A Conservative Vote for Hawaiian Freedom

UPDATE: Two months back, I argued in the below blogpost in favor of the “Native Hawaiian Government Reorganization Act”, a bill proposed by Senator Akaka which would restore certain rights to native Hawaiians. Now, the Senate has taken up the Akaka bill and it looks like it will pass. My friends at National Review Online can not imagine why it has not met with more resistance. The editors are not alone. Kevin Williamson raises the specter I dispelled of other ethnic groups suddenly getting sovereignty. I do not know whether any lawyers weighed in on those articles but certainly a great one, Shannen Coffin, wrote this around the time of my piece.

I think however that Shannen’s criticisms fail to grapple with the injustice of what went on here and also seek to raise a general principle to fit facts to which that principle does not apply in an un-Burkean, and dare I say it, Jacobin manner.

In its editorial, the flagship of American conservatism, National Review, continues to posit that this bill is somehow invidiously discriminatory without noting the seizure of property represented by Rice v. Cayetano. It also takes a swipe at the existence of sovereignty for American Tribes which is gratuitous and ill-founded. The editorial states in one breathe that the Native Hawaiians had no continuous political body like the Indian tribes and elides over what they did have: the land trusts invalidated by the Supreme Court. It was precisely because they were a political entity with sovereignty that these arrangements were made. The trusts were the residue of sovereignty. The reason it will pass with little opposition is few Republicans will oppose it as it makes eminent sense. Senator Murkowski, for instance, is likely to vote for it because the senators from the last admitted states, both with unique concerns because of demographics and geography, always vote for each other’s bills if they only affect that state.

Put aside Governor Lingle’s concerns on the current language of the bill which perhaps provides too much power to the Native Hawaiians. That is a purely political question. It arises everywhere that native tribes attempt to define where their sovereignty takes over and that of the state’s ends. We have those fights in New York and the only places where the secessionist cause ever burns are on Manhattan and Staten Island. I take no position on Governor Lingle’s criticisms. But the intent to reaffirm the status quo ante Rice v. Cayetano is conservative and based on sound conservative principles.

National Review famously got the original segregation question wrong and they are getting this one wrong. Hawaii is the only state of the United States that was an independent kingdom before annexation. Every other piece of ground was gained from another western sovereign power and inhabited only by those nationalities or Indian tribes. It was at the time of annexation and of statehood the only state without an overwhelmingly white electorate. The category of native Hawaiian is still not racially based and the sovereignty will be able to adopt into it people of any race. Hawaii is also the site of Pearl Harbor, and a large proportion of its territory is military bases. The sponsor of the bill is a guy who spent his youth fighting the Empire of Japan. He is not leading some huge charge to separate Hawaii from the United States. The speculation that this curative bill will lead to race-based law is pure conjecture. The fact of trust property seized after 100 years of ownership is concrete, clear and unjust. NR should spend less time opposing this bill and more time consulting its backers on how to get Congress to respond in equal measure to Kelo.

Posted February 24, 2010 at 8:10am

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The Democrats may succeed in passing a conservative law for Hawaii that the Republicans rejected.  The “Native Hawaiian Government Reorganization Act” failed in a Republican Senate.  It has been reintroduced by Senator Akaka.  The Act is needed to restore to native Hawaiians rights unjustly revoked.  The Wall Street Journal attacked the bill as a return to segregation.   The Journal simply refuses to see the assault on self-governance, fairness and settled principles of property that Senator Akaka is attempting to redress.

The Supreme Court in Rice v. Cayetano overturned 100 years of Hawaiians of indigenous descent governing certain land trusts.  These trusts were created shortly after the annexation of Hawaii and placed in the care of a state body.  Its trustees were chosen by the votes of descendants of the original inhabitants of the islands, but the date of being an “original inhabitant” was 1890 when Hawaii was already multi-ethnic but under the rule of the Hawaiian Monarch.  The Supreme Court ruled that the 15^th amendment to the Constitution prohibited a practice law, time and custom had established.  As explained by the Court, these trusts and practices were ratified, first by Congress, and then by state decrees and by the acts of all of the Hawaiian people, indigenous or not, that implemented Hawaiian statehood in 1959.

More than 100 years after the abdication of the last Queen of Hawaii and almost 50 years after statehood, the act of every Congress, every elected state government and of all of  the people of Hawaii regarding the trusts was abrogated by the Supreme Court.  The Court did so citing an amendment designed to allow former slaves to vote.

Congress wishes to restore these rights agreed to by every act of the people of Hawaii since before statehood.  Using constitutional powers granted at the founding of the republic, Congress attempted to restore the status quo ante.  Amazingly, this has stirred conservative opposition.  This opposition maintains that the Act (1) sets a precedent for racial exclusivity, (2) sets up a separate sovereignty that could secede, and, 3) also removes land and resources from the state of Hawaii.  All of this is nonsense.

The recognition of Indian tribes is part of the written Constitution.  Article I gives full power to Congress to recognize and govern relations with “Indian tribes”.  Some argue that there is no “Hawaiian Tribe” because the Hawaiians had a monarchical government.  In this flawed understanding, the “Indian tribes” of Hawaii are to be penalized because they had reached a state of political development beyond that of the Plains Indians.

Congress is free to recognize this longstanding indigenous governing polity as a “tribe.”  Moreover, once Congress does so recognize a tribe, that political entity, like every other tribe in America, can define its own membership.  The Sioux are free to make members who are not Sioux at birth.  There is no racial bar to membership.

The suggestion that the Act will lead to secession is risible.  Saul Bellow inquired “Who is the Proust of Papuans?”  We are entitled to ask who is the Lee of Lanai?  While it would be amusing to hear “Dixie” played on a ukulele, such a spectacle is not in the offing.  The Hawaiian Trusts improved the lot of and obtained native Hawaiians’ accession to annexation and statehood.  Restoring to native Hawaiians the rights they have always had restores Hawaii to its condition when it joined the Union.  It is the Supreme Court that decreed a radical new structure imposed on the state that was never approved by Hawaiians.  Over a quarter of the state of Arizona is sovereign Indian lands.  It remains stubbornly attached to the Union.  States with large reservations have thus far resisted secession.  Hawaii will too.

Racial groups will not be granted “sovereignty.” American Blacks can not be deemed “Indian tribes” because they were not here before Columbus.  The same is true for Mexico.  It is a polity not derived from pre-Columbian tribes, and indeed the pre-Columbian tribes in the jurisdiction ceded to the U.S. by Mexico have already been recognized.

Every major elected official in Hawaii is for the Act.  The people of Hawaii can protect their own sovereignty.   Hawaii is one of the most overly taxed and overly regulated states in the Union.  Any competition for a less onerous tax and business climate should be welcomed.  A multiplicity of jurisdictions, each operating in its legitimate sphere, is a main bulwark of liberty under federalist theory.  So it will be in Hawaii.

The Act should be passed because the United States must keep its word.  In the Winstar cases the Court prohibited the government from unilaterally revoking the property rights of banks that relied on its word in entering a contract.  Indigenous Hawaiians should be able to insist they get the same “deal” they have had for a hundred years from that same government and that was made a condition of joining the Union.  Similarly, conservatives have rightly been furious at the Kelo decision allowing the government to take people’s property for the private gain of others.  Here an exclusive right in trust property was taken by the Supreme Court with no compensation at all.  Congress is right to return it and conservatives are wrong to oppose that return.

Attorney John Vecchione has no professional involvement or interest in the Hawaiian trusts litigation.

Originally posted December 19, 2009