The Native Hawaiian Government Reorganization Act is sitting in Congress and may be passed in the rush of the final days before the holiday recess. Sponsored by Senator Daniel Akaka, the bill would transfer a percentage of public-owned lands to a native Hawaiian government within the state of Hawaii. The legislation would collect some 400,000 ethnic Hawaiians scattered across the country into a newly affiliated tribe, eventually endowed with the powers of a sovereign state, including freedom from state taxes and regulations and a separate police force.
In theory, this would simply give Native Hawaiians the same legal status that other Native Americans now possess: they would be classified as a legal tribe with certain powers and also exemption from some laws of the United States, most notably laws regarding taxation. However, the bill goes far beyond what is normal for Indian tribes.
Unlike Indian tribes made up of tightly knit populations that have lived together continuously, participation in the new group would be available to nearly anyone able to trace their roots back to a Native Hawaiian ancestor, no matter where they now reside.
Under the Akaka bill, someone will have to divine exactly who qualifies as a Native Hawaiian. In the bill's current version, the determination would be handled by a nine member commission staffed by experts in native Hawaiian genealogy. That, says the U.S. Civil Rights Commission, amounts to racial discrimination and would "subdivide the American People into discrete subgroups accorded varying degrees of privilege."
The Supreme Court has already ruled that elections based on a blood quota violate the Fifteenth Amendment's ban on restricting voting along racial lines. In its 2000 decision in Rice v. Cayetano, the Court held that the Office of Hawaiian Affairs could not hold elections limited to ethnic Hawaiians. "Ancestry can be a proxy for race," the court wrote, "and is that proxy here."
The Akaka bill doesn't offer specifics on which lands and natural resources would be transferred to a new sovereign Hawaiian state. Some proponents are demanding all lands taken by the U.S. government including military bases and national parks which could be leased back at market value. 38% of the land in Hawaii is publicly owned and therefore could become part of the new "nation."
Polls show that despite the support of the Congressional delegation, Hawaiians themselves have mixed feelings. According to a Zogby poll this week, a majority of Hawaiians oppose the bill and 76% oppose higher taxes to pay for the new nation tribe. Even Hawaii Governor Linda Lingle, a longtime proponent of the legislation, has been having second thoughts about her support after proposed changes to the text this week.
U.S. Civil Rights Commission member Gail Heriot told Congress in June that, "If ethnic Hawaiians can be accorded tribal status, why not Chicanos in the Southwest? Or Cajuns in Louisiana?"