On the heels of apologizing for its old racism in thwarting anti-lynching laws, the U.S. Senate is poised to initiate a new racism celebrated in the so-called “Akaka Bill.” It would summon into being for the first time a race-based Native Hawaiian sovereignty operating outside the U.S. Constitution. Only persons with at least “one drop” of Native Hawaiian blood would enjoy the right to create the new sovereign entity with its sweeping immunities from federal and state laws.
The Akaka bill would authorize and have the United States facilitate Hawaiian officials in relinquishing the State’s sovereignty over a portion of its citizens and territory. In addition, it would authorize transfer of part of the state’s lands, natural resources and other assets to the new race-based sovereign gratis, all without the approval of the state legislature or the consent of its citizens
Proponents oppose any amendment, for example, a requirement of approval by a majority of adult Native Hawaiians before all Native Hawaiians are subjected to the new race-based government; a prohibition on racial, religious or ethnic discrimination; a proscription on secession; an injunction against evicting the U.S. military from Pearl Harbor; or, an obligation to honor the Bill of Rights. They even reject a requiring a plebiscite in Hawaii to determine if its citizens wish to carve out of every island multiple sovereign racial enclaves.
According to the most recent, comprehensive and reliable polling, 2 in 3 residents of Hawaii oppose a race-based Akaka bill. Native Hawaiians, who account for 20 percent of Hawaii’s population, are themselves sharply divided, with 48 percent opposed. These percentages are stunning because the government of Hawaii has spent millions propagandizing in favor of the race-based legislation over several years. They discredit the representations of the governor of Hawaii and Hawaii’s two senators and two representatives that the people of Hawaii overwhelming covet a race-based sovereign.
The Akaka Bill should be crushingly defeated when it comes to a vote in the U.S. Senate, which seems imminent. Race-based governments convulse communities and besmirch the nation’s signature creed: E Pluribus Unum. During the long years of Jim Crow, lives were lost and liberties trampled by the racism whites practiced against blacks. It should thus be unthinkable that in 2005, the United States Congress would enter the squalid business of creating a race-based government. If the legislation is passed, the Senate will have earned the scorn Talleyrand cast on the French Bourbons: “They have learned nothing, and forgotten nothing.”
The United States Supreme Court has repeatedly lectured that racial distinctions are odious to a free people. Thus, in Rice v. Cayetano (2000), the high court held unconstitutional the disfranchisement of non-Native Hawaiians in electing trustees to the Office of Hawaiian Affairs. Justice Anthony Kennedy explained the evils of race-based politics: “The ancestral inquiry mandated by [Hawaii] is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose ancestry is disclosed by their ethnic characteristics and cultural traditions.”
The unexcelled progress of the United States has been a history of eliminating barriers to equal opportunity. American citizenship is earmarked by attachment to a constellation of supreme values: the rule of law; merit and character as destiny; equal justice; and, government by the consent of the governed. The Akaka Bill stains all four: It would fashion a governing entity outside the Constitution and laws of the United States and the state of Hawaii; it would make Native Hawaiian ancestry decisive in destiny; it would deny equal justice to non-Native Hawaiians; and, it would mock self-government by denying the citizens of Hawaii a plebiscite to determine whether the state should be fractured along racial lines. In contrast, a Hawaiian plebiscite was held in 1959 over statehood; 94 percent of the voters approved, including a majority of Native Hawaiians.
Akaka Bill champions preposterously insist Native Hawaiians are indistinguishable from federally recognized Native American Indian tribes. Since the arrival of Captain Cook in 1778, Native Hawaiians and non-Native Hawaiians have uniformly been governed by a common Hawaiian sovereign. Throughout the past two centuries of Hawaiian history, including the entire period of the Kingdom, they served side-by-side in the legislature, Cabinet and national Supreme Court. Both Native Hawaiians and non-Native Hawaiians exercised the franchise. With rare exceptions, the laws of the Hawaiian Kingdom generally eschewed racial distinctions.
Native Hawaiians have never experienced racial discrimination. None lost an inch of land or other property when the Monarchy was overthrown in 1893 as a step toward a republican form of government. They were never less than equal, and for the past 30 years Native Hawaiians have invariably been privileged under the law regarding housing, education or other social assistance. The U.S. Constitution scrupulously protects their right to celebrate their culture. That explains why Queen Liliuokalani confided to then Sen. George Hoar, Massachusetts Republican that, “The best thing for [Native Hawaiians] that could have happened was to belong to the United States.”
Hawaii has been the quintessential example of the American “melting pot.” King Lunalilo, on the day of his coronation in 1873, boasted: “This nation presents the most interesting example in history of the cordial co-operation of the native and foreign races in the administration of its government, and most happily, too, in all the relations of life there exists a feeling which every good man will strive to promote.” Sen. Daniel Inouye, Hawaii Democrat, echoed the king 121 years later in commemorating the 35th anniversary of Hawaii’s statehood: “Hawaii remains one of the greatest examples of a multiethnic society living in relative peace.”
The Akaka Bill is unconstitutional, racist, divisive and subversive of American unity. It deserves the same repudiation as Jim Crow laws.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group and a consultant to the Grassroot Institute of Hawaii.