Tomorrow is Sen. John McCain’s hearing of S. 147, the Native Hawaiian Government Reorganization Act of 2005. The bill is also known as the Akaka bill, after the bill’s principal sponsor, Sen. Daniel Akaka (D-Hawaii). Tomorrow’s hearing, which begins at 10 am eastern time, will be broadcast live over the internet through a link provided on the web page of the Indian Affairs Committee at http://indian.senate.gov/.
The Akaka bill would establish a new government for descendants of Native Hawaiians. A “United States Office for Native Hawaiian Relations” similar to the Bureau of Indian Affairs would direct federal policy. A “Native Hawaiian Interagency Coordinating Group” would oversee public health, welfare and education programs for Native Hawaiians would be eligible.
Giving descendents of Native Hawaiians Indian tribal-like sovereignty is historically absurd. As I noted when I wrote about similar legislation four years ago, Native Hawaiians have never organized, acted or existed as a tribe. Unlike legitimate Indian tribes that retained quasi-sovereign powers after ceding their lands to the U.S., Native Hawaiians never established a treaty right to self-governance and exemption from our federal Constitution.
The U.S. Supreme Court basically said as much in Rice v. Cayetano (2000), when it struck down a Hawaiian-only restriction for voting in a statewide Hawaiian election. The court ruled that the racial restriction “demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
Hawaii’s Governor, Linda Lingle, is a Republican. She supports the Akaka bill and will reportedly testify tomorrow on its behalf. Will Sen. McCain and other Republicans have the stomach to challenge hre?
Constitutional lawyer Bruce Fein had this to say about an earlier incarnation of the Akaka bill, S. 344, last fall:
The Native Hawaiian government would be unbothered by the “irritants” of the U.S. Constitution. Thus, it might choose theocracy over secularism; summary justice over due process; indoctrination over freedom of speech; property confiscations over property rights; subjugation over equality; or, group quotas over individual merit. The Native Hawaiian citizens of the Native Hawaiian government would also be exempt from swearing or affirming allegiance to the United States of America or the U.S. Constitution.
The race-based sovereignty created by S.344 is first cousin to a revolution against the United States. As the Declaration of Independence elaborates, revolutions may be justified by repression or deafness to pronounced grievances. Thomas Jefferson’s indictment of King George III is compelling on that score. But S. 344 does not and could not find Native Hawaiians are oppressed or maltreated in any way. They are first-class American citizens crowned with a host of special privileges. Indeed, the proposed legislation acknowledges that, “Native Hawaiians… give expression to their rights as native peoples to self-determination and self-governance through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children’s services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school….”
Not a crumb of legitimate grievance justifies the odious race-based government championed by S. 344. To borrow from Associate Supreme Court Justice Antonin Scalia in Adarand Construction vs. Pena (1995), in the eyes of the law and the creed of the United States, there is only one race in the nation. It is American. And to be an American is to embrace the values of freedom, individual liberty and equality acclaimed in the Declaration of Independence, Constitution and Gettysburg Address. S.344 would create a distinct race of Native Hawaiians subject to a race-based Native Hawaiian government with the purpose of creating and preserving non- American values: namely, “Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions.”
Native Hawaiians hold no more right to a race-based government than countless other racial or ethnic groups in the United States. They are no more entitled to secede from the jurisdiction of the U.S. Constitution than were the Confederate States of America. Enacting S. 344 would surrender the intellectual and moral underpinnings of the United States.
Lots more here.
Update: David Orland says, “What would a ‘reorganized’ Hawaii look like? There’s no telling. But I think it’s safe to say that it will involve lots of casinos.”
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