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The Natives Are Restless

Duncan Currie

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paved the way for U.S. annexation of Hawaii five years later. To mark the 100th anniversary in 1993, Congress passed and President Clinton signed a resolution apologizing to the indigenous people of the Aloha State.

The Apology Resolution vastly overstated U.S. culpability in somewhat murky events, whose interpretation was distorted by politics both at the time and since. As a result--and because of the balkanizing implications of the resolution--some 34 senators, mostly Republicans, voted against the measure, including Arizona's John McCain and former Washington senator Slade Gorton.

"The resolution accomplishes one goal," Gorton argued. "It divides the citizens of the state of Hawaii--who are of course citizens of the United States--into two distinct groups: Native Hawaiians and all other citizens." According to Gorton--and despite the disavowals of the bill's Senate cosponsors, Hawaii Democrats Daniel Inouye and Daniel Akaka--"the logical consequence of this resolution would be independence."

He was prescient. Thirteen years later, Congress is mulling the Native Hawaiian Government Reorganization Act, which would accord "Native Hawaiians" the same legal sovereignty as American Indians and Alaska Natives and allow them to create their own race-based governing structure. Would this lead to Native Hawaiian independence?

"That could be," Akaka told National Public Radio last summer. "I'm leaving it up to my grandchildren and great-grandchildren." Akaka, whose office drafted the Senate bill, has been pushing for Native Hawaiian "self-government and self-determination" since at least the Clinton administration.

Building on the Apology's reference to the "inherent sovereignty" of the Native Hawaiian people, Akaka's current legislation would grant membership in a new Native Hawaiian "tribe" to anyone who can trace their ancestry to "the aboriginal, indigenous, native people" living in Hawaii "on or before January 1, 1893." You also qualify if your ancestors were eligible in 1921 for largesse from the Hawaiian Homes Commission Act, which stipulated at least one-half Native Hawaiian blood. (The Akaka bill itself requires no specific blood quantum.) More than 20 percent of Hawaii's 1.2 million citizens identify themselves as either wholly or partly Native Hawaiian, which would mean they are descended from the Polynesians who settled the islands a thousand years ago. Some 400,000 such Native Hawaiians are scattered throughout Hawaii and the rest of the United States.

The Akaka bill falsely assumes that Hawaii's pre-1893 political system was racially homogenous. In fact, a flood of Caucasian, Japanese, and Chinese immigration to the islands began in the mid-19th century, thanks to the growth of sugar and pineapple plantations. The monarchical governments were multiracial, as was Hawaiian society.

Indeed, Hawaii has long billed itself as a paragon of ethnic harmony and racial fusion. Former Hawaii governor Jack Burns, first elected in 1962, "was fond of saying that the easy relations between men of various races in Hawaii represented the best hope of mankind," writes historian Gavan Daws. Rates of intermarriage today are high--more than ten times the national average, according to one Census estimate--further diluting any "Native Hawaiian" purity. The state's most famous political figures include Hawaiian-Chinese and Hawaiian-Japanese. Hawaii's current governor is Jewish.

Some 94 percent of Hawaiians voted for statehood in a 1959 plebiscite. But the past decade has witnessed a flare-up of separatist, and often anti-American, passions, marked by street demonstrations in 1998 (the centennial of U.S. annexation) and in August 2005, after the Ninth U.S. Circuit Court of Appeals ruled that the racial-preference policy at a well-known Native Hawaiian private school was unconstitutional. (The court has since agreed to reconsider its decision.) Many of Hawaii's more radical independence advocates have zinged the Akaka bill for being wimpy: It accepts the "continued foreign domination" of Hawaii by the U.S. government, one activist told the New York Times last summer. These folks want outright secession.

Which brings us to the question: What precisely would a Native Hawaiian governing council do, and what benefits would its members enjoy?

Pro-sovereignty forces insist they have no desire to build tribal casinos, as Indians have done. But opponents expect a flurry of litigation over property claims. The Native Hawaiian government would negotiate directly with state and federal officials. It would conceivably be exempt, as Indian tribes are, from portions of the Bill of Rights and from the Fourteenth Amendment. In effect, Native Hawaiians would be subject to a different legal code than other Americans.

Here's where geography could really muddy the waters. Besides not being a distinct political community, Native Hawaiians are not concentrated in one place; they live all across Hawaii, and all across the United States. For that matter, many reside abroad. "Somebody with Hawaiian ancestry living in Frankfurt, Germany, could be a member of this new Hawaiian nation," says Dick Rowland, president of Hawaii's Grassroot Institute, which opposes the Akaka bill. "Now, I have no idea what the hell that means."

It could mean nonstop racial litigation. Small wonder that, in mid-May, the U.S. Commission on Civil Rights issued a report urging Congress to reject Akaka's bill--and to reject "any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege." A few Senate Republicans have vigorously opposed the legislation--including Arizona's Jon Kyl, Tennessee's Lamar Alexander, Kentucky's Mitch McConnell, Oklahoma's Tom Coburn, and Alabama's Jeff Sessions.

"What this bill does is deny equal protection," Alexander told me. "We're gradually eroding what it means to be an American." He disputes the analogy with Indian tribes. "We've never recognized a new Indian tribe, only existing tribes." He notes that Mexican separatists might use the Akaka bill as a pretext for demanding their own sovereign nation in the American Southwest.

The critics get succor from a 2000 Supreme Court decision, Rice v. Cayetano, which focused on the Office of Hawaiian Affairs (OHA), an entity created by the state in 1978 chiefly to promote the welfare of indigenous Hawaiians. Voting rights in OHA trustee elections were restricted to Native Hawaiians who satisfied a racial blood quota. The Court ruled this violated the Fifteenth Amendment's guarantee of equal voting rights for all citizens. A concurring opinion, written by Justice Breyer and joined by Justice Souter, looked askance at the broad definition of Native Hawaiian tribal status embraced by the OHA.

It was in response to Rice that Akaka first introduced a Native Hawaiian sovereignty bill in July 2000. The House passed similar legislation a few months later. Ever since, Akaka has been trying to get his measure to the Senate floor, with no luck. But GOP Senate leader Bill Frist promised him a much-belated cloture vote the week of June 5, when Congress returns from recess. Odds are it will pass. The Patton Boggs law firm, a titan of K Street lobbying, is pushing the legislation full throttle. Democratic support appears to be near universal. And Republican resistance has been meager.

It's hardly surprising that Alaska's two GOP senators, Ted Stevens and Lisa Murkowski, are cosponsoring the Akaka bill; the Alaska and Hawaii delegations have famously close ties. What is surprising is to see such Republican cosponsors as South Carolina's Lindsey Graham, Minnesota's Norm Coleman, and Oregon's Gordon Smith. Perhaps they simply followed the lead of Hawaii governor Linda Lingle, the first Republican elected governor since 1962. Lingle, who campaigned on the issue of native sovereignty in 2002 and is a friend of the Bush White House, has told the New York Times there are at least 6 GOP senators who are prepared to vote with the entire 45-member Democratic caucus in favor of Akaka's bill. "I feel that we have the votes," Akaka told me.

Which means, barring a presidential veto, Native Hawaiian sovereignty may soon be a reality. Get ready for the lawsuits, if not the casinos.

Duncan Currie is a reporter at The Weekly Standard.

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