Posted on February 23, 2010

Aloha Segregation

National Review, February 23, 2010

A bill expected to pass the House today with overwhelming Democratic support would accomplish something peculiar for a liberal republic in the 21st century: {snip}

{snip} The legislation is chiefly the work of Sen. Daniel Akaka, another Hawaii Democrat, who has proposed similar legislation in the past, without success.

The Akaka bill seeks to apply the model of American Indian tribes’ formal sovereignty to people of native Hawaiian ancestry. {snip}

Unlike what is proposed for Hawaii, the recognized sovereignty of the Indian tribes does not derive exclusively from ethnic identity or from ancestry. Rather, those tribes are recognized as sovereign because each represents, however imperfectly, a continuous independent political tradition. Native Hawaiians do not and have not. The bill purports to restore the sovereignty of the Kingdom of Hawaii–yes, House Democrats are in fact working to re-establish the sovereignty of a monarchy, odd as that seems–though the monarchy itself was not an ethnically exclusive enterprise, as has been widely documented. {snip}

It is in fact the racial-purity test itself that provides the best argument against a collective sovereignty for ethnic Hawaiians. The Zuni tribe of New Mexico, to take one example, does not need and has never needed legislation enacted in Washington to determine who is and who is not a member of the tribe. Being an actual sovereign entity, the Zunis entered into their relationship with the United States with their tribal identity already well established and their political structures in place. Rather than recognizing an existing tribe, the Akaka bill would in effect create a new sovereign entity where none existed before. In doing so, it would confer enormous benefits on one group of American citizens while excluding another, and would do so along explicitly hereditary grounds. This is quite a different thing than the United States’s longstanding tradition of recognizing what we call “sovereignty”–in truth a limited and diminished kind of sovereignty–among the Zuni or the Kickapoo or the various Hopi jurisdictions. Even if there had been a kind of collective ethnic sovereignty exercised by native Hawaiians, that sovereignty has long been extinguished: Sovereignty is a political fact, not a racial fact. The United States cannot enter into a relationship with the Hawaiian sovereign because no such sovereign exists. {snip}

For many years, those who were not native Hawaiians were excluded from voting in elections for trustees of the Office of Hawaiian Affairs, but the Supreme Court ruled that practice unconstitutional in a 2000 decision, Rice v. Cayetano. The Court specifically rejected “the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters,” arguing that such reasoning “attacks the central meaning of the Fifteenth Amendment,” which protects citizens’ voting rights from being restricted on racial grounds. If Congress does not have the authority to restrict OHA voting to native Hawaiians, how are we to imagine that it has the power to create a new Hawaiian Nation, ex nihilo? Better to recognize that native Hawaiians, like the rest of us, are citizens of the United States of America, and damned lucky to be so. {snip}

{snip} Sometime soon, perhaps as early as today, the House of Representatives will vote on the Native Hawaiian Government Reorganization Act (NHGRA), which is a modified version of legislation that has been kicking around since 2000 and failed to win a cloture vote in 2006.


{snip} Once Washington formally recognized the fledgling Native Hawaiian governing entity, that entity would have “inherent power and authority to determine its own membership criteria, to determine its own membership, and to grant, deny, revoke, or qualify membership without regard to whether any person was or was not deemed to be a qualified Native Hawaiian constituent under this Act” {snip}, provided that membership was voluntary and renounceable. In other words, the eligibility guidelines laid out in the NHGRA are essentially meaningless. The Native Hawaiian government would be able to confer membership on whomever it wanted.

Its broader “powers and privileges” would be negotiated with federal and state authorities. During those negotiations, the “governmental, nonbusiness, [and] noncommercial activities” of the Native Hawaiian entity would be exempt from taxation or regulation by the state of Hawaii, and the entity would be shielded from state lawsuits.

You may be wondering why the House elected to consider the NHGRA this week. The reason is simple: Hawaii Democrat Neil Abercrombie, a longtime Akaka Bill advocate, is resigning his seat at the end of February in order to run for governor, and he has been promised that a vote will take place before he departs. The NHGRA enjoys overwhelming support among Democrats and is expected to pass easily. Yet Abercrombie and his colleagues have repeatedly tinkered with the text of the legislation to address the concerns of Hawaii governor Linda Lingle, who has championed earlier iterations of the Akaka Bill but raised objections to the latest version.

The NHGRA traces its roots back to 1993, when Congress marked the centennial of Queen Liliuokalani’s removal by apologizing for America’s involvement in her ouster and acknowledging the “inherent sovereignty” of the Native Hawaiian people. {snip}

Fast-forward to 2000. In Rice v. Cayetano, the U.S. Supreme Court declared that the Office of Hawaiian Affairs could not prohibit non-Native Hawaiians from voting in its trustee elections. “Ancestry can be a proxy for race,” wrote Justice Anthony Kennedy in his majority opinion. “It is that proxy here.” Shortly after the Court delivered its ruling, Senator Akaka introduced his legislation. One of its principal goals was to insulate Native Hawaiian programs and institutions from future legal challenges.

{snip} The new bill would automatically endow the Native Hawaiian body with “the inherent powers and privileges of self-government of a native government under existing law, except as set forth in this Act.” As a Republican House staffer observes, “This is now an outright tribal-recognition bill.”

What do Hawaiians themselves think of it? In November, before the revised bill had been unveiled, Zogby International conducted an online survey on behalf of Hawaii’s anti-NHGRA Grassroot Institute. After explaining various aspects of the legislation, Zogby found that 51 percent of Hawaii residents oppose the Akaka Bill and only 34 percent support it (the other 15 percent are unsure). The poll also showed that 58 percent of Hawaiians would prefer to decide the bill’s fate in a statewide referendum, and that 60 percent of Hawaiians believe the so-called ceded lands (1.8 million acres that once belonged to the old Hawaiian monarchy and were given to the U.S. when it annexed Hawaii in 1898) “should be used for the benefit of all the people of Hawaii, not just the Native Hawaiians.”

Hawaii received a massive influx of Asian immigrants in the 19th century, and it has long been celebrated for its high rates of racial intermarriage. Therefore, it is often hard to distinguish “Native Hawaiians” from Hawaiians of mixed ancestry. How exactly would the proposed governing entity identify its eligible constituents? Would it rely on a crude blood quantum (as Congress did in the early 1920s when it passed the Hawaiian Homes Commission Act)? Unlike many American Indians, Native Hawaiians are not clustered in reservation-type communities; they are scattered throughout cities, towns, and villages across the archipelago. If the Akaka Bill were enacted, next-door neighbors could conceivably be subject to different tax codes and different criminal statutes. It would be a logistical nightmare.

And also a constitutional nightmare. “It is a matter of some dispute,” Justice Kennedy noted in his 2000 Rice v. Cayetano opinion, “whether Congress may treat the native Hawaiians as it does the Indian tribes.” In May 2006, the U.S. Civil Rights Commission urged lawmakers to reject an earlier version of the Akaka Bill, and also to reject “any other legislation that would discriminate on the basis of race or national origin and further subdivide the American People into discrete subgroups accorded varying degrees of privilege.” {snip}