Champion of equality Gail Heriot coauthored an op-ed in the Wall Street Journal today on the Akaka bill that is well worth the read.
Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly known as “the Akaka bill,” this piece of legislation might turn out to be this Congress’s single most calamitous decision.
The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.
The method used to create this tribe should make everyone squeamish. The bill delegates the delicate task of deciding who may join the tribe to a federal commission appointed by the secretary of the Interior. Ultimately, the tribe itself will have the power to expel members or invite new ones.
Earlier versions of the bill demanded that the secretary appoint only ethnic Hawaiians as commissioners. In the current version, only those with “10 years of experience in the study and determination of Native Hawaiian genealogy” and “an ability to read and translate . . . documents written in the Hawaiian language” may serve on the commission. These commissioners will examine an applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe.
The Akaka bill employs a hypodescent criterion, meaning that possession of any amount of ethnic hawaiian blood is sufficient to warrant special treatment. Much, much more on that later . . .
To understand all of this, you have to know something about the Aloha State’s racial entitlement system. The State’s Office of Hawaiian Affairs (OHA), established in 1978, administers billions of dollars generated from lands the federal government ceded to the state decades ago. These monies should be used to benefit all Hawaiians. Instead they are spent on benefits for ethnic Hawaiians, including home loans and business loans as well as housing and education programs.
The protection of these benefits is what motivates supporters of the Akaka bill. Ten years ago, the Supreme Court ruled unconstitutional a Hawaiian law that limited the right to vote for those who oversee OHA to ethnic Hawaiians. The court ruled in that case, Rice v. Cayetano, that it violated the 15th Amendment’s prohibition on racial discrimination in voting rights.
Rice set off a firestorm that has not yet subsided. If OHA’s election methods were unconstitutional, then its racially-exclusive benefits were almost certainly also in violation of the 14th Amendment’s Equal Protection Clause. Something had to be done.
And it was. Shortly after Rice, Hawaii’s Democratic Sen. Daniel Akaka introduced a bill in Congress to protect race-based benefits in his state. He did so by seeking to exploit a 1974 Supreme Court decision, Morton v. Mancari. In that case, the court found that racial discrimination on the basis of membership in “quasi-sovereign tribal entities” was constitutional. Following the logic of the ruling, Mr. Akaka and others hoped that by transforming ethnic Hawaiians from a race into a tribe they would effectively protect special benefits for ethnic Hawaiians.
Indeed, the benefits pot might even be sweetened by such a transformation. The Akaka bill provides that after the tribe is established, its leaders may negotiate with Hawaii for the transfer of land. Everyone involved understands this to refer to 1.4 million acres known as the Ceded Lands—lands that were ceded to the state by the federal government when statehood was granted in 1959. Some activists take the position that since these lands were once owned by the Hawaiian monarchy, they rightfully belong to ethnic Hawaiians. Some even argue the tribe’s ultimate goal should be secession from the United States.
Nevertheless, two problems remain. First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of transforming a racial group into a tribal group confers a privilege on one race and not others and is thus unconstitutional. Second, while the Constitution implicitly gives the federal government the power to recognize tribes with a long and continuous history of separate self-governance, it does not give the power to confer sovereignty on new tribes, or to reconstitute a tribe whose members have long since become part of the mainstream culture.
If it did, all manner of mischief could be accomplished, as ethnic Hawaiians will not be the last group to demand special status. Some activists argue that Southern California should be set aside as a homeland for Mexican Americans of Indian descent. Right now, that idea looks like pure fantasy. If the Akaka bill becomes law, it will suddenly become more plausible.
Heriot is correct in this regard. If Congress may organize ethnic Hawaiians into an ad hoc confederacy in spite of their political history purely because ethnic Hawaiians are indigenous as compared to non-ethnic Hawaiians then there is no reason why Congress could not similarly organize and federally recognize a Hispanic-of-Indian-descent ‘tribe.’
What’s more, the Amish in Pennsylvania and the Orthodox Jews in New York could also start to see a benefit from constituting themselves as a tribe, since tribes, unlike federal and state governments, are free to establish theocratic governments. On what ground will Congress say no to these and other would-be tribes?
Mr. Akaka’s supporters argue that the American government was complicit in the 1893 overthrow of Queen Liliuokalani, which they believe illegally denied not just the queen’s individual right of sovereignty, but her subjects’ collective right, too. They see this bill as an appropriate remedy.
An interesting historical angle I’d like to learn more about is whether the United States’ role in the 1893 coup was substantially different than its role in suppressing the citizen uprising by Queen Emma supporters in 1874* after the sham election of David Kalakaua. If it isn’t, and what I’ve read on the matter indicates very little if any difference on the part of the United States, then the descendants of Queen Emma supporters have a legitimate claim to self-governance against the descendants of Kalakaua supporters. If the Akaka bill is remedy for the United States’ role in the 1893 coup, someone could start a grievance group purposed to de-legitimize the now-restored 1893 government. The modern Queen Emma party could bring a claim against the United States for quelling the anti-Kalakaua, pro-Queen Emma movement after the election, as well as a claim against the Akaka-bill government for reparations for fifteen years of illigitimate rule by Kalakaua and Lili’uokalani. Perhaps the Queen Emma party could bring hold the Akaka-bill government liable for the loss of the sovereignty of the Kingdom of Hawai’i. I wonder how the Akaka-bill government would respond, and if there would be any parallels between its response and how the United States has responded to ethnic Hawaiians in the last 117 years.
This historical claim has been hotly debated. Even assuming American complicity, however, it is beside the point. The Kingdom of Hawaii was a multiracial society from its inception in 1810, when King Kamehameha united what had previously been a group of warring islands.
Heriot is correct that the Kingdom of Hawai’i was multi ethnic at inception, but it did not formally admit non-ethnic Hawaiians as full fledged citizen-subjects until 1846. It did so then for a number of reasons requiring a political solution. Intermarriage between ethnic and non-ethnic Hawaiians was common. Some non-ethnic Hawaiian residents were second and third generation Hawai’i residents. And perhaps most of all, the fact that non-ethnic Hawaiians residents were non-Hawaiian citizen-subjects meant that international treaties with other nations dictated the Kingdom’s treatment of non-ethnic Hawaiian residents. Those differing treaties resulted in disparate treatment of British, French, American, Asian, and Hawaiian individuals and property, leading to significant foreign relations issues and domestic strife. There were two solutions to the problem. One option was to convince every major nation to sign the same treaty with the Kingdom of Hawai’i, ensuring that the Kingdom could treat all foreign nationals equally. Given, however, the unequal bargaining power between the Kingdom of Hawai’i and America, France, England, etc., this option was unrealistic. The second option was to offer citizen-subjecthood to foreign nationals who desired it. Extending citizenship-subjecthood to foreign nationals brought foreign nationals under Kingdom law, limited the amount of individuals not governed by Kingdom law, and limited foreign nationals basis to cry foul to their home country, since they had the option of equal treatment under the laws of the country they resided in. In short, extending citizenship-subjecthood to non ethnic Hawaiians was a calculated, savvy political maneuver that may have played a role in preserving the Kingdom’s sovereignty in the tenuous 1850s, a period where the loss of sovereignty seemed so imminent that King Kamehameha III secretly prepared and signed an annexation treaty to the United States so that in the event any other country abrogated Hawai’i’s sovereignty the United States would defend Hawai’i, if not her sovereignty.
In the true spirit of Aloha, its rulers were welcoming of immigrants, who came from all over the world, including Portugal, China, Japan, the United States, Great Britain and Germany. The 1840 Hawaiian constitution declared that “all races” were of “one blood” and established a bicameral parliament whose members were multiracial. By 1893, ethnic Hawaiians were a population minority.
Take note, however, that later Hawaiian constitutions removed the phrase “races . . . one blood” because a Constitutional mandate for equal treatment didn’t square with sugar barons’ policies of indentured-labor and denying Asians the right to vote.
This cosmopolitan, constitutional monarchy was no kinship-based tribe. Anyone born on Hawaiian soil or swearing allegiance to the queen was considered the queen’s subject and hence “Hawaiian.” No single race was deprived of “its” sovereignty rights by the overthrow.
In 1959, 94.3% of Hawaiian voters cast ballots in favor of statehood. Within months, Hawaii became the 50th state. No one argued then that ethnic Hawaiians were part of a separate political system that needed special status. To the contrary, everyone acknowledged that ethnic Hawaiians were part of the political mainstream. It is now too late in the game to argue otherwise.
The U.S. Senate is expected to take up the Akaka bill in the coming weeks or months, where its opponents are insisting on a thorough debate. One reason for hope is that Hawaii’s Republican Gov. Linda Lingle has finally withdrawn her support for the legislation. For years she advocated passing the bill, establishing a tribe, and then using vigilance to ensure that the tribe does not acquire undue power or resources during its negotiations with the state. She has now reconsidered.
Good for her. This is a train that needs to be stopped before it leaves the station.
[* When I first posted this commentary I incorrectly pegged 1878, rather than 1874, as the year of the Kalakaua v. Queen Emma brouhaha.]
