- The Washington Times - Wednesday, May 28, 2014

The Obama administration is quietly moving again to bypass Congress on yet another policy issue, this time by enacting the much-disputed bill that would grant tribal sovereignty to Native Hawaiians.

The Interior Department issued a notice of proposed rule-making Friday, before the holiday weekend, to solicit comments on how to “facilitate the re-establishment of a government-to-government relationship with the Native Hawaiian community.”

The Akaka bill, named for its sponsor, former Sen. Daniel Akaka, languished in Congress for over a decade, but Hawaii Democrats have since urged President Obama to use his executive authority to declare that Native Hawaiians are an Indian tribe.

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Gail Heriot, a member of the U.S. Commission on Civil Rights and a professor of law at the University of San Diego, called the administration’s decision “very troubling.”

“The Obama administration appears to be gearing to take an aggressive stance on this issue,” Ms. Heriot said this week. “I believe the Akaka bill itself would have been unconstitutional. It will be at least as unconstitutional if the executive branch attempts to accomplish the same result by itself.”

Four commissioners warned Mr. Obama in a Sept. 16 letter that the move would be “unwise and unconstitutional.” The commission has eight members, although there are currently two vacancies.

“Neither Congress nor the president has to 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,” said the letter. “Tribes are ‘recognized,’ not created or reconstituted.”

Granting tribal status would allow the state’s Office of Hawaiian Affairs to provide race-based benefits for Native Hawaiians, a practice that was declared unconstitutional by the Supreme Court in 2000.

Since 2011, the OHA has urged Native Hawaiians to sign up on a registry known as Kana’iolowalu, although the effort hasn’t met with much enthusiasm. About 126,000 Native Hawaiians are now listed on the roll, but as many as 100,000 of those names were imported from other government documents, said Malia Hill, policy director of the Grassroot Institute of Hawaii.

Keli’i Akina, Grassroot Institute president, called the administration’s move an “end run around the democratic process [that] is a violation of everything that Native Hawaiian tradition and culture stand for.

“Moreover, it raises the question of who is truly being empowered by the nation-building efforts — the people or the politicians?” said Mr. Akina in a statement. “Enough with these unconstitutional efforts to build a government based on race. Let’s get back to the business of helping Native Hawaiians in real, tangible ways.”

Supporters of the Akaka bill, including Sen. Brian Schatz, Hawaii Democrat, say the special status is needed in order to ensure Native Hawaiians have “justice.”

“Native Hawaiians are the only federally recognized Native people without a government-to-government relationship with the United States, and they deserve access to the prevailing federal policy of self-determination,” said Mr. Schatz in a June 11 floor speech.

The lawmaker also downplayed the argument that Native Hawaiians are not Indians.

“Opponents have argued that Native Hawaiians are not ‘Indians,’ as if the word applies to Native people of a certain racial or ethnic heritage or is limited to indigenous people from one part of the United States but not another. This is misguided,” he said.

Critics maintain tribal status for Native Hawaiians, who live throughout the state alongside citizens of other ancestries, would create two separate systems of government based on race.

Such a decision would also create a precedent for other groups such as Cajuns, Amish or Hasidic Jews, the civil rights commission members said in their letter.

Mr. Obama, who grew up in Hawaii, said during the 2008 presidential campaign that he would sign the Akaka bill if it passed during his presidency.