2006-05-08 Akaka Fact Check

(Speech text taken from Akaka's website.)

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Akaka's remarks with corrections

Mr. President, I rise today in response to my colleague, the junior Senator from Tennessee (U.S. Senator Lamar Alexander), who spoke about legislation that is of critical importance to the people of Hawai'i, S. 147, the Native Hawaiian Government Reorganization Act of 2005.

* * * Comment: (See Senator Alexander's comments here: "Akaka Bill Should Be Opposed by U.S. Senate") * * *

S. 147 would extend the federal policy of self-governance and self-determination to Hawaii's indigenous peoples, Native Hawaiians, by authorizing a process for the reorganization of a Native Hawaiian governing entity for the purposes of a government-to-government relationship with the United States.

* * * Correction: Despite the characterization of S.147 as merely extending existing federal policy, it actually goes where no legislation has gone before. Although Congress DOES have plenary power over federally recognized tribes, it DOES NOT have plenary power to create tribes out of thin air; and in fact court decisions have ruled that Congress cannot give federal recognition arbitrarily or capriciously: United States v. Sandoval, 231 U.S. 28, 39-47 (1913) If Congress were to create a new mega-tribe out of anyone with Native American ancestry (4,315,865 as per the 2000 Census), and abrogate the rules required for tribal recognition, it would come close to S.147. * * *

My colleague raised the actions by the U.S. Commission on Civil Rights last week. The Commission issued a report in opposition to S. 147. The report was based on a briefing that was conducted on January 20, 2006.

I am concerned about the lack of objectivity of the Commission's review. The Commission never contacted its Hawai'i Advisory Committee, which includes members who are experts in Hawai'i's history and Indian law. Not once was the advisory committee informed of the briefing or allowed to contribute to the Commission's report.

* * * Correction: The commission accepted testimony from 4 experts, including two very favorable to S. 147. The entire transcript of the January 20, 2006 hearing shows very clearly that the pro-S.147 lobby was given a fair hearing, and defended the Akaka bill as best they could. The Hawaii Advisory Committee was even mentioned in the final report on page 2, clearly indicating that their perspective had been heard: Previously, the Hawaii Advisory Committee to the Commission held community forums in August 1998 and September 2000 in which speakers addressed Congress’ joint resolution apologizing to Hawaii for the alleged role of the United States in the overthrow of the Hawaiian monarchy and the Rice v. Cayetano decision by the United States Supreme Court, respectively. Also, as part of the hearing process, there was an opportunity for public comment, which any of the HAC members could have participated in. * * *

Further, despite the fact that the Commission was provided with the substitute amendment which reflects negotiations with the Executive Branch, the Commission chose to issue its report based on the bill as reported out of committee.

The substitute amendment to S. 147 will be offered when we consider the bill and reflects negotiations with the officials from the Department of Justice, Office of Management and Budget, and White House.

* * * Correction: Given that the substitute amendment referred to was never adopted in the Senate, it seems only fair that the bill, as reported out of committee, was analyzed. There is no prerequisite for consideration of the bill in order to submit the amendment, and its notable lack of pursuit is questionable. Furthermore, the substitute amendement did not materially affect the basic premise of race-based government as proposed by the Akaka bill. See Akaka Substitute Comparison for details on the differences. * * *

The substitute amendment satisfactorily addresses the concerns expressed by the Bush Administration regarding liability of the U.S. government, military readiness, civil and criminal jurisdiction, and gaming. The amendment has been publicly available since September 2005 and has been widely distributed.

* * * Correction: The criticism of the USCCR was not in regards to liability, military readiness, civil and criminal jurisdiction, or gaming. It was criticized because it was divisive and race-based. From the USCCR report: The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005 (S. 147) as reported out of committee on May 16, 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege. Furthermore, the DOJ continues to have severe reservations about S.147, as mentioned in this September 22, 2005 editorial (only 8 days after Akaka claimed "I am pleased that our negotiations with the White House and Executive Branch officials were successful."). The administration appreciates the work of the Hawai'i delegation to address some of the concerns raised by the Justice Department but there are substantial, unresolved constitutional concerns regarding whether Congress may treat Native Hawaiians as it does the Indian tribes, and whether Congress may establish and recognize a Native Hawaiian governing entity," said John Nowacki, a Justice Department spokesman. "As the Supreme Court has stated, whether Native Hawaiians are eligible for tribal status is 'a matter of some dispute' and 'of considerable moment and difficulty.' * * *

I applaud the efforts of Commissioners Arlen Melendez and Michael Yaki who voted in opposition to the report and tried to inject objectivity and fairness into this process. It saddens me greatly when an independent commission begins to act in a politically motivated manner.

* * * Comment: It seems Akaka is unhappy with an independent commission acting independently. From the record, it seems clear that the 2 commissioners who objected were the ones acting in a politically motivated manner, ignoring the clear evidence presented to them regarding the inapplicability of the tribal model on the history of Hawaii. * * *

Despite this fact, I remain committed to my constituents and the people of Hawai'i. I will continue to work to bring this bill to the Senate floor as has been promised by the Majority Leader and the junior Senator from Arizona. The people of Hawaii deserve no less than a debate and a vote on an issue of critical importance to them and to their state.

* * * Correction: One of the problems here is that what Akaka is really asking for is not debate and a vote, but a limited debate and a vote. As with the Apology Resolution (PL103-150), which was given only an hour of debate in the Senate, and no debate at all in the House, Akaka's stealth tactics are troublesome. The people of Hawaii deserve a chance to debate and vote on the issue themselves - a right thus far unacknowledged by most of the political establishment in Hawaii. * * *

When I first started my career in Congress, over 30 years ago, there was a protocol and a courtesy. If legislation was going to impact a particular state, and the leaders of that state all supported the issue, it was protocol that other Members would not interfere or obstruct efforts to legislate on behalf of that state. Unfortunately, this longstanding protocol and courtesy no longer exists.

* * * Correction: There is no protocol which would abrogate the oaths sworn by members of the legislature to uphold and defend the constitution. Simply put, the Akaka bill is unconstitutional on its face, and there is no courtesy in allowing it to move forward. * * *

S. 147 is widely supported in Hawai'i. The bill enjoys the bipartisan support of my colleagues: Senators Cantwell, Coleman, Dodd, Dorgan, Graham, Inouye, Murkowski, Smith and Stevens. It is strongly supported by Hawai'i's first Republican Governor in 40 years, Linda Lingle.

* * * Correction: S.147 is widely opposed in Hawaii, both by those who support equal rights for all races, as well as those who support ethnic sovereignty movements and those who support other Hawaiian independence movements. From both sides, S.147 is under siege, criticized by those who repudiate the ideas of special treatment for specific races, to those who feel that it compromises their pursuit of even greater special treatment. * * *

It is supported strongly by Hawai'i's State Legislature which has passed three resolutions in favor of extending the federal policy of self-governance and self-determination to Native Hawaiians. It is supported by almost every single political leader in Hawai'i. S. 147 is also supported by Native Hawaiians and non-Native Hawaiians.

* * * Correction: Again, although supported by the political establishment in Hawaii, S.147 has not been presented to the people of Hawaii, precisely because it does not enjoy majority support. * * *

Why, you might ask? Because in Hawai'i, Native Hawaiian issues are nonpartisan. We have tremendous respect for the indigenous peoples who have shared their lands, traditions, and cultures with the rest of us.

* * * Correction: Native Hawaiian issues may be non-partisan, but race-based entitlements are not. Certainly everyone in Hawaii supports the continued study, preservation, and honor of Native Hawaiian culture, but to interpret that as support for a race-based government is a stretch. * * *

Mr. President, I have been patient, and the people of Hawai'i have been patient. For the past three years, the Majority and Democratic Leaders have been working with me to uphold a commitment that was made at the end of the 108th Congress that we would consider and vote on this bill. Unfortunately, their efforts have been thwarted by a handful of colleagues who have taken upon themselves to block this bill, despite the widespread support we have for this bill in Hawai'i.

After seven years of delay by a few of my colleagues, it is time that we are provided with the opportunity to debate this bill in the open. I will be coming to the floor to talk about my bill every day until we begin debate on the bill. I will use every day to talk about what my bill does and does not do, and to respond to the outright mistruths that have been spread about the legislation. I will use every day to help share Hawai'i's history with my colleagues as the opponents to this legislation have taken it upon themselves to rewrite the tragedies of Hawaii's history in a manner that suits them for the purposes of opposing this legislation.

I am deeply saddened by their tactics - but I am committed to ensuring that the Members of this body and all of the citizens in the United States understand Hawai'i's history and the importance of extending the federal policy of self-governance and self-determination to Hawai'i's indigenous peoples, Native Hawaiians.

* * * Correction: Native Hawaiians have a history of race-blind government. From the very first unification of the islands by Kamehameha the Great, non-natives were a part of his government and country. In 1839, Kamehameha III proclaimed Hawaii's first constitution, declaring all people "of one blood". This enlightened, progressive stance on civil rights should not be undone. What the Native Hawaiians of the 1800s did in the pursuit of racial equality is being threatened by the race-based politicos of today. The USCCR got it right, and Akaka has it wrong. * * *