The Racial Spoils System Invents a Tribe for Native Hawaiians

The Supreme Court has stopped a race-based election, but not a planned constitutional convention.

by Keli’i Akina, Grassroot Institute, Wall Street Journal, Dec. 18, 2015

We call it the “Aloha Spirit”: the mood of welcome and inclusion that defines Hawaii, which has been a peaceful multicultural society longer than it has been a U.S. state. Now this harmony is being undermined by an effort to create a semi-sovereign, race-based tribal government.

Throughout the islands’ history, there have been efforts to preserve the Native Hawaiian legacy and culture. The Hawaiian Homes Commission Act of 1920, signed by President Warren Harding, set aside roughly 200,000 acres for homesteading by Native Hawaiians, defined as those with at least 50% native blood and ancestry. The act was later enshrined in the state’s constitution, and has become one of the ways to qualify who “counts” as Hawaiian in a state where mixed-race families are the norm.  The Hawaiian Homelands aren’t independently governed, like a reservation. Instead, Native Hawaiians are granted leases for residential, pastoral or agricultural purposes.

The Office of Hawaiian Affairs (OHA) manages more than half a billion dollars in assets and a yearly budget of about $50 million, all of which is specifically intended to benefit Native Hawaiians. The office gives out college scholarships, business loans and grants to schools and cultural groups. If Native Hawaiians were an Indian tribe, they would be among the richest in the country.

The OHA is governed by elected trustees, and for years only Native Hawaiians were allowed to vote for them. But in 1996 a nonnative citizen challenged this policy. Four years later, in Rice v. Cayetano, the U.S. Supreme Court agreed that the racial exclusion was unconstitutional. Thus the claim that protecting benefits for Native Hawaiians would mean creating a special status for them, akin to an Indian tribe.

It hasn’t been an easy sell. Hawaiians have never been a tribe, and the Kingdom of Hawaii, which existed from 1795 to 1893, was a multiracial nation. In 2013 four members of the U.S. Commission on Civil Rights wrote a letter to President Obama opposing the unprecedented creation of a political entity based on race. They wrote that this would be like making a tribe out of Pennsylvania’s Amish or New York’s Hasidic Jews—groups that are far more separate from mainstream society than Native Hawaiians.

From the perspective of those living in Hawaii, the arguments against a tribe range from the practical—how would the tribal government change family and criminal law, and would it legalize gambling?—to the philosophical. Those on the mainland should worry about setting a dangerous precedent that would lead inexorably to what some have called the “balkanization” of the U.S. Do Americans really want to throw out their country’s proud history of equal protection and substitute a system in which more and more groups claim special privileges on the basis of ethnicity and ancestry?

The first efforts to create a tribe took place in Congress, with the support of Hawaii’s delegation, beginning around 2000. Sen. Daniel Akaka introduced legislation in multiple forms over several years, but it failed to advance. After President Obama took office, a new strategy emerged: The state of Hawaii would give Native Hawaiians a mechanism to create a political entity, and the federal Department of Interior would use executive action to recognize it as a tribe.

In 2011 the state legislature created the Native Hawaiian Roll, a voluntary registration list of voters who, based on ancestry and blood quantum, could theoretically form a tribe. But participation was so low—nine months after its inception, only 9,300 Native Hawaiians had registered, compared with the goal of 200,000—that the Roll Commission bolstered its numbers by importing names from other lists. Then, earlier this year, the Office of Hawaiian Affairs hired Na‘i Aupuni, a private organization with significant connections to the OHA and the Roll Commission, to conduct an election for delegates to a convention that would decide the format of a Native Hawaiian government. The state claimed this election was legal because it was a “private” poll, though it was paid for by state funds.

The Grassroot Institute, a free-market think tank I lead, joined with Judicial Watch to organize a group of concerned citizens who sued in August to stop the election. Two of the plaintiffs are non-Hawaiians who object to being barred from voting based on ancestry. The four others are Native Hawaiians who object to being added to the voter roll against their will, or to the loyalty oath that requires voters to affirm their belief in the “unrelinquished sovereignty” of Hawaiians.

Ballots were sent out in November, and the count was scheduled for the end of the month. But on Nov. 27 Supreme Court Justice Anthony Kennedy issued an injunction preventing the state from tallying votes and certifying winners. A week later the full court affirmed that injunction. It seems that the OHA’s attempt to dodge the Constitution through semantics won’t fly. The case was slated to return to the Ninth Circuit Court, but Na‘i Aupuni announced on Tuesday that it is canceling the election altogether. It still plans to hold the constitutional convention in February, but it will simply invite every one of the 196 delegate candidates.

The push for a tribe has always been the agenda of an entrenched elite. Many Native Hawaiians oppose the idea, and are deeply suspicious of the state’s involvement. Some have criticized the OHA for spending millions intended for the betterment of Hawaiians in a quixotic effort to protect unfettered access to those same funds. They argue that their trust moneys should be spent on education, housing and health care.

If the courts send an unambiguous message that a tribe or election based on race is an affront to the Constitution, they will not be disappointing a people. Hawaiians have already made their opinion clear—and they don’t support this political power-play masquerading as nation-building.

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Mr. Akina is president and CEO of the Grassroot Institute of Hawaii, a free-market think tank in Honolulu.