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Will Senate Say Aloha to Racial Discrimination?

A Commentary By Michael Barone

Friday, March 05, 2010

What's the worst piece of legislation before Congress associated with the letter H? Most conservatives and Republicans, many moderates and independents, and even some liberals and Democrats would answer: one of the health care bills.

But there's a robust competitor for this honor, passed by the House last week and currently before the Senate: the Native Hawaiian Government Reorganization Act.

As with so much legislation, the title is Orwellian. The bill, sponsored by Hawaii Sen. Daniel Akaka, does not reorganize a Native Hawaiian government, it creates one.

It states that people of Native Hawaiian descent can organize themselves as an Indian tribe. It would have "inherent powers and privileges of self-government," including presumably the power to tax, to enact criminal laws and to use eminent domain to seize private property.

There is good reason to believe this is unconstitutional. The Constitution empowers Congress to recognize established Indian tribes and to grant them self-governance. But the Constitution doesn't give it the power to create an Indian tribe.

Native Hawaiians are not and never have been an Indian tribe. The kingdom and the republic of Hawaii were multiracial societies, not tribal entities, even before annexation by the United States in 1898.

Moreover, the Akaka bill is in tension if not in conflict with the constitutional ban on racial discrimination. It confers benefits on people because of their race. Many of our states used to do this, and some of us are old enough to remember separate drinking fountains and restrooms for blacks and whites. Not many of us see this sort of thing as an attractive model for the years ahead.

There is the additional complicating factor that it's not clear just who is a Native Hawaiian. Racial intermarriage has been common in Hawaii for a century and a half, and some have estimated that there are only a few hundred people left all of whose ancestors were Native Hawaiian. The Akaka bill provides that a federal commission determine who qualifies for inclusion in the new tribe. Anyone see an opportunity for political favoritism here?

What's the impetus behind this retrograde bill? Pots of money. The state of Hawaii established an Office of Hawaiian Affairs in 1978 and gave it funding from the huge income from federal lands, the so-called Ceded Lands, granted to Hawaii when statehood was approved in 1959. OHA officials were chosen in elections limited to Native Hawaiians. In 2000, the U.S. Supreme Court ruled in Rice v. Cayetano that this violated the 15th Amendment's ban on racial discrimination in voting.

The asserted purpose of the Akaka bill's discrimination is to aid a disadvantaged ethnic group. In the 1990s, an OHA official told me that Native Hawaiians had the lowest education and income levels of any ethnic group in Hawaii "except, of course, the Filipinos." (Which leads me to wonder: Should we have a Filipino Government Reorganization Act?)

The actual purpose is to turn over to this racially defined governmental entity the Ceded Lands and the income therefrom: many millions of dollars. Perhaps disadvantaged individuals who get certified as having the requisite percentage of Native Hawaiian ancestry will get some benefit. But there's reason to bet that much of the moolah will go to well-connected lawyers, accountants, project managers and investment advisers.

What I find most dismaying about this Native Hawaiian bill is the contrast between Hawaii's traditional openness and tolerance and the bill's attempt to separate Hawaiians-Americans by race. Hawaii, as Sen. Daniel Inouye stated in 1994, is "one of the greatest examples of a multiethnic society living in relative peace." Quite so.

Inouye was one of the Hawaiian politicians who worked for statehood in the 1950s. Then, their chief opponents were Southern Democrats who feared the example of a multiethnic, multiracial society in which whites were in the minority and racial segregation was taboo.

The Hawaii in which Barack Obama was born in 1961 justified those fears. Despite some tensions, which Obama mentions in his autobiography, it was a sterling example of tolerance and togetherness not just to the United States but to the whole world.

The Native Hawaiian Government Reorganization Act would put Hawaii on a road headed in the other direction. The Democratic health care bills threaten one-sixth of the nation's economy. The Akaka bill threatens something even more precious, the progress we have made as a nation toward racial equality.

Michael Barone is senior political analyst for The Washington Examiner.

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