Aloha Means Goodbye
Will the Senate vote for Hawaiian separatism?
12:00 AM, Jun 5, 2006 • By DUNCAN CURRIE
The Akaka bill thus implies that, prior to 1893, Hawaiian politics was a racially exclusive affair limited solely to Native Hawaiians. This is patently untrue. Under the monarchy, both the executive and legislative branches of government were multiracial. The Hawaiian Kingdom boasted Caucasians (or "haoles"), Chinese, Japanese, and other non-natives.
Since the Akaka bill stipulates no precise blood quantum, the new tribe would apparently get to decide the racial worthiness of its prospective members. There are an estimated 400,000 people scattered throughout Hawaii and the broader United States who identify as either partly or wholly Native Hawaiian. (Though that number would likely swell if the Akaka bill became law.) Unlike Indian tribes, they are not geographically segregated--quite the opposite. They make up about 20 percent of the Hawaiian population, but are sprinkled across the archipelago. Widespread intermarriage has further attenuated the strength and cohesion of Native Hawaiian culture.
This raises serious constitutional questions. Everyone agrees that Congress can recognize existing Indian tribes. But can it create a new "tribe" at the behest of a particular ethnic lobby? Probably not; and if so, only in the rarest of circumstances. Surely there are Hispanic separatists in the American Southwest who would love to get their own sovereign "nation" as reparations for the Mexican War. The Akaka bill would encourage them to press their case.
It would also designate a privileged caste of Hawaiians who could feasibly be subject to a different legal regime than their next-door neighbors--all on the basis of race. The racially chosen Hawaiians might enjoy special tax and welfare benefits. They might be able to petition state and federal officials over land and natural-resource spats, which would no doubt trigger an avalanche of lawsuits. And their new government would presumably be exempt from important bits of the U.S. constitution, as Indian tribes are.
Given two recent court precedents, the Akaka bill would almost certainly invite a constitutional challenge. Last summer, the Ninth Circuit Court struck down a pro-native racial preference policy at an elite Hawaiian private school. In 2000, just months before Akaka introduced his legislation, the Supreme Court ruled against race-based statutes governing the Office of Hawaiian Affairs. (Voting rights in OHA elections had been restricted to Native Hawaiians who fulfilled a blood quota--which, the Court said in Rice v. Cayetano, violated the Fifteenth Amendment.)
ARE SUPPORTERS OF the Akaka bill aware of these facts? Do they know that recent polling by the anti-Akaka Grassroot Institute of Hawaii found that 67 percent of Hawaiians oppose the legislation? Or that, according to the same poll, some 70 percent of Hawaiians desire a statewide referendum before the matter goes to Congress?
The five GOP cosponsors include Ted Stevens and Lisa Murkowski of Alaska, Lindsey Graham of South Carolina, Norm Coleman of Minnesota, and Gordon Smith of Oregon. The one Republican who may tip the scales is John McCain of Arizona, who initially opposed the bill but has dropped hints that he might vote for it under certain conditions. "Here in Washington," McCain told the Honolulu Advertiser last June, "it's hard for us to go against the view of the governor, the legislature--Republican and Democrat--the senators, and the congressmen."
Should Akaka win over McCain, that could clinch Senate approval for Native Hawaiian sovereignty. The House would have to approve its own bill, but it passed nearly identical legislation six years ago. As for the White House, Justice Department officials have raised both legal and pragmatic concerns, such as the prospect of tribal casinos and potential interference with U.S. military bases. But few expect George W. Bush to make the Akaka bill his first presidential veto.
That is unfortunate. The Native Hawaiian Government Reorganization Act remains a noxious affront to E pluribus unum, and to anyone who gives a fig about colorblind justice and equal protection. As the U.S. Commission on Civil Rights concluded last month, it deserves an emphatic rejection--if not from the Senate or the House, than from President Bush.
Duncan Currie is a reporter at The Weekly Standard.