Beltway Confidential

Civil Rights Commissioners to Obama: no Native Hawaiian 'tribe'

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Beltway Confidential,Michael Barone,Supreme Court,Hawaii,Race and Diversity

The Hawaii congressional delegation has called on Barack Obama to issue an executive order recognizing Native Hawaiians as an Indian tribe. This is an attempt to get around the 2000 Supreme Court ruling in Rice v. Cayetano that Hawaii's state-based law providing benefits and preferences to Native Hawaiians was unconstitutional.

Four of the eight members of the U.S. Civil Rights Commission -- Peter Kirsanow, Abigail Thernstrom, Gail Heriot and Todd Gaziano have written a letter to the president urging him not to issue such an order (h/t Roger Clegg in National Review Online). It's an excellent letter, pointing out that Native Hawaiians do not qualify as an Indian tribe under longstanding federal law and to give them benefits and privileges on the basis of race would be unconstitutional. They point out that there has never been a cohesive Native Hawaiian entity of any kind--the Kingdom of Hawaii regarded all inhabitants as citizens and encouraged foreigners to immigrate to Hawaii, as many did--and that thanks to intermarriage there are precious few people purely of Native Hawaiian descent. In addition, there's not much evidence that more than a few ethnic activists seek such a designation. The state of Hawaii in 2012 passed a law allowing Native Hawaiians to enroll. By August some 20,000 did, in a state where 289,000 people told the 2010 Census that they were wholly or partially of Native Hawaiian descent.

The four commissioners point out that such an executive order would create a dreadful precedent. "Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora’s box for other groups to seek tribal status. Cajuns are an identifiable ethnic group in Louisiana who have had a continuous presence there for over two hundred years. Their ancestors may have been none too pleased when Napoleon sold the lands of the Louisiana Purchase to America, and they had no opportunity to assert sovereignty. Should Cajuns be allowed to seek tribal status? Should the Amish of Pennsylvania or the Hasidic Jews of New York be allowed to seek tribal status? Both groups have far more separation from mainstream society, much lower rates of intermarriage, and all- encompassing rules governing the lives of members than do Native Hawaiians. Both groups also have histories stretching far back."

The state where the president was born has a long history of racial tolerance, as the four commissioners point out. The attempt to declare Native Hawaiian sovereignty (a goal some activists seek) or Indian tribal status goes entirely against the grain of that proud heritage. It is an outgrowth, I think, of the racial quotas and preferences that have become embedded in our society. Native Hawaiian activists want their quotas and preferences (and boodle) too. The chief sponsor of this measure in Congress was Democratic Senator Daniel Akaka, whose retirement in 2012 coupled with the death in December 2012 of his colleague (born in the same month, September 1924!) Daniel Inouye, has left Hawaii with less seniority in the Senate than it has had since the years just after statehood. Hawaii's two House members are both serving their second and first full terms. By the way, this is not just a Democratic cause. Former Governor Linda Lingle, a Republican, backed similar proposals. Fortunately Republicans were able to block Akaka's bills in the Senate.

On a trip to Hawaii in 1995, I interviewed an official of the state Office of Native Hawaiian Affairs, the agency whose authorizing statute was declared unconstitutional in Rice v. Cayetano. I hazarded the opinion that Native Hawaiians were actually much better off educationally and economically than fellow Polynesians in other Pacific islands. No, no, he insisted, Native Hawaiians had the lowest education and economic levels of any group in Hawaii--and these next words I remember exactly--"except of course the Filipinos."

I wonder what Filipino-American activists would have to say about that "of course." Maybe they'd ask for Indian tribal status too.

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