2006-05-17 Mark J. Bennett Fact Check

Back to Correcting Akaka

As reported in the Hawaii Reporter, this is a "Brief Response" sent by the State Attorney General Mark Bennett to the U.S. Commission on Civil Rights.

Of particular note is his attempt to use existing Congressional programs racially targeted towards Native Hawaiians as an excuse for having more race-based legislation. If anything, it shows that not only should the Akaka bill be voted down, but the existing race-based programs for Native Hawaiians should be scrutinized, and challenged in the courts.

Brief Response with corrections

1. The Commission's report and its conclusion evidence a complete lack of understanding of this country's longstanding practice of dealing specially with its native peoples. It ignores the undisputed history of suffering, and political and cultural devastation foisted upon the Native Hawaiian people. And under the guise of lessening discrimination, it ironically ends up effecting the most patent discrimination by denying the Native Hawaiian people the recognition and self-governing structure that virtually all other native peoples have had for decades.

* * * Correction: A history of suffering, political and cultural devastation does not entitle racial groups to separate self-government. African-American slaves certainly fit that description, but we don't establish racially exclusive governments for them. The answer to racial oppression has never been the imposition of racial privilege - it has been the imposition of equality. Although the Civil Rights Act of 1964 was inspired by the poor treatment of African-Americans, it did not assert special privilege for them - it demanded equal rights for everyone. * * *

2. The report wrongly suggests the Akaka Bill creates a race-based government and segregates people by race. In fact, participation in the Native Hawaiian Governing Entity is limited to descendants of the native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial, and which is consistent with over a century of United States Supreme Court precedent upholding the special status of this country's other native peoples. Native Hawaiians, like Native Americans and Alaska Natives, have been recognized by Congress as having a special political relationship with the United States.

* * * Correction: Although Congress may have characterized it as being non-racial, examination by the USCCR, as well as the decision of the courts in Rice v. Cayetano prove otherwise. * * *

3. The Commission's emphasis on the Supreme Court's Rice v. Cayetano decision plainly misses the mark, as Rice made no distinction whatsoever between American Indian tribes and Native Hawaiians. Rice therefore provides no justification for denying Native Hawaiians the same recognition other Native Americans long ago received.

* * * Correction: The Rice v Cayetano decision most definitely did distinguish between American Indian tribes and Native Hawaiians. The Court ruled by a vote of 7-2. The ruling included extensive disccussion leading up to this excerpt: "If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State--and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993--has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998), with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L. J. 537 (1996). We can stay far off that difficult terrain, however." * * *

4. Hawaiians are not asking for "special" treatment -- they're simply asking to be treated the same way all other indigenous Americans are treated in this country. Congress has recognized the great suffering American Indians and Alaska Natives have endured upon losing control of their native lands, and has, as a consequence, provided formal recognition to those native peoples. Hawaiians are simply asking for comparable recognition, as the native peoples of the Hawaiian Islands who have suffered similar hardships, and who today continue to be at the bottom in most socioeconomic statistics.

* * * Correction: Other "indigenous" Americans are not given separate race-based governments. Many people with Native American and Native Alaskan blood are not part of tribal entitites, as well as other "indigenous" peoples in places like Guam and Puerto Rico. S.147 goes well beyond the tribal recognition that any "indigenous" group has. * * *

5. The Constitution gives Congress broad latitude to recognize native groups, and the Supreme Court has declared that it is for Congress, and not the courts, to decide which native peoples will be recognized, and to what extent. The only limitation is that Congress may not act "arbitrarily" in recognizing an Indian tribe. Because Native Hawaiians are not only indigenous, but also share with other Native Americans a similar tragic history of dispossession, cultural disruption, and loss of full self-determination, it would be "arbitrary" to not recognize Native Hawaiians.

* * * Correction: Native Hawaiians do not share the same history as Native Americans. They were not dispossessed of their lands, moved to reservations, denied citizenship, and kept separate. They have enjoyed more self-determination during their time with the U.S. than under any Kingdom government. From 1900, they dominated the Territorial Legislature, and took full part in the government of Hawaii. Robert Wilcox, hero of the Native Hawaiian people (and rebel leader twice over), spoke to Aloha 'Aina and Hui Kalai'aina (the two major Native Hawaiian political clubs in 1900) upon returning from lobbying efforts to ensure equal rights in the Organic Act of 1900, and said, "The question of the restoration of the Monarchy is gone from us forever. We are now a people, however, who can vote. You all know we have two-thirds of the votes in this country." He also advised against racial loyalties, saying, "We are all Americans. We should not consider personality." Native Hawaiians took up his call, disbanded the political clubs formerly opposed to annexation, and formed the Hawaiian Independent Party (later called the Independent Home Rule Party). They participated in the political process as equals, with their motto "Equal rights for the People". Eventually, the Home Rule Party split, and most Native Hawaiians joined the Republican Party with Prince Kuhio, but even then, they were exercising their inherent rights to sovereignty. * * *

6. The commission suggests that Native Hawaiians do not fall within Congress's power to deal specially with "Indian Tribes," because Native Hawaiians cannot be deemed "Indian Tribes," given the lack of a continuously existing self-governing entity. If Native Hawaiians do not have a continuously existing self-governing structure today, it is only because the United States participated in the elimination of that self-governing entity, by facilitating the overthrow of the Hawaiian Kingdom, and later annexing the Hawaiian Islands. Unlike other Native Americans who were allowed to retain some measure of sovereignty, Congress did not leave Native Hawaiians with any sovereignty whatsoever. It cannot be that the United States' complete destruction of Hawaiian self-governance prevents Congress from ameliorating the consequences of its own actions by trying to restore some small measure of sovereignty to the Native Hawaiian people. (Note: the terms "Indian" and "tribe" at the time of the framing of the Constitution simply referred to distinct aboriginal inhabitants of our frontiers, which Native Hawaiians surely are.)

* * * Correction: Native Hawaiians were given the right to vote with the Organic Act of 1900, and participated as equals in the Territory government, and in State government. Their right to self-governance has only been increased as a result of annexation to the United States. And unlike Native Americans, Native Hawaiians were not distinct aboriginal inhabitants - they were fully integrated as part of a multi-racial Kingdom, with no distinctions made between races. They were an internationally recognized Kingdom, whose constitution proclaimed that all people were "of one blood". * * *

7. The commission ignores the fact that Congress has already recognized Native Hawaiians to a large degree, by not only repeatedly singling out Native Hawaiians for special treatment, either uniquely, or in concert with other Native Americans, but by acknowledging on many occasions a "special relationship" with, and trust obligation to, Native Hawaiians. In fact, Congress has repeatedly stated that "the political status of Native Hawaiians is comparable to that of American Indians." The Akaka Bill simply takes this recognition one step further, by providing Native Hawaiians with the means to re-organize a formal self-governing entity, something Native Americans and Native Alaskans have had for decades.

* * * Comment: Perhaps the race-based recognition of Native Hawaiians by Congress should be examined more closely, and corrective action taken to eliminate unconstitutional racial preferences in government. * * *

8. The commission suggests that because the government of the Kingdom of Hawaii was itself not racially exclusive, that it would be inappropriate to recognize a governing entity limited to Native Hawaiians. This objection is absurd. The fact that Native Hawaiians, over one hundred years ago, were enlightened enough to maintain a government that was open to participation by non-Hawaiians, should not deprive Native Hawaiians today of the recognition they deserve. Indeed, it is quite ironic that those who oppose the Akaka Bill as racist would use Native Hawaiians' historical inclusiveness as a reason to deny Native Hawaiians the recognition other native groups receive. (Note: American Indian tribes have often included non-Indians within their tribes, too, yet non-Indian tribal members have been permissibly excluded from having special status.).

* * * Correction: The fact that Native Hawaiians had an enlightened, multi-racial government should make it even more important to continue their noble aims. It is quite ironic that those who assert that they are advocating for equality would ignore the example of equality practiced by the Kingdom of Hawaii, and create a race-based government where none has ever existed in the history of mankind. * * *

9. The commission also expresses concern that there is nothing to ensure that the Native Hawaiian Governing Entity will protect civil rights, but in fact the Secretary of the Interior must certify that civil rights are protected before certifying the organic governing documents.

10. In sum, there is simply no legal or moral distinction between Native Hawaiians and American Indians or Alaska Natives, that would justify denying Native Hawaiians the same treatment other Native American groups in this country currently enjoy. As a result, the commission's reasoning poses a threat to American Indians and Alaska Natives as well, which perhaps explains in part why these groups are overwhelmingly in support of the Akaka Bill.

* * * Correction: There are legal distinctions between various Native Americans, some of whom enjoy tribal status, and others who don't. Native Hawaiians simply do not meet the same requirements as tribal governments do. * * *

11. Formal recognition will help preserve the language, identity, and culture of Native Hawaiians, and ultimately ensure the survival of this great people. The commission turns a blind eye to the sufferings of the Native Hawaiian people, and attacks a bill that merely seeks to provide some remedy for that suffering.

* * * Correction: The language, identity, and culture of Native Hawaiians does not require a separate race-based government. The increase of Hawaiian language fluency, cultural revival such as Hokulea and hula, have all happened without race-based government. There is no doubt that it would continue. Furthermore, suffering does not justify racial separatism. Many peoples in the United States, both "indigenous" and immigrant, have suffered terribly over the years. It is not in our national, nor our personal interests to balkanize the United States. * * *