USCCR Testimony 1-20-2006

H. William Burgess
Notes for oral presentation for USCCR panel
Public briefing about Akaka bill 1-20-06

Aloha and good morning. Thank you for allowing me to share my views with you.

I’ve lived in Hawaii for 50 years: The first 2 years as a Marine Corps legal officer and fighter pilot; the rest of the years as an attorney in private practice.

For the last 28 years I’ve been married to a lovely lady of Chinese, Filipino and Hawaiian ancestry. And for the last 8 years she and I have been litigating pro bono to reinstate in Hawaii the idea that everybody should play by the same rules.

My wife puts it this way: She asks, Why should I get more rights and privileges than my Chinese cousins or my Filipino cousins or my Irish-English husband just because I have some Hawaiian ancestry and they do not? She deplores the effect of entitlements and the victimhood mentality on young Hawaiians. Based on her own life and family experience, she knows that waiting for free homesteads or handouts is not the way to get ahead or better your condition; hard work is.

From my perspective as a lawyer, I’m amazed that the Hawaiian entitlement programs have lasted so long. Hawaii is the only state in the Nation which gives free homestead leases ($1 per year for 99 years, renewable for another 100 years) only to persons defined explicitly by race (descendants of not less than one half pert of the blood of the races inhabiting the Hawaiian Islands previous to 1778”)

And the State also gives to OHA (“Office of Hawaiian Affairs”) for the exclusive benefit of that small racial group, annual cash distributions of public land trust revenues. 20% of gross revenues before expenses. The State makes no cash distributions of revenues for any other beneficiaries of the public land trust.

As taxpayers, we are appalled at the waste. By the end of the Waihee administration in 1994, when our public schools were crumbling and we couldn’t even buy books for the students, money and public resources were, and still are, gushing from the State to benefit this small group but the demands for more and more for anyone with even a drop of Hawaiian ancestry has escalated.

And now the Akaka bill would push Hawaii over the cliff. It would permanently segregate Hawaii and its people on grounds the Supreme Court called “odious to a free people.”. Even Senator Akaka acknowledges the bill could lead to secession.

Here are 3 reasons I think it would be just plain nuts for Congress to go into the most integrated state and reverse course:

1. Kamehameha united us and treated us equally; Akaka would divide us forever;

2. The Indian tribe analogy does not work. There is no Native Hawaiian tribe to be recognized and never has been since the Kingdom of Hawaii was created;

3. The U.S. did not overthrow the Queen. When you look at the history of Hawaii wearing blinders you see a distorted picture.

Unity and Equality

The Supreme Court has explained that our Constitution contemplates an indivisible nation composed of indestructible states. And the first of America’s self-evident truths is that all men are created equal: that every citizen of the United States, whatever her or his ancestry, is entitled to the equal protection of the laws.

Those 2 basic rules of American democracy, unity and equality, were embraced early on by Kamehameha the Great.

Long before he unified the islands and created the Kingdom of Hawaii in 1810, K brought non-natives on to his team and into his family. Ever since then, non-natives have continued to intermarry, assimilate and contribute to the social, economic and political life of Hawaii, both as leaders of high position and as ordinary citizens with equal rights.

The crux of the Akaka bill is that it breaks up the state and discriminates between citizens of the United States based solely on their ancestry.

Merely having a drop of the favored blood would make some people superior to all others forever.

That violates the US Constitution and defies the law of the Kingdom of Hawaii which united natives and non-natives and treated them equally and made Hawaii a model for the world.

Indian tribe analogy

The Akaka bill supporters say: All we want is parity. American Indians and Alaska Natives get all these benefits. It’s not fair for Native Hawaiians not to get them too.

But the Akaka bill would not just give Native Hawaiians parity, it would give them supremacy.

No group of Native Americans has the right, merely because of their ancestry, to be recognized as a tribe. A long-standing political entity, functioning in a separate community, is required. Without an existing tribe or polity there is nothing to be recognized. Congress cannot create tribes out of thin air. It can only recognize those historic tribes that still exist and function.

There has never been in Hawaii, even during the years of the Kingdom, a “tribe” or government of any kind for Native Hawaiians, separate from the government of the rest of the citizens of Hawaii. Census 2000 showed 400,000 who identified themselves as having some Hawaiian ancestry. They reside throughout all the 48 census districts of the state of Hawaii and in all 50 states. There is no way, under Indian law that such a group could qualify for recognition as a tribe.

The rest of the Story about the overthrow.

A headline in last Sunday’s Honolulu Advertiser announced “Morgan report is public at long last.” (Hold up newspaper with headline and photo of Jere Krischel)

The Morgan Report of February 26, 1894 is the final report of the Senate Foreign Relations Committee investigating the overthrow. 808 pages of sworn testimony, exhibits and findings The Committee was composed of 6 Democrats, including the Committee Chairman, Senator John Morgan, and 5 Republicans.

The Morgan report concludes that, despite Cleveland’s assertion, based on the earlier Blount report, that the overthrow was instigated and aided by the U.S., in fact, the U.S. troops had remained completely neutral.

On May 31, 1894, despite President Cleveland’s earlier demand to the Provisional government to reinstate the Queen, the Senate finally closed the door on the issue by resolving that “the United States ought in no wise to interfere” with the form of government and domestic policy of Hawaii.

The supporters of the Akaka bill never mention that President Cleveland accepted this “verdict” of Congress and thereafter treated the Provisional Government and later the Republic of Hawaii as the lawful successors of the Kingdom of Hawaii. He never again questioned the legitimacy of the overthrow or the respectful conduct of the U.S, troops during that time.

And it undercuts any historical justification for the Akaka bill. I commend you Morganreport.org the new and easily readable and accessible website by Jere Krischel.

Summary

So, to summarize, The arguments for the Akaka bill are the same old make-believe tribe and paste-on victimhood, dressed up in nicer language, but with no shred of better logic or law than they had six, or 46, years ago.

1. Kamehameha united us and treated natives and non-natives alike; Akaka would divide us and our state forever;

2. The Indian tribe analogy does not work. There is no Native Hawaiian tribe to be recognized and never has been since the Kingdom of Hawaii was created. The U.S.can't give rights to groups of people just because they share an ancestry. If there was no tribal government continuing to the present day, there's no basis for special treatment; and

3. The U.S. did not overthrow the Queen. Both the Queen and the Committee of Safety sought the help of the U.S. But the U.S. remained scrupulously neutral.