Senate Republican Policy Committee report

Mark Taylor has a letter in the Star-Bulletin. It's brief and good, so here's the whole thing:

I just finished reading the Senate Republican Policy Committee's report opposing enactment of the Akaka bill (rpc.senate.gov/_files/Jun2205NatHawSD.pdf). I consider myself open-minded on the sovereignty issue, but I found the report surprisingly persuasive. It makes a convincing argument that Hawaiians differ in important respects from members of Indian tribes, and that creating a Hawaiian government would violate basic constitutional principles.

Sen. Daniel Akaka, Gov. Linda Lingle and Office of Hawaiian Affairs trustee Haunani Apoliona say the report is filled with "misconceptions" and is "wrong on the facts." It's fine to make those sweeping statements, but now that I've read the report, I want to know: Exactly what statements are wrong?

I urge Akaka bill advocates to publish a point-by-point refutation of the report, because Hawaii's future is at stake, and those of us who live in and love these islands need to fully understand the facts.

James Kuroiwa also has a letter in the Advertiser that gives some background on the members and process of the Republican Policy Committee that produced the report.

When this report was released, I didn't really comment on it much, except to note that I found it interesting that through the report, the possibility of Hawaii's independence had been introduced into the record of the Senate.

Having read the report myself, I do find myself in a very unusual and unexpected (and slightly amusing) position of being mostly in agreement with a Republican policy report! (Those who read here know that I am certainly not an advocate for the bill, and have been vocally opposed to it, but generally for quite different reasons than the opponents who are aligned with Sen. Kyl.)

I do think it would be valuable for proponents of the bill to point out exactly what aspects of the report they find to be factually inaccurate. Because while I may find fault with a few points here and there, overall I find its arguments to be much more sound and factually accurate (at least from within the U.S. legal framework, minus the obligation to honor treaties and the inability to annex territory without a treaty ~~Article VI Section 2 of the Constitution that "treaties... are the supreme law of the land"~~) than much of what is put forward by proponents of the bill (as well as by some other opponents, like Bruce Fein, who himself makes numerous factually erroneous statements).

The difficulty that proponents face, which the report rightly points out, is arguing a foundation for "reorganizing" a Native Hawaiian government based on the history of the Hawaiian kingdom, which was not a "Native Hawaiian" government at all. Recently I think it was Clyde Namu'o who made a reference to the sovereignty exercised by the Hawaiian government prior to 1778, and it is quite true that an aboriginal Hawaiian (Kanaka Maoli) government did exist prior to the multi-racial constitutional monarchy of the Hawaiian kingdom. But the bill itself refers to 1893 as the cutoff date and cites numerous aspects of the kingdom era as findings, and proponents generally argue the basis for "reorganization" as being the Hawaiian kingdom, which is totally historically inconsistent, as I have pointed out many times, and they are at best confusing their arguments when they try to mix the two. There is probably more of a basis for creating or restoring a "tribal" government, or domestic dependent nation, under federal law similar to Native Americans based on the sovereignty that was in fact exercised by Kanaka Maoli prior to 1778, but that isn't the argument they generally make, and it isn't the foundation of the bill itself.

One thing that the report makes quite clear is that as soon as the bill is passed, if it is, there will be lawsuits challenging its constitutionality, and this report lays out the basis for those challenges. One of the main arguments that proponents of the bill make is that it would protect Native (aboriginal) Hawaiians as having a "political status" and thereby protect programs, legislation and institutions for Native Hawaiians. There's kind of a circular argument that the bill is legitimate because there's already a federal policy on Native Hawaiians, which includes these programs; and the bill is needed to legitimize these programs and this policy. The bill will immediately come under the same legal attacks that these programs come under, and I don't really see how it inherently will provide any greater level of protection. And although the report is arguing that Congress should reject the bill and not rely on it being struck down by the courts, it is clear that it will end up in court, and if, like Rice v. Cayetano, it ends up in the SCOTUS, it is hard to see how its fate would be much different.

Now, of course, what the report leaves out, and isn't directly relevant to the bill, is the continuity of the Hawaiian kingdom under prolonged occupation. It mentions that the bill could provide a vehicle for citizens "to secede from the Union," and this is one area where, as I pointed out before, I believe the report is in error. Hawaii is not legally a part of the union in the first place, and no sovereignty or territory was ever validly ceded, so there's nothing to secede. Whether the Akaka bill could provide a vehicle to help end the occupation as some feel, or a vehicle to finally legitimize it as others feel, or both or neither, is arguable.

But regardless of one's opinion about that, what I will keep stating for the record is that within the context of international law the bill is another imposition of an internal domestic U.S. law on a foreign territory in violation of the laws of occupation.

UPDATE: Also, there's this sarcastic letter from Bud Ebel in the Maui News about the Akaka bill and implications for the exercise of seizure through the eminent domain ruling just handed down by the SCOTUS, which says after the Akaka bill "an independent Hawaiian nation and its laws would have to be litigated in the world court or the United Nations."

Posted: Sun - July 3, 2005 at 09:43 AM

getBlogName(); > getCategoryName("C608676235"); >

Senate Republican Policy Committee report

> >