Obama looks to bypass Congress and promote racial spoils in Hawaii

When we pledge allegiance to the flag, we also pledge allegiance to the Republic for which it stands — “one nation under God, indivisible, with liberty and justice for all.”

The modern American left has put each of these qualities up for grabs. For example, implementing “social justice” would make it logically impossible to provide justice for all of us as individuals.

The left is also unfavorably disposed to the idea of one indivisible nation. The Akaka Bill was a good example. As Gail Heriot and Peter Kirsanow explained, this legislation, which the House passed in 2010, would have enabled the nation’s approximately 400,000 ethnic Hawaiians to organize themselves into one vast Indian tribe. That tribe would have been endowed with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. By clear implication, the tribe would also have had the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain.

Existing Indian tribes have a degree of sovereignty. But this was an attempt to establish and empower a tribe where none existed, and to do so along racial lines. Naturally, as Heriot and Kirsanow explained, the attempt was really about funneling billions of dollars to ethnic Hawaiians, a Democratic constituency.

Under the Akaka Bill, a federal commission appointed by the Secretary of the Interior would have decided who could join this special tribe. These commissioners would have been charged with examining applicants’ backgrounds to ensure that only “qualified Native Hawaiians” with the right amount of Hawaiian blood join the tribe. Thus, the Akaka Bill would have granted privileges to a race, not a real tribe.

The Senate didn’t pass the Akaka Amendment. But now the Obama administration may be gearing up to bypass Congress and establish a Native Hawaiian tribe.

The advance notice of proposed rulemaking is couched in terms of re-establishing a government-to-government relationship with the Native Hawaiian community. However, it’s doubtful that a “Native Hawaiian community” exists except as a left-wing construct, and certainly it has no government. Like the Akaka Bill, Team Obama is seeking to create a new government within the United States, not to re-establish contact with one.

Last year, in response to reports that President Obama would attempt to implement the Akaka Bill through executive action, the four Republican-appointed members of the Civil Rights Commission (Heriot, Kirsanow, Abigail Thernstrom, and Todd Gaziano) wrote a letter to him warning against any attempt to confer tribal status upon Native Hawaiians.

The letter made these main points:

Neither Congress nor the President has [the] power to create an Indian tribe or any other entity with the attributes of sovereignty. 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. . . .

Real tribes — the kind the Federal government may recognize — are defined by political structure and the maintenance of a separate society, not by bloodlines. A mere shared blood quantum among the members of a group is not sufficient for the federal government to recognize an Indian tribe. . . .

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 that has existed on anything approaching a continuous basis since 1900. . . .

There is no political unit presently governing Native Hawaiians, and judging from the response thus far to the state-sponsored enrollment process, there may be far less interest in creating one than the country has been led to believe. Additionally, the very high percentage of people reporting mixed-race ancestry as opposed to pure Native Hawaiian ancestry indicates that a “predominant portion of the petitioning group” does not comprise a distinct community.

The irony of the current demand to confer tribal sovereignty on members of the Native Hawaiian race is that the Kingdom of Hawaii, which is now pointed to as evidence that this racial group once functioned as a distinct and separate Native Hawaiian polity, was actually an impressively modern multi-racial society in which immigrants were not only welcome, they were sought after. The Hawaiian monarchs ruled over anyone who was a member of their political community, not merely Native Hawaiians. . . .

Rewriting history to create a tribe out of the Native Hawaiian race would open a Pandora’s box for other groups that 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.

Lastly, it is worth mentioning that the proponents of Hawaiian statehood were at pains to stress the state’s multiracial character. Proponents emphasized that Hawaiians, regardless of racial background, were Americans in spirit.

If native Hawaiians wished to receive tribal status, this was the time to raise the issue. Instead, 94.3 percent of all Hawaiians voted in favor of statehood — and they did so after their representatives rejected separate tribal enclaves in Hawaii that were being created at the same time in Alaska for the Inuit and other native Alaskans. . . .

But back then, in 1959, liberals were serious when they pledged allegiance to a Republic consisting of one nation indivisible nation.