Some bad ideas are hard to kill. An example is the proposal to treat Native Hawaiians like an Indian tribe. Former Sen. Daniel Akaka (D-Hawaii) advanced legislation to do that for years, but it did not pass even when Democrats had supermajorities in Congress.
But, as Barack Obama has said, he is not going to be stymied by the old superstition that only Congress can pass a law. The Interior Department has announced it “is considering whether to propose an administrative rule that would facilitate the re-establishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States.”
Actually, Congress has declined to establish such a relationship, and the only “government-to-government” relationship with Native Hawaiians, the state of Hawaii's Office of Hawaiian Affairs, which was ruled unconstitutional as racially discriminatory by the Supreme Court in the 2000 case of Rice v. Cayetano.
The apparent analogy here, one invoked by Akaka, is to Indian tribes. But as four members of the U.S. Civil Rights Commission pointed out in a September 2013 letter to President Obama, the analogy is faulty. Federally recognized Indian tribes “are defined by political structure and the maintenance of a separate society.” Native Hawaiians have not been a separate society for nearly 200 years. The kingdom of Hawaii in fact encouraged immigration from abroad and, far from frowning on intermarriage, tended to encourage it. Hawaii had a population of 1,360,301 in the 2010 Census, but only 80,337 people reported themselves as being solely of Native Hawaiian ancestry and another 209,633 reported mixed ancestry including Native Hawaiian.
When Hawaii was admitted to the Union more than 50 years ago, advocates of statehood were proud of its mixed racial heritage. Setting people of Native Hawaiian descent (and how much Native Hawaiian blood would you have to have to qualify?) aside as a special group, as a quasi-government, perhaps entitled to special benefits, is entirely contrary to this aloha tradition and to the spirit of the Fourteenth Amendment to the Constitution. If the Interior Department pushes ahead on this, it will be violating the Constitution by usurping Congress’power to make laws and by imposing a system of racial discrimination.