The Akaka Bill is Fair, Just, Long Overdue and Constitutional-A Response to New Racism in New Bottles

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”’Editor’s note: Also see Mr. Bennett’s 37 page position paper on the Akaka Bill here: “Akaka Bill is Constitutional, Needed for Hawaii” ”’

Bruce’s Fein’s commentary entitled “New racism in new bottles,” attacking S. 147, “the Akaka Bill,” is not only full of gross misrepresentations and outright lies, it is astoundingly ignorant, and utterly offensive to Native Hawaiians, African-Americans, and all Americans who believe in equality and justice. The Akaka Bill, simply put, provides long overdue federal recognition to Native Hawaiians, a recognition that has been extended for decades to other Native Americans and Alaska Natives. It allows Native Hawaiians to design a limited self-governing structure and restore some small measure of self-determination for themselves. American Indians and Alaska Natives have long maintained some self-governing power over their affairs, and the Akaka Bill simply extends that long overdue right to Native Hawaiians.


Fein’s attempt to equate this honorable effort with virulently racist laws of Jim Crow is insulting and distasteful. Besides being grossly inaccurate, and blatantly absurd, it is offensive to Native Hawaiians to claim that their desire simply to regain a small measure of self-governance — in the face of the complete destruction of their sovereignty over one hundred years ago by overthrow of their Kingdom and annexation — is comparable to the racist laws enforced decades ago by hate-filled bigots. For Fein to even hint at an analogy between the two situations is at best idiotic, and at worst, overtly racist. The analogy is also insulting to African Americans, who suffered immeasurably from the invidious, and often brutal, discrimination imposed upon them by Jim Crow. To suggest that non-Hawaiians under the Akaka Bill would suffer in a manner similar to African Americans under Jim Crow diminishes in the cruelest way the real injury and misery inflicted upon African Americans of that period.

Perhaps the most patently ignorant and insulting statement Fein makes is his assertion that “Native Hawaiians have never experienced racial discrimination.” For any intelligent and presumably educated person to make such a statement about Native Hawaiians who have been historically documented to have suffered substantial discrimination for more than a century — from outright prejudice in all walks of life, and wholesale deprivations of their native lands, to bans on speaking their native tongue — is shocking.

Fein’s patent ignorance of Native Hawaiian history leads him to not only mischaracterize, but also outright misrepresent, the contents and effect of the Akaka Bill. First, he claims the bill would create a “race-based” government. In fact, the fundamental criterion for participation in the Native Hawaiian governing entity is being a descendant of the native indigenous people of the Hawaiian Islands, a status Congress has itself characterized as being non-racial. Congress has continuously stated that in establishing past programs for Native Hawaiians it was “not extend[ing] services to Native Hawaiians because of their race, but because of their unique status as the indigenous people . . . as to whom the United States has established a trust relationship.” This is not clever word play but a reflection of the special status of native peoples recognized consistently for decades by the United States Supreme Court.

Second, Fein states that the Native Hawaiian governing entity would operate “outside the Constitution and laws of the United States and the state of Hawaii.” Nothing in the Akaka Bill states, or even suggests, any such immunity. Fein is simply inventing falsehoods in order to scare people into opposing the bill. In fact, Native Hawaiians as individuals, as well as the Native Hawaiian governing entity, would remain subject to the Constitution and laws of both the United States and Hawaii. And Fein conveniently ignores the fact that the Indian Commerce Clause, which gives Congress plenary authority to recognize native peoples, is a part of the United States Constitution.

Fein wrongly claims that Hawaii would relinquish control over Hawaii citizens of Native Hawaiian ancestry and over state lands. The former is not true, and any surrender of state lands would come only after negotiations and agreement by not only the Native Hawaiian governing entity, but by the federal and Hawaii governments as well. Thus, the citizens of both the United States, and Hawaii, through their elected representatives, would indeed have final approval of any such transfer of authority. Fein is thus disingenuous in claiming that Hawaii citizens are denied a say in this process.

Fein also misrepresents the Akaka Bill by suggesting problems that simply don’t exist. The bill does not permit secession. And the Secretary of the Interior must certify that civil rights are protected. Nor does the bill permit eviction of the U.S. military from Pearl Harbor.

Fein falsely claims that the majority of Hawaii residents oppose the Akaka Bill. In fact, in the poll he cites, only 41% of those asked stated an opposition; 39% gave no response. More importantly, the poll he cites was commissioned by opponents of the bill who prefaced their survey question with pejorative and misleading descriptions of the bill. Other polls have found overwhelming support among Hawaii’s citizens for federal recognition of Native Hawaiians.

It is especially absurd that Fein would deny Native Hawaiians recognition because the government of the Kingdom of Hawaii was itself not racially exclusive. 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 extremely ironic that one who opposes the Akaka Bill because it is, in his mind, racist, would use Native Hawaiians’ historical inclusiveness, and “aloha” for all races, as a reason to deny Native Hawaiians the recognition they deserve.

Fein’s claim that the bill would “deny equal justice to non-Hawaiians” is not only false, but, as would be expected from someone who in revisionist fashion denies the historical suffering of Native Hawaiians, ignores justice for Native Hawaiians. Hawaiians are not asking for “special” treatment — they’re simply asking to be treated the same way all other native 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, accorded formal recognition to those native peoples. Native Hawaiians are simply asking for comparable recognition, as the indigenous peoples of the Hawaiian Islands who have suffered similar hardships.

Yes, Hawaii is indeed a great example of a multiethnic society living in relative peace. The Akaka Bill, by providing a measure of justice and fairness for those of Native Hawaiian ancestry, will ensure that it remains that way forever, while at the same time helping to preserve the language, identity, and culture of Native Hawaiians. If Fein really believes in quashing the racial divisiveness he purports to abhor, he should stop lying about the Akaka Bill, stop denying the historical injustices done to, and the suffering of, the Native Hawaiian people, and embrace equal treatment for all of this great country’s native peoples.

”’Mark J. Bennett is the attorney general for the state of Hawaii.”’

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