The Senate is scheduled to begin debate this week on the worst piece of legislation ever analyzed by the U.S. Commission on Civil Rights. The Native Hawaiian Government Reorganization Act (S.147), also known as the Akaka bill, is riddled with a bewildering array of legal, operational, and procedural infirmities that defy meaningful description in fewer than 10,000 words. So let’s consider just one of the consequences that could flow from the act’s passage: a proliferation of petitions for racial and ethnic separatism.
The act authorizes the creation of a race-based government (the Native Hawaiian Governing Entity [“NHGE”]) for the estimated 400,000 Native Hawaiians living throughout the United States. That government is empowered to negotiate with the U.S. government and the State of Hawaii regarding an astonishing range of issues, including matters related to criminal and civil jurisdiction, civil-rights protections, the delegation of powers from the U.S. to the NHGE and the transfer of land, natural resources, and other assets. These negotiations would be carried out by members of the NHGE who’ve been certified as Native Hawaiian under the act. The act defines a Native Hawaiian as someone who is (1) a direct lineal descendant of the indigenous peoples who resided on what is now Hawaii on or before January 1, 1893 and who occupied and exercised sovereignty over such area; or (2) one of the native people of Hawaii who was eligible in 1921 for programs authorized by the Hawaiian Homes Commission Act or is a direct lineal descendant of such individual.
Who determines who qualifies as Native Hawaiian? The act establishes a nine-member commission that will certify that individuals meet the above definition of Native Hawaiian. The members of the commission must themselves be Native Hawaiians with “expertise in the determination of ancestry and lineal descendency” (Query: Who determines whether the commissioners meet the Native Hawaiian definition? Well, maybe the secretary of the Interior. But how does that person -or his deputies–have “expertise in the determination of ancestry and lineal descendency”?)
Even aside from the obvious potential for fraud, the problems with the act’s racial definition have an almost cartoonish quality. Only one person exercised sovereignty over the Hawaiian Islands in 1893: Queen Liliuokalani. A precise reading of this provision of the act would, therefore, grant Native Hawaiian status only to the queen’s direct lineal descendents–presumably a relatively small cohort.
On the other hand, the provisions granting Native Hawaiian status to “lineal descendants” of individuals eligible in 1921 for programs authorized by the Hawaiian Homes Commission Act is, practically, limitless. It implicates the odious “one drop rule” contained in the racial-segregation codes of the 19th and early 20th centuries. That, combined with some of the other predicates to creation of the NHGE renders the act’s constitutionality questionable under the Supreme Court’s decision in Rice v. Cayetano.
The bases for recognition extended to sovereign Indian tribes are different from those contemplated by the act for Native Hawaiians. The act doesn’t require a showing of historical political continuity, cultural cohesiveness, geographic contiguity, or autonomous community. Rather, race combined with an assertion of prior rule by an entity other than then U.S. are the primary prerequisites for sovereignty.
Given that the act would confer sovereignty primarily on the basis of race untethered to traditional indices of tribal status, it would be surprising if other racial/ethnic groups didn’t follow the example of the act. What prevents, say Acadians, Cajuns, or Mexican Americans from doing the same?
Earlier this year the U.S. Commission on Civil Rights held a hearing on the Akaka bill. One of the commission’s findings was that “[t]he Office of Hawaiian Affairs currently administers a racial preference system in the form of a substantial public trust for the benefit of Native Hawaiians. The Native Hawaiian Government Reorganization Act of 2005 appears to be an effort to preserve that system in the face of litigation anticipated over the next several years.”
Congressional approval of lax standards for racial/ethnic sovereignty combined with the potential distribution of racial preferences by the newly created sovereign may prove to be a powerful incentive for other racial and ethnic groups to establish their own governments.
—Peter Kirsanow is a member of the National Labor Relations Board . He is also a member of the U.S. Commission on Civil Rights . These comments do not necessarily reflect the positions of either organization.