by Susan K. Serrano

Recent public hearings by the U.S. Commission on Civil Rights (USCCR) and its Hawai‘i State Advisory Committee (HSAC) on the Native Hawaiian Government Reorganization Act (also known as the Akaka Bill), have highlighted ongoing battles over Native Hawaiian history and underscored the need to examine the larger framework being used to define Native Hawaiian and civil rights issues.

In 2006, a new majority of the USCCR issued a Briefing Report on the Akaka Bill, recommending that Congress reject the bill. In a questionable move, the Commission majority issued its report without any findings, based on the testimonies of only a few individuals (mostly anti-Hawaiian and anti-civil rights advocates), without consulting the Hawai‘i State Advisory Committee, and with scant mention of decades of HSAC factfinding and reports on Native Hawaiian issues. See United States Commission on Civil Rights, The Native Hawaiian Government Reorganization Act of 2005, Briefing Report, Jan. 20, 2006.

The USCCR is a 50-year-old agency charged with acting as a watchdog for racism and discrimination in the United States. As the Boston Globe recently reported, however, the Bush Administration has remade the USCCR by creating a new majority of commissioners hostile to civil rights. See Charlie Savage, Maneuver Gave Bush a Conservative Rights Panel, Boston Globe, Nov. 6, 2007. In recent years, this new majority has harshly criticized long-standing school desegregation efforts and other race-conscious programs designed to promote inclusion and racial equality.

In July of 2007, the USCCR appointed new members to the HSAC. At least two new members are litigants in federal court actions challenging Native Hawaiian programs. Soon thereafter, in August and September, the HSAC quickly called for and held public meetings on the Akaka Bill at the Commission staff’s urging, even though USCCR members stated that the Commission would not reconsider its opposition to the bill. See David Shapiro, Ideological Taint Mars Akaka Bill Hearings, Honolulu Advertiser, Aug. 29, 2007.

A number of individuals testified before the HSAC and USCCR. Some of the testifiers omitted and altered key aspects of Native Hawaiian history. Others offered a more full and accurate history. These HSAC and USCCR hearings thus “initiated a fierce threshold battle over the collective memory” of the United States’ injustice in its treatment of Hawaiians. See Eric K. Yamamoto & Catherine Corpus Betts, The Story of Rice v. Cayetano: Disfiguring Civil Rights to Deny Indigenous Hawaiian Self-Determination (forthcoming 2007). The framing of Native Hawaiians’ historical interactions with the U.S., and how those past events are portrayed, can often “determine whether, and to what extent, historical injustice occurred, and, concomitantly, the need for rectification.” See id.

Those testifying at the hearings also used the language of “civil rights” and “equality” to argue against the Native Hawaiian Government Reorganization Act. Some compared the Akaka Bill to the virulent white racism that led to pervasive segregation of African Americans in the South, and equated the bill to xenophobic discrimination against immigrants.

During the Jim Crow era, severe disparities in education, employment, housing, and other facets of public life meant superior treatment of whites and wholesale subordination of African Americans. See generally Derrick Bell, Race, Racism and American Law (4th Ed. 2000). By comparing the Akaka Bill to a Jim Crow caste system, these testifiers twisted this violent history of African American subordination into the equivalent of the NHGRA’s aim to repair historical harms and restore a measure of self-governance to Native Hawaiians.

Instead, as others argued, Native Hawaiians are seeking restorative justice. Hawaiians are not, as some claimed, seeking to justify “preferences” by denigrating others as inferior. There are vast differences between Indigenous peoples seeking to restore the loss of self-governance and racial groups seeking to be treated equally. See Eric Yamamoto, Susan Kiyomi Serrano & Eva Paterson, Kamehameha Admissions Don’t Offend Our Civil Rights, Honolulu Advertiser, Nov. 1, 2004. As such – and as Congress has already recognized – programs for Native Hawaiians, like those for Native Americans and Alaska Natives, are based on their status as Indigenous peoples, not upon race.

* This piece does not offer an opinion on the Akaka Bill itself.