Results matching “akaka”

UPDATE (6:10 p.m.): The Senate has now confirmed John "Jack" McConnell to be a judge on the U.S. District Court by a vote of 50-44. Republican Senators who supported cloture (see below) voted against final confirmation.


Eleven Republicans joined all Democratic Senators (save an absent Sen. Akaka of Hawaii) to invoke cloture on the nomination of John "Jack" McConnell to the U.S. District Court for the District of Rhode Island by a vote of 63-33. The roll call vote is here.

It appears the arguments about depoliticizing the confirmation process carried weight with the Republicans, along with a little New England regional solidarity. The Republicans voting yes:

Hope of stopping Hawaii tribalization? - PointOfLaw Forum

In the latest sign that the dangerous Akaka bill might be starting to receive overdue scrutiny, Hawaii Republican Gov. Linda Lingle has withdrawn her support. Gail Heriot, who deserves much gratitude for keeping the issue before the public in many venues including this one, has joined with Commission on Civil Rights colleague Peter Kirsanow to explain what is at stake in an excellent new Wall Street Journal op-ed.

P.S. More from Ilya Somin at Volokh Conspiracy here and here.

Around the web, November 14 - PointOfLaw Forum

  • Prempro/Premarin plaintiffs' lawyers score big P.R. hit as NYT banners their case;
  • "Central Park Rotten Tree Branch Lawsuit Worth $120 Million" [Gothamist]
  • Consumer advocates, home builders united to push bad finance tool that's cost FHA dearly [Bank Lawyer's Blog]
  • Watch out, Akaka bill (native Hawaiian tribalization) is coming back in Congress and this time with a friendlier White House [Coffin, NRO; earlier] Update: WSJ editorial.
  • "North Dakota Democrats Want To Punish Insurance Company For Speaking Out Against Obamacare" [Say Anything, earlier here and here]
  • "A rare victory for small business: Sarbox Routed in House" [WSJ editorial]

President pushing bill to tribalize native Hawaiians - PointOfLaw Forum

The bad Akaka bill, often criticized in this space, now is seen as having a good chance of passage.

The Senate confirmation hearing Tuesday for Harvard law professor Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs (OIRA) was noncontroversial, cordial, positive, and ran less than an hour. OIRA is the key office that the White House uses to bring consistency and efficiency to executive branch rulemaking, and in Republican Administrations has been seen as an office that helps rein in regulatory-happy agencies.

Sen. Joe Lieberman (I[D]-CT), chairman of the Senate Committee on Homeland Security and Government Affairs, ran the hearing with ranking Republican Sen. Susan Collins of Maine also in attendance. Sen. Daniel Akaka (D-HI) stopped by, and Sunstein was introduced by Sen. Amy Klobuchar (D-MN), a former law student of his at the University of Chicago. Lieberman concluded the hearing by saying he supported Sunstein's confirmation.

Prepared statements:

A source we respect highlights the key regulatory discussion points:

George Will on the Akaka bill - PointOfLaw Forum

We've criticized this tribalization measure at length over the past couple of years, and columnist George Will doesn't have any higher opinion of it than we do:

Today, the Native Hawaiian Government Reorganization Act, when accurately described, is opposed by a large majority of Hawaiians and supported by only a bare majority of the approximately 240,000 Native Hawaiians in the state. ...

Reparations? We shall see. Independence -- secession? "That could be," [Sen. Daniel] Akaka, 83, has said, depending on "my grandchildren and great-grandchildren."

Return of the Akaka bill - PointOfLaw Forum

Akaka bill is back - PointOfLaw Forum

Fortunately, President Bush has signaled that he'll veto the Hawaiian-tribalization legislation if it passes. Peter Kirsanow has more (via Gail Heriot). Earlier coverage here, here, etc.

Akaka bill dead for now - PointOfLaw Forum

The Senate failed to invoke cloture; the Bush Administration belatedly also came out against the measure. Coverage: Honolulu Star-Bulletin, Advertiser. See here and here for more.

Akaka bill - PointOfLaw Forum

The Federalist Society will be sponsoring a panel discussion on the proposed Native Hawaiian Government Reorganization Act next Monday afternoon on Capitol Hill (more). (Update: POSTPONED following failure of bill to achieve cloture.) And: Peter Kirsanow comments here and here.

Tribal status for native Hawaiians - PointOfLaw Forum

The Senate will take up the Akaka bill this week. How do you say "Balkanize" in Hawaiian? Our reprinted column on the subject by Prof. Gail Heriot (U. San Diego School of Law) is here; more coverage here, here, etc.

New PoL column: Hawaiian tribal claims - PointOfLaw Forum

On Friday, the U.S. Civil Rights Commission held a hearing on Sen. Daniel Akaka's bill (see Aug. 17) to create a newly recognized federal tribal entity to represent ethnically native Hawaiians. Commission member Abigail Thernstrom, a Manhattan Institute fellow, expressed skepticism over the measure, saying she was "very unhappy about what I regard as proposals for race-based governments. This is not the way I want this country to go, and I would like to see some acknowledgement that the story of governance of Indian tribes in this country has not worked out well," Thernstrom said.

One of the witnesses speaking before the commission on Friday was University of San Diego law professor Gail Heriot, who has (OL Sept. 1 and links from there) been among the most outspoken critics of the Akaka bill. In the newest installment in our Point of Law column feature, Prof. Heriot argues that the bill is a dangerous end run around Supreme Court decisions which endanger the "ethnic spoils system" that has prevailed in Hawaiian politics. "By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground." Other groups could pick up on the precedent, subjecting the U.S. to yet further ethnic balkanization.

By Gail Heriot

This is an updated version of an article that ran in the San Diego Union-Tribune Aug. 28, 2005. The U.S. Civil Rights Commission has scheduled a Jan. 20 briefing on the proposed "Native Hawaiian Government Reorganization Act", at which Prof. Heriot is scheduled to testify.

America's 50th State has always been known for its friendly and welcoming "Spirit of Aloha." But for the last decade or so, Hawaii has begun to earn a reputation for something else entirely: the nation's most divisive racial politics. And with the proposed "Native Hawaiian Government Reorganization Act" (known as the Akaka bill) currently pending before the U.S. Senate, it may only get worse. The bill was scheduled for Senate vote back in September, but emergency legislation relating to Hurricane Katrina had to be taken up instead. The bill's supporters now expect that it will be taken up sometime in 2006.

Put simply, the Akaka bill will allow the nation�s approximately 400,000 ethnic Hawaiians to organize themselves into one vast Indian tribe—the largest in the nation. A commission appointed by the U.S. Secretary of the Interior and consisting of nine "Native Hawaiian" commissioners with "expertise in the determination of Native Hawaiian ancestry" will sit as judges to ensure that only those who can prove their Native Hawaiian bloodline are permitted to join.

Why would 400,000 American citizens want to retroactively declare themselves an Indian tribe? There's a good chance they don't. The only full-scale poll indicates that ethnic Hawaiians reject the notion of a tribe�48% to 43%�when they are informed that under a tribal government they would not be subject to the same laws, regulations and taxes as the rest of the state. And Hawaiians generally oppose the so-called "reorganization" by an astonishing 2 to 1 ratio. But vocal leaders in the ethnic Hawaiian community, many of whom no doubt fancy that they will be the tribal leaders themselves, consider tribal status a top priority. And politicians are falling in line behind them. Senator Daniel Akaka, for whom the bill is named, claims to have the votes he needs to pass the bill.

To understand why ethnic Hawaiian leaders want tribal status, one must know a bit about Hawaiian racial politics. In an age in which racial entitlements are an unfortunate feature of the political landscape in so many parts of the country, Hawaii is in a league by itself. The State's Office of Hawaiian Affairs administers a huge public trust�worth billions�which in theory benefits all Hawaiians, but for reasons that are both historical and political, actually provides a bonanza of benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for special home loans, business loans, housing and educational programs. On the OHA web site, the caption proudly proclaims its racial goal, "Office of Hawaiian Affairs: For the Betterment of Native Hawaiians."

The problem for supporters of special benefits came in 2000, with the Supreme Court case of Rice v. Cayetano. Unsurprisingly, the Court ruled that the Constitution's Fifteenth Amendment, which prohibits States from discriminating on the basis of race in voting rights, applied to Hawaii just as it does to every other state in the union. Hawaii could not prohibit non-ethnic Hawaiians from voting in state elections for OHA trustees.

That ruling caused an uproar in Hawaii that has not yet subsided. If the Fifteenth Amendment prohibits Hawaii from limiting voting rights to ethnic Hawaiians, the Fourteenth Amendment's Equal Protection Clause and other civil rights laws might prohibit all or part of the OHA's massive system of exclusive benefits. Cases like the Ninth Circuit�s decision last month prohibiting the Kamehameha Schools from operating for the exclusive benefit of ethnic Hawaiians only added to this controversy. The whole racially-exclusive system is in legal jeopardy.

That's where the Indian tribe idea comes in. States cannot discriminate on the basis of race except in extraordinary cases. But Indian tribes can. They are essentially exclusive racial groups and are not directly (or in many respects even indirectly) bound by the U.S. Constitution (or by most civil rights laws). If ethnic Hawaiians can be morphed into an Indian tribe, and the State of Hawaii can then transfer the OHA's functions (and the vast acres of real estate and other property it administers) to the tribe, the racial spoils system can be preserved�or so its advocates hope.

There are many reasons that the Akaka bill is a bad idea�including a strong likelihood that both the bill and the overall plan to transfer the OHA's functions and property to the "tribe" are simply unconstitutional. If the State of Hawaii cannot confer preferential benefits on its citizens based on race, it cannot give away land and property to a newly-minted tribe created for the purpose of conferring benefits based on race. The Constitution's requirements cannot be by-passed that easily.

But perhaps the most important reason to oppose the Akaka bill is the disturbing precedent it sets. The United States has long recognized the sovereign status of Indian tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Our policy towards them was simply a bow to reality.

By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground. If ethnic Hawaiians can be an Indian tribe, why not Chicanos in the Southwest? Cajuns in Louisiana? Religious groups�like Orthodox Jews in New York or the Amish in Pennsylvania�may be particularly interested in gaining tribal status, since doing so will arguably allow them to take on governmental authority without being subject to Constitutional prohibitions on the establishment of religion. Who will say no to these (and other) groups?

In August of 2005, Senator Akaka was asked in a National Public Radio interview whether the sovereign status granted in the bill "could eventually go further, perhaps even leading to outright independence." The question might have seemed extraordinary for anyone unfamiliar with how strong the push for Hawaiian independence has become. Back in the 1970s, its supporters were considered kooks and lunatics. But today, although by no means a majority, they are a political force to be reckoned with. It's hard to drive down a Hawaiian road without seeing an upside down Hawaiian flag, the symbol of the movement, flying over someone's home. Even more extraordinary was Akaka's answer: "That could be. That could be. As far as what's going to happen at the other end, I�m leaving it up to my grandchildren and great-grandchildren."

Akaka's fellow Senators should think long and hard about the whether the Akaka bill will, in the long run, lead to greater harmony among Hawaiians and among Americans�or less. Is our "One Nation" indivisible or not?

Gail Heriot is a professor of law at the University of San Diego and blogs at

Reservation-izing Hawaii - PointOfLaw Forum

Don't say you weren't warned about the dangers in the bill that would create Indian-like tribal status for native Hawaiians.