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The Color of Their Skin, or Content of Their Character?

The House of Representatives approved a bill last month that would establish disturbing racial classifications under American law. The Native Hawaiian Government Reorganization Act — also known as the “Akaka bill” after its primary Senate sponsor, Daniel Akaka (D-Hawaii) — purports to grant “native Hawaiians” federal recognition akin to that now enjoyed by American Indian tribes. It uses the one-drop rule to create a race-based government that will collect political and economic preferences and exempt sufficiently ethnic Hawaiians from whatever aspects of federal and state authority it deems undesirable.

By carving out a Hawaiian exception to the Constitution’s guarantees of equal protection and due process, the Akaka bill tries to circumvent a 2000 Supreme Court decision that struck down a racial restriction on voting for trustees of Hawaii’s Office of Hawaiian Affairs.

Sponsored by Rep. Neil Abercrombie (D-Hawaii) in the House and supported by Hawaii’s Republican governor, Linda Lingle, the bill is both unconstitutional and bad policy. Congress simply cannot create new sovereigns outside the constitutional framework, and analogies to American Indians misconstrue both the history and legal status of peoples who predate the United States.

The Constitution’s American Indian law exception is controversial enough, but it was created by the document itself, arising as a unique historical compromise with pre-constitutional realities, and Congress still retains a great amount of oversight. Once the Constitution was ratified, no government organized under it could create another government that can exempt itself from the Bill of Rights as it sees fit.

But if the Akaka bill is not a constitutional end run, as its backers vehemently protest, then it is facially disallowed by the Fifth and 14th amendments’ explicit proscription against any state action that treats people differently based on their race or ethnicity. The Supreme Court found Native Hawaiians to be an ethnic group, after all, so Congress cannot pass a law giving them rights denied other Americans.

Hawaiians are not American Indians in the constitutional sense. The term “Indian tribes” has a fixed meaning, limited to pre-existing North American tribes that were “dependent nations” at the time of the founding. Such tribes, to benefit from the protections of American Indian law, must have an independent existence and “community” apart from the rest of American society, and their separate government structure must have a continuous history for at least the past century. By these standards, Hawaiians do not qualify.

As one federal court recently explained, “the history of indigenous Hawaiians … is fundamentally different from that of indigenous groups and federally recognized Indian Tribes in the continental United States.” The United States seized tribal lands and persecuted their inhabitants, while Hawaiians peaceably ended their monarchy and later overwhelmingly voted to become a state.

Moreover, aboriginal Hawaiians are not geographically segregated, but live together with people of all races. Hawaii is the most integrated and blended society in America.

Not deterred by law or principle, Sen. Akaka has proposed various forms of his bill since 2000, when the House also passed it. Last year the Senate fell just four votes shy of ending a Republican filibuster, in the absence of three Senators who would have voted for it. This year, with Democrats controlling Congress — and with Republican co-sponsorship from Alaska’s delegation, Rep. Tom Cole (Okla.) and Sens. Norm Coleman (Minn.) and Gordon Smith (Ore.) — the Akaka bill almost certainly will land on the president’s desk.

The Bush administration, which in 2005 merely suggested a few amendments, has now promised a veto based on a U.S. Commission on Civil Rights ruling. President Bush’s belated discovery of his veto pen is an encouraging sign — on this as on so many other issues — but the next occupant of the White House may not be as opposed to judging people on the basis of their skin color or national origin.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.

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