Hawaiian Separatism, Part Deux

“To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” [Justice Scalia, concurring in ADARAND CONSTRUCTORS, INC. v. PENA, (1995)]

The United States has witnessed more than its fair share of racial injustices. A violent and extremely costly Civil War ended slavery; The Civil Rights Movement, nearly a century later, fought for black equality, with the desired result being a nation where, in the words of Martin Luther King, Jr., individuals would be judged not “by the color of their skin but by the content of their character.” A government that is color-blind is not completely at hand; however, those who seek to reintroduce racial distinctions into law as a way of ameliorating the country’s movement towards equality are misguided. Alarmingly, a bill is pending before the United States Senate that would reverse decades of progress. Dubbed “the Akaka Bill” (S. 147) after its sponsor, Senator Akaka (D-HI), this piece of stealth legislation is formally known as the “Native Hawaiian Government Reorganization Act of 2005.” The Akaka Bill essentially would form a separate, quasi-sovereign Native Hawaiian governing entity. While many have likened this measure to various American Indian or Native Alaskan tribal arrangements, the Akaka Bill bases membership in this independent governing body solely on race; that is, so long as one has a single drop of “Native Hawaiian” blood, one is eligible to be a subject of this Native Hawaiian government.

The Akaka Bill bases many of its historical underpinnings on the 1993 “Apology Resolution.” The 103rd Congress passed the “Apology Resolution” on the 100th anniversary of the overthrow of the Hawaiian monarch, Queen Liliuokalani; the purpose of the resolution was to express regret for the United States government’s purported role in the bloodless overthrow. Nevertheless, the Akaka Bill perpetuates a myth that was conceived in the “Apology Resolution”: the Hawaiian Monarchy, from its inception in 1810 to its overthrow in 1893, was a racially exclusive government. That notion is resoundingly false. As early as 1844, King Kamehameha III appointed an American as the Kingdom’s Attorney General. At the beginning of the 19th century, the Hawaiian people comprised many native-born and naturalized subjects who were not “Native Hawaiians”—including Americans, Chinese, Japanese, Koreans, Samoans, Portuguese, Scandinavians, Scots, Germans, Puerto Ricans, and Greeks. All of those various races, per se, were equal subjects of the monarch; in fact, in 1887 and thereafter, non-citizen residents could serve in the legislature. At the time of the monarch’s overthrow, the legislature was multiracial.

The explicit racial qualifications for the Akaka Bill are likely so broad as to be unconstitutional. More specifically, in order to qualify as Native Hawaiian, one must be an “indigenous, native [person] of Hawaii” and be a “direct lineal descendant of the aboriginal, indigenous, native people” who resided on the Hawaiian Islands on or before January 1, 1893 and “exercised sovereignty.” Unfortunately, the only Native Hawaiian to “exercise sovereignty” was the monarch. In addition to being historically dubious, the Supreme Court has recently ruled that treating Native Hawaiians as an Indian tribe was “difficult terrain” and “a matter of some dispute.” In fact, in Rice v. Cayetano (2000) the Supreme Court struck down an effort to establish a state-sanctioned, race-based entity composed solely of Native Hawaiians. The Court found this to violate the Fifteenth Amendment, which forbids racial discrimination in voting. In a related Supreme Court ruling, United States v. Felipe Sandoval (1913), the Court held that an Indian community must be “separate and isolated,” and that Congress cannot arbitrarily designate a group as an Indian tribe, even if the people are racially comparable to Indians.

The Secretary of the Interior has a longstanding set of criteria regarding the designation of an Indian tribe. Federal Regulations 25 C.F.R. §§ 83.6-83.7 outline the guidelines that must be considered in order for an Indian group to be recognized as a tribe. The Congressional Research Service, a nonpartisan congressional think tank, summarizes the law into the following four conditions:

• “Existence as an Indian tribe on a continuous basis since 1900. Evidence may include documents showing that governmental authorities — federal, state, or local — have identified it as an Indian group; identification by anthropologists and scholars; and evidence from newspapers and books.”
• “Existence predominantly as a community. This may be established by geographical residence of 50% of the group; marriage patterns; kinship and language patterns; cultural patterns; and social or religious patterns.”
• “Political influence or authority over members as an autonomous entity from historical times until the present. This may be established by showing evidence of leaders’ ability to mobilize the group or settle disputes, inter-group communication links, and active political processes.”
• “Evidence that the membership descends from an historical tribe or tribes that combined and functioned together as a political entity. This may be established by tribal rolls, federal or state records, church or school records, affidavits of leaders and members, and other
records.”

The Akaka Bill ignores the general principles extrapolated from these directives: the group must be separate and distinct as well as a preexisting political organization. Neither of these principles is satisfied in the context of Native Hawaiians. Native Hawaiians intermarried as early as the 1820s; in the mid-1990s, three-quarters of “only” Native Hawaiians married outside of their race, and fifty-percent of “part” Native Hawaiians also intermarried. On the whole, the state’s intermarriage rate is 45 percent, which is ten times the national average of 4.5 percent. As a result of intermarriage, scholars estimate that only 7,000 “pure blooded” Native Hawaiians are alive today.

The melting pot that exists in Hawaii is reason enough to see the thoughtlessness of the Akaka Bill. The bill fails the test of a separate and distinct community. The bill also contains additional flaws. It fails to guarantee that the Bill of Rights applies to the Native Hawaiian governing organization. Nor does the Akaka Bill guarantee that the entity will be democratic in nature. Furthermore, the Akaka Bill, which is highly controversial, does not allow for a statewide plebiscite. Such a measured political calculation is hypocritical, given that those who are supporting this legislation cite the absence of a plebiscite at the time of Queen Liliuokalani’s overthrow as a grievance.

So exactly what political repercussions will such a racially backward proposed law have? The proponents of S.147 do not want to candidly discuss the idea of eventual independence. The State of Hawaii’s Office of Hawaiian Affairs, however, states in a section on their website, titled: How Will Federal Recognition Affect Me:

“While the federal recognition bill authorizes the formation of a Native Hawaiian governing entity, the bill itself does not prescribe the form of government this entity will become. S. 344 [the bill number in the108th Congress] creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. TheNative Hawaiian people may exercise their right to self-determination by selecting another form of government including free association ortotal independence.”

This bill embraces an extreme racial doctrine. It simply serves to perpetuate the political power of its advocates and to pervert our political system for the sole benefit of special interests. Unfortunately, though, passage is likely. The Justice Department has made clear its concerns regarding parts of the bill’s language. Those concerns have since been placated by the Hawaiian delegation by altering the bill’s language; however, these amendments do not quantifiably effect the bill’s implications. It is likely to pass in the Senate; Senators Lindsey Graham (R-SC) and Norm Coleman (R-MN) are cosponsors of S. 147. In fact, two other Republicans have cosponsored S. 147; although their motives are more discernable. Senators Stevens and Murkowski, both of whom hail from Alaska, are supporting the Akaka Bill in return for the Hawaiian Delegation’s support for drilling in the Arctic National Wildlife Refuge. The only remaining hope is the House of Representatives, but a similar law was passed several years ago only to be rejected in the Senate.

The Akaka Bill would create by far the largest indigenous “tribe” in the nation. There are an estimated 400,000 Native Hawaiians spread throughout the United States who would be eligible for membership in such a government; 100,000 of those Native Hawaiians live outside of Hawaii, but would still be entitled to membership. Given Hawaii’s population of 1.5 million, the 20% of Native Hawaiians living on the Island would pose a seriously divisive dynamic to an otherwise harmonious melting pot. Native Hawaiians have not segregated themselves, nor have others segregated them. They live in neighborhoods alongside a variety of different races. The idea of ethnic separatism is upsetting to a plurality of those who it is supposed to help. According to a poll conducted by the Grassroots Institute of Hawaii, 48% of Native Hawaiians oppose the Akaka Bill; whereas, two-thirds of the general Hawaiian population are against the measure. In 1959, when the issue of Hawaii’s statehood was put to a statewide vote, it was approved by 94% of those who voted. Such a resounding gesture of consent cannot be overlooked. The Akaka Bill embraces a racial spoils system that would poison the very progress that this nation has made concerning equality.