USCCR Akaka Findings - Revision history

Jere Krischel at 02:02, 8 June 2006

2006-06-08T02:02:54Z

Jere Krischel: /* Findings */

2006-05-14T16:39:45Z

‎Findings

Jere Krischel: /* Findings */

2006-05-14T16:39:07Z

‎Findings

Jere Krischel: /* Findings */

2006-05-14T16:38:14Z

‎Findings

Jere Krischel: /* Findings */

2006-05-14T16:34:41Z

‎Findings

Jere Krischel at 16:34, 14 May 2006

2006-05-14T16:34:22Z

New page

Although these findings were redacted from the final USCCR report, allegedly because of "historical inaccuracies", none of these claims have been shown to be in the least bit inaccurate.
=Findings=
1. The Native Hawaiian Government Reorganization Act of 2005 (NHGRA) would
establish a roll of Native Hawaiians. Until the final political entity created by the Act
defines its own eligibility criteria under the well-established principle of Indian law that
a tribe may decide who holds membership in the tribe, only members from the NHGRA
created roll would be eligible to participate in the interim and final governing processes.
Membership would be defined solely on the basis of ancestry, not on the basis of
geographic, cultural, and political cohesiveness, and the presence of an established
community as is done for other Indian tribes in accordance with federal regulations. In
Rice v. Cayetano, the Supreme Court evaluated a similar membership restriction in a
provision of the Constitution of the State of Hawaii which limited voting rights to a
group defined by ancestry. The Court found that Hawaii was using ancestry as a proxy
for race and held that the provision violated the Fifteenth Amendment as a race-based
voting qualification. Using ancestry as a proxy for race, the Native Hawaiian
Government Reorganization Act would likewise establish an impermissible racial
preference in the establishment and operation of a governing entity. The Act would give
the governing entity the ability to treat non-Native Hawaiians differently than Native
Hawaiians, thereby perpetuating a system whereby certain groups are treated differently
than others, based solely upon race.
{{comment|Every statement in this finding is 100% fact. Although Akaka supporters may wish to sugar-coat the bill, and use some term other than "race-based", the courts, as indicated, have clearly found that using ancestry in the case of Native Hawaiians as a proxy for race is a violation of the constitution.}}

2. The Office of Hawaiian Affairs currently administers a racial preference system in the
form of a substantial public trust, including cultivated sugarcane land, water rights, and
other natural resources, as well as any derivative profits. The Native Hawaiian
Government Reorganization Act of 2005 appears to be an effort to preserve that system
in the face of anticipated constitutional challenges. Although Congress may properly
remedy defective legislation identified by the courts, it cannot legislatively authorize
actions prohibited under the Constitution. Though no court has yet applied the
Cayetano decision to the public programs serving Native Hawaiians, the current system,
including any version of the Native Hawaiian Government Reorganization Act that
establishes racial preferences, will undoubtedly be tested in federal court and may be
found in violation of the Fifth and Fourteenth Amendments.
{{comment|There is no question that the Akaka bill was crafted in order to respond to the court's unfavorable decision to race-based programs and restrictions in Rice v. Cayetano. It is clearly spelled out in the 2001 Hawaii Advisory Committee report to the USCCR titled, [http://www.usccr.gov/pubs/sac/hi0601/report.htm "Reconciliation at a Crossroads: The implication of the apology resolution and Rice v. Cayetano for federal and state programs benefiting Native Hawaiians."]

<blockquote>''Native Hawaiians are in a grassroots political struggle to regain control over Hawaiian lands and to establish the right of self-governance. The desire for recognition as a distinct indigenous people has resonated across the islands and in Congress. In light of the Rice decision, there is a sense of urgency to establish a procedure for formal recognition of a political entity representing Native Hawaiians,[381] and protect existing federal and state programs from future legal challenges.''</blockquote>}}

3. For Native Americans, the Indian Civil Rights Act specifically incorporates the
constitutional protections of the First, Fifth, and Fourteenth Amendments and the civil
rights protections of federal legislation. No equivalent protections would extend to
Native Hawaiians under the Native Hawaiian Government Reorganization Act of 2005.
Although the Secretary of the Interior retains a final check over the organic governing
documents, the prospective governing entity retains the discretion to opt into the civil
rights protections that all other Americans enjoy or to opt out. Nothing beyond the
discretion of a single executive branch official ensures that the constitutional
protections would apply to the entity.

4. Although the Supreme Court has upheld equal protection challenges against legislation
creating preferences for Indians, the Court has only done so where Indians are members
of federally recognized tribes. Accordingly, allotting benefits on the basis of race, in the
situation where a Native Hawaiian entity had not satisfied the regulatory standards for
federal recognition, would invoke heightened scrutiny and would likely be declared
unconstitutional.

5. Although Congress has the power to recognize certain Indian groups under the Indian
Commerce Clause, it has deferred most federal acknowledgement determinations to the
Department of the Interior under 25 C.F.R. §83. Federal legislative recognition outside
of the established recognition process and independent from pre-established criteria
gives an unfair advantage to certain groups and invites political influences into a
process that should be implemented consistently and objectively. Any effort to
recognize a Native Hawaiian entity should utilize the mechanism created for the
recognition of all Indian groups.

6. The federal policy of self governance and self determination is based on the political
and legal relationships that the United States has with preexisting sovereign entities. In
light of those relationships, federal regulations provide criteria and acceptable evidence
for federal acknowledgement of tribal status. A Native Hawaiian entity could
potentially satisfy several of the applicable criteria. Nevertheless, like numerous Native
American groups seeking tribal status, a Native Hawaiian entity would fail to meet
several mandatory criteria. Those mandatory criteria include requirements that the
entity seeking recognition have continuously been identified as an American Indian
entity since 1900, have existed predominantly as a distinct community, and have
exercised political influence over its members as an autonomous entity. Although these
regulations were written for Indian groups within the continental United States, any
recognition, whether from Congress or the Interior Department, should adhere to the
same guidelines.

7. Before its overthrow in 1893, the Kingdom of Hawaii was a distinct independent nation
and a party to treaties with European nations and the United States. The Kingdom of
Hawaii was a government that included Native Hawaiians, but also included residents
of other races and ethnicities. It was a monarchy where power or sovereignty resided in
a single individual rather than in a distinct race or group of people. Since its overthrow
in 1893, no government has existed for Native Hawaiians separate from the government
for all citizens of Hawaii.
{{comment|Also 100% fact. There has never existed an independent nation solely for ethnic Hawaiians, ever. From the very beginning, the Hawaiian Kingdom was multi-racial, and according to the [http://morganreport.org/mediawiki/index.php?title=414-415 1890 census], by the time the Hawaiian Revolution occurred, ethnic Hawaiians were a minority of the population.}}

8. In contrast to Native Hawaiians, all Native American tribes recognized by the federal
government have existed continuously. No separate and distinct Native Hawaiian tribal
entity has existed continuously. Therefore, any future Native Hawaiian entity would be
unable to satisfy the requirements for federal recognition.
{{comment|Undeniably true.}}

9. In addition to historical continuity, federal recognition requires that a political entity
maintain political influence or other authority over its members as an autonomous entity
throughout its history. Past recognition has required a semblance of ongoing political
cohesion and some degree of geographic unity. Although the Kingdom of Hawaii
existed as a distinct political entity before 1893 and, since then, various grassroots
organizations have attempted to exert political influence, no specifically Native
Hawaiian political entity exists in Hawaii that claims to exercise ongoing organizational
and political power. Furthermore, the passage by Congress of 160 statutes addressing
the conditions of Native Hawaiians and the continuous efforts by the federal
government to implement those statutes was not intended to imply recognition of a
distinct political entity. Likewsie, no Native Hawaiian entity established a predominant
geographic base composed almost exclusively of other Native Hawaiians. Therefore,
any future Native Hawaiian entity would be unable to satisfy the requirements for
federal recognition.
{{comment|Absolutely factual.}}

10. Nothing in the Native Hawaiian Government Reorganization Act of 2005 guarantees
that the race-based entity to be created would be democratic in nature.
{{comment|Undisputed.}}

11. The Native Hawaiians in the Native Hawaiian Government Reorganization Act of 2005
could prompt other native or indigenous entities or other ethnic groups to seek similar
rights through self-governance programs.
{{comment|Speculative, to be sure, but a reasonable caution. Ethnic separatism is a disease that once taken hold, can spread uncontrollably.}}

← Older revision		Revision as of 02:02, 8 June 2006
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	Although these findings were redacted from the final USCCR report, allegedly because of "historical inaccuracies", none of these claims have been shown to be in the least bit inaccurate.		Although these findings were redacted from the final USCCR report, allegedly because of "historical inaccuracies", none of these claims have been shown to be in the least bit inaccurate.
	=Findings=		=Findings=

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 {{comment|There is no question that the Akaka bill was crafted in order to respond to the court's unfavorable decision to race-based programs and restrictions in Rice v. Cayetano.  It is clearly spelled out in the 2001 Hawaii Advisory Committee report to the USCCR titled, [http://www.usccr.gov/pubs/sac/hi0601/report.htm "Reconciliation at a Crossroads: The implication of the apology resolution and Rice v. Cayetano for federal and state programs benefiting Native Hawaiians."]
-<blockquote>''Native Hawaiians are in a grassroots political struggle to regain control over Hawaiian lands and to establish the right of self-governance. The desire for recognition as a distinct indigenous people has resonated across the islands and in Congress. <u>In light of the Rice decision, there is a sense of urgency to establish a procedure for formal recognition of a political entity representing Native Hawaiians,[381] and protect existing federal and state programs from future legal challenges.</u>''</blockquote>}}
+<blockquote>''In light of the Rice decision, there is a sense of urgency to establish a procedure for formal recognition of a political entity representing Native Hawaiians,[381] and <u>protect existing federal and state programs from future legal challenges.</u>''</blockquote>}}
 . For Native Americans, the Indian Civil Rights Act specifically incorporates the

@@ Line 19: / Line 19: @@
 Hawaiians, thereby perpetuating a system whereby certain groups are treated differently
 than others, based solely upon race.
-{{comment|Every statement in this finding is 100% fact.  Although Akaka supporters may wish to sugar-coat the bill, and use some term other than "race-based", the courts, as indicated, have clearly found that using ancestry in the case of Native Hawaiians as a proxy for race is a violation of the constitution.}}
+{{comment|Every statement in this finding is 100% fact.  Although Akaka supporters may wish to sugar-coat the bill, and use some term other than "race-based", the courts, in [http://tinyurl.com/3wu78 Rice v. Cayetano], have clearly found that using ancestry in the case of Native Hawaiians as a proxy for race is a violation of the constitution.}}
 . The Office of Hawaiian Affairs currently administers a racial preference system in the

@@ Line 83: / Line 83: @@
 in 1893, no government has existed for Native Hawaiians separate from the government
 for all citizens of Hawaii.
-{{comment|Also 100% fact.  There has never existed an independent nation solely for ethnic Hawaiians, ever.  From the very beginning, the Hawaiian Kingdom was multi-racial, and according to the [http://morganreport.org/mediawiki/index.php?title=414-415 1890 census], by the time the Hawaiian Revolution occurred, ethnic Hawaiians were a minority of the population.}}
+{{comment|1=Also 100% fact.  There has never existed an independent nation solely for ethnic Hawaiians, ever.  From the very beginning, the Hawaiian Kingdom was multi-racial, and according to the [http://morganreport.org/mediawiki/index.php?title=414-415 1890 census], by the time the Hawaiian Revolution occurred, ethnic Hawaiians were a minority of the population.}}
 . In contrast to Native Hawaiians, all Native American tribes recognized by the federal