The U.S. House last week passed legislation that would in effect divide Hawaii into two states, one for ethnic Hawaiians and the other for everyone else.
In an opinion piece in Monday’s Wall Street Journal,
Gail Heriot and Peter Kirsanow — members of the U.S. Commission on Civil Rights — said the bill “might turn out to be this Congress’ single most calamitous decision.”
The Native Hawaiian Government Reorganization Act would allow most of the nation’s approximately 400,000 ethnic Hawaiians to organize themselves as one large Indian tribe. The tribe would have the “inherent powers and privileges of self government,” including the ability to levy taxes and exercise eminent domain.
“Hawaii will, in effect, be two states, not one,” the authors wrote.
The legislation is popularly known as “the Akaka bill,” after Hawaii’s Democratic Sen. Daniel Akaka. Ten years ago, he sought to exploit a 1974 Supreme Court decision that racial discrimination on the basis of membership in “quasi-sovereign tribal entities” is constitutional. That decision allowed hiring preferences to be given to Indians within the Bureau of Indian Affairs.
Akaka hoped that transforming ethnic Hawaiians from a race into a tribe would protect special benefits for those Hawaiians.
The Akaka bill also provides that after the tribe is established, it may negotiate with Hawaii for the transfer of lands that were ceded to the state by the federal government when Hawaii was granted statehood in 1959.
The bill presents two problems, Heriot and Kirsanow observed in The Journal.
“First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of transforming a racial group into a tribal group confers a privilege on one race and not others and is thus unconstitutional.”
Second, the Constitution does not give the power to confer sovereignty on new tribes, “or to reconstitute a tribe whose members have long since become part of the mainstream culture.”
If the bill is enacted, the authors warn, some could argue that Mexican Americans of Indian descent can be classified as a tribe and Southern California should be set aside as their homeland.
The same could be said about the Amish in Pennsylvania and Orthodox Jews in New York.
The Senate will likely take up the Akaka bill in the coming weeks or months. Hawaii’s Republican Gov. Linda Lingle, who formerly supported the bill, now opposes it.
“Good for her,” Heriot and Kirsanow declared. “This is a train that needs to be stopped before it leaves the station.”
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