H. William Burgess and Thomas Macdonald, Honolulu Advertiser, August 18, 2009
It is widely known that the Akaka bill would enable federal recognition of Native Hawaiians as a political entity. It is not so widely known that the bill defines “Native Hawaiian” as anyone, anywhere in the world with at least one ancestor indigenous to Hawai’i. And it defines “indigenous to Hawai’i” to mean anyone who lived in Hawai’i before 1778 when Captain Cook and westerners first arrived.
Duke professor Stuart Benjamin, formerly with the Clinton Justice Department, was the only impartial constitutional law expert called on to testify Aug. 6 before the U.S. Senate Indian Affairs Committee. He stated that the above definition of Native Hawaiian was too broad, with members having too little connection to a historic tribe, or to each other, to be considered a tribe. U.S. Supreme Court Justice Breyer, joined by Justice Souter, concurring in Rice v. Cayetano, said that defining membership this broadly “created a vast and unknowable body of potential members that goes beyond any reasonable limit . . . not like any actual membership classification created by any actual tribe.”
The two justices and Professor Benjamin were not just addressing abstract legal issues. Using the spurious definition of Native Hawaiian, the Akaka bill would allow a vast and unknowable number of persons, many of whom have surely never been to Hawai’i, to participate in carving a separate government out of the state of Hawai’i while excluding from even participating in the process 80 percent of the citizens who now call Hawai’i home.
The Akaka bill does not set any limits on the extent of sovereignty that can be negotiated under Section 8 of the bill. For example, the state Legislature could grant the broad spectrum of powers that the Office of Hawaiian Affairs demanded in 1993, including powers to levy taxes, adopt ordinances, administer justice, share control of national parks and collect market rent for the military’s use of ceded lands.
The bill would allow only Native Hawaiians to vote on the organic governing documents that define the powers and limitations of the new government. Implementation of the transfers of public lands, natural resources, governmental power and authority and civil and criminal jurisdiction to the new government only requires the approval of the political branches of the state and federal government.
The bill does not require the prior consent of the people of Hawai’i, or even their subsequent ratification of these potentially huge changes to the state and the lives, liberty and property of all its citizens.
Since the avowed purpose of the bill’s promoters is to protect existing race-based entitlements from attack under the U.S. Constitution, it is not likely that the new government’s charter will include due process or equal protection clauses. Without those, the Native Hawaiian government would be free to discriminate between persons, even its own citizens, as its leaders see fit. Native Hawaiians themselves would be wise to consider the examples of recognized Indian tribes who arbitrarily oust disfavored tribe members and confiscate their properties.
In 1959, after a 94 percent vote in favor of statehood, Congress promised in the Admission Act that the state of Hawai’i would consist of all the major islands and that its constitution would always be republican in form and not repugnant to the Constitution of the U.S. and the principles of the Declaration of Independence.
Congress now proposes to break up and give away much of the state, without the consent of the people of Hawai’i, and transfer it to a brand new government commissioned as the representative governing body of the Native Hawaiian people, a vast and unknowable body of potential members, without even any effort to obtain their consent. This whole enterprise is repugnant to the founding principles of both the United States and the Kingdom of Hawai’i, whose constitution began: “God hath made of one blood all nations of men to dwell on Earth in unity and blessedness.”
Thomas J. Macdonald and H. William Burgess are with Aloha for All. Macdonald is the former president of Hawaiian Trust Co. and Burgess was the attorney for the plaintiff in Arakaki v. State of Hawai’i. They wrote this commentary The Advertiser.