The U.S. House is expected to vote today on the creation of the largest tribal entity in U.S. history under the Native Hawaiian Government Reorganization Act, despite last-minute opposition by Hawaii’s governor, Linda Lingle (R), and serious questions regarding the bill’s constitutionality. Meanwhile, President Barack Obama promised to sign the legislation.
The bill would establish a separate, race-based governing body to represent Native Hawaiians in negotiations with state and federal governments. As The National Review writes, the Act would:
…partly disenfranchise a portion of one state’s residents, create a parallel government for those meeting a legislated criterion of ethnic purity, and would portend the transfer of public assets, land, and political power from those who fail to satisfy the standard of ethnic purity to those who do.
The goal, as The National Review notes, is “to apply the model of American Indian tribes’ formal sovereignty to people of native Hawaiian ancestry.”
Notably, Gov. Lingle reversed course after more than seven years of support for the Act (also known as “the Akaka Bill”), citing recent amendments to the legislation she says aren’t in the best interest of Hawaiians:
The basic problem as I see it, is that in the current version of the bill, the ‘governmental’ (non-commercial) activities of the Native Hawaiian governing entity, its employees, and its officers, will be almost completely free from State and County regulation, including free from those laws and rules that protect the health and safety of Hawai‘i’s people, and protect the environment. ’Governmental’ activity is a broad undefined term that can encompass almost any non-commercial activity.
“This structure will, in my opinion, promote divisiveness and litigation, rather than negotiation and resolution.
The Akaka Bill also drew fire from five members of the United States Commission on Civil Rights, who sent a letter to House leadership on Monday urging opposition to the proposal. In their letter, they reasserted objections to the bill they initially raised in August of last year. From the August 2009 letter:
We do not believe Congress has the constitutional authority to “reorganize” racial or ethnic groups into dependent sovereign nations unless those groups have a long and continuous history of separate self-governance. Moreover, quite apart from the issue of constitutional authority, creating such an entity sets a harmful precedent. Ethnic Hawaiians will surely not be the only group to demand such treatment. On what ground will Congress tell these other would-be tribes no?
And in their letter yesterday, the commissioners also questioned the manner in which the bill came to a vote, stating that it was “slated for a hasty House vote [that] was apparently negotiated behind closed doors…”
In NRO’s “the corner,” Commissioner Peter Kirsanow, who was a signatory to the letter, writes that the precedent the Akaka Bill sets is a dangerous one:
The bill is not only constitutionally defective and morally repugnant, but by logical extension it opens the door for members of other racial classifications to petition the government for sovereign status.
While the House is poised to pass the bill, concern over those constitutional questions and the precedent the Akaka Bill would set are quite significant. The U.S. Constitution stands for the proposition that all Americans should be treated equally under the law. It certainly stands to reason, then, that Congress shouldn’t be in the business of granting different ethnic groups special treatment under the law in direct contravention of Constitutional principles.