(c) Copyright 2016
Kenneth R. Conklin, Ph.D.
All rights reserved
QUICK SUMMARY OF WHAT HAPPENED FROM 2000 THROUGH 2016
The "Akaka bill" to create a federally recognized Hawaiian tribe was in Congress continuously for 13 years, from summer 2000 through the end of 2012. There were perhaps 20 different versions of the bill; and occasionally two or three versions were pending at the same time. The bill passed the House in three different Congresses. It nearly passed the Senate by stealth at the end of 2000. On several occasions during the 13 years Senator Inouye tried to attach the Akaka bill as a rider to "must-pass" military appropriations bills; including a couple times when he exercised his power as committee chairman to insert it "by reference" as a single sentence "earmark" deep inside those bills at the last minute without consulting other Senators. In later years Inouye also tried to simply add the Hawaiian tribe to the list of federally recognized tribes in a single sentence deep inside the Department of Interior appropriations bill, but his subterfuge was discovered and deleted. The closest it came to passage by normal methods in the Senate was June 2006 when a cloture motion to stop a Republican filibuster was debated for about 6 hours during two days, with dozens of Senators speaking on the floor; but failed by 4 votes.
In December 2012 Senator Inouye unexpectedly fell ill and was hospitalized and died; at the same time Senator Akaka was in his final few weeks before retiring. Senator Akaka stood on the Senate floor and begged his fellow Senators to pass the bill in tribute to Inouye, but they wisely ignored his plaintive plea. During the 113th Congress from 2013 through 2014 there was no Akaka bill in Congress. Instead, the State of Hawaii Office of Hawaiian Affairs made use of Act 195, Hawaii session laws of 2011, to build a new racial registry and make plans for an election of delegates to write a tribal constitution. Meanwhile the Obama administration began a process of rewriting the rules for federal recognition of Indian tribes generally, and working toward creating a new rule specially formulated to accommodate an expected application from a "tribe" in the process of being created by OHA.
During the 114th Congress from 2015 through 2016, there was no Akaka bill in Congress. Instead, the Obama administration's Department of Interior went through its rule-making process and on October 14, 2016 published in the Federal Register a "final rule" to take effect on November 14, which provides a process whereby ethnic Hawaiians can create a tribe, adopt a tribal constitution, elect tribal chiefs, and apply to the Secretary of Interior for federal recognition. The entire process of creating the "final rule", creating the Hawaiian tribe in such a way that it complies with requirements in that rule, and granting the tribe federal recognition, are all done entirely without any Congressional action and without any approval by the State of Hawaii or its people.
The election of President Trump, a Republican; together with Republican control of both the U.S. Senate and House and all their committees and subcommittees; offers hope that the "final rule" from the Department of Interior will be rescinded during the 115th Congress of 2017-2018 through one or more administrative or legislative procedures whereby Republicans have pledged to nullify hundreds or even thousands of Obama regulations and executive orders that have exceeded his authority and have usurped the Constitutional power of Congress to make law.
MORE DETAILED REVIEW, AND LINKS, FOR THE HISTORY FROM 2000 THROUGH 2014
For a thorough history of the Native Hawaiian Recognition bill from its birth in February 2000 through 2002 and beyond, focusing on the pattern of stealth and deception in creating the bill and trying to pass it, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/Akakahistory.html
For the complete history of the Akaka bill in the 108th Congress alone (2003-2004), including all versions of the bill's text, and news coverage of political activity related to it (a total of perhaps 200 pages plus links to additional subpages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist108thCong.html
For a short history focusing on the stealth tactics during the 108th Congress, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaStealth20032004.html
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The history for the 109th Congress (2005-2006) included pleasant surprises in the House of Representatives. The bill stayed bottled up in the committee which had jurisdiction (Natural Resources) and never even came to a vote in that committee. However, the House Judiciary Committee took notice that the bill was threatening to come to the floor in the Senate, and did not want to see a repeat of stealth maneuvers from previous years. Therefore the House Judiciary Subcommittee on the Constitution held a hearing where opponents of the bill were actually allowed to testify along with supporters of the bill -- the first time any opponents have ever been allowed to testify in any hearing in Washington in either the House or the Senate. As a result of that hearing a group of 21 House members wrote a letter to Speaker Hastert demanding that the bill be killed (even though it had never yet had a hearing in the Resources committee).
The history for the 109th Congress (2005-2006) was tumultuous in the Senate and in the media. Several Senators blocked the bill by placing holds on it. An attempt to bring the bill to the Senate floor in summer 2005 was blocked by God (Hurricane Katrina). In June 2006 there were more than 6 hours of debate on the Senate floor during a two day period leading up to a recorded vote on a cloture motion (a motion to overcome holds on the bill, cut off debate, and bring the bill to a vote). A cloture motion requires 60 votes. There were only 56 votes in favor, including several Republicans who strongly oppose the bill but had made an agreement in late 2004 to support cloture (although they would then be free to vote against the bill itself, and in fact had publicly announced their opposition). Following the failure of cloture in June 2006, the bill remained dormant through the end of the year. Dozens of nationally-known political commentators wrote articles strongly opposing the bill, and major newspapers published editorials and news reports (including a New York Times editorial in favor of the bill). Website coverage for the 109th Congress includes over 2,000 pages of news reports, commentaries, transcripts of the Senate floor debate from the Congressional Record, etc. An 80-page index lists all items in chronological order and provides links to webpages which provide full text of all items for each segment of time. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/AkakaHist109thCong.html
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The 110th Congress ran from January 1, 2007 through December 31, 2008 under Democrat control. The U.S. House Committee on Resources passed Akaka bill unamended May 2, 2007. The U.S. Senate Indian Affairs Committee held a hearing on the Akaka bill May 3, 2007 and passed it unamended on May 10, 2007. In October 2007 the Akaka bill was scheduled for floor action in the House. On October 22, 2007 President Bush issued a strongly worded statement opposing the Akaka bill and pledging he would veto it if it reached his desk. Nevertheless, the House held a floor debate on the bill on October 24, and passed the bill by a vote of 261-153 after a failed attempt to amend it and/or send it back to the Resources committee. Every Democrat voted in favor. Transcript of the floor debate, and record of the YEAs and NAYs, is provided. In Honolulu, the Hawaii Advisory Committee to the U.S. Commission on Civil Rights held extensive hearings with testimony on several islands, in the face of a strong and vitriolic propaganda campaign in the media against the committee taking up the issue (the committee in previous years had been stacked in favor of Hawaiian sovereignty, but its membership now was more evenly divided and there were fears it might oppose the bill). On November 15, 2007 the committee voted 8-6 not to make any recommendation to the national commission. Throughout 2008 there were many news reports, letters, and commentary on all sides of the issue, but no further action. The Senate Democrat leadership never tried to bring the bill to the floor because the Republicans made it clear they would filibuster. During the last half of 2008 economic issues, and the election, took priority, and the bill died without ever being brought to the Senate floor. A lengthy index of all significant news reports, letters, cartoons, and commentaries provides links to the full text of every indexed item, broken into several time periods. The index is at:
https://www.angelfire.com/planet/bigfiles40/AkakaHist110thCong.html
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The 111th Congress ran from January 1, 2009 through December 31, 2010 under Democrat control. The Democrats had a huge majority in the House, and for most of the two years the Democrats also had a filibuster-proof supermajority in the Senate; and a newly elected President Obama who had promised to sign the bill when it passed. Nevertheless, civil rights activists in Hawaii, and Republicans in the Senate, stopped the bill. A major factor in the death of the Akaka bill was a combination of overreaching by Hawaiian zealots who insisted on trying to ram through the most dangerous version of the bill ever, and incompetence by Senators Inouye and Akaka who tried sneaky maneuvers behind the scenes and then failed to act promptly to enact a so-called compromise version.
During the two year period there were five major different versions of the Akaka bill. Versions 1,2,3 had been previously introduced in Congress during various years from 2000 to 2008. Version #4 was the most dangerous, and was introduced in the House committee barely days before the committee hearing, and drew strong objections from Hawaii's Governor and Attorney General. The committee forced Rep. Abercrombie to withdraw version #4 and passed version #3 on which it had held a hearing with public testimony. But Congressman Abercrombie later went to the House floor, substituted version #4 in place of #3, and was successful in ramming #4 through to passage on the House floor. Version #5 was a compromise with Governor Lingle in an attempt to get some Republican votes in the Senate, but version #5 was not formally introduced until mid-November 2010 and died in the lame duck session a couple days before Christmas without without any committee hearing or floor action.
Here are more details. Three matched pairs (companion bills with identical content) of the Akaka bill were introduced in early 2009. Their dates of introduction and bill numbers are: February 4, 2009, S.381 and H.R.862; March 25, 2009: S.708 and H.R.1711; May 7, 2009: S.1011 and H.R.2314. Hearing on H.R.2314 on June 11, 2009 (Kamehameha Day) before U.S. House Committee on Natural Resources (video and transcripts available). Markup set for July 9 was postponed at last minute because Republican minority ranking member Doc Hastings demanded to know Dept. of Justice and Obama administration's views on the bill, and perhaps because of OHA and Native Hawaiian Bar Association objections to restrictions on the powers of the Akaka tribe. Hearing on S.1011 on August 6 in U.S. Senate Committee on Indian Affairs; Webcast, written statements by invited witnesses, and news reports, are provided. U.S. Commission on Civil Rights letter to Congressional leaders once again blasts Akaka bill. Zogby poll results released Dec. 15 show strong opposition to bill. Major amendments planned to be rammed through House and Senate committee markups Dec 16 and 17 were strongly opposed by Hawaii Governor and Attorney General. House committee passes unamended (original) H.R.2314 Dec. 16. Senate committee passes heavily amended more dangerous version Dec. 17. Jan 28, 2010 OHA and Hawaii Attorney General propose amendments to the Senate amended bill. At least one Republican Senator placed a hold on the bill. Feb. 23 2010 Akaka bill most dangerous version #4 was substituted on the House floor to become HR2314, and passed the House that same day by vote of 245-164. March 23 Governor Lingle letter to all 100 Senators opposes current version of the bill; Huge White House briefing in June for Akaka bill lobbyists confirms Obama will sign the bill when Senate passes it. Compromise reached to amend bill so Lingle will support it. Compromise bill formally introduced November 15, but might be only a decoy. 4 Senators publicly deplore Inouye stealth maneuver to attach Akaka bill to must-pass omnibus spending bill as part of continuing resolution to keep government running. In the lame duck session, December 2010, the Akaka bill itself was never considered by the Senate and never included inside any other bill. But a trillion dollar omnibus spending bill containing 6000 earmarks included an earmark calling on the Department of Interior to do a study of how to create a Native Hawaiian Indian tribe. That spending bill was withdrawn from the Senate by Majority Leader Harry Reid when he figured out there were not enough votes to pass it, and so the Akaka bill died.
The index for the 111th Congress, summarized in the above three paragraphs, is at
https://www.angelfire.com/big09a/AkakaHist111thCong.html
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The 112th Congress (January 2011 to December 2012) was controlled by Democrats in the Senate and by Republicans in the House. The Akaka bill was introduced in the House Committee on Natural Resources, but died in committee without even a hearing. In the Senate the first version introduced in the Indian Affairs Committee was passed by the committee but went nowhere, although Senator Inouye made two stealth maneuvers in October 2011 and September 2012, inserting a short paragraph deep inside the Department of Interior appropriations bill to place the State of Hawaii Act 195 tribe on the list of federally recognized tribes; but Republicans blocked it. A second version of the Akaka bill that was extraordinarily powerful and dangerous passed the Committee on Indian Affairs in one minute on September 13, 2012. On December 17 Senator Inouye died following several days of hospitalization under intensive care for respiratory problems; and on that same day Senator Akaka had a favorable committee report sent to the Senate for the substitute new version of the bill and it was placed on the Senate calendar under general orders. On December 20 Senator Akaka (retiring in a few more days) made his farewell speech and asked his colleagues to pass the Akaka bill in honor of Senator Inouye. There was no further action, and the 112th Congress came to an end on New Years Day with rushed passage of the "fiscal cliff" bill. For the chronological index to published news reports and commentaries for 2011-2012, with links to subpages containing full text of all items, see
https://www.angelfire.com/big09/AkakaHist112thCong.html
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The 113th Congress, January 2013 to December 2014, was controlled by Democrats in the Senate and by Republicans in the House. Senator Inouye had died in December 2012, and Senator Akaka also retired. Throughout the entire 113th Congress there was no Akaka bill. The State of Hawaii Office of Hawaiian Affairs made use of Act 195, Hawaii session laws of 2011, to build a new racial registry and make plans for an election of delegates to write a tribal constitution. After a year of building the new "Kana'iolowalu" registry and spending millions of dollars on it, only 9300 people had signed up. So the state legislature passed a bill (Act 77, session laws of 2013) to allow all 108,000 names from the previous "Kau Inoa" registry, gathered during 7 years, to be added to Kana'iolowalu without permission from the Kau Inoa signers, despite the fact that Kana'iolowalu contains additional, controversial affirmations. In June 2013 the Hawaii and Alaska delegations met and reaffirmed their joint cooperation to pass the Akaka bill, and Senator Schatz gave his maiden speech in the Senate asking his colleagues to support it, even though there was no Akaka bill to support. Newspapers reported that the Obama administration was working on an administrative process for federal recognition of a Hawaiian tribe without Congressional action, and editorials supported this approach. Retiring OHA trustee Oswald Stender says he regrets that OHA has spent $10 Million during 9 years to get only 120,000 signatures on the combined racial registries out of 527,000 possible. In 2014 OHA reopened the racial registry and spent more millions of dollars on it. OHA met with Hawaiian independence activists who oppose federal recognition, and OHA pledges it will be a neutral facilitator to bring ethnic Hawaiians together to decide their future. OHA CEO sends letter on official stationery to Secretary of State John Kerry, citing work of Keanu Sai, asking for official ruling on whether the Kingdom of Hawaii still exists and has sovereignty, and says if so then OHA will stop the nation-building effort for fear of prosecution for war crimes. From June 23 to July 8, 2014 officials from U.S. Department of Interior and Department of Justice, on short notice, hold 15 public hearings on several Hawaii islands to take testimony regarding advance notice of proposed rule-making to create a Hawaiian tribe; hundreds testify, and most are hostile. November 2014 election re-elects all 4 of the 9 OHA trustees who were up for re-election, plus one new trustee to replace retiring Oz Stender. The new trustee, Lei Ahu Isa, says Act 195 was a mistake and calls for its repeal. For the chronological index to published news reports and commentaries for 2013-2014, with links to subpages containing full text of all items, see
https://www.angelfire.com/big09/AkakaHist113thCong.html
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The 114th Congress, January 2015 to December 2016, was controlled by Republicans in both the Senate and the House, while Democrat Barack Obama served his final two years as President. Council for Native Hawaiian Advancement, and the Association of Hawaiian Civic Clubs, continued pushing for creation of a Hawaiian tribe and federal recognition of it. Judicial Watch and Grassroot Institute of Hawaii jointly filed lawsuit against the Native Hawaiian Roll Commission (Kana'iolowalu) to compel disclosure of its financial transactions and the list of names of enrollees. OHA released check register showing detailed expenditures of over $4 Million for racial registry containing only 20,000 new names. Roll Commission released list of about 123,000 names on the racial registry, including the large number transferred from the "Kau Inoa" registry compiled during many years; but finally published online a certified list of 95,690 names, alphabetized on 957 pages.
Groups funded by OHA began process for certified members of racial registry to hold election of delegates to create a constitution for a Hawaiian tribe. Na'i Aupuni released list of 209 candidates for election of 40 delegates to create governing document for Hawaiian tribe, including biographies of each. Grassroot Institute and Judicial Watch filed federal lawsuit and motion for temporary injunction to block election on grounds it would violate Rice v. Cayetano decision from 2000 which prohibits racial restriction on voting in any government-funded election. Lawsuit dismissed by the U.S. District Court in Honolulu. Appeal was underway in 9th Circuit Court of Appeals when U.S. Supreme Court issued emergency injunction blocking counting of votes in Na'i Aupuni election or release of results until 9th Circuit appeal could be decided. Because of Supreme Court injunction and anticipated lengthy delays, Na'i Aupuni decided not to proceed with election, and therefore 9th Circuit dismissed the lawsuit as moot. Instead of election Na'i Aupuni seated all remaining 196 candidates, of whom 151 accepted invitation for 4 week convention in February 2016. On February 26 the convention adopted a constitution by vote of 88-30 with 1 abstention. Na'i Aupuni then disbanded. During remainder of 2016 there were efforts to raise funds for private election to ratify the constitution (Ratification vote is required under procedure set forth in a Department of Interior final rule for federal recognition).
In October 2015 U.S. Department of Interior published official Notice of Proposed Rulemaking in the Federal Register to facilitate creation of Hawaiian tribe, including some responses to oral and written testimony from Summer 2014 regarding its Advance Notice of Proposed Rulemaking. The October notice included full text of proposed rule and solicitation of comments during 90-day period ending December 30. OHA and others went to Washington to lobby Department of Interior to issue final rule, while opponents lobbied against it. On October 14, 2016 the Department of Interior officially proclaimed its final rule by publication in the Federal Register, to take effect on November 14. President-elect Donald Trump, and Republicans in Congress (who will hold the majority in both Senate and House), have pledged to overturn many hundreds of Obama's regulations, especially those issued late in his term. Thus there is hope that the "final rule" for federal recognition of a Hawaiian tribe might be rescinded through executive or legislative action before such a tribe has time to ratify its constitution, elect officers, and petition for recognition. See webpage "Repeal 43 CFR 50 -- Asking the Trump team, and members of the upcoming 115th Congress and their staffers, to repeal this executive order issued at the end of the Obama administration, which provides a pathway for a very small percentage of ethnic Hawaiians to rip apart the lands and people of Hawaii by creating a brand new Indian tribe and getting federal recognition for it." at
https://www.angelfire.com/big11a/Repeal43CFR50.html
Keli'i Akina, President of Grassroot Institute, won the primary election for OHA trustee to oppose 20-year incumbent Haunani Apoliona, while Mililani Trask won primary to run against incumbent OHA chair Bob Lindsey. In November 2016 Akina defeated Apoliona while Lindsey defeated Trask. Akina plus 4 other OHA trustees formed new majority to replace Lindsey with Rowena Akana as new OHA chair, by vote of 5-4. There is hope that OHA's new majority might focus on education, healthcare, and housing rather than nationbuilding or federal recognition, because that shift in focus was Akina's main campaign promise. But private groups are raising funds for race-based election to ratify tribal constitution and elect tribal chiefs, even if OHA steps away from nationbuilding.
For the chronological index to published news reports and commentaries for 2014-2015, with links to subpages containing full text of all items, see
https://big11a.angelfire.com/AkakaHist114thCong.html
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