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Akaka Bill

Akaka Bill

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The Native Hawaiian Government Reorganization Act of 2009 S1011/HR2314 is a bill before the 111th Congress. It is commonly known as the Akaka Bill after Senator Daniel Akaka
Daniel Akaka
Daniel Kahikina Akaka is the junior U.S. Senator from Hawaii and a member of the Democratic Party. He is the first U.S. Senator of Native Hawaiian ancestry and is currently the only member of the Senate who has Chinese ancestry....

 of Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...

, who has proposed various forms of this bill since 2000.

The bill proposes to establish a process for indigenous Native Hawaiians to gain federal recognition similar to an Indian tribe. However, the bill prohibits indigenous Native Hawaiians from gaming and other benefits available to federally recognized Indian tribes. The 2009 House version of the bill prohibits indigenous Native Hawaiians from pursuing their claims in the courts and arguably legitimizes past transfers of Hawaiian land that would not have been legitimate for Indian Tribes. (Non intercourse act not applicable to Hawaiian land transfers.) The most updated Senate version however allows Native Hawaiians to pursue claims in court. On December 16, 2009 a Congressional House Committee passed an unamended version of the Akaka Bill. On the following day, the Senate Indian Affairs Committee approved the amendments in S. 1011, the Senate version of the Native Hawaiian Government Reorganization Act. As of January 10, 2009, H.R. 2314 is not completely consistent with S. 1011.

Akaka said on the floor of the U.S. Senate in Dec. 2010 that “misleading attacks” and “unprecedented obstruction” led to the failure of legislation in the 111th Congress.

Purpose


The stated purpose of the Akaka Bill is "to provide a process for the reorganization of the single Native Hawaiian governing entity and the reaffirmation of the special political and legal relationship between the United States and that Native Hawaiian governing entity for purposes of continuing a government-to-government relationship".

The government that the Akaka Bill intends to reorganize is identified as the Kingdom of Hawaii
Kingdom of Hawaii
The Kingdom of Hawaii was established during the years 1795 to 1810 with the subjugation of the smaller independent chiefdoms of Oahu, Maui, Molokai, Lānai, Kauai and Niihau by the chiefdom of Hawaii into one unified government...

 in the first paragraphs of Indian Affairs Committee Report 108-85.

Proposed provisions


The recognition proposed in the Akaka bill is somewhat similar to the recognition that federally recognized Tribes in the continental 48 states and Alaska have. However, unlike those groups, the current version of the Akaka Bill prohibits Hawaiians from establishing casinos under current laws without banning the establishment of casinos under future negotiations (Section 9a), from participation in programs and services enjoyed by Indians (Section 9f), from being included on the Secretary of the Interior's list of Tribes eligible for federal benefits because of their status as Indians ("Public Law 103-454, 25 U.S.C. 479a, shall not apply."), and from pursuing claims against the United States for past wrongs in court. Also, unlike recognized Tribes in the continental 48 states and Alaska, the Akaka Bill does not require any of the same requirements for tribal recognition. The Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...

 requires the satisfaction of 7 criteria before recognizing a tribe, none of which are present in the Akaka Bill. They are:
  • 83.7a: The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900.
  • 83.7b: A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times to the present.
  • 83.7c: The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.
  • 83.7d: A copy of the group's present governing documents including its membership criteria.
  • 83.7e: The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.
  • 83.7f: The membership of the petitioning group is composed primarily of persons who are not members of an acknowledged North American Indian tribe.
  • 83.7g: Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship.


The current version of the bill provides for negotiations between the United States and the proposed new Hawaiian government. The bill provides for the new Hawaiian government to negotiate for land, rights,and resources, however, the bill does not indicate what the Federal government will be negotiating for, that is what it is Hawaiians have that the Federal government will expect in return at the negotiating table. Typically however, in Tribal/U.S. negotiations, Indians give up their legal and other grievances against the United States in exchange for a portion of disputed land, rights, and resources. (See United States Code Title 25 Chapter 19 for examples.)

Section 2 of findings is based primarily upon the Apology Resolution of 1993.

Section 3 defines "Native Hawaiian" as:
an individual who is 1 of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who--
(I) resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and
(II) occupied and exercised sovereignty in the Hawaiian archipelago, including the area that now constitutes the State of Hawaii; or an individual who is 1 of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act (42 Stat. 108, chapter 42) or a direct lineal descendant of that individual.


Section 5 establishes the "United States Office for Native Hawaiian Relations". In a revision to a previous version of the Akaka Bill, S.147, the new S.310 no longer requires consultation with the Governor of the State of Hawaii explicitly, but only the "State of Hawaii".

Section 6 establishes the "Native Hawaiian Interagency Coordinating Group" for coordination of various federal agencies and policies, with the specific exclusion of the Department of Defense.

Section 7 establishes a commission of 9 members to certify which adults meet the definition of “Native Hawaiian" established in Section 3(10), and to prepare and maintain a roll of adult "Native Hawaiians" by that definition. Originally requiring specific ancestry to be a member of the commission in S.147, S.310 only requires "(i) not less than 10 years of experience in the study and determination of Native Hawaiian genealogy; and (ii) an ability to read and translate into English documents written in the Hawaiian language." The bill cites the overthrow of the Kingdom of Hawaii, which was multi-racial from its inception, but it does not provide any opportunity for non-Native Hawaiians as defined by the law to participate in the new governing entity.

Once a roll is established, those on the roll will establish a "Native Hawaiian Interim Governing Council", who would establish a permanent form of government. The bill provides that governing documents may, but do not have to be approved by a majority of the people on the roll, and that the form of government chosen "provide for the protection of the civil rights of the citizens of the Native Hawaiian governing entity and all persons affected by the exercise of governmental powers and authorities by the Native Hawaiian governing entity", but does not enumerate if equal protection on the basis of race is one of those civil rights.

Section 8 defers any settlement of issues such as the transfer of lands, the exercise of governmental authority, civil and criminal jurisdiction, and "grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii" to future negotiations between the newly organized Native Hawaiian Government and the United States and the State of Hawaii. Also provides:” Nothing in this Act is intended to create or allow to be maintained in any court any potential breach-of-trust actions, land claims, resource-protection or resource-management claims, or similar types of claims brought by or on behalf of Native Hawaiians or the Native Hawaiian governing entity for equitable, monetary, or Administrative Procedure Act-based relief against the United States or the State of Hawaii, whether or not such claims specifically assert an alleged breach of trust, call for an accounting, seek declaratory relief, or seek the recovery of or compensation for lands once held by Native Hawaiians. Also Provides: "Nor shall any preexisting waiver of sovereign immunity (including, but not limited to, waivers set forth in chapter 7 of part I of title 5, United States Code, and sections 1505 and 2409a of title 28, United States Code) be applicable to any such claims. This complete retention or reclaiming of sovereign immunity also applies to every claim that might attempt to rely on this Act for support, without regard to the source of law under which any such claim might be asserted." And Also:” It is the general effect of section 8(c)(2)(B) that any claims that may already have accrued and might be brought against the United States, including any claims of the types specifically referred to in section 8(c)(2)(A), along with both claims of a similar nature and claims arising out of the same nucleus of operative facts as could give rise to claims of the specific types referred to in section 8(c)(2)(A), be rendered nonjusticiable in suits brought by plaintiffs other than the Federal Government."

Section 9 Provides: "Native Hawaiians may not conduct gaming activities" and; "the Secretary (of the Interior of the United States) shall not take land into trust on behalf of individuals or groups claiming to be Native Hawaiian, and; " (c) Real Property Transfers- The Indian Trade and Intercourse Act (25 U.S.C. 177), does not, has never, and will not apply after enactment to lands or lands transfers present, past, or future, in the State of Hawaii. If despite the expression of this intent herein, a court were to construe the Trade and Intercourse Act to apply to lands or land transfers in Hawaii before the date of enactment of this Act, then any transfer of land or natural resources located within the State of Hawaii prior to the date of enactment of this Act, by or on behalf of the Native Hawaiian people, or individual Native Hawaiians, shall be deemed to have been made in accordance with the Indian Trade and Intercourse Act and any other provision of Federal law that specifically applies to transfers of land or natural resources from, by, or on behalf of an Indian tribe, Native Hawaiians, or Native Hawaiian entities." and;” nothing in this Act provides an authorization for eligibility to participate in any Indian program."

Support


Although the bill has changed substantially since some of these groups announced their support, supporters of the bill have included:
  1. President Barack Obama
    Barack Obama
    Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

  2. Hawai`i's Democratic congressional delegation Senators Daniel Akaka and Daniel K. Inouye and Representative Mazie Hirono
    Mazie Hirono
    is the U.S. Representative for , serving since 2007. She is a member of the Democratic Party.She was the second Asian immigrant elected lieutenant governor of a state of the United States. She ran against Linda Lingle for governor of Hawaii in 2002, one of the few gubernatorial races in United...

    .
  3. Hawai`i's Democratic State Governor and former congressional Representative Neil Abercrombie
    Neil Abercrombie
    Neil Abercrombie is the 7th and current Governor of Hawaii. He was the Democratic U.S. Representative of the First Congressional District of Hawaii which comprises urban Honolulu. He served in Congress from 1986 to 1987 and from 1991 to 2010 when he resigned to successfully run for governor...

    .
  4. Hawai`i's State legislature, which has unanimously passed at least three resolutions supporting federal recognition for Native Hawaiians.
  5. The National Congress of American Indians
    National Congress of American Indians
    The National Congress of American Indians is a American Indian and Alaska Native indigenous rights organization. It was founded in 1944 in response to termination and assimilation policies that the U.S. government forced upon the tribal governments in contradiction of their treaty rights and...

    , the oldest and largest national Native American organization.
  6. The Alaska Federation of Natives
    Alaska Federation of Natives
    The Alaska Federation of Natives is the largest statewide Native organization in Alaska. Its membership includes 178 villages , thirteen regional native corporations, and twelve regional nonprofit and tribal consortiums that contract and run federal and state programs...

    , the largest organization representing the Native people of Alaska.
  7. The National Indian Education Association
    National Indian Education Association
    The National Indian Education Association is the only national nonprofit exclusive to education issues for American Indian, Alaska Native and Native Hawaiian) people of the United States.-History:...

    .
  8. The American Bar Association
    American Bar Association
    The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...

    .
  9. The Japanese American Citizens League
    Japanese American Citizens League
    The was formed in 1929 to protect the rights of Japanese Americans from the state and federal governments. It fought for civil rights for Japanese Americans, assisted those in internment camps during World War II, and led a successful campaign for redress for internment from the U.S...

    .
  10. Those who seek legislation to provide federal recognition for Native Hawaiians
    Native Hawaiians
    Native Hawaiians refers to the indigenous Polynesian people of the Hawaiian Islands or their descendants. Native Hawaiians trace their ancestry back to the original Polynesian settlers of Hawaii.According to the U.S...

     to ensure that the native (especially at-risk) population continues to receive services in health care, housing, education, job training, employment, culture, and the arts.


Supporters of the bill seek to protect the programs assisting Native Hawaiians, such as the Office of Hawaiian Affairs
Office of Hawaiian Affairs
The Office of Hawaiian Affairs is a semi-autonomous entity of the state of Hawaii charged with the administration of 1.8 million acres of royal land held in trust for the benefit of native Hawaiians...

 and the Kamehameha Schools
Kamehameha Schools
Kamehameha Schools , formerly called Kamehameha Schools/Bishop Estate , is a private co-educational college-preparatory institution that specializes in Native Hawaiian language and cultural education. It is located in Hawaii and operates three campuses: Kapālama , Pukalani , and Keaau...

, as well as health-care and housing for the Hawaiian population. Senator Akaka said, as he introduced the 2007 version on the Congressional floor,

"The legislation I introduce today seeks to build upon the foundation of reconciliation. It provides a structured process to bring together the people of Hawai`i, along a path of healing to a Hawai`i where its indigenous people are respected and culture is embraced. Through enactment of this legislation, we have the opportunity to demonstrate that our country does not just preach its ideas, but lives according to its founding principles. As it has for America's other indigenous peoples, I believe the United States must fulfill its responsibility to Native Hawaiians."


In response to opponents who state the bill is race-based, supporters of the bill - including other Congressional delegates, Governor Lingle, Hawai`i Attorney General Bennett, Native American groups, and Asian American groups - argue that rejecting the bill would be racially discriminatory. Supporters also argue that the State legislature, which has unanimously supported the bill, is bi-partisan, multiracial, and multicultural and, as Hawai`i residents, closely understand the needs of the Native Hawaiian community. In support of the bill, Senator Inouye responded that failing to pass the bill would discriminate against the Native Hawaiians, for Congress had already provided federal recognition of the other indigenous and aboriginal peoples of America. He also argued that the Rice v. Cayetano case cited by opponents was irrelevant to the Akaka Bill, reminding Congress that current Chief Justice John Roberts himself had written the State brief and had argued that Native Hawaiians were aboriginal and indigenous people and could be recognized as such by Congress. Senator Akaka had also asserted in his introduction of the bill:
This measure does not result in race discrimination. But discrimination will occur if this measure is not passed. It is undisputed that Native Hawaiians are the aboriginal, indigenous people of Hawaii. Yet some of my colleagues want to discriminate against them and treat them differently from other Native Americans -- the American Indian and the Alaska Native.


In response to opponents citing Congressional requirements for Native Americans and arguing that Native Hawaiians don’t meet such requirements, Governor Lingle and Hawai`i Attorney General Bennett responded that the bill did not authorize Native Hawaiian participation in American Indian programs, that Native Americans and Alaska Natives support the bill, that to suggest otherwise resulted in placing native groups against each other, that barring Native Hawaiians from programs that provided to other natives was offensive. In addition, they also wrote:
“The arguments against recognition for Native Hawaiians because Hawaiians cannot satisfy the requirements Congress set out for the recognition of Native Americans (in the Indian Reorganization Act of 1934) are simply not relevant because Congress has not and need not include those conditions in S. 147. Native Hawaiians have always had to rely on a separate bill for recognition because the Indian Reorganization Act of 1934 was never intended to be the means of providing recognition for Native Hawaiians –- it literally only applies to the native people of the "continental United States." See 25 U.S.C. § 473; 25 C.F.R. § 83.3....

Rather than crack the "melting pot" that is Hawaii (an outcome opponents of S. 147 purport to fear), passage of S. 147 will finally give official and long overdue recognition to the losses Hawaiians have suffered -- the blurring, if not diminution, of Hawaiians’ native identity; the erosion of their confidence as a people; the destruction of any semblance of self-determination and self-governance; and, as the United States Supreme Court put it, the loss of a "culture and way of life." Finally, Native Hawaiians will have restored to them what they lost more than a hundred years ago -- status as a people and recognition of their roots.


In a 2005 interview, Senator Akaka said that the bill, "creates a government-to-government relationship with the United States” as it provides a legal parity similar to that of native tribal governments in the contiguous states and Alaska. When the reporter commented that the bill could potentially lead to independence, Senator Akaka replied "that could be" but that it would be up to future generations to decide. Some who oppose the bill cite this statement as indicative of its potential support of secession of a Native Hawaiian government from the United States. However, the 2007 version of the bill has specified that secession is not a provision of the bill.

Opposition


Opposition to the Akaka Bill includes:
  1. Those who believe that the bill is unconstitutionally race-based;
  2. Those who believe the 'tribe
    Tribe
    A tribe, viewed historically or developmentally, consists of a social group existing before the development of, or outside of, states.Many anthropologists use the term tribal society to refer to societies organized largely on the basis of kinship, especially corporate descent groups .Some theorists...

    ' created via the Akaka Bill would shield corrupt trustees from prosecution;
  3. Those who believe that a school voucher system would allow Kamehameha Schools
    Kamehameha Schools
    Kamehameha Schools , formerly called Kamehameha Schools/Bishop Estate , is a private co-educational college-preparatory institution that specializes in Native Hawaiian language and cultural education. It is located in Hawaii and operates three campuses: Kapālama , Pukalani , and Keaau...

     to serve all interested Hawaiian students and also admit non-Hawaiians
    Haole
    Haole , in the Hawaiian language, is generally used to refer to an individual that fits one of the following: "White person, American, Englishman, Caucasian; American, English; formerly, any foreigner; foreign, introduced, of foreign origin, as plants, pigs, chickens"...

     thus eliminating the race-discrimination basis of the lawsuits;
  4. Those who believe that it could begin the process of secession of a single racial group from the United States;
  5. Those who believe that it could thwart the process of secession of Hawaii from the United States and the restoration of an independent Hawaiian nation controlled by native Hawaiians (native Hawaiian sovereignty activists);
  6. The United States Commission on Civil Rights
    United States Commission on Civil Rights
    The U.S. Commission on Civil Rights is historically a bipartisan, independent commission of the U.S. federal government charged with the responsibility for investigating, reporting on, and making recommendations concerning civil rights issues that face the nation.-Commissioners:The Commission is...

    ;
  7. Hawai`i's Attorney General Mark Bennett
    Mark Bennett
    Mark Bennett may refer to:* Mark J. Bennett, Attorney General of Hawaii* Mark Bennett , former professional snooker player* Mark W. Bennett , U.S. federal judge* Mark Anthony Bennett, Australian geologist and prospector...

    .
  8. The George W. Bush Administration
    George W. Bush administration
    The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...

    , which issued a letter arguing against the earlier version of the bill;
  9. Aloha 4 All, a Hawaii based civil rights group;
  10. The Grassroot Institute
    Grassroot Institute
    The Grassroot Institute of Hawaii is a 501 non-profit corporation engaging in issues research and education of voters and political representatives. The Institute is based in Honolulu. It was founded in 2000 by Richard O. Rowland...

     of Hawaii, a Hawaii-based think-tank
  11. Republican Presidential candidate Senator John McCain
    John McCain
    John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....

  12. US Representatives who wrote a letter to the Speaker of the House and Majority Leader asking them to kill the Akaka Bill. The letter entailed three reasons for killing the bill: (1) The Constitution does not allow for a separate, sovereign, race-based government; (2) Practical issues have not been addressed such as how businesses could fairly compete with each other if one must for example pay state taxes and another must not; (3) Historical commitments do not support such a bill. For example when Hawaii became a state there was broad congressional consensus and assurances given by the State of Hawaii that Native Hawaiians would not seek to be treated as a separate racial group and transformed into an "Indian tribe".


Native Hawaiian sovereignty activists who oppose the bill believe that it blocks their attempts to establish their independence from the federal government and disregards 1993 Public Law (103-150), in which Congress apologized "for the overthrow and the deprivation of the rights of Native Hawaiians to self-determination." Washington-based constitutional scholar Bruce Fein
Bruce Fein
Bruce Fein is a lawyer in the United States who specializes in constitutional and international law. Fein has written numerous articles on constitutional issues for The Washington Times, Slate.com, The New York Times, Legal Times, and is active on the issues of civil liberties...

 has outlined a number of counter-arguments disputing the accuracy of the assertions made in the Apology Resolution, stating "The apology wrongly insinuates that the overthrown 1893 government was for Native Hawaiians alone".

In 2006, the United States Commission on Civil Rights
United States Commission on Civil Rights
The U.S. Commission on Civil Rights is historically a bipartisan, independent commission of the U.S. federal government charged with the responsibility for investigating, reporting on, and making recommendations concerning civil rights issues that face the nation.-Commissioners:The Commission is...

 held hearings on the Akaka bill, and published a report recommending strongly against it. The report states in part:

The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005 (S. 147) as reported out of committee on May 16, 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.


Some opponents believe that programs maintained exclusively for Native Hawaiians, such as the Office of Hawaiian Affairs
Office of Hawaiian Affairs
The Office of Hawaiian Affairs is a semi-autonomous entity of the state of Hawaii charged with the administration of 1.8 million acres of royal land held in trust for the benefit of native Hawaiians...

 and the Kamehameha Schools
Kamehameha Schools
Kamehameha Schools , formerly called Kamehameha Schools/Bishop Estate , is a private co-educational college-preparatory institution that specializes in Native Hawaiian language and cultural education. It is located in Hawaii and operates three campuses: Kapālama , Pukalani , and Keaau...

, are race-based and discriminatory and see the Akaka bill as an attempt to subvert the February 23, 2000 U.S. Supreme Court decision in Rice v. Cayetano
Rice v. Cayetano
Rice v. Cayetano, 528 U.S. 495 , was a case filed in 1996 by Big Island rancher Harold "Freddy" Rice against the state of Hawaii and argued before the United States Supreme Court...

, which ruled that limiting participation in OHA elections to Native Hawaiians was an unconstitutional restriction on the basis of race.

Some opponents are also skeptical of the bill’s language disallowing casino
Casino
In modern English, a casino is a facility which houses and accommodates certain types of gambling activities. Casinos are most commonly built near or combined with hotels, restaurants, retail shopping, cruise ships or other tourist attractions...

s or other gaming in Hawai`i, since although it denies the newly created government "inherent" authority to conduct gaming, it leaves that issue open to future negotiation.

In May 2006, Senator Akaka began a run of fifteen daily speeches on the issue to gain support for a cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...

 vote on the bill, after the Commission on Civil Rights report recommended against the bill. Opponents of the Akaka bill have responded to his daily speeches, as well as to the arguments in favor made by other politicians.

Regarding the latest version of the bill, S.310, Akaka's website states, "This language has been publicly available since September 2005 and has been widely distributed." However, opponents note, S.147, which failed to get enough votes for cloture on June 8, 2006, did not include the revisions now present in S.310.

In 2007, at a hearing before the Senate Committee on Indian Affairs, Principal Deputy Associate Attorney General Gregory Katsas stated:

By dividing government power along racial and ancestral lines, S. 310 (the bill) would represent a significant step backwards in American history and would create far greater problems than those it might purport to solve


FreeHawaii.info is a site that documents many of the misgivings of this bill, the history of changes, and a few voices of the many opponents.

Previous versions


The Akaka Bill was previously introduced, in different forms, on the following occasions:
  • From the 106th Congress:

} (July 20, 2000)
} (July 20, 2000)
  • 107th Congress:

} (January 22, 2001)
} (February 14, 2001)
} (April 6, 2001)
} (December 7, 2001)
  • 108th Congress:

} (February 11, 2003)
} (February 11, 2003)
} (May 5, 2004)
  • 109th Congress:

} (January 25, 2005)
} (January 25, 2005)
} (May 25, 2006)
  • 110th Congress:

} (January 17, 2007)
} (January 17, 2007)

External links