Jewish World Review July 18, 2005 / 11 Tamuz 5765
John H. Fund
Volcanic Politics: Congress considers setting up a race-based government for Native Hawaiians
Some congressional staffers are calling it "the worst bill most voters have never heard of." Hyperbole aside, the Senate is preparing to take up legislation that would create an independent, race-based government for Native Hawaiians. If this bill becomes law an entrenched racial spoils system will hand benefits to as many as one-fifth of the state's population and could inspire mainland groups such as Hispanic separatists to seek similar spoils, should they ever gain enough political leverage.
This isn't how it was supposed to be in Hawaii. In 2000, the U.S. Supreme Court voted 7-2 to undo a previously established race-based system. Under that system non-Native Hawaiians were barred from voting for trustees overseeing the state's Office of Hawaiian Affairs. The ruling, which was joined by liberal Justices David Souter and Stephen Breyer, found that a Hawaiian law requiring that the trustees be Native Hawaiians and elected only by other Native Hawaiians was obviously discriminatory. "There can be no such thing as either a creditor or a debtor race," wrote Justice Antonin Scalia. "In the eyes of government, we are just one race, it is American."
Rather than accept colorblind government, however, supporters of racial restrictions have tried for five years to negate the court's ruling by pushing a measure called the "Native Hawaiian Reorganization Act" or, for short, the "Akaka bill," after Hawaii's Sen. Daniel Akaka, a Democrat. The bill would skirt the Fifteenth Amendment's constitutional ban on race-based governments by requiring that Washington, D.C., recognize Native Hawaiians in the same manner it recognizes separate governments for American Indians and Alaska natives.
That comparison, however, quickly falls apart. It's true that the Founders (and the British before them) recognized Indian tribes to be separate, sovereign governments. They signed treaties with tribes and carved out territory for tribes to occupy--a system of separation that never led to equality. But in Hawaii, the history is demonstrably different. When the island chain became a state in 1959, there was a broad consensus in Congress that Native Hawaiians would not be treated as a separate racial group, and that they would not be transformed into an "Indian tribe." Indeed, Native Hawaiians have never asked to be recognized as an Indian tribe; they not only lack their own system of laws, but are widely geographically distributed throughout Hawaii and have a high rate of intermarriage with other groups.
Reversing this policy with what would amount to federal recognition of a "tribe" for Native Hawaiians today would create an independent state within a state that would lie outside the Constitution and laws of the United States as well as those of the state of Hawaii. The Akaka bill would also authorize the transfer of a portion of Hawaii's state-owned lands, natural resources and other assets to the new race-based government (at no cost to that new government, of course). Hawaiians would also be unable to fight back, as the state does not allow for referendums. And, just as on American Indian land, a shopkeeper who is part Hawaiian could claim exemption from state taxes and other laws, giving him an advantage over his next-door, non-Native Hawaiian competitor.
Not surprisingly, there is strong public skepticism in Hawaii about the establishment of what would amount to racial enclaves. "It's telling that there have been no public hearings organized by the state, the University of Hawaii, the state's congressional delegation or the Office of Hawaiian Affairs to determine if there actually is support for the Akaka Bill," says Malia Zimmerman, the editor of the news service HawaiiReporter.com. "There is a complete atmosphere of silence in the state government and mainstream media about this bill's weaknesses."
Even with debate smothered, a poll conducted by the Grassroot Institute of Hawaii this month found that two out of three state residents oppose the Akaka bill, including 48% of Native Hawaiians. While some natives oppose the Akaka bill because they support complete independence, most native opponents see no need for a new layer of government ruling over them. Native Hawaiians have never experienced the kind of oppressive treatment American Indians have had to endure. The U.S. did overthrow Queen Lydia Liliuokalani in 1893, something Congress has since apologized for, but what followed in no way compares to the plight of many tribes in the continental United States, in part because Native-Hawaiians weren't pushed into reservations. Also, for the past 30 years, Native Hawaiians have been the beneficiary of many targeted housing, education and welfare benefits.
But guilt is a powerful political weapon, and Hawaii's major politicians have fallen completely into line as lobbyists for the Akaka bill. Among them is Republican Gov. Linda Lingle, who is said to have convinced herself that her party's ability to compete for Native Hawaiian votes is linked to support of the Akaka bill. She claims to have helped convince six Republican senators, including Norm Coleman of Minnesota and Lindsey Graham of South Carolina, to support the measure. If she is right, that means there will be a bare 51 vote majority for the Akaka bill when the full Senate votes on it next week. Since the House has previously passed similar versions of this bill, it is likely to approve this one as well. The Bush administration has remained neutral on the bill, although it suggested it be amended to better protect the interests of U.S. military bases and to limit casino gambling.
Some opponents of the Akaka bill argue that no great tragedy would result from its passage. They confidently predict that even if President Bush signed the measure into law its race-based provisions would again be declared unconstitutional by the Supreme Court. But that is what many observers said would happen to the similarly dubious restrictions on political speech in the McCain-Feingold campaign-finance reform bill, which President Bush reluctantly signed. In a surprise, the Supreme Court then waved McCain-Feingold onto the statute books.
Creating a race-based government in Hawaii would create a dangerous precedent for groups in other states to also seek special status, whether they be African-Americans or Hispanics who believe that many of the Western states were illegitimately seized from Mexico and should be accorded a special status as an entity called Aztlan. The Akaka bill would carve out a path of racial balkanization that is fraught with constitutional peril and political mischief.
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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)
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©2001, John H. Fund