The Proposed Akaka Bill Gets a Boost from 2008 Elections

Kenneth R. Conklin, Hawaii Reporter, November 7, 2008

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‘CONGRESS AND THE AKAKA BILL IN THE COMING YEAR 2009″

The Hawaiian Government Reorganization bill, known informally as the Akaka bill, seems likely to be enacted and signed into law early in 2009.

The U.S. House passed the Akaka bill on October 24, 2007 by a vote of 261-153, which included every Democrat voting in lock-step plus a surprising number of left-leaning Republicans.

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As a result of the election of November 2008, the Democrat majority in the House seems likely to increase by about 20. There’s no way to stop the bill in the House in 2009.

It appears there will be at least 55 Democrat Senators, plus two independents who have always caucused with the Democrats. Three of the four Republican Senators whose contests for re-election remain too close to call the day after the election are actually co-sponsors of the Akaka bill: Norm Coleman (Minnesota), Gordon Smith (Oregon), and Ted Stevens (Alaska). So it would seem to make no difference for the Akaka bill whether those three so-called Republicans are re-elected or replaced by Democrats. Add the two RINOs (Republicans in name only) from Maine (Susan Collins and Olympia Snowe), and it might seem likely that the 60 votes needed for cloture will be available in 2009, even without a couple of other Republicans who previously voted for cloture. However, the Democrats newly elected in 2006 are thus far untested on the Akaka bill—they and the Democrats newly elected in 2008 might be open to persuasion. There were also a few Democrats who voted in favor of cloture in 2006 but who indicated informally at that time that they might oppose the bill itself if it came to the floor. Senators Coleman and Smith might also be educable, because it was never clear why they originally agreed to co-sponsor the bill and they might not know very much about it.

Considering all the evidence, there is a small but significant possibility that cloture on the Akaka bill can be defeated in 2009 in the Senate, even with the increased Democrat majority.

If there wasn’t already enough to worry about, consider this. The Akaka bill that passed the House and stalled in the Senate in the now-concluding 110th Congress was not the most dangerous version of the bill. The current version resulted from “negotiations” during 2005 and 2006 between the Bush administration’s Department of Justice and the bill’s supporters. The current version includes language that limits the powers of the proposed Akaka tribe in ways not found in previous versions.

It says the Akaka tribe must get the approval of the state Legislature before it can get legal jurisdiction over any lands, or build a gambling casino; and that it cannot make claims for land or jurisdiction against military bases. It imposes legal restrictions prohibiting the federal government from “taking land into trust” and prohibiting Hawaii land from being treated as “Indian country.” Considering how the state Legislature and Governor have always given the Office of Hawaiian Affairs and Kamehameha Schools whatever they want, these restrictions might not have much real effect in limiting tribal power.

But previous versions of the Akaka bill were less restrictive. The version to be introduced in 2009 is likely to be much more “muscular” than the current one, or even more muscular than any previous version; because the increased Democrat majority in Congress and President Obama’s pledge to support the bill will embolden the racial separatists to “shoot the moon” or “go for broke”.

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HAWAII ELECTION RESULTS SOLIDIFY RACIAL SEPARATISM

The already-huge Democrat majority increased: it will now be 45-6 in the House in 2009, and 23-2 in the Senate. Not all Democrats are racial separatists. Several have said privately that they oppose the Akaka bill but dare not say so publicly. However, it doesn’t really matter what they believe in their hearts or what they say privately—what matters politically is only what they say in public and how they vote on bills and resolutions. The Hawaii Legislature has repeatedly passed resolutions supporting the Akaka bill unanimously except for one or two votes on one or two occasions. Governor Lingle (a RINO) has zealously pushed the Akaka bill, and has two more years in office. OHA has adopted a policy of pursuing “Plan B”—a plan for implementing the Akaka bill inside the State of Hawaii, creating a state-recognized tribe, even if the bill does not pass Congress. The legislative and executive branches have repeatedly passed bills, resolutions, and amicus briefs giving land, money, power, and political support to racially exclusionary institutions and programs.

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Hawaii election results said “Don’t rock the boat” and “Give us even more of the same.”

THE COURTS, AND MAINLAND INSTITUTIONS, OFFER HOPE FOR CIVIL RIGHTS IN HAWAII

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Courts have authority to overturn both executive decisions and legislated laws, if they are unconstitutional. When Southern state legislatures passed laws, or governors created regulations or administrative procedures, to protect segregation, courts over-ruled them. In recent years it has become more difficult for courts to intervene, because of increased restrictions on who has “standing” to bring lawsuits. It has become fashionable for some judges to dismiss civil rights lawsuits on grounds that certain issues are “political questions” where the courts must give way to decisions made by voters or legislatures. In a recent lawsuit to dismantle OHA, a misguided federal judge actually dismissed the case by ruling that the mere fact that the Akaka bill was sitting in Congress awaiting possible action made the existence of OHA a “political question” which the court should not consider. Nevertheless, the Marbury v. Madison Supreme Court decision from 1803 established the right of courts to review and overturn executive and legislative decisions; and such judicial review has a long and distinguished history of protecting civil rights. No matter how large a majority might try to strip groups or individuals of their civil rights, the courts have the authority to protect those rights.

In February 2000 the U.S. Supreme Court ruled in Rice v. Cayetano that it was unconstitutional for the State of Hawaii to prohibit people with no Hawaiian native blood from voting for trustees of the Office of Hawaiian Affairs. Thus the U.S. Supreme Court overturned a provision of the Constitution of the State of Hawaii that had been approved by a vote of the people on a ballot proposal coming from the state Constitutional Convention of 1978. Later in 2000 a federal court took another piece out of the state Constitution by ruling that race cannot be used to prohibit someone with no native blood from running as a candidate for OHA trustee. That should have been obvious from the Rice decision, but OHA and the state government fought tooth and nail against it until rulings came down from the U.S. District Court in Honolulu and, on appeal by the State, from the 9th Circuit Court of Appeals in San Francisco).

On December 5, 2002 Hawaii circuit court judge Sabrina McKenna ruled against OHA, concluding that the State of Hawaii has a right to sell ceded lands. OHA appealed Judge McKenna’s decision. On January 31, 2008 the Hawaii Supreme Court ruled 5-0 that Judge McKenna was mistaken. The Hawaii Supreme Court ruled that the State of Hawaii is permanently prohibited from selling any ceded lands until such time as a settlement has been reached regarding the claims of Native Hawaiians, as suggested by the apology resolution passed by Congress in 1993. The State of Hawaii filed a petition for certiorari with the U.S. Supreme Court asking it to review and overturn the state Supreme Court decision. Twenty-nine other states shortly thereafter filed an amicus brief supporting Hawaii’s petition for certiorari. On October 1, 2008 the U.S. Supreme Court granted the petition for certiorari, and will probably hear oral arguments (and perhaps issue a ruling) during the term that ends in June 2009.

The U.S. Supreme Court decision desegregating voting for OHA trustees, and federal court decisions on candidacy for OHA trustee, and Supreme Court decision to make a ruling in the ceded lands case, show that federal courts will come to the rescue to protect civil rights in Hawaii even when the voters, the state Legislature, or state Supreme Court try to violate those rights.

Mainland law firms and institutions have become increasingly involved in supporting civil rights in Hawaii. Local civil rights activists lost the Rice v. Cayetano voting rights case at both the U.S. District Court in Honolulu and the 9th Circuit Court of Appeals in San Francisco. Fortunately a mainland law firm led the way to victory at the U.S. Supreme Court. In the followup Arakaki lawsuit regarding candidacy, the Pacific Legal Foundation headquartered in California provided an important amicus brief. Mainland law firms and institutions helped with the Kamehameha Schools desegregation lawsuits. Attorneys General of 29 states filed an amicus brief asking the Supreme Court to take up the ceded lands case. U.S. Senators and Representatives have spoken against the Akaka bill and have fought valiantly to defeat it. The Heritage Foundation has repeatedly helped. The U.S. Civil Rights Commission held hearings and published a lengthy report opposing the Akaka bill. Numerous nationally syndicated magazine and newspaper writers have published articles opposing it.

The willingness of federal courts and mainland institutions to intervene on racial issues in the State of Hawaii shows an understanding that a violation of civil rights anywhere in America is a matter of great concern for all America’s people. Civil rights activists in Hawaii do the same thing civil rights activists have done elsewhere: we speak truth to power and use the courts when necessary to defend our rights.

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