The worst piece of legislation ever analyzed by the U.S. Commission on Civil Rights has been brought back from the dead and may be enacted in the next few weeks.
On Wednesday, Senator Daniel Akaka reintroduced the Native Hawaiian Government Reorganization Act, also known as the Akaka Bill.
The bill died in the Senate last June when the administration came out against it. Assistant Attorney General William Moschella wrote then Senate Majority Leader Bill Frist that “[t]he Administration strongly opposes passage of [the Akaka Bill]. As noted recently by the U.S. Civil Rights Commission, the bill risks ‘further subdivid(ing) the American people into discrete subgroups accorded varying degrees of privilege.’ As the President has said, ‘we must…honor the great American tradition of the melting pot, which has made us one nation out of many peoples” (ellipsis in the original).
A cloture vote on the bill failed 56-41, just four votes shy of the 60 necessary for a final vote. Thirteen Republicans voted in favor of cloture.
The cloture vote took place on June 8, 2006, when Republicans held a 55-44 Senate majority. Now, with seven more Democrat or Democrat-leaning senators, cloture is likely to succeed and the prospects for final passage of the bill appear bright. (Simply because a senator votes for cloture doesn’t necessarily mean he will vote for final passage of the bill, but the odds aren’t bad.)
The bill was a terrible idea seven months ago. Nothing’s changed to make it more acceptable today.
The bill 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 regarding a broad 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. The bill defines Native Hawaiian as someone who is (1) a direct lineal descendent 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 peoples 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.
A nine-member commission decides who qualifies as Native Hawaiian. Aside from the obvious potential for fraud, the entire racial-identification mechanism is fundamentally repugnant, implicating 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 suspect 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 bill for Native Hawaiians. The bill doesn’t require a showing of historical political continuity, cultural cohesiveness, geographical continuity, or autonomous community. Rather, race combined with an assertion of prior rule by an entity other than the U.S. are the primary prerequisites for sovereignty.
Given that the bill would confer sovereignty primarily on the basis of race untethered to traditional indices of tribal status, it would be surprising if other races/ethnicities didn’t follow the example of the bill. What prevents, say, Acadians, Cajuns, or Mexican Americans from doing the same?
Last year the U.S. Commission on Civil Rights held a hearing on the Akaka Bill. One of the commission’s findings was that the bill appears to be an effort to preserve the racial-preference system administered on behalf of native Hawaiians by the Office of Hawaiian Affairs.
This creates a Pandora’s Box. Loose standards for racial/ethnic sovereignty combined with the potential distribution of racial preferences by a newly recognized sovereign may prove to be a strong incentive for other racial and ethnic groups to establish their own governments wherever members of such groups are concentrated.
Furthermore, the bill promises to be the source of abundant lawsuits. Section 8 (c) (1) of the bill provides as follows:
Nothing in this Act serves as a settlement of any claim against the United States.
That provision should be a huge red flag to sober-minded senators; effectively an earmark to end all earmarks. Section 8 ( c ) (1) is a function of the 1993 Apology Resolution in which Congress, on behalf of the United States, apologized to the Native Hawaiian people for the 1893 overthrow of the Hawaiian Kingdom. The Resolution implicates a host of possible claims against the U.S. for losses and “ramifications” related to such overthrow. The statute of limitations for bringing any claim is a full 20 years from the date the U.S. recognizes the NHGE.
There are innumerable constitutional and policy issues raised by the bill. It merits the same fate this year as last.
— Peter Kirsanow is a member of the U.S. Commission on Civil Rights. He is also a member of the National Labor Relations Board. These comments do not necessarily reflect the positions of either organization.