Editor’s note: This piece by Ramesh Ponnuru appeared in the July 18, 2005, issue of National Review.
Republicans have shown precious little courage in fighting government policies that distribute benefits based on race in recent years. There have been no legislative efforts to rein in racial preferences in federal contracts, and the Bush administration gave a qualified blessing to racial preferences in college admissions when the Supreme Court was considering the issue. Now we are going to see whether Republicans can at least oppose the creation of new race-based subsidies.
Sen. Daniel Akaka, a Democrat from Hawaii, is sponsoring a bill to create a race-based government for “Native Hawaiians.” It may well pass, thanks to the support it has gotten from a few Republicans, including Lindsey Graham of South Carolina and Norm Coleman of Minnesota.
Hawaii has an Office of Hawaiian Affairs that provides benefits to “Native Hawaiians”–that is, to descendants of the racial majority of the islands at the time they became part of the United States. Until recently, the board of the agency was restricted to Native Hawaiians, and only Native Hawaiians were allowed to vote in elections for board members. In 2000, however, the Supreme Court ruled (over the dissent of two liberals) that the racial restrictions on voting violated the Fifteenth Amendment. (That’s the one that, well, prohibits racial restrictions on voting.) In the course of explaining their decision, the justices cast doubt on the constitutionality of the whole scheme of benefits for Native Hawaiians.
The Akaka bill heads off the threat of colorblind government by treating Native Hawaiians as akin to an Indian tribe. The tribes get to govern themselves. Under the bill, Native Hawaiians would be treated similarly–or so the bill’s supporters claim. Native Hawaiians will get the sustained prosperity and good government that Native Americans so famously enjoy. Or the Native Hawaiians could choose to go back to monarchy, the form of government that was overthrown in 1893. The new government, whatever its form, will negotiate with Hawaii and the federal government over lands, natural resources, and civil and criminal jurisdiction. The Bill of Rights does not fully apply to Indian tribes, and even those elements of it that do theoretically apply are hard to enforce. The Native Hawaiian government would not have to comply with the Bill of Rights, either.
The new government could choose to sever ties with the United States. The Office of Hawaiian Affairs promotes the bill as a step toward letting Native Hawaiians “exercise their right to self-determination by selecting another form of government including free association or total independence.”
Critics of the bill, however, say that Native Hawaiians are not analogous to Indian tribes. The federal government did not create sovereign tribes so much as recognize them. Generally, the tribes existed as tribes before the areas in which they lived got statehood. The federal government made treaties with them, or passed statehood-enabling laws that recognized them. In a few other cases, tribes have been recognized after demonstrating that they had formed a separate and distinct community exercising sovereignty over the previous century.
Native Hawaiians aren’t a separate and distinct community. They aren’t geographically separate. Native Hawaiians who live in Hawaii live in the same neighborhoods, and go to the same stores, churches, and schools, as the other four-fifths of Hawaiians. So federal recognition of their “tribal” status would mean that a Native Hawaiian storeowner would be effectively exempt from state sales taxes while his non-Native competitor down the street would remain subject to them. There is no marked cultural separation of Native and non-Native Hawaiians, either: Intermarriage rates are quite high in Hawaii.
Nor have Native Hawaiians exercised political sovereignty. There are no pretenders to the old Hawaiian throne. There wasn’t a purely race-based government in Hawaii even before 1893. The queen had subjects who had come, or whose ancestors had come, to Hawaii from all over the world. The government included officials of many races. Nor was the sovereignty of the Native Hawaiian race recognized at the time Hawaii became a state. The rhetoric of statehood advocates at that time (the 1950s) was that of the melting pot, not of racial separatism. Yet the Akaka bill’s criterion for participating in the new government is being able to document lineal descent from the indigenous people of Hawaii. (The bill does not specify how much Native Hawaiian blood must flow in a person’s veins for him to qualify–one drop would apparently count.)
Jon Kyl, a Republican senator from Arizona, has led the opposition to the bill. “It is the antithesis of the American concept of E pluribus unum and could begin the balkanization of the United States based strictly on race and ethnicity.” If Aztlan and other Latino separatists ever acquired some political strength in California and the Southwest, the Akaka bill would be a handy precedent for them.
But Kyl doesn’t have much company. Congress has a track record of pandering on Hawaiian issues: In 1993, it officially apologized for America’s alleged role in the overthrow of the monarchy. (Apparently that was illegitimate, although it was perfectly fine for that line of monarchs to take over Hawaii in the first place.) There is no Democratic opposition to the Akaka bill, and several Republicans are supporting it. Alaska’s congressional delegation has long worked with Hawaii’s. The senators from Hawaii voted to allow drilling in the Arctic National Wildlife Refuge, a priority for Alaska lawmakers that just barely passed the Senate. Alaska’s Republican senators, Ted Stevens and Lisa Murkowski, are co-sponsors of the Akaka bill.
But the Alaska connection isn’t the only reason some Republicans are supporting the bill. In 2002, Hawaii elected Linda Lingle, the first Republican governor of the state for 40 years. She backs the Akaka bill. She is said to see her position as a prerequisite for increasing the party’s share of the Native Hawaiian vote. And she has brought Republicans elsewhere with her. Gordon Smith of Oregon might have co-sponsored the bill in any case. But it is hard to believe that Lindsey Graham would be co-sponsoring it if not for Lingle.
Kyl has been fighting the bill for almost as long as it’s been around. Last year, though, he was forced to make a partial retreat. Senator Stevens and Hawaii’s Daniel Inouye attached the Native Hawaiian bill as an amendment to the bill funding the Departments of Labor and Health and Human Services. Kyl couldn’t very well defeat that bill, especially as a member of the Senate Republican leadership. And supporters of the Akaka bill were threatening to hold up bills important to Arizona if he tried. So Kyl and other opponents of the bill–notably Pete Domenici of New Mexico and majority leader Bill Frist–cut a deal promising a vote on the bill in 2005.
Kyl is going to try to amend the bill to make it less noxious. He may, for example, try to take out its strict racial classifications. If the bill passes, action will move to the House–where it has received even less scrutiny than it has gotten in the Senate.
Benjamin Ginsberg, a well-connected Republican lobbyist–he was counsel to the Bush campaign in 2000 and most of 2004, and he works at the powerhouse firm of Patton Boggs–is working for the bill. There is no money on the other side of the issue. Ted Olson, Bush’s former solicitor general, has been so appalled by the legislation that he has done a little pro bono work against it.
In short, everyone with an interest in the bill–Lingle, the Alaskans, Ginsberg–wants it to pass. The only people who want it to fail–Kyl, Olson–do so for reasons of principle. That’s the state of play right now: It’s interest vs. principle. You know which way to bet.