Tag: Akaka Bill

With All Due Respect, Rep. Cole, My Arguments Against Race-Based Government Are Quite Principled

While campaigning for former Hawaii governor Linda Lingle, who is now running for U.S. Senate, Rep. Tom Cole (R-OK), the only Native American in Congress, said that opposition to the Akaka Bill is “arrogant” meddling in local affairs.  (The Akaka Bill, which I’ve covered extensively, would create a race-based governing entity that would negotiate with the federal and state governments over all sorts of issues—effectively carving out an unconstitutional system of racial spoils.)

As quoted in the Honolulu Star-Advertiser ($):

“Hawaii has told us again and again, on a bipartisan basis, this is what we want to do,” Cole said. “I’d have to tell you, I think it’s incredibly arrogant, whether it’s a Republican or a Democrat that opposes tribal sovereignty — in this case sovereignty for Native Hawaiians—when the people of Hawaii have told us we’d like it. Who are we to impose our opinions?”

Cole’s attack is not only a calumny on those who oppose the Akaka Bill in good faith—including all but six of his House Republicans who voted against it in 2010 after years of deliberation, public vetting, and a 2006 Department of Justice conclusion that the bill was unwise as a policy matter and presented serious constitutional difficulties—but itself displays a dangerous misunderstanding of the issues involved.

It’s easy to think of the Akaka Bill as being “merely” another request for self-governance by native peoples as was extended to Aleuts upon Alaskan statehood, but that’s simply not what’s going on in Hawaii.  Hawaiians, “Native” and otherwise, have a different history and political sociology from the tribes that are accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre-constitutional reality.  Congress can’t simply define Hawaiians as an “Indian tribe” because that term has a fixed meaning, limited to preexisting North American tribes that were “dependent nations” at the time of the Founding.  Such tribes, to benefit from the protections of Indian law, must have an independent existence and “community” apart from the rest of American society, and their separate government structure must have a continuous history for at least the past century.  By these standards, Hawaiians don’t qualify.

Moreover, it’s false to say that Hawaiians support the Akaka Bill or ethnic/racial preferences more broadly.  There has never been a public referendum—Akaka Bill supporters resist such a move—but a November 2009 Zogby poll revealed that 51% of Hawaiians oppose the bill, 60% opposed if you remove the undecideds.  In addition, 76% would oppose tax increases to pay for the Akaka nation-tribe (which would be inevitable), only 7% favor separate laws and regulations for a new native government, and only 28% say the bill is fair with respect to racial discrimination.  Perhaps most importantly, 58% would want a chance to vote before the Akaka Bill could become law, with only 28% saying that would be unnecessary.

Finally, and quite apart from the policy and political considerations, the Akaka Bill has serious constitutional defects. As mentioned above, the Constitution’s anamolous Indian law exception was created by the document itself and Congress still retains a great amount of oversight.  Once the Constitution was ratified, no government organized under it could create another government that can exempt itself from the Bill of Rights.  Even setting these structural issues aside, the Akaka Bill is facially disallowed by the Fifth and Fourteenth Amendments’ explicit proscription against any state action that treats people differently based on their race or ethnicity. The Supreme Court has found Native Hawaiians to be an ethnic group, so Congress cannot pass a law giving them rights denied other Americans.

I respect Rep. Cole’s right to hold a different view of the Akaka Bill’s merits than mine, in which case he could have said something like, “Some folks have principled objections to this.  I think they’re wrong.  I think they misread the Constitution and don’t appreciate Hawaii’s unique history.  We need to show them why they should come over to our side, and Linda Lingle can help me do that.”  Instead, he accuses us critics of arrogance, ignorance, and willfully thwarting Hawaiians’ dreams of self-determination.

With all due respect, Rep. Cole (and Gov. Lingle to the extent she associates herself with his remarks), if you want to pass the Akaka Bill, you need to do a better job of answering some very valid concerns rather than engaging in base demagoguery.  And these concerns aren’t limited to parochial issues relevant only to Hawaiians.  So long as Hawaii remains part of the United States, all Americans have a stake in the future of the state and how it treats its citizens.

h/t Steven Duffield

Sneaking Race-Based Government Through the Tropical Back Door

Those of you who follow this blog know of the special place in my heart for Hawaiian constitutional issues.  Cato has even filed several Hawaii-related amicus briefs; here’s my post about the latest one, last month.  This is in part because thinking about the Constitution and individual liberty is even more fun in the context of palm trees, trade winds, and tiki bars, but more than that, developments in Hawaii tend to get overlooked or dismissed as parochial and “not really” relevant to the American project.

Unfortunately, that sort of benign neglect plays into the hands of those who want to wreak all sorts of havoc with our constitutional order.  And once those who don’t care about limited government, individual liberty, and equality under the law gain a toehold anywhere, Honolulu as much as Hartford, that creates a dangerous precedent – a political and jurisprudential tsunami, if you will, that threatens to swamp the mainland.

Such is the case with the infamous Akaka Bill (which I most recently covered in a blogpost that links to my previous work on the subject).  This bill, introduced in every Congress since 2000, would create a race-based governing entity that would negotiate with the federal and state governments over all sorts of issues – effectively carving out a system of racial spoils. 

Now, Hawaii’s senators, Daniel Akaka and Daniel Inouye, have long said that their pursuit of this legislation would always be above-board and transparent… until a couple of weeks ago when Inouye, as chairman of the Senate Appropriations Committee, had a sentence inserted into the massive Interior Department funding bill allowing the federal government to recognize Native Hawaiians in the same way that American Indians and Native Alaskans are recognized (but without immediate federal benefits).  This, combined with a state resolution labeling the “Native Hawaiian people” as the only indigenous Hawaiians, is part of a piecemeal strategy to get the Akaka Bill in through the backdoor.

For more coverage of these developments, see this report, as well as these two articles ($).  For Hawaii’s fuzzy relationship with the Voting Rights Act, see this article.  For reasons on why this is all not just sneaky but a terrible idea – and unconstitutional – again, see my previous writings

At base, Hawaiians have a very different history and political sociology from the tribes that were accommodated in our (dubious and counterproductive) Indian law, which itself is a unique compromise with pre-constitutional reality.  It would be a shame to destroy that beautiful state’s spirit of aloha (welcome).

Lame Duck Won’t Create Race-Based Government After All

Good news out of Congress this week (and by good news, I mean they didn’t screw things up any more than they already are):  The infamous Akaka Bill, which would create a “Native Hawaiian” government for purposes of racial preferences and other unconstitutional goodies, will not be a part of the slimmed-down legislation that funds the government until Congress gets around to passing an actual budget.  (For background, see my op-eds here – for which I was attacked by Hawaii’s Governor-Elect Neil Abercrombie – and here, and watch the Cato Capitol Hill Briefing.  And for coverage of a related recent Supreme Court case, see these two blogposts and Cato’s amicus brief.)

Three weeks ago, there had been fears that the Akaka language would be inserted into the omnibus spending bill (see Roger Clegg and Hans von Spakovsky blogging at NRO’s The Corner).  Had that been the case, it would’ve been an outrage for several reasons:

  1. This is a new Akaka Bill.  The text was only introduced in November and was apparently the result of a backroom deal cut between the Hawaii’s senators and lame-duck Governor Linda Lingle in July, but which did not become public until after the election.
  2.  There have never been any hearings on this language – not in the House of Representatives Natural Resources Committee, not in the Senate Indian Affairs Committee, and definitely not in Hawaii.  No testimony has been heard about how this particular bill will divide Hawaii, on the constitutionality of the new provisions, how Hawaiians’ civil rights will be affected, or how the tax base of Hawaii will be diminished.
  3. This is an abuse of the process.  It is completely inappropriate to use a must-pass spending bill to avoid debate, amendment, and public scrutiny on an unrelated matter of such grave constitutional and practical importance.
  4. Sen. Inouye (D-HI) previously denied that he planned to use the appropriations process to avoid public scrutiny of the bill, so this would have been a 180-degree reversal.

Perhaps bowing to the above kinds of arguments, what actually appeared in the mega-bill was a “study” that the Secretary of the Interior had to conduct in conjunction with “those offices designated under the Hawaii State Constitution as representative of the Native Hawaiian community,” to make recommendations to Congress “on developing a mechanism for the reorganization of a Native Hawaiian governing entity and recognition by the United States of the Native Hawaiian governing entity as an Indian tribe.”  In other words, this was getting the ball moving, establishing facts on the ground, etc.

Fortunately – for many reasons unrelated to race-based government – the omnibus went down in flames (the first tangible victory for the Tea Party, before their congressmen even assumed office?) and with it the aforementioned “study.”  The new streamlined “continuing resolution,” which I’ve skimmed in its entirety – just 36 pages! – still includes various legislative gems but there is no mention of the Aloha State.

That’s a good thing: we seem to have escaped the spectre of race-based government yet again – but be aware that the Akaka Bill lurks in the background of every Congress, ready to ensnare those who think it’s just about “parochial” Hawaii issues that have nothing to do with the “real world.”

Court Embraces the Spirit of Aloha

Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union.  In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.

Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union.  This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.”  It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.

Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.

Further Cato materials on the above: Here’s our brief in the case, Hawaii v. Office of Hawaiian Affairs.  Here are articles I wrote on the case and on the on the Akaka Bill.  Here is a write-up of a debate I had at the University of Hawaii last month.  Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) – where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.