By George F. Will
Thursday, November 29, 2007
"I decide who is a Jew around here."
-- Hermann Goering in 1934, when told that a favorite Munich art dealer was Jewish.
Under legislation that the House of Representatives has voted 261 to 153 to foist on Hawaii, Goering's role would be played by a panel empowered to decide who is a "Native Hawaiian" and entitled to special privileges and immunities. Because there are perhaps only 7,000 "pure" Native Hawaiians, "Hawaiian blood" will inevitably be the criterion, and the "one-drop rule" probably will prevail. Goering would have approved of this racialist sorting-out.
Those designated Native Hawaiians would be members of a new "tribe" conjured into existence by Congress. But Congress cannot legitimately do that.
In 1959, 94 percent of Hawaiians, including a large majority of Native Hawaiians, voted for statehood. Opposition was strongest among Southern Democrats in Congress, who, with the civil rights revolution simmering, were wary of Hawaii's example of multiracial harmony.
Today, the Native Hawaiian Government Reorganization Act, when accurately described, is opposed by a large majority of Hawaiians and supported by only a bare majority of the approximately 240,000 Native Hawaiians in the state. The legislation, sponsored by Sen. Daniel Akaka, is a genuflection by "progressives," mostly Democrats, to "diversity" and "multiculturalism."
It would foment racial disharmony by creating a permanent caste entitled to its own government -- the Native Hawaiian Governing Entity -- within the United States. The NHGE presumably would be exempt, as Indian tribes are, from the Constitution's First, Fifth and 14th amendments. It would, Akaka says, negotiate with the state of Hawaii and the United States concerning "lands, natural resources, assets, criminal and civil jurisdiction, and historical grievances."
Reparations? We shall see. Independence -- secession? "That could be," Akaka, 83, has said, depending on "my grandchildren and great-grandchildren."
The seeds of this weed were sown in 1993, when Congress passed a tendentious apology for supposed U.S. complicity -- which was neither clear nor essential -- in the peaceful 1893 overthrow of Queen Liliuokalani's monarchy by Hawaiian residents. The novelty of America apologizing for a monarch's fall was followed in 2000 by a Supreme Court ruling overturning a Hawaiian law that excluded everyone except Native Hawaiians from voting in a statewide election for trustees of a state agency. This, the court said, violated the Constitution's guarantee of equal protection of the laws and proscription of racial discrimination in voting.
This ruling raised doubts about the constitutionality of the racial spoils system administered by that agency, the Office of Hawaiian Affairs. Which is perhaps why Akaka decided the reorganization act was necessary despite what he has called, with weird defensiveness, his state's "perceived harmony."
There are 400,000 Native Hawaiians nationwide who will be eligible to participate in creating the NHGE. Native Hawaiians are 20 percent of Hawaii's population. They are defined as direct lineal descendants of indigenous peoples who lived on the islands before 1893 and who exercised sovereignty then -- an unintelligible provision because the queen monopolized sovereignty. She, however, was more enlightened than Akaka. She did not distinguish between Native Hawaiians and immigrants, who served in her government.
Under President George Washington, the U.S. government's Indian policy was a facet of foreign policy because tribes were considered foreign nations. The Constitution speaks not of native "peoples" but only of "Indian tribes." Akaka's legislation would create a Native Hawaiian "tribe" as a nation within the nation.
Unlike Indians, however, Native Hawaiians' land was not taken by force. They are not a compact community -- they are woven into the fabric of one of America's most polyglot states. They chose to bring themselves under the Constitution by embracing statehood.
Congress does not create tribes; it recognizes them according to settled criteria: Tribes were nations when the Constitution was written and are geographically separate and culturally distinct communities whose governments have long continuous histories. As the state of Hawaii has said, "The tribal concept simply has no place in the context of Hawaiian history."
Virtually all Democrats and a few inexplicable Republicans support this legislation, which will further inflame the ethnic grievance industry. Imagine the lesson that some descendants of Hispanics who lived in the Southwest before 1848 would learn from it. A Republican president would veto it. A Democratic president would sign it -- Sens. Biden, Clinton, Dodd and Obama support it -- but the Supreme Court would shred this plan for different laws for different races. Still, the legislation is an important symptom of Democrats' constitutional flippancy and itch for social engineering.
"One nation, indivisible"? Not for the House majority or the Senate committee that has approved Akaka's mockery of the Pledge of Allegiance.