[Congressional Record (Bound Edition), Volume 151 (2005), Part 9]
[Senate]
[Pages 12745-12747]
[From the U.S. Government Publishing Office, www.gpo.gov]




            AGAINST RACE-BASED GOVERNMENT IN HAWAII, PART II

  Mr. KYL. Mr. President, I rise today to ask unanimous consent that 
the following analysis of S. 147, the Native Hawaiian Government 
Reorganization Act, prepared by constitutional scholar Bruce Fein, be 
entered into the Record following my present remarks.
  Mr. Fein's analysis of the act builds on his analysis of the 1993 
apology resolution, which was printed in the Record yesterday. Mr. 
Fein's present analysis ably demonstrates why the Native Hawaiian 
Government Act is at war with the U.S. Constitution's guarantees of 
rights and its limits on governmental power. The bill is particularly 
offensive to the fundamental principle of equal protection of the laws. 
I commend Mr. Fein's analysis of the act to my colleagues.
  There being no objection, the material ordered to be printed in the 
Record, as follows:

[[Page 12746]]



         [From the Grassroot Institute of Hawaii June 1, 2005]

                            (By Bruce Fein)

 Hawaii Divided Against Itself Cannot Stand--An Analysis of the Akaka 
                                  Bill

       The Akaka Bill pivots generally on the same falsehoods and 
     mischaracterizations as the Apology. It further celebrates a 
     race-based government entity in flagrant violation of the 
     non-discrimination mandates of the Fifth, Fourteenth and 
     Fifteenth Amendments.
       Section 1 misleads by naming the Act the ``Native Hawaiian 
     Government Reorganization Act of 2005.'' As amplified above, 
     there has never been a government in Hawaii for Native 
     Hawaiians alone since Kamehameha established the Kingdom in 
     1810. Something that has never been cannot be reorganized.
       Section 2 makes twenty-three findings that are either false 
     or misleading.
       Finding (1) asserts that Congress enjoys constitutional 
     authority to address the conditions of the indigenous, native 
     people of the United States. But the finding fails to 
     identify the constitutional source of that power, or how it 
     differs from the power of Congress to address the conditions 
     of every American citizen. Congress does not find that Native 
     Hawaiians were ever subjugated or victimized by racial 
     discrimination or prevented from maintaining and celebrating 
     a unique culture. Moreover, the United States Supreme Court 
     explicitly repudiated congressional power to arbitrarily 
     designate a body of people as an Indian tribe in United 
     States v. Sandoval 231 U.S. 28, 45 (1913). As Alice Thurston 
     unequivocally stated arguing for Interior Secretary Babbitt 
     in Connecticut v. Babbitt 228 F.3d, 82 (2nd Cir. 2000) ``When 
     the Department of the Interior recognizes a tribe, it is not 
     saying, `You are now a tribe.' It is saying, `We recognize 
     that your sovereignty exists.' We don't create tribes out of 
     thin air.'' [Footnote: Jeff Benedict, Without Reservation 
     (New York: HarperCollins Publishers, 2000) 349.]
       Finding (2) asserts that Native Hawaiians are indigenous, 
     native people of the United States. The finding is dubious. 
     Native Hawaiians probably migrated to the Islands from other 
     lands and remained as interlopers.
       Finding (3) falsely asserts that the United States ``has a 
     special political and legal responsibility to promote the 
     welfare of the native people of the United States, including 
     Native Hawaiians.'' No such responsibility is imposed by the 
     Constitution or laws of the United States. No decision of the 
     United States Supreme Court has ever recognized such a 
     responsibility. Indeed, Congress would be acting 
     constitutionally if it abolished all tribal sovereignty that 
     it has extended by unilateral legislation.
       Finding (4) recites various treaties between the Kingdom of 
     Hawaii and the United States from 1826 to 1893. The finding 
     is as irrelevant to the proposed legislation as the 
     heliocentric theory of the universe.
       Finding (5) falsely declares that the Hawaiian Homes 
     Commission Act (HHCA) set aside approximately 203,500 acres 
     of land to address the conditions of Native Hawaiians in the 
     then federal territory. In fact, the HHCA established a 
     homesteading program for only a small segment of a racially 
     defined class of Hawaii's citizens. Its intended 
     beneficiaries were not and are not now ``Native Hawaiians'' 
     as defined in the Akaka bill (i.e., those with any degree of 
     Hawaiian ancestry, no matter how attenuated), but exclusively 
     those with 50 percent or more Hawaiian ``blood''--a 
     limitation which still applies with some exceptions for 
     children of homesteaders who may inherit a homestead lease if 
     the child has at least 25 percent Hawaiian ``blood.''
       The HHCA was enacted by Congress in 1921 based on 
     stereotyping of ``native Hawaiians'' (50% blood quantum) as 
     characteristic of ``peoples raised under a communist or 
     feudal system'' needing to ``be protected against their own 
     thriftlessness''. The racism of Plessy v. Ferguson, 163 US 
     537, (1896) was then in its heyday. If that derogatory 
     stereotyping were ever a legitimate basis for Federal 
     legislation, Adarand Constructors v. Pena, 515 U.S. 200 
     (1995) and a simple regard for the truth deprive it of any 
     validity today.
       Finding (6) asserts that the land set aside assists Native 
     Hawaiians in maintaining distinct race-based settlements, an 
     illicit constitutional objective under Buchanan and 
     indistinguishable in principle from South Africa's execrated 
     Bantustans.
       Finding (7) notes that approximately 6,800 Native Hawaiian 
     families reside on the set aside Home Lands and an additional 
     18,000 are on the race-based waiting list. These racial 
     preferences in housing are not remedial. They do not rest on 
     proof of past discrimination (which does not exist). The 
     preferences are thus flagrantly unconstitutional. See 
     Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Adarand 
     Constructors, supra.
       Finding (8) notes that the statehood compact included a 
     ceded lands trust for five purposes, one of which is the 
     betterment of Native Hawaiians. As elaborated above, the 20 
     percent racial set aside enacted in the 1978 statue violates 
     the general color-blindness mandate of the Constitution.
       Finding (9) asserts that Native Hawaiians have continuously 
     sought access to the ceded lands to establish and maintain 
     native settlements and distinct native communities throughout 
     the State. Those objectives are constitutionally 
     indistinguishable from the objectives of whites during the 
     ugly decades of Jim Crow to promote an exclusive white 
     culture exemplified in Gone with the Wind or The Invisible 
     Man. The United States Constitution protects all cultures, 
     except for those rooted in racial discrimination or 
     hierarchies.
       Finding (10) asserts that the Home Lands and other ceded 
     lands are instrumental in the ability of the Native Hawaiian 
     community to celebrate Native Hawaiian culture and to 
     survive. That finding is generally false. The United States 
     Constitution fastidiously safeguards Native Hawaiians like 
     all other groups in their cultural distinctiveness or 
     otherwise. There is but one exception. A culture that demands 
     racial discrimination against outsiders is unconstitutional 
     and is not worth preserving. Further, as Senator Inouye 
     himself has proclaimed, Native Hawaiians and other citizens 
     are thriving in harmony as a model for other racially diverse 
     communities under the banner of the United States 
     Constitution.
       Finding (11) asserts that Native Hawaiians continue to 
     maintain other distinctively native areas in Hawaii. Racial 
     discrimination in housing, however, is illegal under the Fair 
     Housing Act, the Civil Rights Act of 1871, and the Equal 
     Protection Clause of the Fourteenth Amendment if state action 
     is implicated.
       Finding (12) notes the enactment of the Apology Resolution, 
     which is riddled with falsehoods and mischaracterizations as 
     amplified above.
       Finding (13) repeats falsehoods in the Apology Resolution. 
     Contrary to its assertions, the Monarchy was overthrown 
     without the collusion of the United States or its agents; the 
     Native Hawaiian people enjoyed no more inherent sovereignty 
     under the kingdom than did non-Native Hawaiians; in any 
     event, sovereignty at the time of the overthrow rested with 
     Queen Lilioukalani, not the people; the public lands of 
     Hawaii belonged no more to Native Hawaiians than to non-
     Native Hawaiians; and, there was never a legal or moral 
     obligation of the United States or the Provisional Government 
     after the overthrow to obtain the consent of Native Hawaiians 
     to receive control over government or crown lands. No Native 
     Hawaiian lost a square inch of land by the overthrow.
       Finding (14) repeats the Apology Resolution's nonsense of a 
     need to reconcile with Native Hawaiians when there has never 
     been an estrangement, as testified to by the 1994 remarks of 
     Senator Inouye.
       Finding (15) corroborates the obvious: namely, that the 
     United States Constitution fully protects Native Hawaiians in 
     celebrating their culture, just as it does the Amish or any 
     other group desiring to depart from the mainstream.
       Findings (16), (17), and (18) similarly corroborates that 
     the United States Constitution guarantees religious or 
     cultural freedom to Native Hawaiians as it does for any other 
     distinctive group. On the other hand, the finding falsely 
     asserts that Native Hawaiians enjoy a right to self-
     determination, i.e., a right to establish an independent 
     race-based nation or sovereignty. The Civil War definitively 
     established that no individual or group in the United States 
     enjoys a right to secede from the Union, including Native 
     American Indian tribes.
       Finding (19) falsely asserts that Native Hawaiians enjoy an 
     ``inherent right'' to reorganize a Native Hawaiian governing 
     entity to honor their right to self-determination. The 
     Constitution denies such a right of self-determination. A 
     Native Hawaiian's lawsuit to enforce such a right would be 
     dismissed as frivolous. Further, there has never been a race-
     based Native Hawaiian governing entity. An attempt to 
     reorganize something that never existed would be an exercise 
     in futility, or folly, or both.
       Finding (20) falsely insinuates that Congress is saddled 
     with a greater responsibility for the welfare of Native 
     Hawaiians than for non-Native Hawaiians. The Constitution 
     imposes an equal responsibility on Congress. Race-based 
     distinctions in the exercise of congressional power are 
     flagrantly unconstitutional. See Adarand Constructors, supra.
       Finding (21) repeats the false insinuation that the United 
     States is permitted under the Constitution to create a racial 
     quota in the administration of public lands, contrary to 
     Adarand Constructors, supra.
       Finding (22) also brims with falsehoods. Subsection (A) 
     falsely asserts that sovereignty in the Hawaiian Islands 
     rested with aboriginal peoples that pre-dated Native 
     Hawaiians, i.e. that the aboriginals were practicing and 
     preaching government by the consent of the governed long 
     before Thomas Jefferson's Declaration of Independence. But 
     there is not a crumb of evidence anywhere in the world that 
     any aboriginals believed in popular sovereignty, no more so 
     than King Kamehameha I who founded the Kingdom of Hawaii by 
     force, not by plebiscite.
       Subsection (B) falsely insinuates that Native Hawaiians as 
     opposed to non-Native Hawaiians enjoyed sovereignty or 
     possessed sovereign lands. The two were uniformly equal under 
     the law. In any event, sovereignty until the 1893 overthrow 
     rested with the Monarch. Sovereign lands were employed 
     equally for the benefit of Native Hawaiians

[[Page 12747]]

     and non-Native Hawaiians. [See Appendix page 3 paragraphs 3, 
     4]
       Subsection (C) falsely asserts that the United States 
     extends services to Native Hawaiians because of their unique 
     status as an indigenous, native people. The services are 
     extended because Native Hawaiians are United States citizens 
     and entitled to the equal protection of the laws. The 
     subsection also falsely insinuates that Hawaii previously 
     featured a race-based government.
       Subsection (D) falsely asserts a special trust relationship 
     of American Indians, Alaska Natives, and Native Hawaiians 
     with the United States arising out of their status as 
     aboriginal, indigenous, native people of the United States. 
     The United States has accorded American Indians and Alaska 
     Natives a trust relation in recognition of existing sovereign 
     entities and a past history of oppression and subjugation. 
     The trust relationship, however, is voluntary and could be 
     ended unilaterally by Congress at any time. Native Hawaiians, 
     in contrast, have never featured a race-based government 
     entity. They have never suffered discrimination. They voted 
     overwhelmingly for statehood. And they have flourished since 
     annexation in 1898, as Senator Inouye confirms. If Native 
     Hawaiians alleged a constitutional right to a trust 
     relationship, they would be laughed out of court.
       Finding (23) falsely insinuates that a majority of 
     Hawaiians support the Akaka Bill based on politically correct 
     stances of the state legislature and the governor. The best 
     polling barometers indicate that Hawaiian citizens oppose 
     creating a race-based governing entity with unknown powers. 
     If the proponents of the Akaka Bill genuinely believed 
     Finding (23), they would readily accede to holding hearings 
     and a plebiscite in Hawaii as a condition of its 
     effectiveness on the model of the statehood plebiscite. But 
     they are adamantly opposed because they fear defeat.
       Section 3's definition of ``Native Hawaiian'' in subsection 
     (8)(A) falsely insinuates that Native Hawaiians exercised 
     popular sovereignty in Hawaii on or before 1893. Sovereignty 
     rested with the Monarch; and, Native Hawaiians never operated 
     a race-based government.
       Section 4 is replete with falsehoods. Subsections (a)(1) 
     and (2) falsely maintain that the United States has a special 
     political and legal relationship with Native Hawaiians. No 
     such special relationship is recognized in the United States 
     Constitution, which requires equality among citizens. 
     Subsection (a)(3) falsely maintains that the congressional 
     power to regulate commerce ``with the Indian Tribes'' 
     empowers Congress to create a race-based government for 
     Native Hawaiians. Creating a race-based government is not a 
     regulation of commerce; and, Native Hawaiians, unlike Indian 
     Tribes, never organized a government exclusively for Native 
     Hawaiians. No court has ever sanctioned the subsection's far-
     fetched interpretation of the Indian Commerce Clause. Article 
     IV of the Constitution provided the congressional authority 
     for the Hawaiian Homes Commission Act of 1920 and for 
     Hawaiian statehood. The many several federal laws addressing 
     the conditions of Native Hawaiians are not based on the 
     Indian Commerce Clause. To the extent they embrace racial 
     distinctions, they are unconstitutional.
       Subsection (a)(4) falsely asserts that Native Hawaiians 
     sport an inherent right to autonomy in their internal 
     affairs; an inherent right to self-determination and self-
     governance; the right to reorganize a Native Hawaiian 
     governing entity; and, a right to become economically self-
     sufficient. None of these asserted rights is recognized by 
     the Constitution or federal statutes. All have been concocted 
     by proponents of the Akaka Bill with no more legitimacy than 
     the right of the Confederacy to secede from the Union.
       Subsection (b) falsely asserts that the purpose of the 
     Akaka Bill is to provide a process for the ``reorganization'' 
     of the Native Hawaiian governing entity. As explained above, 
     there has never been a race-based Native Hawaiian governing 
     entity. Something that has never been cannot be reorganized.
       Section 7 is flagrantly unconstitutional in its erection of 
     a race-based government in violation of the non-
     discrimination mandates of the Fifth, Fourteenth and 
     Fifteenth Amendments. It directs the Secretary of Interior to 
     appoint nine Native Hawaiian Commissioners to prepare and 
     maintain a roll of Native Hawaiians to participate in the 
     bogus ``reorganization'' of a Native Hawaiian government. The 
     race-based appointments violate the equal protection 
     component of the Fifth Amendment. Preparing and maintaining a 
     race-based electoral roll violates the same equal protection 
     command. See Rice v. Cayetano, supra. As Justice Anthony 
     Kennedy explained in that case:
       ``The ancestral inquiry mandated by [Hawaii] is forbidden 
     by the Fifteenth Amendment for the further reason that the 
     use of racial classifications is corruptive of the whole 
     legal order democratic elections seek to preserve. The law 
     itself may not become the 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. `Distinctions 
     between citizens solely because of their ancestry are by 
     their very nature odious to a free people whose institutions 
     are founded upon the doctrine of equality.' Hirabayashi v. 
     United States, 320 U.S. 81 (1943). Ancestral tracing of this 
     sort achieves its purpose by creating a legal category which 
     employs the same mechanisms, and causes the same injuries, as 
     laws or statutes that use race by name.'' Cayetano, at 517.
       Under Section 7, the enrolled race-based members are 
     empowered to elect an Interim Governing Council from one of 
     their own, another race-based voting distinction that 
     violates the Fifteenth Amendment and equal protection. The 
     Fifteenth Amendment (which promises the right to vote shall 
     not be denied on account of race) includes any election in 
     which public issues are decided or public officials selected. 
     The Council establishes race-based criteria for citizenship 
     in the Native Hawaiian governing entity, subject to a race-
     based plebiscite, and otherwise cobbles together an organic 
     governing document. The Secretary of Interior then certifies 
     the organic race-based charter under which race-based 
     elections are held to the Native Hawaiian governing entity. 
     That certification would violate the Secretary's solemn oath 
     to protect and defend the Constitution without mental 
     reservation. It seems highly improbable that the Native 
     Hawaiian commissioners would allow an electoral role for non-
     native Hawaiians. The bill itself anticipates a ``native 
     Hawaiian governing entity' which would be a misnomer if non-
     native Hawaiians were included.
       Section 8 establishes an open-ended negotiating agenda 
     between the United States, the State of Hawaii, and the 
     unconstitutional Native Hawaiian governing entity to fix the 
     powers and immunities of the latter. Nothing is excluded. For 
     example, the Native Hawaiian entity might exercise criminal 
     and civil jurisdiction over non-Native Hawaiians. It might be 
     exempt from all federal, state, and local taxes. It might be 
     shielded from all federal, state, and local regulatory, 
     health, welfare, labor, zoning, and environmental laws. It 
     might be free of restraints imposed by the United States 
     Constitution, and violate freedom of speech, press, religion, 
     or association with impunity. It might be empowered to 
     exercise eminent domain over land both within and without its 
     geographical boundaries. It might be authorized to exempt 
     Native Hawaiians from military service and to evict the 
     United States Navy and Army from their current Hawaiian 
     bases. Proponents of the Akaka Bill adamantly refuse to 
     exclude these horrors by explicit language.

     

                          ____________________