A bill expected to pass the House today with overwhelming Democratic support would accomplish something peculiar for a liberal republic in the 21st century: It would partly disenfranchise a portion of one state’s residents, create a parallel government for those meeting a legislated criterion of ethnic purity, and would portend the transfer of public assets, land, and political power from those who fail to satisfy the standard of ethnic purity to those who do. For these reasons and many more, the Native Hawaiian Government Reorganization Act richly deserves opposition.
Strangely, though, it has met very little resistance. The bill is being hot-footed out of the House because one of its principal sponsors, Hawaii Democrat Rep. Neil Abercrombie, is leaving Congress to run for governor of his home state. The legislation is chiefly the work of Sen. Daniel Akaka, another Hawaii Democrat, who has proposed similar legislation in the past, without success.
The Akaka bill seeks to apply the model of American Indian tribes’ formal sovereignty to people of native Hawaiian ancestry. Even if we were to accept the wisdom of our longstanding arrangements with the Indian tribes — and in fact they have little other than longevity to recommend them — it would make no sense to replicate those arrangements in the case of ethnic Hawaiians, who constitute neither a coherent tribe nor a continuous political entity. Those two concepts have long defined the “sovereign” relations between the United States and the Indian tribes, and it is probably unconstitutional, and certainly unwise, for Congress to attempt to revamp them in the service of Hawaiian identity politics.
Unlike what is proposed for Hawaii, the recognized sovereignty of the Indian tribes does not derive exclusively from ethnic identity or from ancestry. Rather, those tribes are recognized as sovereign because each represents, however imperfectly, a continuous independent political tradition. Native Hawaiians do not and have not. The bill purports to restore the sovereignty of the Kingdom of Hawaii — yes, House Democrats are in fact working to re-establish the sovereignty of a monarchy, odd as that seems — though the monarchy itself was not an ethnically exclusive enterprise, as has been widely documented. Strange that the actions of a modern democracy should be less liberal, and more concerned with questions of ethnicity and ancestry, than those of a long-extinguished island kingdom. But such are the perversities of modern identity politics.
It is in fact the racial-purity test itself that provides the best argument against a collective sovereignty for ethnic Hawaiians. The Zuni tribe of New Mexico, to take one example, does not need and has never needed legislation enacted in Washington to determine who is and who is not a member of the tribe. Being an actual sovereign entity, the Zunis entered into their relationship with the United States with their tribal identity already well established and their political structures in place. Rather than recognizing an existing tribe, the Akaka bill would in effect create a new sovereign entity where none existed before. In doing so, it would confer enormous benefits on one group of American citizens while excluding another, and would do so along explicitly hereditary grounds. This is quite a different thing than the United States’s longstanding tradition of recognizing what we call “sovereignty” — in truth a limited and diminished kind of sovereignty — among the Zuni or the Kickapoo or the various Hopi jurisdictions. Even if there had been a kind of collective ethnic sovereignty exercised by native Hawaiians, that sovereignty has long been extinguished: Sovereignty is a political fact, not a racial fact. The United States cannot enter into a relationship with the Hawaiian sovereign because no such sovereign exists. And it would take an odd and overgenerous reading of the Interstate Commerce Clause to imagine that Congress has the power to create a sovereign foreign nation through a legislative act.
For many years, those who were not native Hawaiians were excluded from voting in elections for trustees of the Office of Hawaiian Affairs, but the Supreme Court ruled that practice unconstitutional in a 2000 decision, Rice v. Cayetano. The Court specifically rejected “the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters,” arguing that such reasoning “attacks the central meaning of the Fifteenth Amendment,” which protects citizens’ voting rights from being restricted on racial grounds. If Congress does not have the authority to restrict OHA voting to native Hawaiians, how are we to imagine that it has the power to create a new Hawaiian Nation, ex nihilo? Better to recognize that native Hawaiians, like the rest of us, are citizens of the United States of America, and damned lucky to be so. Senator Akaka’s ethnic mania deserves not only opposition, but scorn.