Hawaii Five-0-Five

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? 

Yesterday, by a vote of 261-153 the House passed Rep. Neal Abercrombie’s (D-Hi) HR-505, the “Native Hawaiian Government Reorganization Act of 2007.” That bill, and Sen. Daniel Akaka’s (D-Hi) version, attempt to create a new “sovereign” state within the United States:  a new Native Hawaiian “tribe” comprised of descendants of indigenous Hawaiians. 

Thirty-nine Republicans voted in favor of Abercrombie’s bill.  (Click here for the full roll call vote.)

Abercrombie’s bill, as he said yesterday, 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 obtained by HUMAN EVENTS, 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 people in all fifty 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 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 problem now affecting recognized American Indian tribes that is excluded (so far) is casino gambling.

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 (remembering 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; and
6) grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii.”

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 that fewer than a third of Hawaiians supported the idea. 

The idea of creating a new sovereign tribe is clearly unconstitutional.  In 1913, in the 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.

Any doubt of the unconstitutionality of the bill was put to rest by the US Civil Rights Commission which said that this legislation would, “…would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.” 

Of the 105 members of the conservative House Republican Study Committee, six supported the bill. 

Are these Republicans bending to pressure from American Indian groups?  We don’t know yet, but the identities of the Republican supporters seems to be consistent with those who have large American Indian groups in their districts and states.

The bill now goes on to the Senate where it may die a natural death. Otherwise, the President will have to unlimber his veto pen.  Not that a veto will end the story because this bill will come back again and again. 

Money and land?  If Hillary is elected we may learn how to say “Whitewater” in Hawaiian.