USCCR Akaka Findings
Back to Correcting Akaka
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, in 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. * * * |
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, "Reconciliation at a Crossroads: The implication of the apology resolution and Rice v. Cayetano for federal and state programs benefiting Native Hawaiians." 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. * * * |
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 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. * * * |
