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Thursday, May 25, 2006

U.S. Commission on Civil Rights Opposes Akaka Bill
Gail Heriot

Loyal readers may recall that I testified in opposition to the proposed Native Hawaiian Government Reorganization Act (known as the "Akaka Bill") before the U.S. Commission on Civil Rights on January 20th.  Recently, the Commission issued its Briefing Report in which it recommended against the passage of the controversial proposal "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."

Senator Akaka accused the Commission of failing "to give a fair and thorough review of [his] bill."  Senator Inouye asserted that the report contained "significant errors of fact and history" (although he made no effort to specify those errors).  As far as I can see, however, it is the bill's supporters who have failed to consider its ramifications.  Unfortunately, this is one of those issues that pits a few pathologically committed supporters who have considerable money and influence at stake against a larger number of mildly-committed opponents who have very little personally at stake. As a result, it's not clear whether the Commission's opposition will be enough to de-rail the bill.

Here is the op-ed I did for the San Diego Union-Tribune last summer:

Trouble in Paradise

"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. A preliminary vote is scheduled for September 6.

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?

Earlier this month, 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?"

The September vote never happened.  Hurricane Katrina and other matters got in the way.  But a crucial vote is now set for early June.  I hope the Senate heeds the Commission's advice.

My other posts on the Akaka Bill can be found here, here, here, here, and here.

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Gail Heriot


"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."

When you stated this in your article, I was some what upset. What makes us hawaiians different from these ethnic groups is that Our land was taken away from us. It was illegally stolen. Maybe you should know the facts about our people before you make any opionions about the topic.

Posted by: henry Pahia | Jan 26, 2007 12:22:32 AM

To Henry Pahia--Here in California, land was taken from the Chicanos as well, and the Aztlan movement, which is very popular on college campuses, is all about getting it back. (For that matter, the Cajuns were not keen on the so-called Louisiana Purchase, and the Amish were unhappy when the English (and later the Americans) attempted to assert sovereignty over their land.) There is not a single square foot of territory anywhere in the world that somebody doesn't think was stolen from somebody.

Posted by: Button | May 23, 2010 10:18:34 AM