The Free Congress Commentary
“Native Hawaiian” Government - A Dangerous Experiment
By Paul M. Weyrich
June 14, 2005
Senator Jon Kyl (R-AZ) certainly is one of the most thoughtful Senators. He almost always is on the right side of issues. When he zeroes in on an issue no Senator is more prepared, more articulate and more passionate than Senator Kyl. I proudly helped him win a contentious primary for a House seat years before he vacated that seat and was elected to the Senate. That is why I was astounded to learn that Kyl made a deal with Senator Daniel K. Akaka (D-HI) to bring S. 147, Akaka’s Native Hawaiian Government Reorganization Act of 2005, to the Senate Floor for consideration later this session.
It is not clear whether Kyl intends to support the measure, although the Senate Republican Policy Committee, which Kyl chairs, is not producing its usual product, such as the one that would point out the defects in the Akaka Bill.
Those defects are breathtaking, especially for a conservative Republican Senator. The Akaka measure would create a race-based and racially separate tribal government within Hawaii. It would manage this by funneling
the so-called Native Hawaiian population into laws governing “Native Americans,” the accepted name for those formally called Indians. Never mind that “Native Hawaiians” are not “Native Americans.” Nevertheless, the resulting government to be created by this measure would end up
calling Native Hawaiians a “tribe.”
Twenty percent of Hawaii’s population, along with 400,000 other people nationwide, would belong to this nation’s largest Indian “tribe.” Perhaps both “Indian” and “tribe” always should be in quotation marks.
Senator Kyl is a student of the Constitution. He is one of the few Senators who often questions the constitutionality of a legislative matter. Yet the Akaka Bill is highly suspect in regard to the U.S. Constitution. Never before in our history has Congress created an extra-constitutional race-based government out of a group of American citizens. You see, if this bill should become law it would follow the precedent of existing Indian treaties. Thus, it may be that such a new government could deny its citizens the protections of the Constitution’s 1st, 5th and 14th Amendments.
The way S.147 would analogize Indian law to establish race-based governments is, as one Senate observer said, “a crude distortion of history and law.” Please understand that the Indian tribes of the lower 48 States existed before the U.S. Government did. Their sovereignty was preserved either by a treaty or a statehood act. When Hawaii became a state in 1959 there was no such preservation of sovereignty of Native Hawaiians. In fact, most Native Hawaiians were lobbying more vigorously for statehood than any other group.
Liberals love to distort history. Senator Akaka claims that his bill is merely reorganizing an earlier race-based government of Native Hawaiians. Really? The fact is that there has not been a racially homogenous government in Hawaii since the early Century.
Senator Akaka’s bill would extend American Indian sovereignty and immunity to Native Hawaiians and actually would apply different legal
codes to different races living in the same society. This might work on
Indian reservations, where Indians live apart from the rest of the population, but it is highly questionable when different laws would apply to folks living next door to each other on the same street.
Native Hawaiians could end up, depending upon what this new “government” would do, immune from the body of state and local laws, regulations and taxes which bind the rest of the population of our 50th State. Talk about
the possibility for race wars! What really gets me about Senator Akaka is his claim that by dividing people by race it will promote racial harmony.
This is almost Orwellian in its scope. The Supreme Court, the year after I was born in 1943, noted that “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded on the doctrine of equality.” That is from a decision entitled Hirabayashi v. United States, 320 U.S. 81, just in case a legal scholar wants to see if this non-lawyer has it right.
Senator Akaka may mean well. I cannot know his heart. His bill, if enacted into law would create a terrible precedent which in the future could cause the Balkanization of America. Because Senator Kyl is in the Senate Leadership and has made his deal with Senator Akaka, no doubt Akaka’s bill will come to the Senate floor for a vote. (Kyl is the Senate’s leading proponent of missile defense and Senator Akaka voted for missile defense in a move that surprised nearly everyone. If that should be the trade off,
perhaps Kyl could be forgiven.) It would be highly unusual for the rest of the Senate Leadership to turn on one of its own. However, an effort is being made to see that the Akaka Bill never sees the light of day in the House of Representatives. The House, by and large, is the more responsible body when it comes to such issues. And unfortunately this is the kind of bill that President Bush might sign if it had passed both Houses by convincing margins. Let us hope the House will exercise restraint because it is frightening to think of what would happen were this measure to become law.
Paul M. Weyrich is the Chairman and CEO of the Free Congress Foundation.
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