This ruling raised doubts about the constitutionality of the racial spoils system administered by that agency, the Office of Hawaiian Affairs. Which is perhaps why Akaka decided the Reorganization Act was necessary despite what he has called, with weird defensiveness, his state's "perceived harmony."
There are 400,000 Native Hawaiians nationwide, who will be eligible to participate in creating the NHGE. Native Hawaiians are 20 percent of the state's population. They are defined as direct lineal descendants of indigenous peoples who lived on the islands before 1893 and who exercised sovereignty then -- an unintelligible provision because the queen monopolized sovereignty. She, however, was more enlightened than Akaka. She did not distinguish between Native Hawaiians and immigrants, who served in her government.
Under President Washington, the U.S. government's Indian policy was a facet of foreign policy because tribes were considered foreign nations. The Constitution speaks not of native "peoples" but only of "Indian tribes." Akaka's legislation would create a Native Hawaiian "tribe" as a nation within the nation.
Unlike Indians, however, Native Hawaiians' land was not taken by force. They are not a compact community -- they are woven into the fabric of one of America's most polyglot states. They chose to bring themselves under the Constitution by embracing statehood.
Congress does not create tribes, it recognizes them according to settled criteria: Tribes were nations when the Constitution was written and are geographically separate and culturally distinct communities whose governments have long continuous histories. As the state of Hawaii has said, "The tribal concept simply has no place in the context of Hawaiian history."
Virtually all Democrats and a few inexplicable Republicans support this legislation, which will further inflame the ethnic grievance industry. Imagine the lesson that some descendants of Hispanics who lived in the Southwest prior to 1848 would learn from it. A Republican president would veto it. A Democratic president would sign it -- Sens. Biden, Clinton, Dodd and Obama support it -- but the Supreme Court would shred the plan for different laws for different races. Still, the legislation is an important symptom of Democrats' constitutional flippancy and itch for social engineering.
"One nation, indivisible"? Not for the House majority or the Senate committee that have approved Akaka's mockery of the Pledge of Allegiance.