The Corner

On the Akaka Bill

When Obama was elected, I lamented that, among other things, we’d see enactment of legislation that President Bush successfully thwarted in a number of areas, like D.C. voting representation in Congress and separatist racial government in Hawaii. So it is no surprise to see Akaka’s catastrophically wrongheaded legislation making another run in this Congress. It is worth revisiting, however, President Bush’s reasons for threatening to veto this legislation (it was actually a “senior advisor” recommendation, but the point is the same) when it last reared its ugly head in 2007. President Bush may not have batted 1.000 as far as conservatives go, but he had a pretty damned good slugging percentage. Here is the text of the Bush White House’s Statement of Administration Policy on Akaka — it is no less true today than it was two years ago:

H.R. 505 – Native Hawaiian Government Reorganization Act of 2007 (Rep. Abercrombie (D) Hawaii and 7 cosponsors)

The Administration strongly opposes passage of H.R. 505. As the U.S. Civil Rights Commission recently noted, this legislation “would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.” The President has eschewed such divisive legislation as a matter of policy, noting that “we must . . . honor the great American tradition of the melting pot, which has made us one nation out of many peoples.” This bill would reverse this great American tradition and divide the governing institutions of this country by race. If H.R. 505 were presented to the President, his senior advisors would recommend that he veto the bill.

H.R. 505 would grant broad governmental powers to a racially-defined group of “Native Hawaiians” to include all living descendents of the original, Polynesian inhabitants of what is now modern-day Hawaii. Members of this class need not have any geographic, political, or cultural connection to Hawaii, much less to some discrete Native Hawaiian community. Proponents of the bill seek to analogize Native Hawaiians to members of existing Indian tribes. As one Federal court recently explained, however, “the history of the indigenous Hawaiians … is fundamentally different from that of indigenous groups and federally-recognized Indian Tribes in the continental United States.”

Closely related to those policy concerns, H.R. 505 raises significant constitutional concerns that arise anytime legislation seeks to separate American citizens into race-related classifications rather than according to their own merits and essential qualities. In the particular context of Native Hawaiians, the Supreme Court has invalidated state legislation containing similar racebased qualifications for participation in Native Hawaiian governing entities and programs. Given the substantial historical and cultural differences between Native Hawaiians as a group and members of federally recognized Indian tribes, the Administration believes that tribal recognition is inappropriate and unwise for Native Hawaiians and would raise serious constitutional concerns. The Administration strongly opposes any bill that would formally divide sovereign United States power along suspect lines of race and ethnicity.

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