10/03/00 10:25 a.m.
No Bill Is an Island
A disturbing piece of legislation would single out “Native Hawaiians.”

By Roger Clegg, general counsel of the Center for Equal Opportunity

disturbing piece of legislation has rather unexpectedly made rapid progress through both houses of Congress and is now on the brink of passage. If passed, it would represent an appalling failure by the Republican leadership in both houses to oppose racial and ethnic balkanization.

H.R. 4904 was voted out of the House Resources Committee on September 20 and, last week, was perfunctorily passed by the full House in a voice vote with only 10 minutes of discussion. Its counterpart, S. 2899, has been voted out of the Senate Indian Affairs Committee and stands ready now to be passed by the full Senate. Because the bills are identical, there would be no need for a House-Senate conference. Instead the legislation would go immediately to President Clinton's eagerly poised pen.

The bills would single out "Native Hawaiians" as deserving of special treatment by the United States government. By so doing, the bills raise serious problems under the U.S. Constitution's Equal Protection Clause, particularly in light of this year's Supreme Court decision in Rice v. Cayetano — indeed, the legislation seeks to overturn this decision. Constitutional issues aside, it is wrong for the government to favor certain groups because of their ethnicity.

The Rice decision had rejected Hawaii's practice of allowing only Native Hawaiians to vote in certain elections. The new bill, however, is designed — in the words of its sponsor, U.S. Representative Patsy Mink (D-HI) — to "sustain an election process that is restrictive to only native Hawaiian people."

But the bill is much worse than just that.

The legislation defines Native Hawaiians as "the lineal descendants of the aboriginal, indigenous, native people who resided in the islands that now comprise the state of Hawaii." It asserts that these blood-defined people have "an inherent right to autonomy in their internal affairs"; "an inherent right of self-determination and self-governance"; "the right to reorganize a Native Hawaiian government"; and "the right to become economically self-sufficient."

The legislation also sets up an apparatus to ensure that the federal bureaucracy gives special treatment to this group, including "continuing the process of reconciliation" and "facilitating a process for self-determination." The bills would also create a "roll" that would provide "certification of Native Hawaiian ancestry," complete with hearings to assess whether or not an applicant had the proper bloodlines. Those, and only those, passing the test could then participate in creating a new "Native Hawaiian government" with authority to, among other things, "negotiate with Federal, State, and local governments, and other entities."

The special treatment based on blood promised by the legislation sets a dangerous precedent. Under this logic, any group will be able to claim a "right" to special status based on its ancestry. As the Wall Street Journal noted, if Native Hawaiians "can be accorded special status, so too could African-Americans or Bosnian-Americans, a path fraught with peril and partiality."

The Supreme Court had ruled in Rice that "Ancestry can be a proxy for race. It is that proxy here." Notwithstanding that ruling, the bill's proponents now seek to have Congress declare that Native Hawaiians are not an ethnic group, but an Indian tribe. But it is historically and factually untenable to equate Native Hawaiians with an Indian tribe. One recalls the riddle told by Abraham Lincoln: "How many legs does a dog have if you call a tail a leg? Four, because calling a tail a leg doesn't make it one." Calling Native Hawaiians an Indian tribe doesn't make them one.

Lincoln would of course also have agreed with the Supreme Court's statement in Rice that "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." And so even if Congress had authority to create new, blood-defined, self-governing groups within our nation, why should it want to?

The Court ended its Rice decision by writing, "The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii." It will be appalling if Congress revokes the Constitution's guarantee of equal protection for all citizens of Hawaii, regardless of ancestry, and replaces it instead with legislation that declares some Hawaiians to be more equal than others.

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