by Andrew Walden
As the Akaka Bill, S 1011, languishes before the US Senate, the Special Election Hawaii First Congressional District race marks the first time a Hawaii election has been fought between major candidates with differing views on the Akaka Bill. It is telling that the candidate who favors the bill's current version--Colleen Hanabusa--appears to be far behind.
In the midst of Hanabusa's collapsing poll numbers, the Honolulu Advertiser and Hawaii News Now May 3 published results of a poll purportedly showing support for creation of the Akaka Tribe. The poll's wording is a throwback to the days in which the Akaka Bill was not a subject for political campaigns.
Two-thirds of 604 Hawaii voters questioned by Honolulu-based Ward Research answered "yes" to this question:
"And, regarding federal legislation recognizing Hawaiians as an indigenous people....Do you think Hawaiians should be recognized by Congress and the Federal government as a distinct group, similar to the special recognition given to American Indians and Alaskan natives?"
The Advertiser immediately jumped on the poll results, crowing:
Such recognition could come about under a process created by the Akaka bill, formally known as the Native Hawaiian Government Reorganization Act of 2009. The bill passed the U.S. House in February and is awaiting a vote in the Senate.
Which is the more accurate reflection of public sentiment? An analysis of this and other Akaka Bill polls leads to a clear answer--and points the way forward for political candidates trying to find their way in uncharted waters.
With open electoral debate occurring in the Hawaii body politic, it is time to pick apart some of the previously accepted terms of the previous non-debate. For instance the Advertiser asserts that "recognition could come about." But Hawaiians are already "recognized by Congress and the Federal government as a distinct group, similar to the special recognition given to American Indians and Alaskan natives." Hawaiians have been federally recognized since the 1920 Hawaiian Homes Commission Act. This recognition was reaffirmed by the inclusion of the Hawaiian Homes Commission Act in the text of the 1959 Hawaii Admission Act and, again reaffirmed with each of what text of S1011 [Section 4(a)(3)(A)(iii)] describes as,"150 other Federal laws addressing the conditions of Native Hawaiians." It is hardly surprising that two-thirds of a state's population support a policy which has been in place for 90 years and which makes up part of the foundation of Hawaii Statehood.
It is pure deceit to translate such a poll question into support for the Akaka Bill. Were any of the poll respondents asked about the fact that 73% of native Hawaiians will be excluded from the tribe under the current wording of S1011? Of course not. But political debate exists in large part because Rep Neil Abercrombie and Sen. Dan Akaka made a point of re-writing the bill is such a way as not to guarantee membership to any Hawaiian unless they sign the highly controversial Kau Inoa registry--a political test for a political tribe, not the consanguinity (blood) test of a real tribe.
The key difference between the existing form of Hawaiian and Alaskan recognition and that of American Indians is that Alaskans and Hawaiians have no tribal governments. Alaskan natives are stockholders in Alaskan Native Corporations which own land and natural resources as agreed under the 1971 Alaskan Native Claims Settlement Act. They are governed by the same laws as any other corporation.
Instead of being corporate stockholders, Hawaiians are the beneficiaries of various government obligations. Thus there are currently three different models of federal recognition: Indian, Alaskan, and Hawaiian. It is not Hawaiian recognition which stands in opposition to the other two. If anything, it is Indian recognition--with tribal governments--which stands in sharp contrast to that of Hawaiians and Alaskans. And of the three groups, Indians are by far the worst off--yet the Akaka Gang is determined to adopt the Indian Tribe model with its own legal jurisdiction and sovereign immunity from prosecution. Some Hawaii political leaders and newspaper editors seem surprised by this--but the Broken Trust gang has been working to this end ever since John Waihee's 1995 proposal to domicile Bishop Estate HQ to the Cheyenne River Sioux Indian Reservation.
When Hawaii voters are asked directly about the Akaka Bill by name, pollsters get an entirely different result. A November, 2009 Zogby Poll used the term "Akaka Bill" and found 51% of 501 Hawaii voters oppose it while 34% support and 15% not sure. Also using the term "Akaka Bill" instead of the amorphous phrase "recognized by Congress," Grassroot Institute found majorities opposed to the Akaka Bill in surveys conducted in June, 2005 and May, 2006.
At the core of argumentation over the Akaka Bill supporters and many opponents falsely equate the defeat of the Akaka Bill to the abolition of Hawaiian entitlements. As the first version of the Akaka Bill was introduced in 2000, Manu Boyd argued it presented the "most viable antidote to the feared unraveling of entitlements for Hawaiians." This falsehood has since been repeated endlessly.
Contradicting this line of argument, the unanimous October, 2008 "ceded lands" decision of the US Supreme Court established that the Admission Act of a State is a law which cannot easily be tinkered with. The 9-0 US Supreme Court majority reversed the unanimous 5-0 Hawaii Supreme Court and demolished the previous widely-held belief that the 1993 Apology Resolution had legal effect on such fundamental issues as the State's ownership of land. The US Supreme Court cited Idaho v. United States in a key passage from its decision:
"[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event...to suggest that subsequent events somehow can diminish what has already been bestowed."
Thus the inclusion of the Hawaiian Homes Commission Act within the Admission Act gives it far better protection than any inclusion within a tumultuous and erratic Akaka Tribe. To understand the risks of placing DHHL under tribal law, one need look no further than the California gaming tribes who are expelling members by the hundreds in order to share gaming revenues among a smaller number of people.
The issue of Kamehameha School admissions could be dealt by many possible "Plan B" scenarios. This writer's favorite would be creation of a statewide voucher system which would allow Kamehameha a revenue stream which would allow it to admit every native Hawaiian child who wishes to go--and, having accomplished that goal, then admit non-Hawaiians, thus eliminating the cause for action of the discrimination suits. Vouchers may be a radical solution, but they are less radical than creating an Indian tribe in the middle of the Pacific Ocean.
Solutions more attuned to Hawaii's sad political reality might involve recognition of the fact that Kamehameha is already teaching substantial numbers of non-Hawaiian students through its work with DoE schools along the Waianae coast and elsewhere. Another solution would be to admit a limited number of non-Hawaiians within the existing three-campus framework which would then allow KS to once again begin accepting federal funds and thereby expand its enrollment resulting in a net increase in admission of Hawaiian students. Both of these plans benefit Hawaiian students immensely whereas even the most cursory examination of the facts shows that creation of the Akaka Tribe with its own tribal jurisdiction would guarantee a return to the Broken Trust days.
For Hawaiians, the best thing that can be done with OHA is to abolish it. But after a decade of post-Rice litigation, not a single OHA program has been knocked down by the courts. That is a strong signal that they will not be. As exposed in public hearing after hearing, many Native Hawaiians hate and distrust OHA and see the agency as stealing their inheritance. OHA has created Hawaiian welfare which weakens Hawaiian families and makes Hawaiians dependent on government. Power and money grabbing OHA trustees again and again act against the interest of native Hawaiians. (See: OHA driving Hawaiians out of Hawaii)
The deceptive argumentation for the Akaka Tribe is too well calibrated to not be poll driven. The internals of the November, 2009 Zogby Poll light a path leading logically to the precise arguments chosen by Akaka Tribe backers. The same poll also shows that opponents of the Akaka Bill are largely using the most ineffective lines of argumentation available to them.
Zogby’s poll results (question 10) reveal that:
"two-thirds (68%) agree that the federally and state-funded programs for Native Hawaiians in the areas of health, education, employment, economic development, and housing should continue, however a quarter (25%) disagree."
This shows that any effort to equate opposition to the Akaka Bill with opposition to Hawaiian entitlements will produce greater support for formation of the Akaka Tribe. Yet for years, the primary (non-Sovereignty) opponents of the Akaka Bill did exactly that. OHA couldn't have asked for better PR help.
This is reinforced by the result of question five in the Zogby Poll. The 501 Hawaii voters were asked to choose what they felt was the best argument in favor of the Akaka Bill. 46% chose "It is only fair that native Hawaiians receive the same privileges as those granted American Indians and indigenous Alaskans. Another 25% chose "It ensures that the native culture and practices will be preserved."
Obviously these results indicate that opponents of the Akaka Bill must:
1. expose the fact that membership in the Akaka Tribe will be no "privilege" and would be deeply unfair to those Hawaiians who do join,
2. point out the Akaka Tribe's erstwhile leaders often act in opposition to the interests of the majority of Hawaiian people and
3. show how Hawaiian culture is being manipulated and distorted for the power and profit of OHA Trustees and associated hangers-on
4. show how Hawaiian culture is not defended by the Trustees etal. where there is no profit to be had.
In another poll question, Hawaii voters are asked to choose the best arguments against the Akaka Bill. The argument deemed least effective--picked by only 14%--was "The people of Hawaii have never been asked to vote on the Akaka Bill, so its public acceptance cannot be predicted."
But at least "Let us Vote" does not bring in the "fair play" and "entitlements" issues like the second to least effective argument, picked by 21%:
"It is discriminatory, favoring residents with Hawaiian ancestry over all others."
But another 22% picked a closely related version of the same argument:
"It is likely to carry costs that will have to be borne by non-Native Hawaiian taxpayers."
This means that discrimination was favored by 43% of respondents. But that does not mean that claims of discrimination are the most effective at undermining support for the Akaka Bill. In fact the "fairness" and "cultural preservation" answers indicate exactly the opposite. In selecting argumentation, it is far more important to undermine the other side's justifications than it is to continually re-state your own.
The most popular single argument was picked by 27%:
"It creates a separate government which would amount to a state within a state."
This argument hints at the abusive nature of Tribal Governments and thus dovetails perfectly with an effort to pull apart the flawed reasoning behind the two most popular reasons for supporting the Akaka Bill.
This "state within a state" argument also corresponds with the central issue raised by Governor Lingle, Congressional Candidates Charles Djou and Ed Case, and the editorial boards of the Star-Bulletin and Advertiser all of whom since December have come out in opposition to the new version of the Akaka Bill--with its instant tribal immunity from prosecution--being foisted upon Hawaii as a parting shot by Rep Neil Abercrombie and by Senator Dan Akaka.
Rep. Neil Abercrombie crammed the new version of the Akaka Bill through the US House. He is campaigning to become the Governor who will preside over its implementation. He already shares Hanabusa's taste for shady political deals. And Abercrombie could actually become the new Colleen Hanabusa—a last place finisher--if his gubernatorial opponents took positions as clear as those of Charles Djou and Ed Case.
The Akaka Bill is about handing the Hawaiian patrimony over to a corrupt class of trustee-thieves who will use the tribal jurisdiction to line their own pockets at the expense of Native Hawaiians. Instead of being distracted from this reality by those who point to past injustices, we need to concern ourselves with avoiding this future injustice.
In the new political reality, the Akaka Bill is a political issue and elections are fought over it. Candidates who come to grips with that reality are being rewarded at the polls.