Bill Would Divide Hawaii by Race, Dole Out Entitlements

Published October 1, 2005

Legislation to divide Hawaii along racial lines and hand out race-based government benefits to as much as 20 percent of the state’s population is moving through Congress, having attracted almost no attention outside the state, despite its implications.

S. 147, the Native Hawaiian Reorganization Act, more commonly known as the “Akaka bill,” would “extend the federal policy of self-governance and self-determination to Native Hawaiians,” according to the official statement of the bill’s chief sponsor, Sen. Daniel Akaka (D) of Hawaii.

“My intent in drafting this bill is to provide Native Hawaiians with the opportunity to reorganize their governing entity for the purposes of a federally recognized government-to-government relationship with the United States,” Akaka says in his statement. “This is important because it provides parity in the way the federal government deals with the indigenous peoples who inhabited the lands which have become the United States.”

Critics of the bill say it would lead to the balkanization of Hawaii and other states, because it would set a precedent for virtually anyone with any amount of “native” blood in their lineage to claim special status.

Creates State Within State

The act would do three things, according to Akaka’s statement:

“It establishes the Office of Native Hawaiian Relations in the Department of the Interior to serve as a liaison between Native Hawaiians and the United States. It establishes the Native Hawaiian Interagency Coordinating Group to be composed of federal officials from agencies which administer Native Hawaiian programs. Both of these provisions are intended to increase coordination between the Native Hawaiians and the federal government. And third, the bill provides a process of reorganization of the Native Hawaiian governing entity.”

Billions of dollars are at stake, as are state lands and the laws of Hawaii and the federal government.

Court Ruling Spurred Bill

In 2000, the U.S. Supreme Court voted 7-2 to strike down a Hawaiian law requiring that trustees of the state’s Office of Hawaiian Affairs be Native Hawaiians and elected only by other Native Hawaiians.

“There can be no such thing as either a creditor or a debtor race,” wrote Justice Antonin Scalia in striking down the law as discriminatory. “In the eyes of government, we are just one race, it is American.”

Akaka filed his bill soon after that ruling. It has been reintroduced in every session of Congress since and is currently pending in the 109th Congress as S.147/H.R.309. The Senate was scheduled to consider the bill September 6, but the emergency caused by the aftermath of Hurricane Katrina in Louisiana, Mississippi, and Alabama pushed back action on the bill.

The bill would require the federal government to recognize Native Hawaiians in the same way it recognizes separate governments for American Indians and Alaska natives. The bill specifies Native Hawaiians would have federal programs that are separate from the Indian programs and services.

“We have never intended to ‘cut into the pie’ of funding for Indian programs and services,” Akaka said in his statement.

Senate Bill Has Votes

Akaka says on his Web site he believes “we have the necessary votes in the United States Senate to pass the bill,” adding, “we have had the full support of our Democratic colleagues for the past six years. In addition, we have support from a number of our colleagues across the aisle.”

Hawaii’s Republican governor, Linda Lingle, has publicly endorsed the bill and lobbied the Bush administration on its behalf. The Bush administration has remained neutral.

Some Native Hawaiians strongly oppose it. “All versions of the bill have been based on the proposition that Congress should protect unconstitutional race-based entitlements [such as subsidized housing, health care, and tuition] against court challenges by converting an entire racial group into a make-believe Indian tribe,” said Sandra Puanani Burgess, a Native Hawaiian and one of 14 plaintiffs in Arakaki v. Lingle, a lawsuit she and her husband, H. William Burgess, have filed challenging the validity of the state’s Office of Hawaiian Affairs and Department of Hawaiian Home Lands programs.

Those two programs have doled out more than $1 billion to Native Hawaiians since 1990, according to the Burgesses. The lawsuit is pending in the Ninth Circuit Court of Appeals.

“If that suit is ultimately successful it will benefit the State of Hawaii treasury by billions and would pave the way for challenges to the federal entitlements,” said Mr. Burgess, an attorney who is handling the case. “By contrast, if the Akaka bill becomes law and ‘saves’ the entitlements, as the Akaka bill’s proponents claim it will, those billions will continue to flow.”

Bill Sets ‘Dangerous Precedent’

The Akaka bill would set a dangerous precedent for all states, said Ken Conklin, who finished fourth among 20 candidates for an at-large seat on the board of trustees for the Office of Hawaiian Affairs in 2000.

“The Akaka bill would be devastating to Hawaii, but it is also dangerous for the rest of America. That’s because the bill breaks new legal ground with a theory of the Constitution that would speed up the balkanization of our nation,” Conklin said.

“The theory is that any racial group whose members have at least one drop of ‘indigenous’ ancestry can create a government with its own set of laws and its own exclusive lands–for example, residents of America who have Mexican ancestry with at least one drop of Mayan or Aztec blood,” Conklin noted.

Overturns Previous Consensus

Supporters of the Akaka bill estimate 20 percent of Hawaii’s residents have some Native Hawaiian blood. Conklin notes no other state has an Indian tribe consisting of such a large portion of its people.

“There are more than 400,000 ‘Native Hawaiians,’ which would make them America’s largest tribe,” Conklin said. “Two hundred forty thousand live in Hawaii, 60,000 in California, and 100,000 among the other 48 states.”

In a July 18 column for The Wall Street Journal, John Fund, one of the few mainstream reporters at a major news organization to take note of the bill, said it “would create an independent state within a state that would lie outside the Constitution and laws of the United States as well as those of the state of Hawaii. The Akaka bill would also authorize the transfer of a portion of Hawaii’s state-owned lands, natural resources and other assets to the new race-based government (at no cost to that new government, of course).

“Hawaiians would also be unable to fight back, as the state does not allow for referendums,” Fund continued. “And, just as on American Indian land, a shopkeeper who is part Hawaiian could claim exemption from state taxes and other laws, giving him an advantage over his next-door, non-Native Hawaiian competitor.”

Fund noted the bill flies in the face of the state’s history.

“When the islands became a state in 1959,” Fund wrote, “there was a broad consensus in Congress that Native Hawaiians would not be treated as a separate racial group, and that they would not be transformed into an ‘Indian tribe.'”

Steve Stanek ([email protected]) is managing editor of Budget & Tax News.

For more information …

Extensive coverage of S. 147, the Native Hawaiian Reorganization Act, is available online at,, and