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Native Hawaiian recognition up for Senate debate
Wednesday, May 17, 2006

A new report from the U.S. Civil Rights Commission is galvanizing supporters and opponents of Native Hawaiian recognition as a bill to extend the self-governance policy to the island's indigenous people heads for a vote.

Earlier this month, the panel issued a briefing that called for the rejection of S.147, the Native Hawaiian Government Reorganization Act. The Republican-dominated commission said the measure discriminates on the basis of race and divides Americans into different classes with "varying degrees of privilege."

"This runs counter to the basic American value that the government should not prefer one race over another," said Gerald A. Reynolds, the chairman of the commission and a Republican who was appointed by President Bush.

But not all members of the panel agreed with the assessment. Arlan Melendez, the chairman of the Reno-Sparks Indian Colony in Nevada who was appointed by Congress and identifies himself as a Democrat, voted against the report.

So did Michael Yaki, another Democrat and Congressional appointee to the commission. Melendez and Yaki, an attorney, are expected to file dissents to the report that are due by tomorrow.

Yet another member, Peter Kirsanow, a Republican lawyer who was appointed by President Bush, abstained from voting. Kirsanow currently serves on the National Labor Relations Board, a federal entity that is engaged in battles with tribes over sovereignty.

The disagreement highlights the controversial nature of the Native Hawaiian recognition bill. Conservative Republicans have launched a campaign to ensure its defeat, arguing that a Native Hawaiian government is illegal because they say it would be based on race.

"Ours is a nation based not upon race, not upon ethnicity, not upon national origin, but upon our shared values, enshrined in our founding documents, the Declaration of Independence and the Constitution, upon our history as a nation, and upon our shared language, English," said Sen. Lamar Alexander (R-Tennessee) in a speech on the Senate floor the day the report was released.

With the bill headed for debate next month, Sen. Daniel Akaka (D-Hawaii), the sponsor of S.174, has embarked on his own campaign to dispel what he says are myths and misconceptions about Native Hawaiian recognition. He called the commission's report biased and inadequate because it was based on inaccurate information.

"The commission never contacted its Hawaii Advisory Committee, which includes members who are experts in Hawaii's history and Indian law," Akaka said on the Senate floor. "Not once was the advisory committee informed of the briefing or allowed to contribute to the commission's report."

The commission held a session on January 20, 2006, on Native Hawaiian recognition. People on both sides of the issue were equally represented although the majority of comments received from the public were in opposition to the bill.

Despite the diverse views, the commission's report fails to explain a key legal and political question: whether Native Hawaiian recognition differs from recognition of American Indians and Alaska Natives. The report discusses the arguments on both sides of this particular question but doesn't provide a justification for excluding Native Hawaiians from self-determination and self-governance.

The disconnect posed problems for Melendez, whose questions during the January meeting underscored the possibility that opponents of Native Hawaiians would turn their sights on tribes and Alaska Natives and argue that their governments are illegal as well.

"I think that [Native Hawaiians aren't] asking for anything different than what Native American tribes in the United States have been granted," Melendez said, according to the minutes of the meeting. "And I don't see a lot of differences in the way that they've been treated."

H. Christopher Bartolomucci, a law professor at Georgetown University who testified at the meeting, pointed out that the federal government in the past terminated its relationship with tribes and Alaska Natives. But he said the tribes and Alaska Natives never lost their sovereignty and argued that Native Hawaiians haven't either.

"I find this somewhat ironic that it's okay to treat as Indian tribes, those tribes that we pushed off their lands and put into reservations," he said. "But if we went even further and we took away their sovereignty, if we overthrew a monarchy, if we did even more then we can't treat them as a tribe, we can't give fairness to that kind of group?"

Those kinds of issues are likely to arise on the Senate floor. This past Friday, Akaka said the bill will be debated during the first week of June.

"This is about establishing parity for Hawaii's indigenous peoples in federal policies," he said. "This is about clarifying the existing political and legal relationship between Native Hawaiians and the United States."

Civil Rights Commission Report:
The Native Hawaiian Government Reorganization Act of 2005 (May 2006)

Civil Rights Commission Transcript:
January 20, 2006 Meeting

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Rice v. Cayetano Resources:
Abstract, Audio and More

Rice v. Cayetano Election Rights Decision:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Senate Republican Policy Paper:
Why Congress Must Reject Race-Based Government for Native Hawaiians (June 2005)

Relevant Links:
US Commission on Civil Rights - http://www.usccr.gov
Native Hawaiian Sovereignty Site - http://www.hawaii-nation.org
Native Hawaiian Federal Recognition Site - http://www.nativehawaiians.com