The 'Native Hawaiian' bill


The 'Native Hawaiian' bill

Aug 30th, 2005 6 min read

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 circumvented. 
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 fundamental defects.
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" blood.

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 laws.
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 ( Todd Gaziano, who has worked as an attorney in all three branches of the federal government, is Director of the Center.

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