Congress Tries to Break Hawaii in Two-A racial spoils precedent that could lead to new ‘tribal’ demands across the U.S.

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‘This is reprinted from the Wall Street Journal, online opinion journal, Sunday February 28, 2010’

Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly known as “the Akaka bill,” this piece of legislation might turn out to be this Congress’s single most calamitous decision.

The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.

The method used to create this tribe should make everyone squeamish. The bill delegates the delicate task of deciding who may join the tribe to a federal commission appointed by the secretary of the Interior. Ultimately, the tribe itself will have the power to expel members or invite new ones.

Earlier versions of the bill demanded that the secretary appoint only ethnic Hawaiians as commissioners. In the current version, only those with “10 years of experience in the study and determination of Native Hawaiian genealogy” and “an ability to read and translate . . . documents written in the Hawaiian language” may serve on the commission. These commissioners will examine an applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe.

To understand all of this, you have to know something about the Aloha State’s racial entitlement system. The State’s Office of Hawaiian Affairs (OHA), established in 1978, administers billions of dollars generated from lands the federal government ceded to the state decades ago. These monies should be used to benefit all Hawaiians. Instead they are spent on benefits for ethnic Hawaiians, including home loans and business loans as well as housing and education programs.

The protection of these benefits is what motivates supporters of the Akaka bill. Ten years ago, the Supreme Court ruled unconstitutional a Hawaiian law that limited the right to vote for those who oversee OHA to ethnic Hawaiians. The court ruled in that case, Rice v. Cayetano, that it violated the 15th Amendment’s prohibition on racial discrimination in voting rights.

Rice set off a firestorm that has not yet subsided. If OHA’s election methods were unconstitutional, then its racially-exclusive benefits were almost certainly also in violation of the 14th Amendment’s Equal Protection Clause. Something had to be done.

And it was. Shortly after Rice, Hawaii’s Democratic Sen. Daniel Akaka introduced a bill in Congress to protect race-based benefits in his state. He did so by seeking to exploit a 1974 Supreme Court decision, Morton v. Mancari. In that case, the court found that racial discrimination on the basis of membership in “quasi-sovereign tribal entities” was constitutional. Following the logic of the ruling, Mr. Akaka and others hoped that by transforming ethnic Hawaiians from a race into a tribe they would effectively protect special benefits for ethnic Hawaiians.

Indeed, the benefits pot might even be sweetened by such a transformation. The Akaka bill provides that after the tribe is established, its leaders may negotiate with Hawaii for the transfer of land. Everyone involved understands this to refer to 1.4 million acres known as the Ceded Lands

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