In today’s Wall Street Journal, Gail Heriot and Peter Kirsanow of the US Commission on Civil Rights have an interesting op ed criticizing the Akaka Bill, which I myself criticized on federalism grounds in this post:
Last week, the House of Representatives, in a largely party-line vote, passed the Native Hawaiian Government Reorganization Act. Popularly known as “the Akaka bill,” this piece of legislation might turn out to be this Congress’s single most calamitous decision.
The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.
The method used to create this tribe should make everyone squeamish. The bill delegates the delicate task of deciding who may join the tribe to a federal commission appointed by the secretary of the Interior. Ultimately, the tribe itself will have the power to expel members or invite new ones.
Earlier versions of the bill demanded that the secretary appoint only ethnic Hawaiians as commissioners. In the current version, only those with “10 years of experience in the study and determination of Native Hawaiian genealogy” and “an ability to read and translate . . . documents written in the Hawaiian language” may serve on the commission. These commissioners will examine an applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe….
First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of transforming a racial group into a tribal group confers a privilege on one race and not others and is thus unconstitutional. Second, while the Constitution implicitly gives the federal government the power to recognize tribes with a long and continuous history of separate self-governance, it does not give the power to confer sovereignty on new tribes, or to reconstitute a tribe whose members have long since become part of the mainstream culture.
If it did, all manner of mischief could be accomplished, as ethnic Hawaiians will not be the last group to demand special status. Some activists argue that Southern California should be set aside as a homeland for Mexican Americans of Indian descent. Right now, that idea looks like pure fantasy. If the Akaka bill becomes law, it will suddenly become more plausible.
What’s more, the Amish in Pennsylvania and the Orthodox Jews in New York could also start to see a benefit from constituting themselves as a tribe, since tribes, unlike federal and state governments, are free to establish theocratic governments. On what ground will Congress say no to these and other would-be tribes?
CONFLICT OF INTEREST WATCH: As noted in my previous post on this subject, my fiancee is Gail Heriot’s special assistant at the US Commission on Civil Rights. Because of the federalism issues noted in that post, I was opposed to the Akaka Bill long before I met my fiancee and also before she got her present job last year.
John Skookum says:
I am amused by how much overlap there is between those who support this repellent law, and those who heaped the most venomous abuse on Sarah Palin for the crime of being married to an Eskimo who once supported the Alaska Independence Party.
March 1, 2010, 2:00 amRicardo says:
I think the criticism of this law is spot on. But in regards to your remark on Sarah Palin, aren’t you stretching just a bit in your gotcha attempt? Wikipedia reports that Todd Palin’s father is a native of Seattle (and therefore unlikely to be an eskimo) while his mother is reportedly one-quarter Yup’ik. So he’s one-eighth eskimo. Indeed, he looks very much like a person of palor in his photo. Interpreting the “one-drop” rule a bit literally, aren’t we?
March 1, 2010, 3:57 amDennis Nicholls says:
The legal treatment of the Indians as separate nations in North America made some sense back when there was a frontier, but this hasn’t been the case for over 100 years now. Reservations that I’ve visited have generally not been prosperous – far from it. It would be an interesting topic for someone to write a law review article about a “Native American Citizenship” Constitutional Amendment, which would make Indians ordinary and regular citizens of the US with all the rights and privileges of such.
Disclosure: my mom’s dad was supposedly part Blackfoot nation.
March 1, 2010, 4:47 amgeokstr says:
But then again, most “reservations” are not located in wildly popular holiday, vacation and convention destinations, with some of the best climate, beaches, surfing and scenery in the world.
March 1, 2010, 6:58 amGail Heriot and Peter Kirsanow on the Akaka Bill | Liberal Whoppers says:
[...] the original: Gail Heriot and Peter Kirsanow on the Akaka Bill [...]
March 1, 2010, 7:04 amMark N. says:
It wasn’t a constitutional amendment, but all Native Americans do have full U.S. citizenship since the Indian Citizenship Act of 1924, and all the rights and privileges that entails. Their tribal membership is in addition to rather than instead of American citizenship, and they’re free to live anywhere in the United States, and choose to associate with their tribe or not, as they prefer.
March 1, 2010, 7:05 amJohn Skookum says:
He’s an enrolled member of the Yup’ik tribe. For that matter, so are their kids. I don’t think the degree of sanguinuity detracts from my observation.
March 1, 2010, 9:06 amHouston Lawyer says:
The ability to make treaties with tribes made perfect sense at the time it was written. But clearly we have moved on and tribes represent little more than ethnic groups, no different from being of German or Polish descent. Their separate treatment under the law should be abolished.
March 1, 2010, 9:54 amUS House Vote To Divide Hawaii on Basis of Race | KEYTLaw says:
[...] Somin, Associate Professor of Law, George Mason University, comments on this issue and on a related op-ed in the February 28, 2010, Wall St. Journal called “Congress Tries to [...]
March 1, 2010, 10:10 amMCM says:
Socially-constructed nonsense breaks down under close scrutiny. News at 11.
March 1, 2010, 10:21 amlgm says:
The WSJ Editorial page might be right, but if so, it’s an accident.
March 1, 2010, 11:00 amU.Va. Grad says:
It seems to me that the facts of United States v. John match up reasonably well with the history of native Hawaiians. If the federal government didn’t lose the ability to federally recognize and reserve land for the Mississippi Choctaw despite decades of the federal government abandoning its supervisory authority over the tribe, and despite a treaty clause specifically providing that the Mississippi Choctaw were to become citizens of Mississippi, while remaining silent about citizenship in the U.S. generally, why would the federal government lose the ability to designate native Hawaiians an Indian tribe, or something like it?
March 1, 2010, 11:24 amBrad Ford says:
As a Mexican-American of Indian descent, I am all for this bill.
If there is Casino money to be had, I want in on it. :-)
March 1, 2010, 11:26 amJust Dropping By says:
First, the Akaka bill privileges what is in fact a race, not a tribe.
I’m hard pressed to see the distinction in this situation. The bill doesn’t relate to all people of Polynesian ancestry, just people of specifically native Hawaiian ancestry, which isn’t a “race” in any conventional ethnographic sense that I’m aware of. I also suspect, from an originalist perspective, that if you went back to the Framers and asked them, they would have considered native Hawaiians of the time to be a form of “Indian”. I certainly know that I’ve seen 19th and early 20th Century sources that referred to the more primitive peoples of the Philippines as “Indians.” Google “Moro indians” for examples. Also a check of Project Gutenberg shows that Captain James Cook’s logs have references to the Maori of New Zealand and certain peoples of the Indonesian islands as “Indians,” although it appears that he simply referred to the Hawaiians as “natives”.
http://www.gutenberg.org/files/8106/8106-h/8106-h.htm
March 1, 2010, 1:15 pmJim M says:
This is a little bit of a non sequitur argument since neither of this groups were indigenous to the land prior to the arrival of Europeans. I do believe that indigeneity would have to be a factual claim before you can call for an establishment of a tribe. Tribe may be an unfortunate term since it applies to a kinship structure that may or may not have existed. However, it does appear that the establishment is being attempted on a tribal basis by blood quantum (which was invented for census purposes and never really existed in Indian society prior to its creation for counting).
March 1, 2010, 3:04 pmtheobromophile says:
The second that the Catholics or the Evangelicals set themselves up as a self-governing tribe with theocratic rule, the same people who are cheerleading for the Akaka Bill will come out, screaming and yelling and stomping their feet in rage.
On a side note, once upon a time, integration was thought to be a good thing.
March 1, 2010, 3:32 pmWandering Mind says:
The fundamental approach to this issue is rooted in American racial concepts.
There has been a longstanding problem in this country stemming from the use of that concept because it has no biologically valid basis, but we have pretended that it does. “Race” simply means to trace the descendants of a particular group beginning at a particular point in time. (The origin of race is from the word “ray”). The trait or traits which are used can vary and are not important to understanding the concept. One could have a race of carpenters just as well as one can have a race of whites, blacks or any other group.
With this in mind, the way in which tribes are determined in this country (i.e. by blood quantum) is, in fact only an imposition of 19th century American ideas about race on the Indian tribes. (As such, it limits their ability to expand as political units in ways which other nations are not, but that may have been an intended result.)
It is impossible to make a distinction between Hawaiians and the Indian tribes if one recognizes that all are indigenous peoples who were conquered by Europeans and who now fall within the jurisdiction of the United States. (I.e.they ain’t like the Amish).
Setting up a commission to determine who is a native hawaiian is not much different from what was done to cherokees and other tribes in the late 19th and early 20th century. The United States has made some sort of commitment to the descendants of those who were conquered through the reservation system and other means. Why should Native Hawaiians be excluded? The system is flawed because of the overlay of racial concepts and the actions taken are inadequate because the United States has no intention of ever giving back the lands taken by conquest. It has recognized the wrong without providing for a full remedy, only a partial one.
This approach by congress will certainly raise issues of equal protection, as the Hawaiian legislature’s attempts to address the same issue have in the past. It is also likely that the Supreme Court will fail to resolve the issue satisfactorily, if it ever reaches the Court.
The Supreme Court has long struggled with the question of what race is and is not. This is because the Court refuses to acknowledge that this concept’s only reason for being in the U.S. was to limit full citizenship to those males who qualified as “white” and to impose various limitations on everyone else. The racial system is a way to justify inequality in a country devoted to the concept of equality. The Indian tribes and Native Hawaiians are simply some of the groups who fall outside of the “white” group and therefore had political disabilities imposed upon them.
Failing to recognize the nature of the U.S. racial system as a system of inequality meant to institutionalize the advantages of “white” people leads to illogical results, as various institutions try to find some means of explaining the system in a “neutral” way. If and when the Supreme Court hears a challenge to the Akaka bill, past experience indicates that they will all miss the boat and add yet another chapter to the muddled reasoning on this issue that is the inevitable result of denial of our past.
March 1, 2010, 5:17 pmPubliusFL says:
That seems doubtful. ‘Ray’ comes from Latin radius. One proposed origin of ‘race’ is Latin radix (‘root’), but if radix and radius are related it must be further back in the Indo-European family tree than Latin. Other etymologies have been proposed for ‘race’ that seem to be more widely accepted. Here‘s an interesting article on the subject.
March 1, 2010, 5:49 pmDennis Nicholls says:
Interesting. I’m wondering whether the 14th Amd. did away with the “excluding Indians not taxed” clause of Art. I section 2. Does anyone know whether Native Americans pay federal income tax in accordance with the XVI Amd.? Are Native Americans included in the present-day census?
March 1, 2010, 6:10 pmWandering Mind says:
I am using the following definition from Noah Webster’s Original 1828 Edition Dictionary, Volume II, Johnson Reprint Corporation, New York and London (1970):
“RACE, n [Fr. race, from the It. razza; Sp. raza, a race, a ray, and raiz, a root, L. radix; Russ. rod, a generation, race; roju, to beget. The primary sense of the root is to thrust or shoot; the L. radix and radius having the same original. This word coincides in origin with rod, ray, radiate, etc. Class Rd.]
1. The lineage of a family, or continued series of descendants from a parent who is called the stock. A race is the series of descendants indefinitely. Thus all mankind are called the race of Adam; the Israelites are of the race of Abraham and Jacob. Thus we speak of a race of kings, the race of Clovis or Charlemagne; a race of nobles, etc.”
March 1, 2010, 7:29 pmohwilleke says:
Why are native Hawaiians any less a tribe than other native peoples in the United States?
Hawai’i was under the united and sovereign political leadership of diplomatically recognized King Hamehameha I as of 1810 in a dynasty that endured until 1893 when it was overthrown in a manner surely illegal under Hawai’ian law by Sanford B. Dole (yes, the Pineapple guy), a U.S. national, and annexed four years later as a U.S. territory with no political rights not granted solely at the whim of Congress until 1959. The 1887 constitution of Hawai’i adopted at gunpoint that preceded the 1893 declaration of a Republic certainly wouldn’t have been considered valid under any modern conception of democracy and would have violated the 14th Amendment if it had been adopted in a U.S. state.
Since the guns in 1893 were held by U.S. Marines, without authority to make war on Hawai’i, this is is serious issue. The administration of President Grover Cleveland’s Blount Report (the commander and chief of the soldiers holding the guns in 1893), found that the removal of then Queen Liliʻuokalani in 1893 was illegal. Congress reaffirmed that finding in 1993, with a joint Apology Resolution regarding the overthrow was passed by Congress and signed by President Clinton, apologizing for the overthrow of the Hawaiian Kingdom.
Hawai’i had its own language which has been preserved, and its natives shared a more than thousand year old shared political history (not always unified, there were several warring states immediately prior to Captain Cook’s arrival in 1778) of self-government prior to European contact. Few other U.S. tribes managed to retain such a large share of its members (about 9% of the current Hawaiian population) in their traditional lands.
If there were a racial claim, membership would extend to all Polynesian Pacific Islanders, at least, rather than to all Hawai’ians. This claim isn’t one that is being made.
A suspension of self-government at U.S. government insistence during a period of territory rule was not found to deprive the Cherokee Nation of sovereignty in the period from 1906-1976 following federal dissolution of the tribe from 1898 to 1906, and weren’t a single political unit prior to European contact.
The Estate of Princess Bernice Pauahi Bishop, Hawaii’s largest private landowner, was created in 1884 by the will of the princess, a descendant of King Kamehameha, while Hawai’i was sovereign for the benefit of the education of Native Hawai’ians and provides some vestige associated with the overthrown sovereign government in the sense of a genuine legal embodiment tracing direct roots to the old regime, effectively as a de facto tribal government. The estate’s 337,000 acres of land in Hawai’i exceeds the territory of many tribal governments.
One can be ambivalent about tribal government within the United States as a concept, but native Hawai’ians probably have a better claim to tribal status than most other recognized U.S. tribes.
March 1, 2010, 7:30 pmohwilleke says:
Why are native Hawaiians any less a tribe than other native peoples in the United States?
Hawai’i was under the united and sovereign political leadership of diplomatically recognized King Hamehameha I as of 1810 in a dynasty that endured until 1893 when it was overthrown in a manner surely illegal under Hawai’ian law by Sanford B. Dole (yes, the Pineapple guy), a U.S. national, and annexed four years later as a U.S. territory with no political rights not granted solely at the whim of Congress until 1959. The 1887 constitution of Hawai’i adopted at gunpoint that preceded the 1893 declaration of a Republic certainly wouldn’t have been considered valid under any modern conception of democracy and would have violated the 14th Amendment if it had been adopted in a U.S. state.
Since the guns in 1893 were held by U.S. Marines, without authority to make war on Hawai’i, this is is serious issue. The administration of President Grover Cleveland’s Blount Report (the commander and chief of the soldiers holding the guns in 1893), found that the removal of then Queen Liliʻuokalani in 1893 was illegal. Congress reaffirmed that finding in 1993, with a joint Apology Resolution regarding the overthrow was passed by Congress and signed by President Clinton, apologizing for the overthrow of the Hawaiian Kingdom.
Hawai’i had its own language which has been preserved, and its natives shared a more than thousand year old shared political history (not always unified, there were several warring states immediately prior to Captain Cook’s arrival in 1778) of self-government prior to European contact. Few other U.S. tribes managed to retain such a large share of its members (about 9% of the current Hawaiian population) in their traditional lands.
If there were a racial claim, membership would extend to all Polynesian Pacific Islanders, at least, rather than to all Hawai’ians. This claim isn’t one that is being made.
A suspension of self-government at U.S. government insistence during a period of territory rule was not found to deprive the Cherokee Nation of sovereignty in the period from 1906-1976 following federal dissolution of the tribe from 1898 to 1906, and weren’t a single political unit prior to European contact.
The Estate of Princess Bernice Pauahi Bishop, Hawaii’s largest private landowner, was created in 1884 by the will of the princess, a descendant of King Kamehameha, while Hawai’i was sovereign for the benefit of the education of Native Hawai’ians and provides some vestige associated with the overthrown sovereign government in the sense of a genuine legal embodiment tracing direct roots to the old regime, effectively as a de facto tribal government. The estate’s 337,000 acres of land in Hawai’i exceeds the territory of many tribal governments.
One can be ambivalent about tribal government within the United States as a concept, but native Hawai’ians probably have a better claim to tribal status than most other recognized U.S. tribes.
March 1, 2010, 7:30 pmohwilleke says:
The 14th Amendment didn’t, but statues did. Native Americans pay federal income tax and are included in the present-day census.
March 1, 2010, 7:32 pmohwilleke says:
Perhaps it should, but it doesn’t change the fact that Hawai’i was annexed to the United States by the President with approval of the U.S. Senate under the treaty power (admittedly with a successor government of doubtful legitimacy, by a just barely sufficient 42-21 vote) rather than the immigration power.
March 1, 2010, 7:37 pmohwilleke says:
Sarah Palin was seeking to become Vice President of the United States, not seeking recognition of sovereignty from Congress.
March 1, 2010, 7:38 pmloki13 says:
1. I don’t really like this law.
2. I don’t really like Sarah Palin.
3. I was unaware her husband was native american (even in part), and certainly didn’t hear any abuse heaped upon him in my arugula-eatin’ circles. Care to cite?
Do I think Skookum is bunkum? You betcha!
March 1, 2010, 7:46 pmohwilleke says:
“Some activists argue that Southern California should be set aside as a homeland for Mexican Americans of Indian descent.”
Are there organized Mexican-Americans of Indian descent today who can historically establish that they were fellow members of a single sovereign indigeneous political entity, and share some continuity of community in the interim? If so, I’d be interested in hearing about it.
In any case, the establishment of tribal status certainly doesn’t automatically come with title to lands (such as Southern California). Most U.S. Indian tribes were in fact forcibly removed from their ancestral lands (e.g. the Trail of Tears) and resettled elsewhere. There is no authority for the proposition that recognition of a tribe carries with it any property entitlement. I am not aware of any tribe in the lower 48 (or Hawaii) that has full title to their entire traditional lands; perhaps there are a few that do in Alaska (and in Canada).
March 1, 2010, 7:49 pmPubliusFL says:
But the Kingdom of Hawai’i wasn’t a tribal entity under a tribal form of government. It was a modern constitutional monarchy that allowed for full representation of non-native immigrants. And I’m not just talking about the 1887 constitution. The Hawaiians as a tribe moved beyond tribal government long before the U.S. started pushing in. Was there any kind of tribal sovereignty under the Kingdom of Hawai’i?
March 1, 2010, 8:13 pmDennis Nicholls says:
The local tribes in California (e.g. Modoc, Pomo, Chumash, et al.) had NO historical ties to what we could now call the “Mexican Indians”: the Aztecs and the Toltecs. California arose as part of the Spanish empire. When the Spanish were kicked out circa 1820, the newly-formed Mexican government claimed California too, even though their writ hardly mattered in California. The Americans kicked the agents of the Mexican government out in the 1840s and claimed California for the US. Notice that these agents of the Mexican government were white Europeans of Spanish descent – which is what the term “Mexican” originally meant. Only recently did the term “Mexican” refer to descendents of the Aztecs and Toltecs.
March 1, 2010, 8:22 pmloki13 says:
And by the way, for those of without a dog in this fight, the most important question that naturally occurs-
Does this mean there will be awesome casinos in Hawaii now?
March 1, 2010, 8:46 pmS says:
But non-natives could always become a part of a tribe.
March 1, 2010, 9:14 pmTatil says:
This is the heart of the matter and a significant assertion. Of course, no proof or even “persuasive analysis” is offered to support this claim. I doubt I would get a good grade on such an article in my freshman writing class. I always knew they were holding us to an impossibly high standard. :)
March 1, 2010, 10:35 pmJohn Skookum says:
Todd Palin is an enrolled member of the Yup’ik Eskimo tribe, and this was widely publicized during the 2008 campaign. Gov. Palin even referred to this fact in her acceptance speech. You must be a low-information Obama voter, if I may be redundant.
The abuse was not heaped upon him, it was heaped upon her in this vein: My my my. I would love to hear the harpie harp now about “palin’ around with terrorists”.
http://www.huffingtonpost.com/akmuckraker/the-accidental-secessioni_b_225149.html
March 4, 2010, 1:30 amJohn Skookum says:
Barack Obama IS the PRESIDENT of the United States, and supports this race-mongering atrocity. That does not raise an eyebrow among most leftists, including the many who did in fact criticize Sarah Palin (often in the crudest and most vitriolic manner) for her Alaskan Native husband’s previous support for Alaskan independence.
March 4, 2010, 1:35 amStop the Akaka Bill » Akaka Bill: Another Statement from Someone Who Uses the Akaka Bill to Single Out and Target Hawaiians Based on Their National Origin, Ko Hawai’i Pae Aina, While Discussing the Akaka Bill says:
[...] is another racist statement about Hawaiians being made by someone at the The Volokh Conspiracy Blog: “First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of [...]
March 8, 2010, 9:55 amHawaiian Judge Paul de Silva says:
Here are some reasons why Senator Akaka is wrong in his arguments that because Indians, Alaskan and Hawaiians are entitled to similar treatment as indigenous peoples.
June 14, 2010, 2:28 pm1. Alaska is different: The 1867 treaty under which the U.S. acquired Alaska from Russia for $7.2M in gold, noted the existence of “uncivilized native tribes” which were not to “be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” The 1884 Organic Act for Alaska provided “That the Indians or other persons in said district (Alaska) shall not be disturbed in the possession of any lands actually in their use or occupancy or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.” That land title was transferred and settled by the Alaska Native Claims Settlement Act in about the 1990’s.
2. In the case of Native Americans, the existence of Indian tribes was referred to in the Constitution in the Commerce Clause (Art. I, Sec 8) which gives Congress power to regulate commerce with foreign nations, between the states and with Indian tribes.) Chief Justice John Marshall wrote the decisions holding that Congress had the power to protect Indians from depredation by American citizens as a matter of necessity. This evolved into the concept that Indian tribes in the 48 states were dependent sovereign governments under the guardianship and plenary power of Congress; and it then evolved into 25 CFR 83 which established mandatory criteria for recognition of Indian tribes by the Bureau of Indian Affairs in the original 48 states. Indians who were members of tribes in the 48 original states and Alaska first acquired U.S. citizenship in 1924.
3. In the case of Hawaii, all citizens of the former Republic of Hawaii (including persons of Hawaiian ancestry) became full citizens of the U.S. as soon as the Hawaii Organic Act was adopted in 1900. There was no mention of claims of natives to land titles because there were no such claims. Land titles in Hawaii were settled under the Mahele in 1848 – 1852. Neither the overthrow nor annexation changed any land ownership. Public lands continued to be held by the government for all the people of Hawaii, without distinction based on race. Private lands continued to be held by the owners. There was no mention in the Annexation Act or Organic Act of Hawaiian tribes because there were no tribes. Hawaiians have continued to be governed by the same governments as the rest of the citizens of Hawaii. Even if the CFR rules for tribal recognition were made applicable to Hawaii, Hawaiians would not qualify for recognition. (Not to mention that the mutually beneficial economic, political and social relationship and intermarriage between the people of the United States and the people of Hawaii bears no resemblance to that of Native Americans.)
4. Neither Alaskans nor Indians formed multi-racial constitutional monarchies.
5. Alaskans and Indians did not invite other races to equally participate in their governments.
6. Alaskans and Indians were aboriginal peoples of their respective areas. Hawaiians are not. They are descendants of Tahitians. The aboriginal people were Marquesans.
7. Alaskans and Indians were in their territories for thousands of years. Hawaiians were here on about 700 years.
Hawaiian Judge Paul de Silva says:
Here are some reasons why Senator Akaka is wrong in his arguments that Indians, Alaskan and Hawaiians are entitled to similar treatment as indigenous peoples.
June 14, 2010, 2:49 pm1. Alaska is different: “The 1867 treaty under which the U.S. acquired Alaska from Russia for $7.2M in gold, noted the existence of “uncivilized native tribes” which were not to “be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.” The 1884 Organic Act for Alaska provided “That the Indians or other persons in said district (Alaska) shall not be disturbed in the possession of any lands actually in their use or occupancy or now claimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress.” That land title was transferred and settled by the Alaska Native Claims Settlement Act in about the 1990’s.”
2. “In the case of Native Americans, the existence of Indian tribes was referred to in the Constitution in the Commerce Clause (Art. I, Sec 8) which gives Congress power to regulate commerce with foreign nations, between the states and with Indian tribes.) Chief Justice John Marshall wrote the decisions holding that Congress had the power to protect Indians from depredation by American citizens as a matter of necessity. This evolved into the concept that Indian tribes in the 48 states were dependent sovereign governments under the guardianship and plenary power of Congress; and it then evolved into 25 CFR 83 which established mandatory criteria for recognition of Indian tribes by the Bureau of Indian Affairs in the original 48 states. Indians who were members of tribes in the 48 original states and Alaska first acquired U.S. citizenship in 1924.”
3. In the case of Hawaii, all citizens of the former Republic of Hawaii (including persons of Hawaiian ancestry) became full citizens of the U.S. as soon as the Hawaii Organic Act was adopted in 1900. There was no mention of claims of natives to land titles because there were no such claims. Land titles in Hawaii were settled under the Mahele in 1848 – 1852. Neither the overthrow nor annexation changed any land ownership. Public lands continued to be held by the government for all the people of Hawaii, without distinction based on race. Private lands continued to be held by the owners. There was no mention in the Annexation Act or Organic Act of Hawaiian tribes because there were no tribes. Hawaiians have continued to be governed by the same governments as the rest of the citizens of Hawaii. Even if the CFR rules for tribal recognition were made applicable to Hawaii, Hawaiians would not qualify for recognition. (Not to mention that the mutually beneficial economic, political and social relationship and intermarriage between the people of the United States and the people of Hawaii bears no resemblance to that of Native Americans.)
4. Neither Alaskans nor Indians formed multi-racial constitutional monarchies. At the time of the revolution Hawaii was such and many of its elected and monarchy appointed public officials were not natives.
5. Alaskans and Indians did not invite other races to equally participate in their governments and private enterprises.
6. Alaskans and Indians were aboriginal peoples of their respective areas. It can be argued that Hawaiians are not. They are descendants of Tahitians. The aboriginal people were Marquesans. Alaskans and Indians were in their territories for thousands of years. Hawaiians were in Hawaii for only about 700 years.