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The Honolulu Advertiser
Posted on: Friday, January 20, 2006

Akaka bill put to test on civil rights

By Dennis Camire
Advertiser Washington Bureau

WASHINGTON The U.S. Commission on Civil Rights will consider opposing arguments today on a bill to allow Hawaiians to form their own government. Opponents say the measure could have wide-ranging implications for state governments across the nation.

The bill, which was sponsored by Sen. Daniel K. Akaka, D-Hawai'i, is opposed by some conservative Republicans in the Senate. Opponents say the measure is unconstitutional because it would create a race-based government.

"The supporters consider it to be a potential fundamental breakthrough. The opponents have described it as a form of racial balkanization," said Kenneth L. Marcus, staff director for the civil rights commission.

The commission, which has no enforcement powers, could make a recommendation to Congress after the hearing, making it the latest in a long line of governmental groups trying to deal with Hawaiian issues.

"We're going to be commissioned to death," said Frederick Holck of Kailua, a retired Army colonel who is of Hawaiian ancestry. "It should be an open and shut case for federal recognition."

But opponents see the issue differently, said Ken Conklin of Kane'ohe, a retired teacher and longtime critic of the so-called Akaka bill.

If successful, "then the way I see it, the state of Hawai'i enters an apartheid sort of system" since it would create a tribal organization with about 20 percent of the state's population, said Conklin, one of 13 people who won a court case eliminating the Hawaiians-only restriction for election as an Office of Hawaiian Affairs trustee. "That new tribe would be authorized to negotiate for land and money and political power. It will affect all of us."

Noe Kalipi, counsel for Akaka, and Viet Dinh, a professor at Georgetown Law Center and former assistant attorney general at the Justice Department under President Bush, will support the Native Hawaiian bill before the commission.

Dinh co-wrote a paper in 2005 that argued Congress has both the moral and legal authority to enact the bill.

"The Supreme Court has confirmed that Congress has broad ... constitutional authority (to) recognize indigenous governments and to help restore and restructure indigenous governments overtly terminated or effectively decimated in earlier eras," he wrote in the paper, prepared for the Office of Hawaiian Affairs. "That authority extends to the Native Hawaiian people and permits Congress to adopt the (Native Hawaiian bill)."

Kalipi said she plans to show the commission why Hawaiians are an indigenous people and not a racial class under federal policies and should be recognized by the government.

Of the five groups of indigenous people in the United States, Hawaiians are the only ones who do not have a political mechanism to deal with the federal government, Kalipi said. The other groups are American Indians, Alaskan Natives, Chamarros on Guam and American Samoans.

"The bill provides parity with respect to this federal policy and in respect to the other groups," she said. "It brings Native Hawaiians up to a level playing field ... where everybody else is right now. It doesn't even give (them) any special rights."

But H. William Burgess, a Honolulu attorney and strong opponent of the Native Hawaiian bill said he will urge the commission to reject the bill as having "terrible" consequences for the country because it would recognize a new privileged class consisting of anyone with an indigenous ancestor.

"It would give them political status and power and entitlements and privileges that are denied to all other citizens of the United States," he said. "It would assist and enable and aid and abet people of one racial group.

"It would have within it the germ of eventually breaking up every state into separate sovereign governments."

Gail Heriot, a professor at the San Diego University School of Law, also will oppose the bill before the civil rights commission, arguing that it is unconstitutional on due process and equal protection grounds.

The Supreme Court bolstered that idea in 2000 when it ruled Hawai'i could not discriminate and prevent nonethnic Hawaiians from voting in state elections for the Office of Hawaiian Affairs trustees.

"With the bill, they (supporters) are trying to do indirectly what they can't do directly," she said.

Reach Dennis Camire at dcamire@gns.gannett.com.