Difference between revisions of "NHSC and the Akaka Bill"

Revision as of 16:05, 7 December 2006

Introduction

The Native Hawaiians Study Commission was created by the Congress of the United States on December 22, 1980 (Title III of Public Law 96-565). The purpose of the Commission was to "conduct a study of the culture, needs and concerns of the Native Hawaiians." The Commission published and released to the public a Draft Report of Findings on September 23, 1982. Following a 120-day period of public comment, a final report was written and submitted on June 23, 1983 to the U.S. Senate Committee on Energy and Natural Resources and to the U.S. House of Representatives Committee on Interior and Insular Affairs.

The NHSC examined the history of Hawai'i and the current conditions (1980) of Native Hawaiians. One purpose of the commission was to explore whether Native Hawaiians have special needs, and what those needs might be. Another purpose of the commission was to explore whether the United States has any historical, legal, or moral obligation to meet the special needs of Native Hawaiians by providing them with political sovereignty or race-specific group rights.

The commission found that Native Hawaiians have higher rates than other ethnic groups for indicators of dysfunction in health, education, income, etc. The commission concluded that the U.S. has no obligation to remedy those problems in any way other than the usual assistance given by government to all people afflicted with difficulties.

Portions of the "Conclusions and Recommendations" section of the NHSC final report focus on topics of special interest regarding the Native Hawaiian Government Reorganization bill, S.147 and H.R.309 in the 109th Congress.

1. There is no historical, legal, or moral obligation for the U.S. government to provide race-based reparations, assistance, or group rights for Native Hawaiians.

2. Affirmative outreach is appropriate to ensure Native Hawaiians are given the assistance they need; but race-based or racially exclusionary programs are not recommended. Native Hawaiians may be disproportionately afflicted by some specific medical or social problems. Native Hawaiians should receive affirmative outreach to ensure they are aware of and receive help from existing programs open to all needy people. When considering what new programs government should sponsor, care should be taken to target some of those new programs to areas of concern which disproportionately afflict Native Hawaiians. However, the NHSC carefully worded its recommendations to avoid proposing race-based or racially exclusionary programs or group rights.

Following are some quotes from the "Conclusions and Recommendations" section of the NHSC report. These particular quotes are highlighted because of their relevance to the Native Hawaiian Government Reorganization bill under consideration in the 109th Congress (also known as S.147 and H.R.309, informally called the "Akaka bill"). The full set of conclusions can be found on pp. 23-32 of the report. The conclusions regarding lack of a federal trust relationship with Native Hawaiians, and lack of any obligation to pay reparations, are more fully explored in the section entitled "Existing Law, Native Hawaiians, and Compensation" found on pp. 333-370 including 198 footnotes citing both Kingdom of Hawaii and U.S. government actions and legal decisions.

THERE IS NO HISTORICAL, LEGAL, OR MORAL OBLIGATION FOR THE U.S. TO GIVE RACE-BASED REPARATIONS, GROUP RIGHTS, OR POLITICAL SOVEREIGNTY TO NATIVE HAWAIIANS

"To summarize the Commission's findings with regard to the overthrow of the Hawaiian monarchy: Based upon the information available to it, the Commission concluded that Minister John L. Stevens and certain other individuals occupying positions with the U.S. Government participated in activities contributing to the overthrow of the Hawaiian monarchy on January 17, 1893. The Commission was unable to conclude that these activities were sanctioned by the President or the Congress. In fact, official government records lend strong support to the conclusion that Minister Stevens' actions were not sanctioned." (page 29)

"Besides the findings summarized above, the Commission concludes that, as an ethical or moral matter, Congress should not provide for native Hawaiians to receive compensation either for loss of land or of sovereignty. Reviewing the situation generally, including the historical changes in Hawaii's land laws and constitution before 1893, the Hawaiian political climate that led to the overthrow, the lack of authorized involvement by the United States, and the apparent limited role of United States forces in the overthrow, the Commission found that on an ethical or moral basis, native Hawaiians should not receive reparations." (page 29)

"The relations between the United States and Hawaii up to the time of annexation were relations between two separate, sovereign nations, not between a sovereign and those subject to its sovereignty." (page 25)

"Generally, the most likely possible theories for the award of compensation to native groups for loss of land were aboriginal title or recognized title doctrines." (page 25)

"The law has developed specific tests for establishing aboriginal title: the group must be a single land-owning entity; there must be actual and exclusive use and occupancy of the lands; the use and occupancy must be of a defined area; the land must have been used and occupied for a long time before aboriginal title was extinguished. Additionally, title must have been extinguished by the government of the United States, not by another body, such as the government of Hawaii before the United States annexed Hawaii. Finally, some law must give the native group, here the native Hawaiians, a right to compensation for loss of aboriginal title. The Commission finds that the facts do not meet the tests for showing the existence of aboriginal title." (pp. 25-26)

"Even if the tests had been met, the Commission finds that such title was extinguished by actions of the Hawaiian government before 1893, and certainly before annexation, which was the first assumption of sovereignty by the United States." (page 26)

"Finally, even if these tests had been met, neither the Fifth Amendment to the United States Constitution nor current statutes provide authority for payment of compensation to native Hawaiians for loss of aboriginal title." (page 26)

"The law also has developed specific legal requirements for compensation of loss of lands by recognized title. The Commission examined the question of whether treaties and statutes, the Joint Resolution of Annexation, or the Fifth Amendment to the United States Constitution provide a basis for payment under the theory of recognized title, and concluded that no basis exists." (page 26)

"The Commission examined whether a trust or fiduciary relationship exists between the United States and native Hawaiians and concluded that no statutes or treaties give rise to such a relationship because the United States did not exercise sovereignty over the Hawaiian Islands prior to annexation, and the Joint Resolution of Annexation, No. 55 (July 7, 1898) did not create a special relationship for native Hawaiians." (page 26)

"The Commission considered whether native Hawaiians are entitled to compensation for loss of sovereignty, and found no present legal entitlement to compensation for any loss of sovereignty." (page 26)

AFFIRMATIVE OUTREACH BUT NO RACE-BASED OR RACIALLY EXCLUSIONARY PROGRAMS

The commission recommended that government programs be targeted to deal with problems that disproportionately affect Native Hawaiians, to ensure that they receive the help they especially need. But notably the commission did not recommend singling out a specific racial group for benefits that would exclude other groups. Benefits are to be given to all individuals afflicted with a particular problem, regardless of race; and if Native Hawaiians are disproportionately afflicted then they will receive a disproportionate share of the benefits of such programs without any need for programs limited by race.

The "Conclusions and Recommendations" section of the NHSC report makes clear that there should be special outreach to Native Hawaiians to ensure that they are made aware of government programs from which they could get assistance, and to ensure that new and existing programs be focused on problems that disproportionately affect Native Hawaiians. But the Commission's recommendations never propose to create race-based programs exclusively for Native Hawaiians. Here are some quotes illustrating the careful wording of recommendations for affirmative outreach but avoiding race-based or racially exclusionary programs:

"[C]onsideration should be given to a wide variety of Federal programs that are already available or that could be made available to help address specific needs. Private, local, and State officials in Hawaii should take the initiative to become aware of available programs, secure and disseminate information on them, and ensure that native Hawaiians have equal access to those programs." (page 28)

"The Commission recommends: ... Making sure that Federal programs for vocational training funded through block grants are targeted to groups most in need, including native Hawaiians. ... Initiating efforts to ensure that information on specific Federal programs (for example, supplemental food program for women, infants, and children) is disseminated through native Hawaiian organizations, and recruit eligible native Hawaiians to participate in these programs. Ensuring that a fair share of Federal block grant monies are directed toward alleviating specific health problems, including those of concern to native Hawaiians, such as infant mortality and child and maternal care. Giving higher priority to native Hawaiian sites in considering nominations for the National Register of Historic Places; activating the State Historic reservation Plan and revising, in consultation with native Hawaiians, the plan in an effort to ensure protection of ancient Hawaiian artifacts and sites." (page 29)

"The Commission also recommends that the heads of all Federal departments and agencies act to ensure that the needs and concerns of native Hawaiians, to the extent identified and defined in the Commission's Report, be brought to the attention of their program administrators; that these administrators consult officials in Hawaii for further guidance on specific programs; and, once this guidance is received, consider actions that could be taken to ensure full and equal access by native Hawaiians to various assistance programs." (page 30)

Rewriting history

Akaka has worked diligently to rewrite history to provide a basis for his race-based bill. A comprehensive review of Native Hawaiian history was conducted in the early 1980s, and culminated in the Native Hawaiians Study Commission Report on June 23, 1983. Senator Akaka admitted to using the Apology Bill (PL103-150) to rewrite the historical record in a speech on September 4, 1999:

"I wanted ... to neutralize the 1983 Native Hawaiians Study Commission's Majority Report conclusion that the U.S. government was not liable for the loss of sovereignty or lands of the Hawaiian people in the 1893 overthrow."