August 30, 2005
By Todd F. Gaziano and Edwin Meese III
The U.S. Senate is scheduled to begin debate soon on S. 147, the
falsely named "Native Hawaiian Government Reorganization Act of
2005." The proponents of this bill, some motivated by seemingly
benign purposes and others by simple greed, argue that the
legislation redresses ancient wrongs done to early Hawaiians by the
United States. The bill purports to authorize the creation of an
exclusively race-based government of so-called "native" Hawaiians
to exercise sovereignty over native Hawaiians living anywhere in
the United States. This "Native Hawaiian Government" supposedly
could exempt these Hawaiians from whatever aspects of the United
States Constitution and state authority it thought undesirable.
The United States Supreme Court ruled decisively that this
approach is unconstitutional in Rice v. Cayetano
(2000). Yet, the proponents of S. 147 believe they can avoid
this ruling simply by passing a law that calls the descendants of
so-called "aboriginal" Hawaiians an American Indian tribe.
The bill would require the federal government to create a database
of persons with one drop or more of "aboriginal" Hawaiian blood,
organize elections for an "interim government" of this alleged
"tribe," and finally recognize the sovereignty and privileges and
immunities (or lack thereof) that the new government establishes
for its "tribal members." Although Hawaii correctly argued in
the Rice litigation that descendants of aboriginal Hawaiians are
not an American Indian tribe, state officials have changed their
minds-since that is the only way they can practice racial
discrimination on behalf of a favored interest group.
Hopefully, the United States Constitution is not so easily
Whether its sponsors are well meaning or not, a Hawaiian analogy
to American Indian tribes does not work. It does not work for
a host of constitutional reasons and it will not work if the
principles of the Fourteenth Amendment are respected at all.
Hawaiians were never an American Indian tribe, and cannot become
one by congressional decree. When the first western missionaries
arrived on the islands, Hawaii was ruled by a powerful king in a
feudal monarchy, not unlike some in Eastern Europe and the Far East
at the time. Congress simply cannot create an Indian tribe,
as that term is understood in the Constitution, or "recognize" an
Indian tribe that never existed. If it could somehow do
so, there would be no end to racial separatist "nations" that
Congress could carve out of the United States population and exempt
from the United States Constitution. This cannot be.
S. 147 is unconstitutional for more reasons than could be
explained in an op-ed (the June 22, 2005 paper by Senator Jon Kyl for the Republican Policy
Committee , contains an excellent summary of both the bill's policy
problems and constitutional defects), but the bill's disregard for
the United States Constitution is surpassed by the profound
negative consequences that would result even if it were
constitutional. It is unfortunate that racial separatists and
other opportunists have persuaded the Senate Leadership to take up
the bill. And, it's a cause for real concern that the number
of Senators supporting the bill supposedly exceeds 50 (through
purported logrolling and vote trading). Thus, it is high time
for scholars and patriots, who thought that this bill-like its
predecessors-would never go anywhere, to speak out about its
Here are some basic points Congress should be aware of as it
considers S. 147:
First, Hawaiians (regardless of blood purity) are not and cannot be
an American Indian tribe. The term "Indian tribes" mentioned
in the Constitution has a fixed constitutional meaning that can't
be changed by a simple Act of Congress. They are limited to the
pre-existing tribes within North America, or their offshoots, that
were thought to be "dependent nations" at the time of the framing
of the Constitution. Such American Indian tribes must have an
independent existence and predominately separate "community" apart
from the rest of American society, and their government structure
must have a continuous history for at least the past century.
By these standards (and several other requirements), Hawaiians
never could qualify as an American Indian tribe. The fact
that they were "aboriginal" people is of no constitutional
significance. That does not make a tribe. As the
Supreme Court correctly noted in Rice, Hawaii was a feudal
kingdom at the time western sailors and missionaries arrived.
America has incorporated voluntarily or by conquest many areas
controlled by other monarchs, republics, or other
nation-states. Monarchies, republics, and other nation-states
simply are not Indian tribes. Even if aboriginal Hawaiians
were once organized in tribal governments, they have had no type of
"Native Hawaiian Government" for over 100 years. Finally,
there is no independent and separate community of their
descendants. Hawaii is the most integrated and blended
society in America, perhaps the world. There are no "native"
Hawaiians living apart from other Americans. Hawaiians,
whether they have pure, part, or no "aboriginal blood," all live in
the same neighborhoods, go to the same schools and churches, and
participate in the same community life. In sum, Congress
cannot create or recognize a tribe that never existed, or pretend
that one exists based on sharing one drop of "aboriginal"
Second, no government organized under the United States
Constitution may create another government that is exempted from
part of the Constitution. Yet, this is what S. 147 purports
to do by allowing the alleged new government to grant preferences
and exempt itself from portions of the Bill of Rights as it sees
fit. The "Indian law exception" is controversial enough, but
it can exist only because real Indian tribes are not created by
Congress or the states, but existed prior to the formation of
either. Real Indian tribes predate the Constitution, even if
some of them have split or reorganized for various reasons.
Congress could end the treaties with existing Indian tribes
(leaving the merits of such an action aside) if it chose to do so,
because these "dependent nations" are still subject to some
control. But Congress simply can't create new governments,
new nations, or new tribes on its own, and then exempt them from
portions of the Constitution. If it could, the restrictions
on government in the Bill of Rights and elsewhere would be of
extremely limited value.
Third, the Fourteenth Amendment does not allow such naked
discrimination. The Fourteenth Amendment was adopted precisely to
prevent a state from excluding certain of its residents from the
privileges and immunities of citizenship, especially on the basis
of race or ethnicity. The Fourteenth Amendment begins with
the proposition that: "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
citizens of the United States and the State wherein they
reside." The next sentence of the Fourteenth Amendment
prohibits any state from abridging any of the "privileges or
immunities of citizens of the United States." And as most
Americans know, this same section also prohibits the denial of
equal protection to any person within a state's jurisdiction.
Thus, all United States citizens who reside in Hawaii are equally
citizens of Hawaii and are entitled to enjoy all the privilege and
immunities common to other citizens, including the protection
against discriminatory laws-especially racially-discriminatory
Apart from the insurmountable constitutional defects with S. 147,
it's a terrible idea to try to create a separate "Native Hawaiian
Government" even if it could be done. It is an insult to the
independent Indian nations to have their governments trivialized,
and there would also be no end to the number of purely racist
separatist governments that could be formed if Hawaiians were
"made" a tribe. Real Indian tribes were not and are not
organized along "racial" lines.
There are 562 tribes that the Bureau of Indian Affairs recognizes,
and no one thinks that each represents a separate and distinct
race. At the time of the framing, many tribes allowed
Europeans and Americans to join and other members to leave.
In short, they were not and are not "racially" exclusive. If
sharing one drop of aboriginal Hawaiian blood makes a tribe, then
Chicanos, Latinos, African Americans, Mexicans, indeed any
ethnicity could become a tribe if Congress so decrees.
Even if Congress did no more harm than create a separatist
Hawaiian government, that act would help destroy the wonderful and
admirable blended society-"the Aloha," if you will-that does exist
in Hawaii, where intermarriage and the cultural mixing of Asians,
Americans, Europeans, and others is a model for the rest of the
United States. A separate "Native Hawaiian Government" is
both offensive and nonsensical, except to racial separatists and
greedy opportunists. Those burdened with liberal guilt about
ancient wrongs should think seriously about the harm they would do
to the very values they purport to espouse.
There are legitimate ways to preserve ancient Hawaiian culture and
to protect historic trust properties for the benefit all
Hawaiians. But S. 147 is not the answer. It must be
dramatically altered to cure all of its constitutional and policy
defects. Failing that, we believe Members of Congress and the
President are bound by the oath they took to support the
Constitution not to give effect to measures that violate it.
Edwin Meese, a
former U.S. Attorney General, is Chairman of the Center for Legal
and Judicial Studies at The Heritage Foundation (heritage.org). Todd Gaziano, who has
worked as an attorney in all three branches of the federal
government, is Director of the Center.
First Appeared on Townhall.com
The United States Supreme Court ruled decisively that this approach is unconstitutional in Rice v. Cayetano (2000).
Todd F. Gaziano
Director, Center for Legal & Judicial Studies
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Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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