The Honorable Nancy Pelosi, Speaker

The Honorable John Boehner, Republican Leader

The Honorable Harry Reid, Majority Leader

The Honorable Mitch McConnell, Republican Leader

The Honorable Nick J. Rahall II, Chairman, Committee on Natural Resources

The Honorable Doc Hastings, Ranking Member, Committee on Natural Resources

The Honorable Byron Dorgan, Chairman, Committee on Indian Affairs

The Honorable John Barrasso, Vice Chairman, Committee on Indian Affairs

The Honorable John Conyers, Chairman, Committee on the Judiciary

The Honorable Lamar Smith, Ranking Member, Committee on the Judiciary

The Honorable Patrick Leahy, Chairman, Committee on the Judiciary

The Honorable Jeff Sessions, Ranking Member, Committee on the Judiciary

Re: Native Hawaiian Government Reorganization Act

Dear Distinguished Members of Congress:

Three years ago, the U.S. Commission on Civil Rights issued a report opposing the

passage of the proposed Native Hawaiian Government Reorganization Act. Although that

report focused on an earlier version of the proposed legislation, that earlier version was

substantially similar to S. 1011. Specifically, the report stated:

“The Commission recommends against passage of the Native Hawaiian

Government Reorganization Act … 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.”

We write today to reiterate our opposition to the proposal.1 We do not believe

Congress has the constitutional authority to “reorganize” racial or ethnic groups into

dependent sovereign nations unless those groups have a long and continuous history of

separate self-governance.  Moreover, quite apart from the issue of constitutional

authority, creating such an entity sets a harmful precedent.  Ethnic Hawaiians will surely

not be the only group to demand such treatment.  On what ground will Congress tell these

other would-be tribes no?

A plea for racial equality from our first hapa-haole president.

Congresswoman Mazie Hirono’s press release on the appointment of William Burgess and Paul Sullivan to the Hawai’i Civil Rights Advisory Board in which she states that the “group does not appear to reflect the position of the majority of the people of Hawai’i” misrepresents what I know to be the more prevalent public opinion about the Akaka bill.

Most of us who live here don’t like it, and, moreover, the ultimate goal of sovereignty for Native Hawaiians is not supported by Hawai’i's history of racial inclusion. She might not like the appointment of Mr. Sullivan and Mr. Burgess, but that doesn’t justify telling a fib.

When the ali’i invited our non-Hawaiian ancestors, who were not for the most part Americans, to come and blend with Native Hawaiians to build Hawai’i together, they didn’t tell them that someday that promise would be refuted by the creation of a racially exclusive and unequal status. Many non-Hawaiians were born in the kingdom and were equal subjects.

Perhaps it would be more intellectually honest for her to listen to the people by allowing some way to publicly determine what people truly want. We’re all tired of being lied to by politicians. In my opinion, most of us oppose the Akaka bill, contrary to her press release.

Furthermore, I know Congresswoman Hirono to be a bright and aggressive lady and suspect that she sees the insurmountable constitutional problems with this. So why not take the position she has taken? The prospective Akaka law will almost certainly be invalidated by the judicial system outside Hawai’i, which can then be blamed, and she and her colleagues won’t have to answer to Native Hawaiians. Is that it?

Paul de Silva
Hilo

S. 310 Hearing May 3, 2007

Aloha, and thank you for keeping the record open for further testimony on the Akaka Bill (S.310).

Much of the difficulty with this bill and its supporters is that they are starting from false premises. In his opening statement, Senator Dorgan wrote:

“It allows for the Native Hawaiian people to once again have an opportunity at self-governance and self-determination.”

Contrary to Senator Dorgan’s implication, the Native Hawaiian people have both self-governance and self-determination this very moment, only not as a separate racial group. Also contrary to Senator Dorgan’s implication, there has never been any race-based government in the entire history of the Hawaiian islands, including before western contact in 1778, and in fact, the Hawaiian Kingdom’s first constitution explicitly declared all people “of one blood”, and maintained itself without reference to race.

Senator Dorgan continues, stating:

“They were here long before my ancestors showed up. They had their own governments and provided for the general welfare of their people.”

If Senator Dorgan will accept that the Hawaiian Kingdom was a government that “provided for the general welfare” of native Hawaiians, he should also respect that that government was not race-based. Although until 1893 the head of state had been native Hawaiian, the government did not have any racial qualifications for the office of the monarch, nor any of the offices of government. Had Bernice Pauahi Bishop accepted the monarchy from Lunalilo, her husband, Charles Reed Bishop, born in New York, could have ascended to the throne if designated as per Article 22 of the 1887 and 1864 constitutions:

The Succession shall be to the senior male child, and to the heirs of his body; failing a male child, the succession, shall be to the senior female child, and to the heirs of her body. In case there is no heir as above provided, the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim during the Sovereign’s life;

Simply put, we should respect the fact that the Hawaiian Kingdom was a legitimate and independent nation that was not race-based, and was not solely for native Hawaiians. To undo the civil rights afforded to people of all races in the Hawaiian Kingdom, and create a solely race-based entity for the first time in Hawaiian history, is misguided, misinformed, and wrong.

Senator Dorgan establishes some of his false premises:

1) Before any Americans settled on the Hawaiian islands, there existed a sovereign Native Hawaiian government.

False. Prior to 1778, there was no singluar native Hawaiian government – warring chiefdoms existed up till 1810, when Kauai finally surrendered to Kamehameha the Great. Not to mention that the unification of the Hawaiian islands was aided, abetted, and guided by non-native Hawaiians such as John Young. If we were to restore the government to before western contact, we should be restoring the original chiefdoms, not the unified government created by the cooperation between natives and non-natives.

2) The United States recognized this sovereign Native nation, and negotiated 4 treaties with it.

Again false. The sovereign nation which the United States had treaties with, the Hawaiian Kingdom, was not a “Native nation”. It was a multi-racial and multi-cultural nation that afforded equal rights to all of its citizens, regardless of ancestry. The Akaka Bill promises to undo the equality that existed in the nation we had treaties with.

3) Once non-natives began settling in Hawaii, the Native Hawaiian government allowed them representation in the government.

False. The Kingdom of Hawaii government allowed them representation – there was no “Native Hawaiian” government of any sort. From the very beginning of unification, John Young, the “white ali’i”, was part of the government, and he was distinctly non-native.

4) But the non-natives wanted control of the Hawaiian government.

This is so terribly misleading it must be considered false – there were non-natives who wanted control of the Hawaiian government, but these included both Reform Party members interested in annexation with the United States as well as royalists interested in perpetuating a corrupt monarchy. Walter Murray Gibson was famously the “minister of everything”, and worked his way into power by appealing to racial demagoguery with the support and friendship of King Kalakaua. Claus Spreckels, aka “King Spreckels”, was a non-native who held King Kalakaua in deep debt, and used his influence to line his pockets a great deal. Queen Liliuokalani had a personal psychic of german descent who pushed her to support an ill-fated lottery bill that helped bring about her downfall.

To assert that somehow non-natives were vying for control of the government against natives is a blurred reading of history. Both royalist and annexationist parties had native and non-native supporters – frankly, the vast majority of commoners in the islands had little to do with the machinations of power by the elites. It wasn’t until becoming a Territory of the United States, in 1900, that the franchise of voting was made without property requirements, and at that point more native Hawaiians than ever had “self-determination” and “self-governance”. Before then, government was in the hands of the elites, be they native or non-native or mixed.

5) In 1893, the United States Minister utilized American soldiers to assist non-native revolutionaries in overthrowing the Native Hawaiian government.

False. If anything Minister Stevens simply refused to support Liliuokalani’s government in a moment of constitutional crisis.

Liliuokalani had hand-picked a cabinet and forced through a controversial lottery bill and opium bill just before the 1893 Hawaiian Revolution. When she approached her cabinet with plans to abrogate the constitution she had sworn an oath to, they balked. She raged at them, and fearing for their lives, they approached their political enemies in the Reform Party. Once that was set in motion, her government was effectively over. The fact that Minister Stevens ordered troops landed to protect American lives and property, under strict orders of neutrality, may have depressed royalist morale, but it was a far cry from direct assistance.

6) Although President Grover Cleveland urged Congress to restore the Native Hawaiian Queen to power, the Senate Foreign Relations Committee ratified the actions of the non-native revolutionaries. The Senate justified its ratification by describing the Native Hawaiian government as a domestic dependent nation, the same description given by the United States Supreme Court to Indian tribes in 1831.

Senator Dorgan is completely mistaken here – not once in the Morgan Report is the Kingdom of Hawaii described as a “domestic dependent nation”. From the Morgan Report, p380-381:

“The independence of Hawaii as a sovereign State had been long recognized by the United States, and this unhappy occasion did not suggest the need of renewing that declaration. The question presented in Honolulu on and after the 12th of January, 1893, was whether the Queen continued to be the executive head of the Government of Hawaii. That was a question of fact which her conduct and that of her people placed in perilous doubt until it was decided by the proclamation of a new executive. Pending that question there was no responsible executive government in Hawaii. On the 17th of January that doubt was resolved to the satisfaction of the American minister, and of all other representatives of foreign governments in Hawaii, in favor of the Provisional Government. This recognition did not give to the Government of Hawaii the legal or moral right to expel the troops of any government, stationed in Honolulu in the period of interregnum, until it had so firmly established its authority as to give to foreigners the security to provide for which these troops had been landed. Good faith and an honest respect for the rights of friendly nations would certainly require the withdrawal of all further interference with the domestic affairs of Hawaii as soon as that government had provided security that was reasonably sufficient for the protection of the citizens of the United States. But the Government of the United States had the right to keep its troops in Honolulu until these conditions were performed, and the Government of Hawaii could certainly acquiesce in such a policy without endangering its independence or detracting from its dignity. “

The closest wording Senator Dorgan may be citing is on page 383-384:

“We have always exerted the privilege of interference in the domestic policy of Hawaii to a degree that would not be justified, under our view of the international law, in reference to the affairs of Canada, Cuba, or Mexico.

The cause of this departure from our general course of diplomatic conduct is the recognized fact that Hawaii has been all the time under a virtual suzerainty of the United States, which is, by an apt and familiar definition, a paramount authority, not in any actual sense an actual sovereignty, but a de facto supremacy over the country. This sense of paramount authority, of supremacy, with the right to intervene in the affairs of Hawaii, has never been lost sight of by the United States to this day, and it is conspicously manifest in the correspondence of Mr. Willis with Mr. Dole, which is set forth in the evidence which accompanies this report.

Another fact of importance in considering the conduct of our diplomatic and naval officers during the revolution of January, 1893, is that the annexation of Hawaii to the United States has been the subject of careful study and almost constant contemplation among Hawaiians and their kings since the beginning of the reign of Kamehameha I. This has always been regarded by the ruling power in Hawaii as a coveted and secure retreat-a sort of house of refuge-whenever the exigencies of fate might compel Hawaii to make her choice between home rule and foreign domination, either in the form of a protectorate, or of submission to some foreign sovereign.”

Asserting that our de facto supremacy over the country made it a “dependent domestic nation” is clearly a stretch. In fact, the Morgan Report states on page 382:

“The United States has assumed and deliberately maintained toward Hawaii a relation which is entirely exceptional, and has no parallel in our dealings with any other people.“

Let me repeat that once more:

“HAS NO PARALLEL IN OUR DEALINGS WITH ANY OTHER PEOPLE.”

One must assume that this includes Indian nations.

Senator Dorgan also fails to acknowledge that after being given the evidence of the congressional investigation completed by the Senate Foreign Relations Committee (http://morganreport.org), President Cleveland reversed his stance, and acknowledged both the Provisional Government and the Republic of Hawaii as the legitimate governments of the Hawaiian nation.

Attorney General Mark J. Bennett also relies on several false premises. In his testimony, Mr. Bennett states:

“Native Hawaiians are not asking for privileged treatment–they are simply asking to be treated the same way all other native indigenous Americans are treated in this country.”

In fact, “native indigenous Americans” are not guaranteed tribal membership by the mere fact of their ancestry. The Bureau of Indian Affairs requires the satisfaction of 7 criteria before recognizing a tribe, none of which are present in the Akaka Bill. They are:

83.7a – The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900.

83.7b – A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times to the present.

83.7c – The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.

83.7d – A copy of the group’s present governing documents including its membership criteria.

83.7e – The petitioner’s membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.

83.7f – The membership of the petitioning group is composed primarily of persons who are not members of an acknowledged North American Indian tribe.

83.7g – Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship.

Far from asking for the same treatment, the Akaka Bill specifically avoids treating native Hawaiians the same way other “native indigenous Americans” are treated.

Mr. Bennett also states incorrectly:

“Native Hawaiians are not only indigenous, but also share with other Native Americans a similar history of dispossession, cultural disruption, and loss of full self-determination”

Hawaii had no Trail of Tears. Hawaii had no smallpox blankets, and no Little Bighorn, and no wagon trains of settlers moving in and taking territory.

The “cultural disruption” referred to was a choice of the native Hawaiians – their queen Kaahumanu, was the one who abolished the old religion and embraced the christian missionaries who visited in 1820. The adaptation of the native Hawaiian people to western ideas, values, government and technology was a voluntary disruption, and one of the greatest points of pride for the Hawaiian people.

Mr. Bennett’s final abandonment of logic and reason happens when he states:

“Finally, some opponents of the bill contend 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, whether by choice or coercion, maintained a government that was open to participation by non-Hawaiians, should not deprive Native Hawaiians today of the recognition they deserve.”

Apparently, according to Mr. Bennett, the integration of civil rights in a government is not something we should be worried about undoing. Perhaps he could also argue that the fact that white Southerners, over one hundred years ago, whether by choice or coercion, maintained a government that was open to participation by non-whites, should not deprive these people of separate racial recognition as existed pre-Civil war.

The progression of civil rights simply should not be undone by the whim of legislators and the claims of victimhood by racial separatists. One could hardly imagine limiting the Akaka Bill to include only males of certain property requirements, as was the case during the Kingdom of Hawaii. One could hardly imagine limiting the Akaka Bill to include only those of royal blood. Why would anyone imagine it was a good idea to limit self-determination by race?

Why on earth do people somehow assume that a fully integrated population, such as part-native Hawaiians, should be considered as a distinct racial entity? Most part-native Hawaiians have more in common with other Portuguese, Japanese, Chinese, Filipino and Europeans than they do with other part-native Hawaiians. Yet somehow Mr. Bennett can see his way clearly to segregating people based on this fractional amount of blood into a separate racial group.

Haunani Apoliona also engages in perpetuating false premises. She states in her testimony:

“Within a little over 20 years of annexation, the Native Hawaiian population had been decimated. Native Hawaiians had been wrenched from their traditional lands, compelled to abandon their agrarian and subsistence ways of life, forced into rat-infested tenement dwellings, and were dying in large numbers.”

Examining the Native Hawaiians Study Commission Report of 1983, which has a table on page 69 “ETHNIC STOCK: 1900 TO 1960″, shows the following native Hawaiian and part-native Hawaiian population numbers:

1900: 37,576
1910: 38,409
1920: 41,713

Far from being decimated, the native Hawaiian population grew by several thousand during the years following annexation. Under the rule of King Kalakaua, from 1884 to 1890 the native Hawaiian population went from 44,232 to 40,622, making it arguable that native Hawaiian prosperity and health was significantly increased due to annexation.

Furthermore, our first two Congressional representatives from the Territory of Hawaii were native Hawaiian (Robert Wilcox and Prince Kuhio) – far from being disenfranchised, native Hawaiians were the largest voting bloc in the islands for years after annexation due to the restrictions on Asian voting. They controlled the Territorial Legislature, and dominated the government for decades.

Far from being wrenched from traditional lands, or compelled to abandon subsistence living, native Hawaiians actively participated in the transformation of Hawaii into an industrial society. Nobody compelled them to do anything, nor forced anyone into “rat-infested tenement dwellings” (as opposed to rat-infested grass huts). Apoliona’s creative fiction is simply that – imagination.

Hawaii is my homeland, and my family has been there for over 100 years, before the fall of the monarchy. Much of my family has part-native Hawaiian blood, and much of my family does not. All of my family deserves to be treated equally.

Please, I implore you, do not support S.310. Its justification is based on false premises, sincerely believed but factually incorrect. Its implementation would divide my people by race, and grant special privileges to an extremely integrated and heterogeneous group. It serves to divide rather than unite, abandons the civil rights granted to all people in the Hawaiian Kingdom, and mistakenly places native Hawaiians into a box that does not apply to them.

The people of Hawaii, of all races, have lived together as one people since the unification of the islands in 1810. The people of Hawaii, of all races, have enjoyed more and more self-determination throughout the years, as we have transformed from a Kingdom to a Republic, to a Territory, to a State. The people of Hawaii, of all races, deserve to be treated equally, with aloha for all.

Mahalo (thank you) for your time and attention to this matter.

Sincerely,

Jere Krischel

What we today call “Native Hawaiians” did not spring from the mountains of Oahu, or the beaches of Maui. As exemplified by the quintessential example of Native Hawaiian culture, the Hokule’a (now voyaging to Micronesia), Hawaiians were voyagers, explorers, and colonists from other islands in the Pacific and beyond. Their “ancient homeland” can be arbitrarily placed anywhere between Hawaii and the path they took from Africa, depending on which date one chooses. As with every people who have ever travelled to Hawaii, “Native Hawaiians” came from somewhere else – we are all immigrants here, separated only by the amount of time since our ancestor’s original arrival. To assert some special, distinct status, based on a single drop of blood before an arbitrary point in time, over all of ones’ peers who have lived together side by side for over 200 years is simply abject racism.

The “right to thrive” envisioned by OHA leaders to apply only to those of their preferred race is also troubling. To adapt a sentiment from the recent film, “Pursuit of Happyness”, it is not thriving that is guaranteed by the government, but the freedom to pursue thriving. To assert that there is a right to an outcome, rather than simply the freedom to pursue that outcome with equal opportunity, is to guarantee a right that is never realized.

The most frightening consequence of the words of OHA’s leadership, though, is the dehumanization of what they see as “non-indigenous” Hawaiians. They have dedicated themselves to an idea of race-based entitlements, and seem to fail to realize that by placing a single race in a position of having the “right to thrive” in Hawaii, one can only conclude they do not feel this is a right shared by those not of the proper race. Perhaps they expect the people of improper ancestry to find their own “ancient homelands”, and would have them thrive there. I suspect, though, they simply haven’t been able to see the dangerous consequences of their basic premises, and the importance of judging people not “by the color of their skin but by the content of their character”.

I was born and raised in Hawaii. My parents were born and raised in Hawaii. My grandparents were born and raised in Hawaii. How many more generations must pass in my family before OHA will grant the members of my family without direct bloodline to before 1778 “birthright”? How many more centuries before OHA is willing to treat all Hawaiians of all ancestries equally? Just as other Hawaiians living on the mainland due to economic circumstances, I feel squeezed out of my kulaiwi (ancestral homeland). But unlike those with the proper blood who evoke sympathy from OHA leadership, my birthright is denied.

(Jere Krischel is a Senior Fellow with the Grassroot Institute of Hawaii, born and raised in Hawaii and currently living in California with his wife and two young children.)