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Recognizing "Native Hawaiians" as a Tribe could Facilitate Gambling


Government Reorganization Bill Poses Race-based Discord

By Carol W. LaGrasse
January 18, 2006


Hawaii's Senator Daniel K. Akaka has proposed legislation to reestablish a sovereign nation-state of native Hawaiians within the State of Hawaii. Although a great majority of Hawaiians, including those with Hawaiian blood, oppose the idea, Sen. Akaka and Governor Linda Lingle are continuing to conduct backroom deals to pass the Native Hawaiian Government Reorganization Act, known as the Akaka Bill (S. 147, H.R. 309), to grant de facto sovereignty to the 400,000 people who identify themselves in the U.S. census as native Hawaiians, or "Kanaka Maoli."

The bill would give the new tribe "complete legal and territorial independence from the United States and [provide for the] re-establishment of a Hawaiian nation-state," according to an editorial entitled "Goodbye Hawaii" which appeared in The Wall Street Journal last July. However, native Hawaiians and the state's other ethnic groups have intermingled for generations. While native Americans on the mainland of the United States who govern themselves live on reservations, those who might be declared native Hawaiians under the proposal live among the rest of the population. Under the bill, they would be governed under a separate set of laws, which would cause great confusion and violate the Fourteenth Amendment's rule of equal protection. In addition, the bill would set aside large expanses of land for native Hawaiian sovereign areas. The bill would effectively destroy the 200-year-old unification by Kamehameha of the many different peoples on the Hawaiian Islands.

The Akaka Bill would allow ethnic Hawaiians to sign up for the tribe and vote for the tribal council, receiving federal recognition. Other native Hawaiians, who decide not to sign up, would not be able to vote about tribal affairs. It appears that the United States government would have to devise a race test, such as 1/4th, 1/8th, or even 1/128th. But the proportion of native Hawaiian blood for determination for this racially based status is not clear. However, no Hawaiian tribes currently exist in Hawaii. The Hawaiian tribe would be the largest in the United States, with 400,000 self-declared members, if the U.S. Census is the ultimate basis. Of these, 60,000 live in California, and 100,00 in other states outside of Hawaii.

Sen. Akaka produced the bill to overcome a U.S. Supreme Court ruling in 2000 that it was unconstitutional to continue a practice of allowing only native Hawaiians to vote to elect the Office of Hawaiian Affairs trustees, because this violated the rule against abridging the right to vote on the basis of race. After this ruling, there were problems for other programs that were exclusively for native Hawaiians. The idea of creating a native Hawaiian tribe was to get around the ruling that the race-based eligibility to vote or governments benefits was unconstitutional.

The Akaka bill states that a 1993 Congressional resolution known as the "Apology Resolution" acknowledged that "the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum." (S. 147, Section 2, paragraph 13)

The Apology Resolution may have been misguided in that it is now part of the backdrop for the Akaka Bill. However, it bears no legal weight on the current effort to dissect Hawaii into hundreds or even thousands of districts under two different types of sovereignty, leaving government permanently disrupted for all Hawaiians.

"Unlike Native Americans, Native Hawaiians were citizens of the United States from the moment of annexation in 1898," commented constitutional law expert Brice Fein last summer in The Advertiser in Honolulu. "They were fully equipped to participate in a democratic society. Indeed, they dominated the electorate during the initial decades of Hawaii's territorial government and continued their prominence in public life after statehood."

"Annexation to the United States and statehood in 1959, supported by over 94 percent of voters, yielded a treasure trove of benefits to Native Hawaiians and non-natives alike," Mr. Fein pointed out.

The people of the Aloha State are not only concerned about the threat to unity and harmony that the Akaka bill poses. They also fear that it represents a back door to casino gambling, which the bill leaves as an open question.

Last July's Wall Street Journal editorial summarized its opposition to the Akaka Bill with the words, "[T]he least the Senate owes the people of Hawaii is to vote this unconstitutional, and un-American, bill down."

In May 2005 the Akaka Bill was reported out by the Committee on Indian Affairs, which is chaired by Senator John McCain (R, Ariz.). Certain key leaders in both houses opposed the bill. The Republican Policy Committee issued an opposition statement by Senator Larry Craig (R, Id.) against the bill. Rep. James Sensenbrenner (R, Wis.), Chairman of the House Judiciary Committee, called on Speaker Dennis Hastert (R. Ill.) to kill the bill or refer it to Judiciary for hearings on its unconstitutionality. Before a vote, the bill was withdrawn from consideration by the full Senate in September. However, the Akaka Bill has not been dropped.


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