Republican House members warn that a bill establishing a separate government for native Hawaiians marks an unconstitutional step backward toward the discredited doctrine of “separate but equal.”
The Native Hawaiian Government Reorganization Act – the Akaka bill as it is popularly known after its primary sponsor, Hawaii Democratic Sen. Daniel Akaka ̶ passed the House late last month by a 245-165 vote, including the votes of six Republicans.
It also enjoys President Barack Obama’s support.
The legislation that would grant federal recognition of 400,000 native Hawaiians as “an Indian tribe,” roughly 20 percent of Hawaii’s population, and allow them to establish their own sovereign government, has been introduced in successive Congresses since 2000. The native Hawaiian government would also gain control over 1.8 million acres of land that were “ceded” when Hawaii became a state.
It has passed the House twice without success in the Senate.
A Senate committee also has approved a version of the bill this time, but a spokeswoman for Senate Majority Leader Harry Reid would not comment on whether or not he would bring the bill to the floor to a vote, saying the jobs bill was a higher priority.
Supporters claim the legislation would grant native Hawaiians parity with the rights enjoyed by native Alaskans and American Indians. But California Republican Rep. Tom McClintock says the legislation goes far beyond that, establishing governance solely based on race.
“For the first time since Brown v. Board of Education it re-establishes the discredited notion of separate but equal that takes us back to the bad old days of Plessy v. Ferguson,” McClintock said. “It establishes a separate race-based government throughout the United States for those who can trace their lineage to pre-Western Hawaii.
“It establishes separate rights and separate governance solely based on race.”
McClintock rejects supporters’ claims Native Hawaiians need their own separate government in compensation for the 1893 overthrow of the Hawaiian monarchy by American businessmen and the subsequent 1898 annexation of the islands.
He said the merit for this argument disappeared in 1959 when Native Hawaiians joined their Anglo and Asian-American neighbors in voting for statehood by a 17-1 margin.
The bill would create what McClintock sees as a “separatist government quite separate from the government of the United States within the boundaries of the United States.”
Pennsylvania Republican Rep. Joe Pitts said the bill could even lead to a move by the sovereign native Hawaiian government to secede from the union and restore the Hawaiian monarchy, based on comments made by Akaka.
McClintock stands behind the Supreme Court’s 2000 Rice v. Cayetano ruling that found the native Hawaiians lack tribal status, saying a distinction exists between native Hawaiians and American Indians.
“American Indian tribes never voted to join the union; they were subjugated by force that was extended by treaty,” McClintock said. “They enjoy certain rights of sovereignty within their tribal lands; this bill extends a separate system of governance with separate rights to any Hawaiians with racial ancestry predating Western contact, and keep in mind that 40 percent of Native Hawaiians don’t even live in Hawaii.”
Native Hawaiians, unlike American Indians, would not have their special rights and immunities from state and federal jurisdiction limited to within a specific territory such as is the case with American Indian reservations, but would cover them wherever they live within the United States.
This could create serious problems in matters such as contract law when non-native Hawaiians attempt to enter into contracts with native Hawaiians or in other circumstances.
“Are American citizens going to have to answer to a Native Hawaiian court in a property-rights dispute with a native Hawaiian?” McClintock asked. “The bill is very clear in that no act of the native Hawaiian government can be challenged in an American court.”
The bill could also result in having businesses located next to each other being taxed at different rates solely based on race.
Pitts said the bill violates the Constitution because Congress lacks power to create new Indian tribes and only has the power to recognize existing ones.
“I think the history of the relations between the United States and the native Hawaiians demonstrates that they are not a tribe,” Pitts said. “The bill is not supported by the attorney general or the governor of the state of Hawaii, and it would not afford the people of Hawaii a referendum on the issue.”
The bill raises other concerns that it could set a bad precedent for other groups such as those of Mexican ancestry living in the southwestern United States whose ancestors lived there prior to annexation in the 1840s.
But Pitts, whose district covers most of Pennsylvania’s Amish country, dismissed suggestions by some opponents that the Amish might want to use the Hawaiian precedent as an opportunity to create a theocratic government independent of state or federal laws.
“I don’t think the Amish would apply for a special exemption like this, but they would just prefer for the government to leave them alone based on their religious beliefs,” Pitts said.
Sen. Lamar Alexander has been in the forefront of Senate opposition to the bill in recent years, and his spokesman, Brett Meeks, told Newsmax the Senator will continue his vocal opposition should Reid bring it to the floor for a vote.
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