By carving out a Hawaiian exception to the Constitution’s guarantees of equal protection and due process, the Akaka Bill tries to circumvent a 2000 Supreme Court decision that struck down a racial restriction on voting for trustees of Hawaii’s Office of Hawaiian Affairs.
Sponsored by Neil Abercrombie (D-HI) in the House and supported by Hawaii’s Republican governor, Linda Lingle, the bill is both unconstitutional and bad policy. Congress simply cannot create new sovereigns outside the constitutional framework, and analogies to American Indians misconstrue both the history and legal status of peoples who predate the United States.
The Constitution’s Indian law exception is controversial enough, but it was created by the document itself, arising as a unique historical compromise with pre‐constitutional realities, 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 as it sees fit.
But if the Akaka Bill is not a constitutional end‐run, as its backers vehemently protest, then it 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 found Native Hawaiians to be an ethnic group, after all, so Congress cannot pass a law giving them rights denied other Americans.
Hawaiians are not American Indians in the constitutional sense. The term “Indian tribes” 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 do not qualify.