Lawrence Downes of the New York Times writes in support of the Native Hawaiian Government Reorganization Act of 2005, S.147, which would give Native Hawaiians the rights of self-government as indigenous people that American Indians now enjoy.
Downes suggests the bill precludes “radical outcomes.” Don’t believe it. As Tim Chapman notes, the bill would create a race-based extra-constitutional government in Hawaii. This new race-based government, Chapman says, “would be allowed to deny its constituents the protections afforded by the 1st, 5th and 14th Constitutional Amendments because they would not apply to the new ‘tribal government.'”
Constitutional lawyer Bruce Fein had this to say about an earlier incarnation of the bill, S. 344, last fall:
The Native Hawaiian government would be unbothered by the “irritants” of the U.S. Constitution. Thus, it might choose theocracy over secularism; summary justice over due process; indoctrination over freedom of speech; property confiscations over property rights; subjugation over equality; or, group quotas over individual merit. The Native Hawaiian citizens of the Native Hawaiian government would also be exempt from swearing or affirming allegiance to the United States of America or the U.S. Constitution.
The race-based sovereignty created by S.344 is first cousin to a revolution against the United States. As the Declaration of Independence elaborates, revolutions may be justified by repression or deafness to pronounced grievances. Thomas Jefferson’s indictment of King George III is compelling on that score. But S. 344 does not and could not find Native Hawaiians are oppressed or maltreated in any way. They are first-class American citizens crowned with a host of special privileges. Indeed, the proposed legislation acknowledges that, “Native Hawaiians… give expression to their rights as native peoples to self-determination and self-governance through the provision of governmental services to Native Hawaiians, including the provision of health care services, educational programs, employment and training programs, children’s services, conservation programs, fish and wildlife protection, agricultural programs, native language immersion programs and native language immersion schools from kindergarten through high school….”
Not a crumb of legitimate grievance justifies the odious race-based government championed by S. 344. To borrow from Associate Supreme Court Justice Antonin Scalia in Adarand Construction vs. Pena (1995), in the eyes of the law and the creed of the United States, there is only one race in the nation. It is American. And to be an American is to embrace the values of freedom, individual liberty and equality acclaimed in the Declaration of Independence, Constitution and Gettysburg Address. S.344 would create a distinct race of Native Hawaiians subject to a race-based Native Hawaiian government with the purpose of creating and preserving non- American values: namely, “Native Hawaiian political and cultural identity in accordance with their traditions, beliefs, customs and practices, language, and social and political institutions.”
Native Hawaiians hold no more right to a race-based government than countless other racial or ethnic groups in the United States. They are no more entitled to secede from the jurisdiction of the U.S. Constitution than were the Confederate States of America. Enacting S. 344 would surrender the intellectual and moral underpinnings of the United States.
The U.S. Senate is likely to vote on the bill within the next two weeks.