Monday, May 29, 2006

The Akaka Bill is Baaaack

At a time when we're discussing the importance of assimilating immigrants to this country to be Americans and are concerned about the increasing tribalization of our country, the Senate is about to debate and probably pass a bill to designate Native Hawaiians as a separate group deserving of special self-governing privileges similar to those which Native Americans have had.

The bill, the Native Native Hawaiian Government Reorganization Act of 2005, commonly referred to as the Akaka Bill after its chief sponsor, Senator Daniel Akaka of Hawaii. What the bill aims to do is to establish a Native Hawaiian Governing Entity that only Native Hawaiians could vote for. A commission would be established to determine who qualifies as a Native Hawaiian. They would have to prove that they have a direct lineal descent from those "aboriginal, indigenous, native people" who were either on the islands in 1893 or in 1921 when Congress passed another law establishing special programs for native Hawaiians. So, they will create a special list of voters for which people would have to submit marriage and birth certificates to prove their ancestry. Is this really what America is about, adding qualifications for voting in an election that depend on proving whom your grandmother married or where your great-grandfather was born? And with high intermarriage rates, are we now going to adopt a one-drop qualification to prove that you are indeed a Native Hawaiian? Doesn't this violate the Fifteenth Amendment's provisions against race-based voting qualifications?

Once this new Governing Entity would be established, it is not clear what its responsibilities would be. To counteract suspicions that the main purpose was to establish gambling permission for a newly identified Native Hawaiian tribe, the bill forbids that. However, the real purpose is to govern the lands of the islands that native Hawaiians would like to claim.
Upon the reaffirmation of the political and legal relationship between the United States and the Native Hawaiian governing entity, the United States and the State of Hawaii may enter into negotiations with the Native Hawaiian governing entity designed to lead to an agreement addressing such matters as--

(A) the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources;

(B) the exercise of governmental authority over any transferred lands, natural resources, and other assets, including land use;

(C) the exercise of civil and criminal jurisdiction;

(D) the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the State of Hawaii; and

(E) any residual responsibilities of the United States and the State of Hawaii.
These involve incredibly valuable lands that, as the Supreme Court, has recently ruled, cannot be run solely for the benefit of one race. In the case Rice v. Cayetano in 2000, the Court in a 7:2 decision struck down the Office of Hawaiian Affairs because its provisions allowed only one racial group to vote for the office which administered benefits on behalf of native Hawaiians.
In a 7-2 opinion delivered by Justice Anthony M. Kennedy, the Court held that "Hawaii's denial of Rice's right to vote in OHA trustee elections violates the Fifteenth Amendment," in creating a race-based voting qualification. "A state may not deny or abridge the right to vote on account of race, and this law does so," Justice Kennedy wrote for the Court. The court rejected the state's argument that the voting limitation was one based on ancestry, not race. In dissent, Justice John Paul Stevens wrote for himself and Ruth Bader Ginsburg that the majority's decision "rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the state of Hawaii."
Apparently, race-based qualifications for voting don't seem to bother Justices Stevens and Ginsburg.

More recently, in August of 2005, the Ninth Circuit struck down the race-based qualifications for attending the prestigious Kamehameha Schools of Hawaii. As those in Hawaii who are seeing their race-based benefits dwindling through court decisons get more desperate to maintain their control of these goodies, they have latched onto Akaka's bill to basically declare native Hawaiians to be like a tribe with the rights of self-governmnent. The fact that they have never been regarded as a tribe, don't live together in a separate geographic classification and have an intermarriage rate close to 50%, doesn't deter them. There is a whole lot of money and land at stake here.

Sadly, it seems that a bipartisan group of senators support this bill. The Alaskan senators have traded their support on this bill for the Hawaiian senators' support for drilling in ANWR. Logrolling at its finest.

And lovely Senator McCain says he will vote for the bill because so many of Hawaii's state officials from the Republican governor on down support it.
McCain, who had raised questions about the bill in the past, said he will vote for the bill primarily because it has the support of so many Hawai'i officials, including Republican Gov. Linda Lingle.

"Here in Washington, it's hard for us to go against the view of the governor, the Legislature — Republican and Democrat — the senators and the congressmen," said McCain, chairman of the Senate Indian Affairs Committee.
Gee, who knew that McCain was such a strong supporter of states' rights?

The one senator who has heroically been fighting against this bill is Senator Kyl who has raised many questions about the constitutionality of the bill.
No matter how many times S. 147's supporters say that the bill is not race-based, or that the new political entity that the bill seeks to create will not be race-based, the definition above demonstrates the inextricably racial nature of the bill. Moreover - unlike with Indian tribes, which have the right to determine their own membership, in ways essentially unreviewable by federal courts - the bill requires the federal government itself to apply this racial test by hiring federal employees in the Department of Interior on the exclusive basis of the above racial test. Those federal employees then must police the racial definition for future participants. Such a scheme is contrary to the basic principles of the United States Constitution.
One more example of why Senator Kyl is my favorite senator. Sadly, there are five Republican senators co-sponsoring this bill: the two Alaskans, Ted Stevens and Lisa Murkowski; plus Norm Coleman, Lindsey Graham, and Gordon Smith. The Republican governor, Linda Lingle, has been fighting hard for this bill. The Justice Department has mostly stayed out of the picture and doesn't give us much hope that Bush would come out to oppose the bill. My one hope is that the House, fired up as they are about immigration, wouldn't see any advantages to passing such a racially questionable bill right now.

The Commission on Civil Rights has recommended against the bill and any other measure that divided people by race or national origin. Perhaps our government could pay attention to such a recommendation.

This abomination of a bill was supposed to come up last summer for a vote, but the vote was postponed because of Katrina. Now it arises in the middle of the immigration debate and provides one more opportunity for senators to demonstrate whether they believe in one government for all or separate governments based on where your ancestors lived a century ago. It will be interesting to see if the Senate will happily vote for such a suspect and racially divisive measure that enshrines into law two qualifications for voting in Hawaii, citizenship and genealogy.

I've written previously about this bill and here as a guest-blogger on Michelle Malkin's page. Michelle has also blogged about the bill and here is a column she wrote several years ago on the bill. National Review has also been firm in opposing the bill.