- The Washington Times - Thursday, March 10, 2005

It is not because Native Hawaiians should be cherished less but that equality under the law should be loved more that the Akaka Bill to create a race-based government should be opposed. The Senate Committee on Indian Affairs blithely approved the legislation Wednesday without seriously examining its constitutionality. The bill previously passed the House in 2000 as a “noncontroversial,” like treating South Carolina’s firing on Fort Sumter as a July Fourth celebration.

The proposed legislation would ordain a Native Hawaiian Governing Entity cobbled together by Native Hawaiians meeting a threshold of Native Hawaiian blood. The Entity would negotiate with the United States and the State of Hawaii for lands, natural resources, civil and criminal jurisdiction, and other matters within the customary purview of a sovereign. It would be a race-based state within a state: a government of Native Hawaiians, by Native Hawaiians, for Native Hawaiians. It does not deserve birth.

The grandeur of the United States has been a history of escape from ugly racial, ethnic or class distinctions. The nation celebrates equality of opportunity and merit rather than birth as the touchstone of destiny. American citizenship is defined by common ideals and aspirations unstained by hierarchy: no divisions between patricians or clergy, nobles and commoners. Indeed, the Constitution forbids titles of nobility.

Accordingly, Supreme Court Justice Antonin Scalia instructed in Adarand Constructors v. Pena (1995): “To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are but one race here. It is American.”

The United States has flourished by overcoming stains on its creed of equality. Black slavery was ended by the 13th Amendment, and Jim Crow died with the Civil Rights Act of 1964 and Voting Rights Act of 1965. Individual Japanese-Americans got an apology and compensation for race-based maltreatment in World War II in the Civil Liberties Act of 1988.

Racism is defeated by its renunciation, not its practice. The latter pits citizen against citizen and invites strife and jealousies that weaken rather than strengthen.

An exclusive Native Hawaiian government is no exception. Justice Anthony Kennedy persuasively discredited the argument that the Akaka Bill will bring reconciliation between Native Hawaiians and their co-citizens in Rice v. Caytano (2000). In voiding a race-based restriction on the franchise for trustees of the Office of Hawaiian Affairs, Justice Kennedy sermonized: “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. … [T]he use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become an instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.”

The Akaka Bill would create an unprecedented race-based government in Hawaii. Prior to the 1893 dethronement of Queen Lili’uokalani, the monarchy treated Native Hawaiians and immigrants alike. Each enjoyed equal rights under the law. Ditto under the successor government and territorial authority after Hawaii’s annexation by the United States in 1898. In other words, the race-based legislation would not restore the 1893 legal landscape, but enshrine an odious political distinction amongst Hawaii’s inhabitants that never before existed.

A Native Hawaiian enjoys the same freedoms as other Americans. Native Hawaiians may celebrate a distinctive culture under the protection of the Constitution, like the Amish. Racial discrimination against a Native Hawaiian is illegal. And the civil and political rights of Native Hawaiians dwarf what was indulged by the sovereign under the former monarchy.

Stripped of rhetorical adornments, the Akaka Bill is racial discrimination for the sake of racial discrimination; a dishonoring of the idea of what it means to be an American and a formula for domestic convulsions.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group and adviser to the Grass Roots Institute in Hawaii.

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