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Separate but equal, Hawaiian-style
The Akaka bill on Native Hawaiian sovereignty, often portrayed by its critics as multiculturalism run amok, is gaining steam and portending the break-up of the union. In reality, the measure is more segregation and self-interest than symbolism or secession. Sen. Daniel Akaka, Hawaii Democrat, championed the bill as a way to “bring unity in the State by providing an inclusive process for… Native Hawaiians and non-Native Hawaiians to finally address the consequences of our painful history.” Mr. Akaka first introduced a version of this legislation in 2000, predicated on the notion that the formal apology signed in 1993 by President Clinton, which acknowledged the overthrow of the Hawaiian kingdom in 1893, was no longer sufficient among his constituents. The 2005 bill had been scheduled for a cloture vote in August, but was postponed indefinitely because of the situation caused by Hurricane Katrina. The motion, Mr. Akaka’s office hopes, will be rescheduled later this month, and given strong Democratic support and the bill’s five Republican cosponsors, the bill will likely pass if proponents are able to force a vote.
The cloak of rhetorical “reconciliation and healing” — that the bill would restore stolen lands and usurped sovereignty — belies a more tangible and pragmatic goal. This legislation was introduced in 2000. This occurred primarily not in response to the formal apology Mr. Clinton signed seven years prior (nor to the overthrow of the kingdom 100 years before that) but as a rebuttal to the consequential Supreme Court ruling in Rice v. Cayetano, also in 2000.
In that case, the Supreme Court overturned a Ninth Circuit Court ruling and, in a 7-2 decision, correctly struck down the “Hawaiian only” voting restriction that permitted only Native Hawaiians to vote for trustees of the state’s Office of Hawaiian Affairs (OHA). Justice Anthony Kennedy, writing the majority opinion, strongly decried this practice as the unconstitutional construction of a race-based government, in violation of the Fifteenth Amendment guarantee of equal voting rights. Subsequent court decisions have adhered to the tone set by the Supreme Court. Most recently, the 9th Circuit Court of Appeals (perhaps noting that its ruling in Rice v. Cayetano had been overturned) declared the exclusively Native Hawaiian Kamehameha Schools also in violation of federal civil-rights laws.
The OHA funds many programs for the betterment of Native Hawaiians from revenue derived from specially designated “ceded” land in Hawaii, and from its nearly $380 million in reserve. There is more land in dispute — around 1.8 million acres — from which OHA now gets about $9.5 million a year, but the potential revenue is in the hundreds of millions of dollars — a substantial sum considering the Census Bureau reports that there are only approximately 68,000 Native Hawaiians living in Hawaii.
Enter the Akaka bill as a possible solution: congressional recognition of Native Hawaiians not as a race, but as an indigenous, American Indian-like group, with the same privileges and exclusions. Supreme Court precedent recognizes a difference in these designations (though manifestly there isn’t one), finding an exclusive government of the latter constitutional, but not of the former. Hence the court can rule the Jim Crow laws unconstitutional and American Indian sovereignty constitutional without contradicting itself.
Passing the Akaka bill may not be tantamount to dissolving the union, but it would almost certainly allow OHA to return to its practice of a racially (now dubbed indigenously) exclusive voting register. And the Kamehameha School could resume its race-based admissions policy. The Akaka bill also provides the framework by which the OHA can negotiate with the Department of the Interior to tap into more of the revenue from the disputed land.
What seems most sorely lacking is the achievement of Mr. Akaka’s goal of an “inclusive process for… Native Hawaiians and non-Native Hawaiians.” Indeed, the Akaka bill would have the opposite effect — bringing back the segregation that the Supreme Court struck down, only now with congressional approval.
By Andrew P. Napolitano
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