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The concept of e pluribus unum holds that the diverse peoples of the various states are bound together in a government that protects the rights of all. In 1959 the people of Hawaii voted decisively in favor of statehood, with 94.33 % marking their ballots “Yes” to become part of the United States. Last week a vote of no less import took place, not in Hawaii or by the citizens of Hawaii, but five thousand miles away in the halls of Congress. This vote was to determine if Hawaii would continue to exist as a state with a common government granting equal protection under law or whether it would be split in two, with one part granting citizenship and special privileges only to some on the basis of race. Fortunately for all involved, the bill was defeated— but barely, with 56 Senators voting to move forward with the Democrat sponsored separatist bill in a vote that required 60 votes.
The Akaka bill would create a new, separate and sovereign government for around 400,000 Native Hawaiians, defined as anyone with at least one ancestor “indigenous” to Hawaii. This is the same ancestral definition the Supreme Court held in Rice v. Cayetano to be a racial classification and to be unconstitutional under the 15th Amendment as a basis on which to offer privileges, in that case, special voting rights. In granting sovereign status, the bill is designed to protect the Office of Hawaiian Affairs’ practice of discriminating against all but Native Hawaiians through special home loans, business loans, and educational programs.
Section 2 of the 1959 Admission Act states that the State of Hawaii “shall consist of all the islands” of Hawaii, but the Akaka bill condones reduction of the public lands owned by the State and the territory over which the State has jurisdiction. The bill authorizes State officials, without the consent or approval of the citizens of Hawaii, to give away public lands and governmental authority and jurisdiction now held by the State on behalf of all its citizens and covering all the islands to the new Native Hawaiian government.
The bill’s proponents argue this partition of Hawaii is necessary to give Native Hawaiians “parity” with other indigenous people of the United States. After all, they say, the United States has long recognized the sovereign status of Indian tribes. But that argument is deceptive.
The history of Native Hawaiians and their relationship with the United States does not resemble Indians’. The sovereign kingdom of Hawaii was never a tribal organization. Hawaiians of all races participated fully in the government as citizens, having the franchise and holding legislative and other public offices.
The United States has granted tribal recognition only to groups that have a long, continuous history of self-governance. Akaka’s one-drop requirement is itself the strongest proof that no such entity exists. By retroactively creating a new sovereign government out of individuals who are citizens of both the United States and the State of Hawaii and are not part of any existing tribe, the Akaka bill will be setting a disturbing precedent.
Some 60 tribes from all parts of the country were relocated to Oklahoma in the 1800’s. Descendants of each of those tribes would be arguably entitled to create their own new governments in the states where they originated. What will become of the indivisible union composed of indestructible states, and the promise of equal protection under the law? The public lands of Hawaii have been held in the public trust for over a century, and Hawaii has been a multi-ethnic polity since the founding of the kingdom in 1810 by Kamehameha. Justice Kennedy noted in his opinion in Rice that equal protection under the law is the “heritage of all the citizens of Hawaii.” By creating a sovereign entity to protect special privileges, the Akaka bill not only denies equal protection but also repudiates the democratic principle that diverse peoples can be united in the common rights of the constitution. When privilege is able to usurp these universal rights in one state, these rights are endangered in all states.
Let’s hope the recent Senate vote will be the last we hear of this divisive piece of legislation.