Gail Heriot and Peter Kirsanow on the Akaka Bill

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.

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