Midnight Regulations in Paradise

by Ilya Shapiro, National Review, November 28, 2016

In another end run around Congress, Obama moves to allow native Hawaiians a race-based government exempt from U.S. law.

Like Rasputin, the push for a separate, race-based “native Hawaiian government” refuses to die. As I’ve now written about for almost a decade, it is the fondest dream of some politicians to institute a two-tiered system of law in Hawaii, putting some citizens under the jurisdiction of a wholly separate government based only on their racial makeup.

For many years, this push came in the form of the “Akaka Bill,” named after its primary sponsor Senator Daniel Akaka (D., Hawaii). The Akaka Bill took several forms over the years as it was repeatedly introduced — and rejected — in several Congresses since 2000. But its core goal remained consistent: to create a government within the Hawaiian islands whose membership would be defined not by geography but by blood, which means an exemption from state and federal law for those with enough native Hawaiian lineage to pass the government’s test.

With the retirement of Senator Akaka in 2013, it seemed that the Akaka Bill was on its last legs. But as with so many other issues, the Obama administration is now attempting to achieve through unilateral executive action what it could not pass through the legislative process.

The Department of the Interior recently finalized a rule that would allow the federal government to establish formal government-to-government relations with a native Hawaiian government, if such a government should ever come to exist.

The administration’s justification for acting without congressional authorization comes from a longstanding statute delegating to the Interior secretary the “management of all Indian affairs and of all matters arising out of Indian relations.” But citing this statute simply begs the question, because it assumes that a newly created native Hawaiian government would be akin to the Indian tribes that receive a special status under the explicit terms of the Constitution.

This false analogy to Indian tribes runs throughout the regulation, as where the FAQ declares that a native Hawaiian government should be encouraged because “the Federal government has a longstanding policy of supporting self-determination and self-governance for Native peoples throughout the United States.”

Such analogies were also used to defend the Akaka Bill — and they are just as wrong now as they were then. The special legal status of certain Indian tribes was a constitutional compromise that arose from unique historical circumstances. A legislative authorization to deal with preexisting Indian tribes does not legitimize carving out a new government that has never existed before within the borders of the United States. The government’s test is one based solely on race, in clear violation of the 14th Amendment’s guarantee of the equal protection of the law.

And it is fair to say that the proposed entity would be a new government in every sense of the word. The administration’s own FAQ isn’t shy about the powers a potential native Hawaiian government would have, admitting that it “could establish courts or other institutions to interpret and enforce its laws” and that “Federal courts could defer to those laws enacted by that Native Hawaiian government and the decisions of the Native Hawaiian courts.”

In no uncertain terms, this move offers people of a certain race the ability to exempt themselves from the laws of the United States. And make no mistake, this would be a race-based government, because as the FAQ makes plain, “only persons with Native Hawaiian ancestry could be members if a formal government-to-government relationship is reestablished.”

How do you test whether someone has native Hawaiian ancestry? A potential member must either have “at least 50 percent Native Hawaiian ancestry” or “descend from the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.” In other words, the government’s test is one based solely on race, in clear violation of the 14th Amendment’s guarantee of the equal protection of the law.

The good news is that the Interior Department can’t actually create such a government on its own. The “recognition” it anticipates will never come to pass unless those whom the government has defined as native Hawaiians vote to organize their own government.

Further, that vote itself would also violate the equal-protection clause, because only people of a certain race would be allowed to participate. The Supreme Court has already blocked one such race-based election, in Hawaii in 2015, which was ultimately cancelled before it could be definitively ruled unconstitutional.

Nonetheless, the federal bureaucracy will do everything it can to put its thumb on the scale in favor of such a divisive referendum. As the FAQ admits, the new rule “permits the [Interior] Department to provide technical assistance upon request by the Native Hawaiian community,” including “expertise related to the community’s ratification process.”

Of course, the Trump administration should immediately act to rescind that rule, and Congress can also reject it via the Congressional Review Act.

But regardless of any executive or legislative action, Hawaii is one of the most diverse and integrated states in the nation, where the spirit of aloha means inclusion, not division. As long as Hawaiians themselves continue to understand that, no regulation can force them to believe otherwise.

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and a member of the board of scholars at the Grassroot Institute of Hawaii.

Related: DOI Rule? Republicans Prepare to Reverse Obama’s ‘Flurry of Midnight Actions’