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WASHINGTON — Former U.S. Sen. Dan Akaka, who died earlier this year, will be known in large part for one of his greatest failures.
Akaka, despite decades in Congress, never convinced his colleagues to back federal recognition for Native Hawaiians, which would put them on the same footing as hundreds of American Indian tribes that benefit from government-to-government relationships with the U.S.
One of his obstacles came from an unlikely source — the U.S. Commission on Civil Rights.
Now, nearly 12 years later, the commission is reversing course.
In a report issued Thursday, the commission says Congress should formalize a government-to-government relationship with Native Hawaiians so that they are afforded the same federal benefits as American Indians and Alaska Natives.
The idea is that doing so would not only recognize that Native Hawaiians are an indigenous people who were overthrown and annexed into America, but would also expand and protect federal benefits, which are often the target of political and legal assault.
“We think the commission made the mistake back then of solely looking at Native Hawaiians as a racial minority and not understanding their rights as an indigenous people,” Commissioner Karen Narasaki said.
“Our job is to provide advice to Congress and the administration on civil rights issues, and unfortunately the position that the commission took in 2006, we believe, played a key role in the defeat of Sen. Akaka’s bill.”
The commission, which is made up of eight members appointed by Congress and the president, includes four Democrats, three independents and one Republican.
Narasaki, who was appointed in 2014 by then-President Barack Obama, is an independent.
The commission took a very different stance in 2006, when it came out in opposition to the Native Hawaiian Government Reorganization Act of 2005, otherwise known as the Akaka Bill.
That decision — based on the idea that creating a separate “tribe” of Native Hawaiians would “discriminate on the basis of race” and “further subdivide the American people into discrete subgroups accorded varying degrees of privilege” — helped sink the legislation.
Then-President George W. Bush cited the commission’s findings when promising to veto the bill.
The commission report revisited a 2003 analysis that found federal spending on critical services for Native Americans, such as health care, housing and education, is disproportionately lower than spending on other populations.
The new report — titled “Broken Promises: Continuing Federal Funding Shortfall for Native Americans” — found that Congress has done little in the past 15 years to fulfill its obligations to native populations.
For instance, much of the federal spending for Native Americans, Alaska Natives and Native Hawaiians has remained flat over that time span. In cases where there were increases, the analysis found that it was not enough to keep up with inflation.
“There’s just a lot less control that Native Hawaiians have, including the ability to fully manage their resources and lands.” — U.S. Civil Rights Commissioner Karen Narasaki
The report highlighted a number of disparities for Native Hawaiians, from their inability to qualify for certain criminal justice grants due to a lack of federal recognition to the Trump administration’s proposed elimination of the Native Hawaiian Education Program.
Narasaki said federal recognition could provide a legal backstop when politicians are looking to cut funds or expand programs that could be helpful to Native Hawaiians.
Without it, she said, Native Hawaiians and their advocates in Washington must continually remind Congress why they should qualify for programs targeting indigenous groups.
She also said that while there’s a process in place under U.S. Department of Interior rules for Hawaiians to seek federal recognition, congressional action would “buttress” those efforts.
“There’s just a lot less control that Native Hawaiians have, including the ability to fully manage their resources and lands,” Narasaki said.
Hawaii Congresswoman Tulsi Gabbard was among 20 House members — Democrats and Republicans — who called on the commission in 2015 to update its 2003 analysis and report on any continued shortcomings.
Gabbard, who used to work for Akaka, said in a statement that the fact that the commission overturned its previous opposition to federal recognition was a testament to her former boss, who himself was Native Hawaiian.
“For generations, the Native Hawaiian community has fought for recognition equal to other native peoples across America, the first people of the lands that became our great nation,” Gabbard said.
“Congress should establish federal recognition for Native Hawaiians so we can further enhance opportunity and access to education, job opportunities and health services, prioritize the Hawaiian language, and more.”
Not everyone on the commission agreed.
Commissioner Gail Heriot, in particular, took issue with the idea that Native Hawaiians should qualify for federal recognition under the U.S. Constitution.
In her written dissent, Heriot said Native Hawaiians were different from recognized American Indian tribes on the mainland in that they did not have a continuous tribal government before the overthrow in 1893.
Heriot, who’s a law professor at the University of San Diego, argued that the Kingdom of Hawaii was already “an extremely impressive, cosmopolitan multi-racial, multi-ethnic society” when white businessmen took control of the government.
“Statehood made Hawaiians of all races full and equal members of the greatest nation on Earth.” — U.S. Civil Rights Commissioner Gail Heriot
She also said Native Hawaiians tossed aside any desire they might have for sovereignty in 1959 when 94 percent of voters cast ballots in support of statehood. She estimated that Native Hawaiians themselves voted 2 to 1 in favor of becoming a state.
“At that point, any wrongs that might have occurred in the past were waived,” Heriot said. “Statehood made Hawaiians of all races full and equal members of the greatest nation on Earth, fully entitled to the protection of its laws and right to participate in its political process.”
The Akaka Bill, or any other form of federal recognition for Native Hawaiians, she said, would effectively create a tribe where one did not previously exist.
She also said it would be a clear form of racial discrimination that would not withstand constitutional muster.
“The very act of transforming Native Hawaiians into a tribe would be an act performed on a racial group, not a tribal group,” Heriot said. “When, as here, it is done for the purpose of conferring massive benefits on that group, it is an act of race discrimination subject to strict scrutiny — scrutiny that it likely cannot survive.”
Heriot, in general, said she was skeptical of the report’s overall findings, saying it was little more than political grandstanding.
She said she agreed with another dissenting commissioner, Peter Kirsanow, who referrred to the benefits given to Native Americans as a failed experiment in socialism. Instead, Kirsanow argued, it would be better to let people take control of their own destinies rather than rely on a government handout.
“This report should not be viewed as any sort of legal or policy analysis,” Heriot said. “It is more in the nature of a command political performance.”
In many respects, the commission’s latest findings — at least as they relate to Native Hawaiian federal recognition — are symbolic.
Native Hawaiians themselves are divided on the topic, with some believing it’s necessary to improve their standing while others prefer the status quo. There are also some who believe federal recognition is a ploy to give up the fight for true Hawaiian independence and sovereignty from the U.S.
Jonathan Osorio is the dean of the Hawai‘inuiākea School of Hawaiian Knowledge at the University of Hawaii Manoa. He counts himself among those who consider federal recognition a new form of “chicanery.”
Osorio said the timing of the Commission on Civil Rights’ support for recognition is curious and could have something to do with conservative attacks on Native Hawaiian funding.
But he also doesn’t see the maneuver having much effect, at least not in today’s dysfunctional and divided Washington. Even if Democrats take up Native Hawaiian rights in 2019 when they take control of the House, they’d still have to contend with a Republican-controlled Senate and the Trump White House.
“In my mind, what the commission believes or doesn’t believe really has little effect on the way legislation is happening in the United States today,” Osorio said.
“It’s almost impossible to predict what is possible politically, and I don’t know what to make of the commission’s change of heart. But I will allow for the possibility it’s being done out of compassion and for good reasons.”
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