BY KENNETH R. CONKLIN, PH.D. — A major historical and legal analysis of the Akaka bill has just been published in a well-respected scholarly law journal. The 78-page article appears in the current issue of the Asian-Pacific Law & Policy Journal published by the William S. Richardson School of Law at the University of Hawaii.
The article analyzes the Akaka bill in light of federal Indian policy for tribal recognition, the history of the Kingdom of Hawaii as a multiracial government, the issue whether Congress can convert an ethnic group into a political entity, etc. As often happens with articles in scholarly legal journals, the footnotes probably take up more space than the body of text; however, the article is understandable for non-lawyers and extremely interesting for anyone who has been following the controversy over the Akaka bill.
Ryan William Nohea Garcia, “Who Is Hawaiian, What Begets Federal Recognition, and How Much Blood Matters.” Asian-Pacific Law & Policy Journal, Vol. 11, No. 2, 2010, pp. 85-162.
The entire article can be downloaded directly from the journal’s website — copy/paste this URL into your internet browser:
Here are the abstract and the conclusion as published in the article.
The Akaka bill proposes to federally recognize a Hawaiian governing entity similar to those of federally recognized Indian tribes. As the Akaka bill will institutionalize a political difference between Hawaiians and non-Hawaiians, who is Hawaiian is a timely, and controversial, issue. Also controversial is whether Congress possesses the authority to federally recognize a Hawaiian governing entity. This article addresses three questions that probe the heart of the controversy surrounding the Akaka bill: who is Hawaiian, what begets federal recognition, and how much blood matters. After analyzing relevant Indian jurisprudence, this article demonstrates that political history, not indegeneity, begets federal recognition. As such, it is the political-historical, not racial, definition of Hawaiian that is legally significant to the Akaka bill. Since, however, the Akaka bill utilizes an ethnic Hawaiian blood eligibility criterion, another important question – and one Justice Breyer raised in Rice v. Cayetano – is how much blood is necessary to distinguish ideological self-identification from legitimate racial identity. To the extent racial preferences may coexist with the equal protection components of the Constitution, this article contends that a preponderance of preferred blood is the logical quantum, but a fifty percent requirement is the most practicable.
The Akaka bill is novel in that it is the first Congressional attempt to federally recognize a non-Indian entity, and to do so in a fashion inconsistent with the political history of the former governing entity it is ostensibly recognizing. Under a different view, the Akaka bill is novel in that it endeavors to federally recognize a government to collectively represent an entire ethnic group based upon shared indigeneity, rather than political history. But political history, not indegeneity, begets federal recognition. As a result the Akaka bill faces invalidation because its political-historical inconsistencies – most of all with regard to who is Hawaiian – raise a number of cognizable legal issues potentially fatal to the bill. Its blood-based eligibility criterion further raises the question of how much ethnic blood is necessary to distinguish legitimate racial identification from ideological association. To the extent that racial preferences may coexist with the equal protection components of the Constitution, a preponderance of blood is the logical quantum, but a fifty percent requirement is the most practicable.