U.S. Civil Rights Commissioners oppose President Obama's use of Executive Action to enact Akaka Bill provisions

Letter repudiates attempts to bypass congressional authority

News Release from Grassroot Institute

HONOLULU, Hawaii -- September 18, 2013 -- Four of the eight members of the United States Civil Rights Commission issued a letter to President Obama on September 16 reiterating the Commission's opposition to the Native Hawaiian Government Reorganization Act (i.e., the Akaka Bill) in a 2006 report. In the letter, the four Commissioners stand specifically against the use of Presidential executive action as a means to enact the provisions of the Akaka Bill, which, since the retirement from Congress of Senator Daniel Akaka and the passing away of Sen. Daniel Inouye, has stalled indefinitely. Since it's original introduction to Congress in 2000, the Akaka Bill has failed to garner the votes needed for passage.

According to Keli'i Akina, Ph.D., president of Grassroot Institute of Hawaii, "U.S. Civil Rights Commissioners have rightly pointed out in their letter that a distinctive practice of the Hawaiian monarchs prior to U.S. Annexation was their openness to all people to become Hawaiian citizens regardless of race. This is the essence of Aloha and the basis for a society where people of all races and backgrounds live in harmony. The advancement of Native Hawaiians can only go forward in accord with the Aloha Spirit, which affirms the advancement of all people."

The Commissioners' letter follows on the heels of the 2013 convention of the Council for Native Hawaiian Advancement which featured as keynote speakers U.S. Interior Secretary Sally Jewell and Assistant Secretary Rhea Suh. According to the organizers, the purpose of the convention was to promote the furtherance of a Native Hawaiian nation in line with the Native Hawaiian Roll Commission's citizenry enrollment program known as Kana'iolowalu. According to recent news releases from their offices, members of Hawaii's Congressional delegation have been hopeful that President Obama will take executive action to facilitate Hawaiian nationhood efforts.

Dr. Akina adds "The U.S. Civil Rights Commissioners in this letter have made it clear that attempts to urge the U.S. President to employ executive power to create a racially exclusive nation are ill-founded. We commend the Commission members for their defense of the civil rights of all people in our country. Both Hawaiians and non-Hawaiians in the State of Hawaii would be at a disadvantage with the establishment of an unconstitutional government-sponsored, race-based entity, something which would harm our social cohesion and work against the Spirit of Aloha."

Although the Native Hawaiian Roll Commission requires enrollees to "...affirm the unrelinquished sovereignty of the Hawaiian people," the U.S. Civil Rights Commissioner's' letter states: "The efforts to obtain federal recognition of native Hawaiians as an Indian tribe or other sovereign entity are attempts to create a tribe out of a race. There is no native Hawaiian entity, let alone a governing body of such native Hawaiians, that has existed on anything approaching a continuous basis since 1900."

An essential component of the "Akaka Bill" has been the recognition of the Native Hawaiian people as an entity deserving a "government to government" relationship with the U.S. Federal Government as a "tribe." The letter from the Commissioners states: "We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional. Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty."

The U.S. Commission on Civil Rights is an independent U.S. Federal government commission charged with investigating, creating awareness and recommending outcomes concerning civil rights issues.

Read the letter from the U.S. Civil Rights Commissioners here.

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Civil rights panel members urge rejection in Hawaiian tribal status fight

by Valerie Richardson, Washington Times, September 17, 2013

Members of the U.S. Commission on Civil Rights are urging President Obama to reject Democratic requests to grant tribal status to Native Hawaiians by executive order, saying the unilateral move would be “unwise and unconstitutional.”

Four of the eight commissioners signed a Sept. 16 letter to the president in response to an Aug. 22 article in The Washington Times, which reported on recent efforts by the all-Democratic Hawaii delegation on Capitol Hill to win tribal status for Native Hawaiians after years of congressional rejection.

The commission issued a report in 2006 recommending against passage of the so-called “Akaka bill,” which would have created an Indian tribe for those with Native Hawaiian ancestry. Former Hawaiian Democratic Sen. Daniel K. Akaka was the longtime sponsor of the stalled bill.

“Neither Congress nor the president has power to create an Indian tribe or any other entity with the attributes of sovereignty,” the five-page letter said. “Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past. Tribes are ‘recognized,’ not created or reconstituted.”

The push for tribal recognition comes as the state’s Office of Hawaiian Affairs attempts to preserve race-based benefits and privileges for Native Hawaiians, benefits that were thrown into jeopardy by the 2000 Supreme Court case Rice v. Cayetano.

Mr. Obama, who was born in Hawaii, has expressed support in the past for the Akaka bill but has yet to comment publicly on the push to create a Native Hawaiian tribe by executive order.

Sen. Brian Schatz, Hawaii Democrat, told the Honolulu Star-Advertiser last month that the delegation was lobbying the president to bypass Congress and use his executive powers to create a Native Hawaiian tribe.

“The president is being asked to consider a number of potential executive actions,” Mr. Schatz said. “That could take many forms, including something by the Department of Interior, or at the secretary level or something at the presidential level.”

The four commissioners who signed the letter were Abigail Thernstrom, who serves as vice chair; Todd F. Gaziano; Gail Heriot; and Peter N. Kirsanow.

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A Good Message for Constitution Day

by Roger Clegg, National Review Online, September 17, 2013

Peter Kirsanow, Todd Gaziano, Gail Heriot, and Abigail Thernstrom of the U.S. Commission on Civil Rights have written a letter to President Obama urging him not to implement by executive order provisions of the Native Hawaiian Government Reorganization bill, which has never been enacted. The letter argues that such action would be both unwise as policy and unconstitutional.  

They’re quite right: This bill is simply an attempt to circumvent the ban on racial preferences by declaring – falsely – that Native Hawaiians are an Indian tribe rather than an ethnic group (as the Supreme Court has ruled).

The Center for Opportunity has posted the letter here, and there is an article about it in the Washington Times here.

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Civil Rights Commissioners to Obama: no Native Hawaiian "tribe"

by Michael Barone, Washington Examiner, September 18, 2013

The Hawaii congressional delegation has called on Barack Obama to issue an executive order recognizing Native Hawaiians as an Indian tribe. This is an attempt to get around the 2000 Supreme Court ruling in Rice v. Cayetano that Hawaii's state-based law providing benefits and preferences to Native Hawaiians was unconstitutional.

Four of the eight members of the U.S. Civil Rights Commission -- Peter Kirsanow, Abigail Thernstrom, Gail Heriot and Todd Gaziano have written a letter to the president urging him not to issue such an order (h/t Roger Clegg in National Review Online). It's an excellent letter, pointing out that Native Hawaiians do not qualify as an Indian tribe under longstanding federal law and to give them benefits and privileges on the basis of race would be unconstitutional. They point out that there has never been a cohesive Native Hawaiian entity of any kind--the Kingdom of Hawaii regarded all inhabitants as citizens and encouraged foreigners to immigrate to Hawaii, as many did--and that thanks to intermarriage there are precious few people purely of Native Hawaiian descent. In addition, there's not much evidence that more than a few ethnic activists seek such a designation. The state of Hawaii in 2012 passed a law allowing Native Hawaiians to enroll. By August some 20,000 did, in a state where 289,000 people told the 2010 Census that they were wholly or partially of Native Hawaiian descent.

The four commissioners point out that such an executive order would create a dreadful precedent. "Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora’s box for other groups to seek tribal status. Cajuns are an identifiable ethnic group in Louisiana who have had a continuous presence there for over two hundred years. Their ancestors may have been none too pleased when Napoleon sold the lands of the Louisiana Purchase to America, and they had no opportunity to assert sovereignty. Should Cajuns be allowed to seek tribal status? Should the Amish of Pennsylvania or the Hasidic Jews of New York be allowed to seek tribal status? Both groups have far more separation from mainstream society, much lower rates of intermarriage, and all- encompassing rules governing the lives of members than do Native Hawaiians. Both groups also have histories stretching far back."

The state where the president was born has a long history of racial tolerance, as the four commissioners point out. The attempt to declare Native Hawaiian sovereignty (a goal some activists seek) or Indian tribal status goes entirely against the grain of that proud heritage. It is an outgrowth, I think, of the racial quotas and preferences that have become embedded in our society. Native Hawaiian activists want their quotas and preferences (and boodle) too. The chief sponsor of this measure in Congress was Democratic Senator Daniel Akaka, whose retirement in 2012 coupled with the death in December 2012 of his colleague (born in the same month, September 1924!) Daniel Inouye, has left Hawaii with less seniority in the Senate than it has had since the years just after statehood. Hawaii's two House members are both serving their second and first full terms. By the way, this is not just a Democratic cause. Former Governor Linda Lingle, a Republican, backed similar proposals. Fortunately Republicans were able to block Akaka's bills in the Senate.

On a trip to Hawaii in 1995, I interviewed an official of the state Office of Native Hawaiian Affairs, the agency whose authorizing statute was declared unconstitutional in Rice v. Cayetano. I hazarded the opinion that Native Hawaiians were actually much better off educationally and economically than fellow Polynesians in other Pacific islands. No, no, he insisted, Native Hawaiians had the lowest education and economic levels of any group in Hawaii--and these next words I remember exactly--"except of course the Filipinos."

I wonder what Filipino-American activists would have to say about that "of course." Maybe they'd ask for Indian tribal status too.

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PR: `Unwise and unconstitutional'

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Aug 12, 2013: Akaka Tribe: 'Privileged Tribal Leaders' Seek End Run Around Congress

Aug 22, 2013: House Leadership: Only Congress can Create Akaka Tribe

Sept 5, 2013: Interior Secretary: Akaka Tribe Should go Thru Congress