June 8, 2006 | WebMemo on Legal Issues
The Senate is again considering the creation of a race-based government in Hawaii through passage of the misnamed "Native Hawaiian Government Reorganization Act of 2005" (S.147). The bill is a terrible idea for many reasons, not the least of which is that it is flatly unconstitutional. In addition to ignoring its grave constitutional defects, the bill's proponents engage in a serious abuse of history to justify government-backed racial discrimination. Hawaiian history, in fact, rejects the idea of race-based rule. In 1959, Hawaiians voted overwhelmingly to approve statehood without "native" Hawaiian enclaves, showing by their numbers and their actions that they were all American citizens, the same as any other. In other words, regardless of what really happened in the 18th and 19th centuries, the people of Hawaii knew their history in 1959 and they did not want separatist enclaves in their future state. Thus, the creation of a sovereign, race-based government would contravene this political understanding.
Since the arrival of the first Christian missionaries (many of them from New England) in the 1820s, the racially-diverse Kingdom of Hawaii had a strong relationship with the United States. An American was appointed as Attorney General for the Kingdom in 1844, and King Kamehameha III's request for American annexation in the mid-1800s predates the eventual American annexation in 1898 by a half-century. Congress conferred U.S. citizenship on all Hawaiians in 1900, and after the unifying struggles during World War II, it was natural that Hawaiians and the U.S. Congress in the 1950s would consider making Hawaii the 50th state in the Union.
During the statehood debate, concerns were raised that a state with such a large minority population might not sufficiently share the American political culture and adopt the American way of life. In response, Hawaiians and their advocates trumpeted the high rate of racial integration within the state, including high rates of intermarriage. Moreover, proponents of statehood went to great lengths to describe the integration of races within Hawaii and to assure Congress that Hawaiian culture most assuredly embraced the ideals of American citizenship.
Racial integration and the universality of American ideals in Hawaii carried additional weight at the time because Alaska was also being considered for statehood. Inuit and Eskimo enclaves still existed within Alaska, and many of these groups lived in villages that were isolated from other Americans, followed ancient ways of life, and governed themselves in tribal-like structures. As a result, the Enabling Act for the State of Alaska preserved some of these traditional lands similarly to American Indian reservations. For example, these Inuit lands would be exempt from taxation, and other state and federal laws allowed the Inuit to continue traditional hunting and fishing practices that were denied to others.
When asked whether descendants of aboriginal Hawaiians predominantly lived apart from other Hawaiians, advocates for statehood in the U.S. Senate repeatedly emphasized that Hawaii was a model of integration and assimilation for the rest of America. Senator Jon Kyl's paper for the Republican Policy Committee, which debunks many of the bill's historical fictions, includes a sample of those statements:
"Hawaii is America in a microcosm - a melting pot of many racial and national origins, from which has been produced a common nationality, a common patriotism, a common faith in freedom and the institutions of America." - Senator Herbert Lehman (D-NY), Congressional Record, April 1, 1954, at 4325.
"Hawaii is the furnace that is melting that melting pot. We are the light. We are showing a way to the American people that true brotherhood of man can be accomplished. We have the light, and we have the goal. And we can show that to the peoples of the world." - Testimony of Frank Fasi, Democratic National Committeeman for Hawaii, before the Senate Committee on Interior and Insular Affairs, June 30, 1953.
"While it was originally inhabited by Polynesians, and its present population contains substantial numbers of citizens of oriental ancestry, the economy of the islands began 100 years ago to develop in the American pattern, and the government of the islands took on an actual American form 50 years ago. Therefore, today Hawaii is literally an American outpost in the Pacific, completely reflecting the American scene, with its religious variations, its cultural, business, and agricultural customs, and its politics." - Senator Wallace Bennett (R-UT), Congressional Record, March 10, 1954, at 2983.
"Hawaii is living proof that people of all races, cultures and creeds can live together in harmony and well-being, and that democracy as advocated by the United States has in fact afforded a solution to some of the problems constantly plaguing the world." - Testimony of John A. Burns, Delegate to Congress from the Territory of Hawaii, before the Senate Committee on the Interior and Insular Affairs, April 1, 1957.
"We are not race conscious in Hawaii at all." - Testimony of Edward N. Sylva, Attorney General of Hawaii Territory, before the Senate Committee on the Interior and Insular Affairs, June 30, 1953.
"[T]here can be no doubt at all about [Native Hawaiians and other Hawaiian ethnic groups'] true Americanism." - Testimony of Dr. Gregg Sinclair, President of the University of Hawaii, before the Senate Committee on the Interior and Insular Affairs, June 30, 1953.
"The overwhelming majority of Hawaiians are native-born Americans; they know no other loyalty and acclaim their citizenship as proudly as you and I." - Testimony of Fred Seaton, Secretary of the Interior, before the Subcommittee on Territories and Insular Affairs of the Senate Committee on the Interior and Insular Affairs, February 25, 1959.
"There is no mistaking the Americans culture and philosophy that dominates the lives of Hawaii's polyglot mixture." - Statement of Senator Clair Engle (D-CA), Subcommittee on Territories and Insular Affairs of the Senate Committee on the Interior and Insular Affairs, February 25, 1959.
"Hawaii is truly American in every aspect of its life." - Letter from Interior Secretary Fred Seaton to Chairman James Murray dated February 4, 1959, collected in record to Statehood for Hawaii Hearing before the Senate Committee on the Interior and Insular Affairs, March 5, 1959.
Hawaii's statehood referendum passed with an incredible 94.3 percent of the vote. About 95 percent of the Hawaiians who voted specifically agreed to all the terms of the admission act. Fewer than 8,000 Hawaiians voted no on either question. Because approximately 20 percent of the population in 1959 would have qualified as "native" under the definition in S.147, then at least three-fifths of that group must also have voted for statehood with no separate rights for individuals of their ancestry. Though a small minority opposed statehood, at no point in the statehood debate did anyone in Congress suggest that the U.S. should treat so-called "native Hawaiians" like an Indian tribe. As the above statements demonstrate, Hawaiians' sentiment was, in fact, quite the opposite.
The people of Hawaii had the opportunity to raise an issue regarding separate rights for native Hawaiians. Not only did they fail to do so; they went to great lengths to convey that Hawaii did not and would not divide its people by race. That was the understanding of those in Congress and Hawaii who voted to bring Hawaii into these United States. Despite the distorted history of the S.147's supporters, many Hawaiians with aboriginal ancestry still share that understanding today. They understand that S.147 will change their state from a "microcosm of America" to an environment that pits race against race.
 There was never a purely "native" government that ruled all the Islands, and from early in the 1800s, the Kingdom had a racially-blended government. Thus there is no "native" government to "restore." Moreover, the misuse of the term "native" is erroneous and offensive for a different reason: By analogy to the first sentence of the Fourteenth Amendment, all those born on Hawaii are citizens and true native Hawaiians, whether they have aboriginal blood or not.
 If an effort to prevent S.147 from being considered by the full Senate fails, a substitute version of the bill, S.3064, will likely take its place. This substitute, while addressing several of the policy concerns associated with S.147, has the exact same constitutional and general policy defects.
 see Edwin Meese and Todd Gaziano, "The 'Native Hawaiian' Bill: An Unconstitutional Approach in Furtherance of a Terrible Idea," Heritage Foundation WebMemo No. 1114, June 6, 2006 at http://www.heritage.org/Research/LegalIssues/wm1114.cfm.
 Indeed, the very first monarch to unite the Hawaiian Islands, Kamehemeha the Great, did so by ruthless conquest, using British and American cannons and western military advisers. These advisers were among the first of many westerners to marry into the Hawaiian royal family. Many other legislators and other cabinet officers had no native Hawaiian ancestry.
 Sen. John Kyl, "Why Congress Must Reject Race-Based Government for Native Hawaiians," Republican Policy Committee, June 22, 2005 at http://www.rpc.senate.gov/_files/Jun2205NatHawSD.pdf.
 No evidence suggests that the "no" votes came disproportionately from aboriginal Hawaiians, and so the actual proportion supporting the Act of Admission was probably much higher.