What Every Member Needs to Know About the Native Hawaiian Government Reorganization Act
On February 23, 2010, the House of Representatives is scheduled to consider the Native Hawaiian Government Reorganization Act (H.R. 2314). H.R. 2314 would recognize and authorize the creation of a sovereign Native Hawaiian governing entity-an Indian tribe. In order to do that, the bill would establish a process for organizing the Native Hawaiian people into an entity that knows who its members are, possesses authority over its members, adopts governing documents, etc. Such a tribe would likely have as many as 400,000 members nationwide, including more than 20 percent of Hawaii's residents, and potential authority over Native Hawaiians in all of the fifty states. If each Native Hawaiian eligible under this legislation were to apply to become a member of the new governing entity, it would be one of the nation's largest Indian tribes. Furthermore, this bill would confer upon them racially exclusive benefits, discriminating against Hawaiian residents of other races.
There are more than 150 current statutes that confer federal benefits to the Native Hawaiian people. However, in 2000, the Supreme Court put many of these benefits in jeopardy with its decision in Rice v. Cayetano. The Court's decision in Rice led many to conclude that federal benefits flowing to Native Hawaiians are a racial set-aside. As a result, the Hawaiian Congressional delegation has championed legislation to provide a process for the United States to recognize Native Hawaiians as a governing entity, i.e. a tribe that is political in nature and not a racial group. But instead of recognizing a currently-existing political entity that has authority over its members, H.R. 2314 must create one from scratch. Specifically, the following are some concerns that many Members have expressed with the legislation:
Unconstitutional: Congress lacks the power to create Indian tribes, and the Supreme Court has held that Congress' power with regard to indigenous peoples is not unlimited. In U.S. v. Sandoval, the Court stated that:
"It is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe."
In other words, the Court held that the Congress cannot create an Indian tribe where one does not exist, but can rather, only recognize groups who have long operated as a tribe with a preexisting political structure and who live separately and distinctly from other communities (both geographically and culturally). The history and political relations between Native Hawaiians and the U.S. demonstrates that Native Hawaiians are not an existing Indian tribe.
Racial Group, Not a Tribe: Native Hawaiians are by the Court's definition not an Indian tribe but a racial group as stated in Montoya v United States:
"By a ‘tribe' we understand a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory" (emphasis added).
According to Congressional testimony provided by the U.S. Commission on Civil Rights Commissioner Gail Heriot, the very act of transforming Native Hawaiians into a tribe is "an act performed on a racial group, not a tribal group." This bill would confer upon them racially exclusive benefits, discriminating against Hawaiian residents of other races. Furthermore, this bill would preserve the State of Hawaii's current practice of conferring special benefits exclusively on its Native Hawaiian citizens. In a letter to House leaders, the U.S. Commission on Civil Rights writes:
We do not believe Congress has the constitutional authority to "reorganize" racial or ethnic groups into dependent sovereign nations unless those groups have a long and continuous history of separate self-governance. Moreover, quite apart from the issue of constitutional authority, creating such an entity sets a harmful precedent. Ethnic Hawaiians will surely not be the only group to demand such treatment.
The Commission opposes passage of the Native Hawaiian Government Reorganization Act "or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American People into discrete subgroups accorded varying degrees of privilege."
Racial Balkanization: H.R. 2314 could lead to a racial balkanization in Hawaii and elsewhere, providing for different codes of law to apply to people of different races who live and function as part of one currently homogenous community. Tribal Indians are typically located on reservations and immune from State laws, but this would not be the case should Native Hawaiians be granted the status of "tribe." In general, tribes do not pay State taxes nor do they abide by State regulations. With this in mind, consider for example, two small businesses in Hawaii competing against one another. One is owned by a Native Hawaiian, and the other is owned by someone who is not. The former would be exempt from State taxes, State business regulations, and zoning and environmental laws, and the latter would not.
Lack of Referendum: Nothing in H.R. 2314 provides current Hawaiians with any choice in the matter of whether or not there is a new governmental entity-which would no doubt affect them-created in their community. In addition, Zogby conducted a poll of registered Hawaii voters in 2009 which asked the following question:
The Native Hawaiian Reorganization Act of 2009, or the Akaka Bill, would recognize native Hawaiians as a tribe similar to the laws affecting American Indian tribes. To be included under the new Hawaiian government, residents would have to be able to show proof of native Hawaiian blood in their ancestry. Knowing what you know now, do you support or oppose the Native Hawaiian Reorganization Act of 2009, or the Akaka Bill?
Only 34 percent of respondents said yes-51 percent said no. In addition, 58 percent of those surveyed supported the idea of a referendum before the provisions of H.R. 2314 became law. No such referendum is provided for in H.R. 2314.
Independence and Secession: In the process of clarifying statements he made earlier to an NPR reporter, the Senate companion's sponsor, Daniel Akaka, admitted that this bill could lead to independence:
I've spoken to those in Hawaii who want to have the-Hawaii to be independent and I've told them, hey, you can use the governing entity to discuss it. And this is what I meant. They can bring these to the governing entity and the governing entity will make a decision as to what happens to, uh, to independence or returning to the monarchy.
The State of Hawaii's Office of Hawaiian Affairs until recently posted a document which fueled speculation that H.R. 2314 may lead to secession and further independence efforts:
While the federal recognition bill authorizes the formation of a Native Hawaiian governing entity, the bill itself does not prescribe the form of government this entity will become. S.344 creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. The Native Hawaiian people may exercise their right to self-determination by selecting another form of government including free association or total independence. (emphasis added)
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U.S. Civil Rights Commissioners Issue Letter to U.S. House Leadership on Akaka Bill
The Honorable Nancy Pelosi, Speaker of the House
The Honorable John Boehner, Republican Leader
The Honorable Nick Rahall II, Chairman, Committee on Natural Resources
The Honorable Doc Hastings, Ranking Member, Committee on Natural Resources
The Honorable John Conyers Jr., Chairman, Committee on the Judiciary
The Honorable Lamar Smith, Ranking Member, Committee on the Judiciary
Dear Distinguished Members of Congress:
We write to you in our individual capacities as members of the United States Commission on Civil Rights.
We understand that the Native Hawaiian Government Reorganization Act (the “Akaka proposal”) is about to be brought to a vote on the House floor.
We also understand that the bill will be a substitute for the one considered by the Natural Resources Committee.
The bill slated for a hasty House vote was apparently negotiated behind closed doors among Hawaii’s Congressional delegation, possibly the White House, and certain state officials, although those actually involved are unclear.
Indeed, more changes were reportedly made over the weekend and released less than 48 hours prior to the expected House vote. The citizens of Hawaii, Members of the Committees on Natural Resources and the Judiciary, and any other experts will not have the normal opportunity to discuss or debate the revised provisions of the bill. Nor will members of the general public.
We wish to register our profound disappointment that a bill of this great importance would be dealt with in this manner. The creation of the largest tribal entity in the history of the nation – potentially 400,000 strong – is too important a step to take this lightly. Attached is a letter that the Commission on Civil Rights sent to the Senate leadership on August 28, 2009, in which the Commission expresses its opposition to the race-based Native Hawaiian Government proposal. We wanted to ensure that you received a copy. A preliminary review of the new eligibility requirements for membership in the purported tribe does not eliminate the substantial constitutional doubt about the legislation. Nor does it lessen the profound, negative policy implications of the bill.
We understand that a vote on this measure is imminent. Because the Commission only meets once or twice per month, there was no opportunity for the Commission to act as a whole.
We urge you to oppose both the Akaka proposal and this circumvention of the normal legislative process.
Gerald Reynolds, Chair Commissioner
Peter Kirsanow, Commissioner
Gail Heriot, Commissioner
Todd Gaziano, Commissioner
Ashley Taylor, Commissioner