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The Honolulu Advertiser
Posted on: Sunday, June 4, 2006

Akaka bill close to floor debate

 •  Foes hope bill reaches Senate floor

By Dennis Camire
Advertiser Washington Bureau

ON THE WEB

Sen. Daniel Akaka, D-Hawai'i: www.akaka .senate.gov

Republican Policy Committee: www.senate.gov/~rpc

Office of Hawaiian Affairs: www.oha.org

Heritage Foundation discussion of Native Hawaiian bill: www.heritage.org/press

/events/ev052606a.cfm

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WASHINGTON Even though opposition remains strong, several senators say opponents will not be able to continue blocking the historic Native Hawaiian Recognition Bill, also known as the Akaka bill, from finally coming to the floor for debate this week.

One of the chief opponents, Sen. Lamar Alexander, R-Tenn., told a panel at the conservative Heritage Foundation a week ago that the bill is "a truly dangerous piece of legislation and needs to be stopped in its tracks."

Even though the bill has drawn broad support, Alexander's remarks show the depth of sentiment by the opposition.

But, he conceded, there may not be enough votes for the opposition to block debate.

If the bill ultimately succeeds, Alexander said, it won't be because it's good legislation but because of the "great respect" the Senate has for Hawai'i's two Democratic senators and Republican Gov. Linda Lingle, who all support it.

He warned, though, "in this case, the principle is more important than our respect. If we go down this road, we're on the path toward gradually becoming a 'United Nations' of balkanized governments instead of one nation in which our allegiance is based upon our ideals and commitments rather than race and ancestry and tribes."

Sen. Gordon Smith, R-Ore., a co-sponsor of the bill, said the vote to debate the bill would be "very close."

"After debate in our (Senate Republican) conference the other day, it seems to me that a lot of holes were punched in the arguments of the opponents," he said.

The bill, originally introduced in 2000, would create a process for a Native Hawaiian government to be recognized by the U.S. government, similar to the political status given to Native American and Alaskan Native tribes.

The state's two senators Daniel Akaka, the bill's author and chief sponsor, and Daniel K. Inouye are confident they have the 60 votes needed to overcome the procedural roadblock that some conservative Republican senators threw up last summer to stop the bill.

But even if a first vote to bring the bill to the floor is successful, as many as three more may be needed to pass it under Senate procedures. The whole process may require a week or more of Senate floor time.

AMENDMENTS TO BILL

Republican opponents, such as Alexander and Rep. Jon Kyl of Arizona, also are planning to offer amendments to the bill.

Some possible amendments that have been mentioned include requiring a statewide referendum on a Native Hawaiian government, applying the Bill of Rights and all U.S. civil rights to the new government and stripping out any racial classification.

Even if eventually approved, time is running out to get the bill through the House. If it doesn't receive approval from both chambers, supporters would have to start all over again when a newly elected Congress convenes in January.

"Our principal enemy in the House is time," said Rep. Ed Case, D-Hawai'i, a House sponsor of the bill. "Assuming it gets out of the Senate ... we would be down to under 40 work days in the House before the scheduled adjournment."

Case and Rep. Neil Abercrombie, D-Hawai'i, said House passage is still possible since they believe a majority of House members would vote for it.

"Whether we're able to get it out of committee and take it to the floor for a vote will depend on whether the White House wants to fight us or not," Abercrombie said. "I don't expect the (House Republican) majority to put a bill on the floor that the White House is actively opposing."

The Bush administration has not taken a position on the bill, although the Justice Department raised concerns about it last summer, especially the constitutionality of recognizing Native Hawaiians as an indigenous people similar to Indian tribes.

A revised version of the bill, introduced last month, addresses most of the objections by prohibiting Native Hawaiians from bringing land claims against the United States in court and barring a Native Hawaiian government from authorizing gambling.

But the Justice Department said it still has constitutional concerns.

LOBBYING CONTINUES

Lobbying on both sides is continuing at a stepped-up pace.

Some Republicans, such as Sen. Sam Brownback of Kansas, remain on the fence.

"I have concerns about how it defines the Native Hawaiians as a nation, but I haven't taken a stance yet on the bill," he said.

Akaka said he is talking with Republican senators to address their concerns, if any.

Lingle and state Attorney General Mark Bennett plan to be in Washington tomorrow and Tuesday to talk with Republican senators.

Senate Democratic Leader Harry Reid of Nevada and Sen. Dick Durbin, D-Ill., the assistant minority leader, also are checking the vote count among Democratic senators, Akaka said.

The bill's backers expect support from the Senate's 44 Democrats, one Independent James Jeffords of Vermont and at least six Republicans, including Sen. John McCain of Arizona, chairman of the Senate Indian Affairs Committee.

Office of Hawaiian Affairs Chairwoman Haunani Apoliona said she is confident there are more than the minimum required 60 votes for the measure to pass cloture.

PROCEDURAL OBSTACLES

She worries, however, that opposing Republican senators could derail a floor debate by throwing procedural obstacles in the way.

Apoliona believes those senators are resorting to that tactic because they know if the bill ever gets a fair hearing it will pass the Senate and the House of Representatives and become law.

"Ultimately, the opponents of the bill need to pay attention to the fact that Native Hawaiians are aboriginal and indigenous peoples to this country. And under the United States Constitution the Congress has the right and authority to legislate on behalf of aboriginal and indigenous natives," she said.

Opponents have launched a campaign to get their message out, including through editorials and articles in newspapers and magazines, and on the Internet.

One new piece of ammunition they have been using is a report from the Republican-majority U.S. Commission on Civil Rights, which recommended that Congress reject the bill. A draft copy of the report, which the commission approved, criticized the bill as a measure 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."

In many ways, the constitutional and racial issues surrounding the bill have become a Rorschach test on guarantees of equality and fairness.

"The question this bill poses is very fundamental to the existence of our nation," Alexander said. "If it passes, for the first time in American history ... it would establish a new sovereign nation within the United States based solely on race."

Alexander and Sen. John Cornyn, R-Texas, say the bill's requirement that those participating in a Native Hawaiian government have some Native Hawaiian blood is what makes the bill unconstitutional.

"The question is, can you fix a constitutional problem with a statute?" Cornyn said. "I don't think you can."

Alexander also said a fundamental issue posed by the bill is diversity in the nation's population versus national unity.

"Our diversity is magnificent but that is not what made the United States of America a magnificent country," he said. "Even more magnificent and our greatest accomplishment has been to turn all that diversity into one nation not based on race, not based on ancestry but primarily based on a few founding principles, which are found in our founding documents, our common language and our history as a country."

INDIGENOUS PEOPLE

Akaka maintains that the bill is about treating indigenous people of Hawai'i the same as other indigenous people of the U.S.

"There's only one group that was there (in Hawai'i) first," Akaka said. "And our country is one that does care about its indigenous people. I'm looking for parity here for the indigenous people of Hawai'i."

Still, opponents of the bill counter that Hawaiians don't meet the federal rules for recognition as applied to Indian tribes.

Alexander said if the Hawaiians received recognition, other groups could as well, such as people descended from the Hispanics who lived in Texas before it became a state or religious groups such as Hasidic Jews or the Amish.

U.S. Civil Rights Commissioner Michael Yaki said some opponents of the bill believe whenever race or ethnicity are recognized "there is a slippery slope that leads you right back to all the things they are against, such as affirmative action or special programs for minorities."

Yaki, a Democratic member of the commission, said the Native Hawaiian bill gets at the heart of the debate about immigration and affirmative action, which is whether diversity is a national strength or a weakness.

Staff writer Will Hoover contributed to this report. Contact Dennis Camire at dcamire @gns.gannett.com.

• • •

History of the Native Hawaiian Recognition Bill

July 2000: Sen. Daniel Akaka and others introduce the bill in Congress to gain federal recognition for Hawaiians. Supporters say the Native Hawaiian Recognition Bill — dubbed the Akaka bill — would help to right the wrong of the U.S.-backed overthrow of the Hawaiian monarchy in 1893 and that it is necessary to fight off the legal challenges against programs set up to help Hawaiians. Opponents say the bill creates a separate government entity that is race-based and therefore unconstitutional. Some Hawaiian groups also oppose the bill, saying it does not go far enough.

Summer/fall 2000: The bill passes a vote in the House, but stalls and finally dies in the Senate amid political squabbling about concerns such as its cost and disagreements about the scope of Hawaiian sovereignty.

Summer 2001: The Hawai'i Advisory Committee to the U.S. Commission on Civil Rights recommends that the federal government take steps to provide more help for Hawaiians, including enacting provisions in the bill. The Office of Hawaiian Affairs begins lobbying efforts in support of the bill.

Spring/summer/fall 2003: The bill remains stalled by Republicans in both the House and Senate, some of whom say it will give race-based benefits to Hawaiians.

Fall 2004: The push for federal recognition intensifies in Congress. U.S. Sen. Daniel K. Inouye says he's planning to attach the legislation to one of the 12 appropriations bills still moving through Congress; and a key House committee approves the bill.

January 2005: Although the bill failed to come up for a vote in 2004, Hawai'i's congressional delegation is promised that the bill will get hearings and a vote in 2005.

March 2005: The Senate Indian Affairs Committee unanimously approves the bill and sends it to the full Senate for consideration under an agreement reached with Senate leadership.

June 2005: Congressional leaders schedule a Senate debate and a vote on the bill for the week of July 18 and local officials say they expect it to pass.

July 14, 2005: The Department of Justice raises "serious policy concerns" about the bill. Among other issues, the department wants to shorten or eliminate the time allowed for monetary claims by Hawaiians; add language that explicitly prohibits gambling; and allow non-Hawaiians to sit on the panel that would chart the course of a sovereign Hawaiian entity.

July 20, 2005: A group of as many as six Republican senators move to stop the bill from coming to the floor for a debate.

July 29, 2005: Senate Majority Leader Bill Frist, R-Tenn., starts the cloture procedure that could eventually force a debate and floor vote.

Sept. 6, 2005: A vote scheduled on whether the Akaka bill will get a full airing on the Senate floor is postponed as Congress focuses on the needs of Gulf Coast residents in the aftermath of Hurricane Katrina.

Sept. 16, 2005: Akaka issues an amendment to the bill as a means to appease White House officials and some opponents of the bill.

May 4: The U.S. Commission on Civil Rights votes to recommend that Congress not pass the bill.

May 8: Akaka vows to take to the Senate floor each day to educate colleagues about the bill and the issue of sovereignty until a cloture vote is scheduled, a promise he kept through May 11.

May 11: Akaka announces on the Senate floor that when the senators return from their May recess, Frist will petition for a cloture to force the bill to the floor despite opponents' objections. Approval of the petition by 60 of the 100 senators would force a vote on the bill. The vote on cloture could be held Tuesday. If approved, debate could begin Thursday.

Key to becoming law

The Akaka bill must pass both the Senate and House of Representatives in the same two-year session of Congress for it to become law. The current session runs until the end of 2006.

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