What's the worst piece of legislation before Congress associated with the letter H? Most conservatives and Republicans, many moderates and independents, and even some liberals and Democrats would answer: one of the health care bills.
But there's a robust competitor for this honor, passed by the House last week and currently before the Senate: the Native Hawaiian Government Reorganization Act.
As with so much legislation, the title is Orwellian. The bill, sponsored by Hawaii Sen. Daniel Akaka, does not reorganize a Native Hawaiian government, it creates one.
It states that people of Native Hawaiian descent can organize themselves as an Indian tribe. It would have "inherent powers and privileges of self-government," including presumably the power to tax, to enact criminal laws and to use eminent domain to seize private property.
There is good reason to believe this is unconstitutional. The Constitution empowers Congress to recognize established Indian tribes and to grant them self-governance. But the Constitution doesn't give it the power to create an Indian tribe.
Native Hawaiians are not and never have been an Indian tribe. The kingdom and the republic of Hawaii were multiracial societies, not tribal entities, even before annexation by the United States in 1898.
Moreover, the Akaka bill is in tension if not in conflict with the constitutional ban on racial discrimination. It confers benefits on people because of their race. Many of our states used to do this, and some of us are old enough to remember separate drinking fountains and restrooms for blacks and whites. Not many of us see this sort of thing as an attractive model for the years ahead.
There is the additional complicating factor that it's not clear just who is a Native Hawaiian. Racial intermarriage has been common in Hawaii for a century and a half, and some have estimated that there are only a few hundred people left all of whose ancestors were Native Hawaiian. The Akaka bill provides that a federal commission determine who qualifies for inclusion in the new tribe. Anyone see an opportunity for political favoritism here?
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