Act of 1965. Individual Japanese-
     Americans got an apology and compensation for race-based 
     maltreatment in World War II in the Civil Liberties Act of 
     1988.
       Racism is defeated by its renunciation, not its practice. 
     The latter pits citizen against citizen and invites strife 
     and jealousies that weaken rather than strengthen.
       An exclusive Native Hawaiian government is no exception. 
     Justice Anthony Kennedy persuasively discredited the argument 
     that the Akaka Bill will bring reconciliation between Native 
     Hawaiians and their co-citizens in Rice v. Caytano (2000). In 
     voiding a race-based restriction on the franchise for 
     trustees of the Office of Hawaiian Affairs, Justice Kennedy 
     sermonized: ``One of the principal reasons race is treated as 
     a forbidden classification is that it demeans the dignity and 
     worth of a person to be judged by ancestry instead of by his 
     or her own merit and essential qualities. . . . [T]he use of 
     racial classifications is corruptive of the whole legal order 
     democratic elections seek to preserve. The law itself may not 
     become an instrument for generating the prejudice and 
     hostility all too often directed against persons whose 
     particular ancestry is disclosed by their ethnic 
     characteristics and cultural traditions.''
       The Akaka Bill would create an unprecedented race-based 
     government in Hawaii. Prior to the 1893 dethronement of Queen 
     Lili'uokalani, the monarchy treated Native Hawaiians and 
     immigrants alike. Each enjoyed equal rights under the law. 
     Ditto under the successor government and territorial 
     authority after Hawaii's annexation by the United States in 
     1898. In other words, the race-based legislation would not 
     restore the 1893 legal landscape, but enshrine an odious 
     political distinction amongst Hawaii's inhabitants that never 
     before existed.
       A Native Hawaiian enjoys the same freedoms as other 
     Americans. Native Hawaiians may celebrate a distinctive 
     culture under the protection of the Constitution, like the 
     Amish. Racial discrimination against a Native Hawaiian is 
     illegal. And the civil and political rights of Native 
     Hawaiians dwarf what was indulged by the sovereign under the 
     former monarchy.
       Stripped of rhetorical adornments, the Akaka Bill is racial 
     discrimination for the sake of racial discrimination; a 
     dishonoring of the idea of what it means to be an American 
     and a formula for domestic convulsions.
                                  ____


               [From the Washington Times, Oct. 5, 2004]

                          A Race-Based Drift?

                            (By Bruce Fein)

       The nation's mindless celebration of multiculturalism and 
     denigration of the American creed has reached a new plateau 
     of destructiveness. A bill recently reported by the Senate 
     Appropriations Committee (S. 344) would establish a race-
     based government for Native Hawaiians unconstrained by the 
     restrictions of the U.S. Constitution. The bill's enactment 
     would mark the beginning of the end of the United States, 
     akin to the sack of Rome by Alaric the Great in 410 A.D. A 
     country that wavers in its fundamental political and cultural 
     values--like a nation half slave and half free--will not long 
     endure.
       S. 344 would erect an independent government for the lineal 
     descendants of Native Hawaiians to honor their asserted 
     ``rights as native people to self-determination and self-
     governance.'' Best estimates place their number at more than 
     400,000. Like Adolf Hitler's blood tests for Jews, a 
     minuscule percentage of Native Hawaiian ancestry would 
     establish an entitlement to participate in the new racially 
     exclusive domain.
       The right to self-determination means the right of a people 
     to choose their sovereign destiny, whether independence, 
     federation, accession to another nation or otherwise. Thus, 
     the bill would overturn the past and prevailing understanding 
     of the Civil War. As Chief Justice Salmon Portland Chase 
     lectured, Ulysses S. Grant's defeat of Robert E. Lee 
     established an indivisible national unity among 
     indestructible states.
       The Native Hawaiian government would be unbothered by the 
     ``irritants'' of the U.S. Constitution. Thus, it might choose 
     theocracy over secularism; summary justice over due process; 
     indoctrination over freedom of speech; property confiscations 
     over property rights; subjugation over equality; or, group 
     quotas over individual merit. The Native Hawaiian citizens of 
     the Native Hawaiian government would also be exempt from 
     swearing or affirming allegiance to the United States of 
     America or the U.S. Constitution.
       The race-based sovereignty created by S. 344 is first 
     cousin to a revolution against the

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     United States. As the Declaration of Independence elaborates, 
     revolutions may be justified by repression or deafness to 
     pronounced grievances. Thomas Jefferson's indictment of King 
     George III is compelling on that score. But S. 344 does not 
     and could not find Native Hawaiians are oppressed or 
     maltreated in any way. They are first-class American citizens 
     crowned with a host of special privileges. Indeed, the 
     proposed legislation acknowledges that, ``Native Hawaiians . 
     . . give expression to their rights as native peoples to 
     self-determination and self-governance through the provision 
     of governmental services to Native Hawaiians, including the 
     provision of health care services, educational programs, 
     employment and training programs, children's services, 
     conservation programs, fish and wildlife protection, 
     agricultural programs, native language immersion programs and 
     native language immersion schools from kindergarten through 
     high school.''
       The annexation of Hawaii by the United States in 1898 has 
     proven a bright chapter in the history of democracy and human 
     rights. Native Hawaiians had failed for centuries to build a 
     democratic dispensation and the rule of law. When Queen 
     Lili'uokulani was ousted from power in 1893, the potentate 
     was no more eager to yield monarchical powers than was the 
     shah of Iran. Annexation and statehood in 1959 brought all 
     Hawaiian residents irrespective of race or ethnicity the 
     blessings of the U.S. Constitution--government of the people, 
     by the people, for the people. Native Hawaiians prospered far 
     beyond the destiny available under Queen Lili'uokulani and 
     her royal successors. Suppose Japan had attacked Pearl Harbor 
     when under the queen's sovereignty. The Hawaiian Islands 
     would have been colonized and brutalized as was Korea from 
     1910-1945.
       American civilization has been a boon, not an incubus, for 
     the Native Hawaiians living today. Generally speaking, they 
     thrive from the benefits of science, medicine, literature, 
     higher education, free enterprise, private property and 
     freedom of inquiry, amenities and enjoyments not found in 
     lands untouched by Western values and practices. As 
     elaborated in the report of Senate Committee of Indian 
     Affairs accompanying S. 344, Native Hawaiians' nagging 
     resistance to complete assimilation seems to explain their 
     suboptimal demographics. Hawaiian law, for example, has 
     invariably guaranteed subsistence gathering rights to the 
     people to retain native customs and traditions.
       Not a crumb of legitimate grievance justifies the odious 
     race-based government championed by S. 344. To borrow from 
     Associate Supreme Court Justice Antonin Scalia in Adarand 
     Construction vs. Pena (1995), in the eyes of the law and the 
     creed of the United States, there is only one race in the 
     nation. It is American. And to be an American is to embrace 
     the values of freedom, individual liberty and equality 
     acclaimed in the Declaration of Independence, Constitution 
     and Gettysburg Address. S. 344 would create a distinct race 
     of Native Hawaiians subject to a race-based Native Hawaiian 
     government with the purpose of creating and preserving non-
     American values: namely, ``Native Hawaiian political and 
     cultural identity in accordance with their traditions, 
     beliefs, customs and practices, language, and social and 
     political institutions.''
       Native Hawaiians hold no more right to a race-based 
     government than countless other racial or ethnic groups in 
     the United States. They are no more entitled to secede from 
     the jurisdiction of the U.S. Constitution than were the 
     Confederate States of America. Enacting S. 344 would 
     surrender the intellectual and moral underpinnings of the 
     United States.
                                  ____


        E Pluribus Unum--Debating the Legality of the Akaka Bill

                            (By Bruce Fein)

       Hawaii Attorney General Mark Bennett is dead wrong in his 
     support of the Akaka Bill.
       The proposed legislation celebrates race-based divisiveness 
     over America's highest aspirations for unity and equality. 
     The bill is blatantly unconstitutional.
       E Pluribus Unum is the nation's birth certificate.
       Ben Franklin sermonized that if we do not all hang 
     together; we assuredly shall all hang separately. Abraham 
     Lincoln preached that ``A house divided against itself cannot 
     stand.'' Supreme Court Justice Benjamin Cardozo in Baldwin v. 
     Seelig (1935) observed: ``The Constitution was framed . . . 
     upon the theory that the peoples of the several states must 
     sink or swim together, and that in the long run prosperity 
     and salvation are in union and not division.'' Justice 
     Antonin Scalia lectured in Adarand Constructors v. Pena 
     (1995) that the Constitution acknowledges only one race in 
     the United States. It is American.
       Attorney General Mark J. Bennett's spirited defense of the 
     Akaka Bill (Hawaii Reporter, December 20, 2004) ignores this 
     wisdom. It is nonsense on stilts. He talks about Congress' 
     power to recognize tribes, but the Akaka Bill is not about 
     recognizing a real tribe that truly exists. Instead, it 
     proposes to crown a racial group with sovereignty by calling 
     it a tribe. But to paraphrase Shakespeare, a racial group by 
     any other name is still a racial group. Congress cannot 
     circumvent the Constitution with semantics. The United States 
     Supreme Court in United States v. Sandoval (1913) expressly 
     repudiated congressional power arbitrarily to designate a 
     body of people as an Indian tribe, whether Native Hawaiians, 
     Jews, Hispanics, Polish Americans, Italian Americans, 
     Japanese Americans, or otherwise. Associate Justice Willis 
     Van Devanter explained with regard to congressional 
     guardianship over Indians: ``[I]t is not meant by this that 
     Congress may bring a community or body of people within the 
     range of this power by arbitrarily calling them an Indian 
     tribe, but only that in respect of distinctly Indian 
     communities the questions whether, to what extent, and for 
     what time they shall be recognized and dealt with as 
     dependent tribes requiring guardianship and protection of the 
     United States are to be determined by Congress, and not by 
     the courts.''
       Attorney General Bennett incorrectly argues that the 
     Supreme Court has interpreted the Indian Commerce Clause to 
     endow Congress with plenary ``power to deal with those it 
     finds to be Indian Tribes. . . .'' No such interpretation has 
     ever been forthcoming, and thus Mr. Bennett is unable to cite 
     a single case to support his falsehood. Indeed, it is 
     discredited by the Sandoval precedent.
       Congress enjoys limited powers under the Constitution. They 
     are generally enumerated in Article I, section 8, and include 
     the power to regulate commerce ``with the Indian tribes.'' 
     Clause 18 also empowers Congress to make all laws ``necessary 
     and proper'' for executing its enumerated authorities. 
     Contrary to the Hawaii Attorney General, the Indian Commerce 
     Clause has been understood by the Supreme Court as conferring 
     a power to regulate the nation's intercourse with Indian 
     Tribes, but not to summon a tribe into being with a statutory 
     bugle. The Attorney General is also unable to articulate a 
     connection between any enumerated power of Congress and the 
     Akaka Bill's proposal to endow Native Hawaiians with the 
     quasi-sovereignty and immunities of Indian Tribes.
       He absurdly insists that the Founding Fathers intended an 
     open-ended definition of Indian Tribe because contemporary 
     dictionaries defined tribe as ``[a] distinct body of people 
     as divided by family or fortune or any other 
     characteristic.'' But the Constitution's makers employed 
     ``Indian'' to modify tribe. That modifier was understood to 
     include only peoples with an Indian ancestry coupled with a 
     primitive culture that necessitated federal protection from 
     predation by States or private citizens. In Sandoval, for 
     example, Congress properly treated Pueblos as an Indian tribe 
     because ``considering their Indian lineage, isolated and 
     communal life, primitive customs and limited civilization, 
     this assertion of guardianship over them cannot be said to be 
     arbitrary. . . .'' Chief Justice John Marshall in The 
     Cherokee Nation v. Georgia (1831) likened an Indian Tribe's 
     dependency on the United States to the relation of a ward to 
     his guardian. The Akaka Bill, however, does not and could not 
     find that Native Hawaiians need the tutelage of the United 
     States because of their backwardness or child-like 
     vulnerability to exploitation or oppression. Indeed, their 
     political muscle has made them spoiled children of the law, 
     as Attorney General Bennett himself underscores. Finally, the 
     Constitution aimed to overcome, not to foster, parochial 
     conflicts or jealousies. That goal would be shipwrecked by a 
     congressional power to multiply semi-sovereign Indian tribes 
     at will.
       He stumbles again in attributing to a court the statement, 
     ``Indian tribes do not exist in Alaska in the same sense as 
     in [the] continental United States.'' The statement was made 
     by the Secretary of the Interior in a letter noting that 
     Alaskan tribes occupied land which had not been designated as 
     ``reservations,'' in contrast to Indian tribes.
       Section 2 of the Fourteenth Amendment further undermines 
     the Attorney General's accordion conception of Indian Tribe. 
     It apportions Representatives among the States according to 
     population, but ``excluding Indians not taxed.'' Mr. 
     Bennett's argument would invite the majority in Congress to 
     manipulate apportionment by designating entire States that 
     generally voted for the opposition as Indian Tribes.
       Finally, the Attorney General wrongly insinuates that 
     Congress would be powerless to rectify historical wrongs to 
     Native Hawaiians absent the Akaka Bill. Congress enjoys 
     discretion to compensate victims or their families when the 
     United States has caused harm by unconstitutional or immoral 
     conduct, as was done for interned Japanese Americans in the 
     Civil Liberties Act of 1988. Congress might alternatively 
     establish a tribunal akin to the Indian Claims Commission to 
     entertain allegations of dishonest or unethical treatment of 
     Native Hawaiians. As the Supreme Court amplified in United 
     States v. Realty Co. (1896): ``The nation, speaking broadly, 
     owes a `debt' to an individual when his claim grows out of 
     general principles of right and justice; when, in other 
     words, it is based on considerations of a moral or merely 
     honorary nature, such as are binding on the conscience or the 
     honor of the individual, although the debt could obtain no 
     recognition in a court of law. The power of Congress extends 
     at least as far as the recognition of claims against the 
     government which are thus founded.''

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