01 Sep 2005 Proposed Race-Based Government for Hawaii Would Create Trouble in Paradise, by David W. Almasi and Amy Ridenour

When Hawaii was admitted to the union in 1959, there was an understanding among lawmakers, the American people and the territory’s residents that Native Hawaiians would not gain the same legal status as American Indian tribes.

That 45-year understanding may now come to an end.

Legislation currently pending in Washington – “The Native Hawaiian Government Reorganization Act of 2005” (S. 147), sponsored by Senator Daniel Akaka (D-HI) – would reclassify Native Hawaiians as a tribe.  It would place all Native Hawaiians (essentially defined as all Americans with even one Native Hawaiian ancestor) under a separate “Native Hawaiian” government – whether they or the non-native citizens of Hawaii like it or not.

The bill would essentially create the nation’s largest tribe overnight, with approximately 240,000 members in Hawaii, 60,000 members in California (making Native Hawaiians, perversely, California’s largest tribe) and 100,000 members throughout the rest of the United States.

S. 147, which may be voted on by the full Senate in the week following Labor Day, has bi-partisan co-sponsors, including Senators Maria Cantwell (D-WA), Norm Coleman (R-MN), Chris Dodd (D-CT), Byron Dorgan (D-ND), Lindsey Graham (R-SC), Lisa Murkowski (R-AK), Gordon Smith (R-OR) and Ted Stevens (R-AK).  Hawaii’s Republican governor, Linda Lingle, also supports the bill.

A companion bill in the House of Representatives, H.R. 309, is sponsored by Representative Neil Abercrombie (D-HI) and has nine co-sponsors representing both major parties.  It has been referred to the House Committee on Resources.

Among the stated reasons for the legislation: Protecting $45 million in federal handouts exclusively targeted for Native Hawaiians.  Special financial and political benefits enjoyed by Americans who have a Native Hawaiian ancestor have been under challenge since the U.S. Supreme Court in 2000 ruled unconstitutional a law requiring Native Hawaiian ancestry for all voters electing the leadership of the state’s Office of Hawaiian Affairs.

Supporters also claim the bill is partial recompense for a U.S. role in the 1893 overthrow of Queen Liliuokalani.  However, the U.S. was neutral in that matter, and the coup occurred without the firing of a single shot.  According to a Wall Street Journal article by former U.S. senators Slade Gorton (R-WA) and Hank Brown (R-CO), the Queen herself dispelled notions of bitter feelings and the need for reparation when she later said that annexation to the U.S. was the best thing that could have happened to Native Hawaiians.

It’s important to note that the Hawaiian state was not governed on separatist lines prior to 1893.  Doing so now, therefore, would not recapture the past.

This legislation has generated both criticism and concern.

The U.S. Department of Justice has expressed concern about the lack of forethought on factors ranging from national security to the delegation of law enforcement duties to fears that the islands might become the next Las Vegas.  Others are concerned about the bill compromising civil liberties and property rights.  And then there are the people of Hawaii, who have indicated they don’t want the bill at all.

Of primary concern to most critics of the legislation is the sanctioning of a unique race-based government.  Voluntary U.S. Census designations estimate there are 400,000 people who claim to be Native Hawaiians.  Native Hawaiians would be defined as those who are “direct lineal descendants of the aboriginal, indigenous, native people” who “exercised sovereignty” on or before January 1, 1893.  The definition is both broad and confusing, since the islands were ruled by the monarch Queen Liliuokalani at that time, and she was the only one able to exercise any power of sovereignty.

Furthermore, the definition of “Native Hawaiian” contains no requirements for a person to have Hawaiian residence (at any time) or even cultural, language or political ties to the islands.

In creating this new, distinct class of Americans, S. 147/H.R. 309 does not follow the same standards used to recognize American Indian tribes.  The U.S. Department of the Interior’s regulations governing the formal recognition of American Indian tribes relies on factors such as large and exclusive communities, close kinship, shared culture and groups that act as distinct political entities.  To the contrary, Native Hawaiians are not geographically or culturally segregated, are dispersed among the 50 states and have largely intermarried with other Americans.  There are actually perhaps only 7,000 “pure-blooded” Native Hawaiians left.

Hawaii’s other senator, Daniel Inouye (D), praised Hawaii’s melting pot microcosm when, on the 35th anniversary of Hawaii’s statehood in 1994, he called the islands “one of the greatest examples of a multiethnic society living in relative peace.”  Yet Senator Inouye is now a co-sponsor of S. 147, which is explicitly separatist in that it would create separate legal codes for people living in the same neighborhoods based solely on their ancestry.

On July 13, 2005, Assistant Attorney General William E. Moschella of the Justice Department’s Office of Legislative Affairs sent a letter to Senator John McCain (R-AZ), the chairman of the Senate Indian Affairs Committee, which has jurisdiction over and has approved S. 147.  The letter outlined the U.S. Department of Justice’s view of the need for the addition of key provisions to S. 147:

* The bill creates no means of stopping claims on land once considered to be held by Native Hawaiians (or at least incorporates an abbreviated statute of limitations for such claims) to stem “a flood of litigation” and “the prospect of enormous unanticipated liability for the United States and the State of Hawaii.”

* There are no guarantees that any new tribal authority would not be able to interfere with U.S. military facilities and overall military readiness.

* There is no provision in the bill explicitly keeping the Native Hawaiian government from exercising gaming rights (legalized gambling).

* There is no clarification as to which government would provide law enforcement on Native Hawaiian lands.

* There is no provision that non-Native Hawaiians can serve on the body that certifies the new Native Hawaiian government.

This last concern harkens back to the 2000 case of Rice v. Cayetano, when the U.S. Supreme Court said that creating a race-based Native Hawaiian government with the powers of a tribe is “difficult terrain” and “a matter of some dispute.”  In a decisive 7-2 ruling, the Court found this previous attempt to create such an entity violated the 15th Amendment’s prohibition of voting based on race.

Rice v. Cayetano is not without precedent.  As conservative leader Paul Weyrich noted in a commentary critical of S. 147, “The Supreme Court, the year after I was born in 1943, noted that ‘distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded on the doctrine of equality.  This was the Court’s opinion in Hirabayashi v. United States.'”

Ironically, or, perhaps, expediently, state officials in Hawaii who now favor establishing Native Hawaiians as a tribe took the opposite view when arguing the losing side in Rice v. Cayetano.

As former U.S. Attorney General Ed Meese and legal analyst Todd Gaziano argued in a July Heritage Foundation analysis, “Although Hawaii correctly argued in the Rice litigation that descendants of aboriginal Hawaiians are not an American Indian tribe, state officials have changed their minds – since that is the only way they can practice racial discrimination on behalf of a favored interest group.  Hopefully, the United States Constitution is not so easily circumvented.”

Some Senate Republicans are concerned that the bill does not contain a guarantee that the Native Hawaiian government will be democratic and abide by the Bill of Rights (federal law exempts tribal governments from honoring many constitutional protections, such as the First, Fifth and 14th Amendments).  There is not even a guarantee that Native Hawaiians themselves would be able to vote on the acceptance of a new constitution under which they would be governed, once it was written by the new tribe’s governing council.

Some also fear the adoption of a Native Hawaiian tribal government might lead to the islands declaring their independence from the United States.  Lest one think this is the stuff of conspiracy theorists, the Office of Hawaiian Affairs – a state government agency – suggests that the legislation could lead to “complete legal and territorial independence from the United States and the re-establishment of a Hawaiian nation-state.”

Yet another concern is the opinions of the over one million non-Native Hawaiians living on the islands.  What will happen to their rights and their property with the creation of a new race-based regime that may or may not have to answer to the people?  The people of Hawaii, native and non-native, don’t seem to like it at all.

In July of 2005, a survey conducted by ccAdvertising found that 67.3 percent of all Hawaiians opposed S. 147.  Almost half of those self-described as Native Hawaiians opposed it.  Yet the bill is poised to get valuable floor time when lawmakers are overloaded with vital issues such as a Supreme Court nomination, rescuing a hurricane-ravaged Gulf Coast, gasoline distribution problems and the need to reform Social Security and Medicare.  And, of course, the war.

After decades of progress, Americans are quickly leaving behind the racial animosities and stereotypes of the past.  For the government to allow the creation of a new race-based government within its borders would cast a dark shadow over this progress.  It also threatens to open up a constitutional can of worms that would only hurt our republic.