In 2000, Hawaii Senator Daniel Akaka proposed a bill known as the Native Hawaiian Government Reorganization Act. The Bill aimed to “provide a process for the reorganization of the single Native Hawaiian governing entity and the re-affirmation of the special political and legal relationship between that native Hawaiian governing entity for purposes of continuing a government-to-government relationship.”
Every aspect of this proposal since its inception has been fraught with misinformation, legal fictions, and historical ignorance.
Aside from the now-retired Senator Akaka, the biggest proponent of this bill is the Organization for Hawaiian Affairs or OHA. The OHA is a state agency dedicated to advancing the interests of “native Hawaiians,” that is, Hawaiians of Polynesian descent. But its policies affect all Hawaiians, regardless of ethnicity. For this reason in 2000 the OHA came under fire from the U.S. Supreme Court for excluding non-Polynesian Hawaiians from voting in its internal elections and for creating benefits for which only Polynesians were eligible. This violation of the Equal Protection Clause was deemed unconstitutional.
In 2014, this issue has arisen once again. The OHA’s goal is to grant itself the authority previously denied to it by the Supreme Court and to recreate the former kingdom of Hawaii. In order to accomplish these goals, the OHA has been lobbying the federal government to grant native Hawaiians recognition as a sovereign tribe, similar to an Indian tribe. The Akaka bill, as it has come to be known, would allow the OHA to establish a sovereign government in Hawaii that is completely separate from the state government. It could even result in the secession of Hawaii from the United States. The OHA and its allies assert that the United States unjustly annexed Hawaii after WWII and claim that their agenda serves to correct this alleged injustice.
This time, however, the OHA is trying a different and more disconcerting approach than before. Instead of lobbying Congress to pass legislation, they are asking the Department of the Interior to take unilateral action on the issue. This would essentially be an executive order by the president to enact the Akaka bill. President Obama has already received harsh criticism for his excessive use of executive orders. In this case, the United States Commission on Civil Rights sent a Letter to President Obama stating that
“We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional.
“Neither Congress nor the president has power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past. Tribes are ‘recognized,’ not created or reconstituted.”
The native Hawaiians cannot be legally recognized as a tribe because they do not meet the qualifications. A tribe is a homogenous ethnic group that exists separate from the society it happens to reside in. Tribes must have their own political or governing body. The Federal government cannot “recognize” what does not exist. The federal government cannot “re-affirm” or “continue” an intergovernmental relationship that never existed in the first place.
The argument that native Hawaiians are a tribe is a legal fiction. The OHA has been quite dishonest in its crusade. It submitted a roll list containing the names of native Hawaiians. The OHA claimed that all persons on the list consider themselves to be members of the same tribe. It was later discovered that a large majority of the 126,000 names on the registry had been imported from other government registries, rather than being the result of persons voluntarily signing OHA’s special affidavit that states, “I affirm the unrelinquished sovereignty of the Hawaiian people and my intent to participate in the process of self-governance.”
Beyond being dishonest, the OHA’s overall mission demonstrates a profound ignorance of the history surrounding the issue. Even if one believes that the annexation of Hawaii was unjust, the Akaka bill does nothing to remedy the situation. The historical record shows us that the old Hawaiian kingdom was multi-racial in nature. Its subjects were not only Polynesian, but Caucasian and Asian as well. A heterogeneous kingdom is not a homogenous tribe. The entity that the Akaka bill would create is not the same as the former kingdom.
Critics of the proposal have also raised concerns about the implications of having different sets of laws for different ethnic groups. Such a situation, they assert, is a clear contradiction of the principle of racial equality under the law. In short, the Akaka bill is a discriminatory act that was crafted on false premises and pursued through dishonest means.
The best source of information on this topic comes from Hawaii’s state think tank, the Grassroot Institute. The Obama Administration has already begun the process of creating a new regulation that would require the U.S. Department of the Interior to “reestablish” a “government-to-government relationship between the United States and the Native Hawaiian community.” See the Grassroot Institute’s official comment on this proposed “rule,” as well as the critique by Hans Spakovsky of the Heritage Foundation.