Akaka Bill: A Terrible, Unconstitutional Idea

General Ed Meese chimes in on the Akaka Native Hawaiian bill:

The U.S. Senate is scheduled to begin debate as early as June 7, 2006, on the misleadingly named "Native Hawaiian Government Reorganization Act of 2005" (S.147).[1] The proponents of this bill, some motivated by seemingly benign purposes and others by a desire to benefit from special preferences, argue that it redresses ancient wrongs done to early Hawaiians by various powers, including the United States. The bill purports to authorize the creation of an exclusively race-based government of "native" Hawaiians to exercise sovereignty over native Hawaiians living anywhere in the United States. This "Native Hawaiian Government" could allegedly exempt these Hawaiians from whatever aspects of the United States Constitution and state authority it thought undesirable. Not only is this a terrible idea; it is also unconstitutional.

The United States Supreme Court ruled decisively that this approach violates the Constitution in Rice v. Cayetano (2000). Yet the proponents of S.147 believe they can bypass this ruling simply by enacting a law that calls the descendants of so-called "aboriginal" Hawaiians an American Indian tribe. The bill would require the federal government to create a database of persons with one drop or more of "aboriginal" Hawaiian blood, organize elections for an "interim government" of this alleged "tribe," and finally recognize the sovereignty and privileges and immunities (or lack thereof) that the new government establishes for its "tribal members." Although Hawaii correctly argued in the Rice litigation that descendants of aboriginal Hawaiians are not an American Indian tribe, state officials have changed their minds—because that is the only way they can practice racial discrimination on behalf of a favored interest group. Hopefully, the United States Constitution is not so easily circumvented.

As I said, it's a nasty little piece of legislation. Meese outlines all of the reasons Native Hawaiians should not be treated like a Native American tribe. Even the state itself argued to the Supreme Court that Native Hawaiians are not a tribe.

This is likely to come to the floor Thursday night. Look out.