Democrats' Hawaii Bill Clearly Unconstitutional

Human Events, Oct 29, 2007 by Babbin, Jed

Why are Republicans so split on an unconstitutional bill that carves a group of Americans out of our society and sets them-like an Indian tribe-as a separate sovereign state?

Wednesday, by a vote of 261 to 153, the House passed Hawaii Democratic Rep. Neil Abercrombie's HR 505, the "Native Hawaiian Government Reorganization Act of 2007." That bill and Hawaii Democratic Sen. Daniel Akaka's version attempt to create a new "sovereign" state within the United States: a new Native Hawaiian "tribe" comprised of descendants of indigenous Hawaiians.

'Land and Money'

Thirty-nine House Republicans voted in favor of Abercrombie's bill. (See full rollcall on page 8.)

The bill, as Abercrombie said during floor debate, is "all about land and money." There are about 150 current laws conferring federal benefits on native Hawaiians. But they were put in jeopardy by a 2000 Supreme Court decision that struck down a state law restricting to native Hawaiians the right to vote for some state offices. Unsurprisingly, the court said that neither race nor ancestry was a permissible basis for discrimination except within other sovereign governments such as Indian tribes. Because some Hawaiian activists want that money and land, Abercrombie and Akaka are trying to create a new Hawaiian "tribe" where there wasn't one before.

And that's the problem. Under the Bureau of Indian Affairs definition of a tribe, the people who comprise it must exist as a community apart from society and have-from historical times-political influence over its members. Under those criteria, Hawaiians are no more a tribe than the Cleveland Indians baseball team. But this is no joke. According to one House staff report on the bill, this new "tribe" could be comprised of as many as 400,000 people worldwide, including about 20% of Hawaii's population. It could have authority over its "members" in all 50 states.

Under the Abercrombie bill, America's "special political and legal relationship" with native Hawaiians would be recreated in a separate and autonomous government. The bill says that it will "provide a process for the reorganization of the single Native Hawaiian governing entity and the reaffirmation of the special political and legal relationship between the United States and that Native Hawaiian governing entity for purposes of continuing a government-to-government relationship."

The methods and means for corruption are built into the new government's form and function. The only "benefit" now afforded recognized American Indian tribes that is excluded (so far) is casino gambling.

Special Commission

The bill creates a nine-member commission that will create and maintain a roll of members of the new tribe entitled to participate in the "reorganization" of Hawaii and the benefits (Abercrombie's "land and money") it will create. Naturally, the eligibility criteria can be interpreted several ways that presumably the commission will decide and probably have to set up its own court system to adjudicate.

That same House staff analysis said that the bill "allows for negotiations between the 'three governments,' the U.S., the State of Hawaii, and the new Native Hawaiian governing entity on the following matters:

"1) the transfer of lands, natural resources and other assets, and the protection of existing rights related to such lands or resources.

"2) the exercise of governmental authority over any transferred lands, natural resources and other assets, including land use.

"3) the exercise of civil and criminal jurisdiction.

"4) the delegation of governmental powers and authorities to the Native Hawaiian governing entity by the United States and the state of Hawaii.

"5) any residual responsibilities of the United States and the state of Hawaii.

"6) grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the state of Hawaii."

Mini-Nation

In effect, the new government will negotiate with the United States to create its own, separate mini-nation, invisible to most of the people who live in or around it. Within it, the new government can write, enforce and adjudicate civil and criminal law. And there will be two classes of citizens in Hawaii: natives and others.

The result could be that neighbors in Hawaii-one a native Hawaiian and one who's not-could have vastly different rights to land, tax obligations and voting rights.

Last year, a Grassroots Institute poll showed dial fewer than a third of Hawaiians supported the idea.

The idea of creating a new sovereign tribe is clearly unconstitutional. In the 1913 U.S. v. Sandoval case, the Supreme Court stated that the federal government's power, under Article 1, Section 8, of the Constitution (the commerce clause, which mentions regulation of commerce with "the Indian tribes") did not include creating new tribes. Sandoval's reasoning covers only preexisting tribes that lived apart from other Americans and had their own societal laws and rules. Hawaiians obviously don't meet the Sandoval criteria, so the bill cannot be constitutional.