Yesterday’s Wall Street Journal posted an opinion piece by Gail Heriot and Peter Kirsanow about the Native Hawaiian Government Reorganization Act, known as “the Akaka bill.”  The bill was passed in the House of Representatives last week. 

According to the article:

“The bill creates a complex federal framework under which most of the nation’s approximately 400,000 ethnic Hawaiians can organize themselves into one vast Indian tribe. It endows the tribe with the “inherent powers and privileges of self-government,” including the privilege of sovereign immunity from lawsuit. It also by clear implication confers the power to tax, to promulgate and enforce a criminal code, and to exercise eminent domain. Hawaii will in effect be two states, not one.”  

Hawaii has traditionally used racial preferences to benefit native Hawaiians.  The State’s Office of Hawaiian Affairs (OHA), established in 1978, oversees income generated from land the federal government gave to the state years ago.  Instead of home and business loans and housing and education programs being used to benefit all Hawaiians, they are used for ethnic Hawaiians.  In order to prevent future legal challenges to racial preferences being used as a basis for these grants, the Akaka bill was drafted.

The article points out:

“…two problems remain. First, the Akaka bill privileges what is in fact a race, not a tribe. The very act of transforming a racial group into a tribal group confers a privilege on one race and not others and is thus unconstitutional. Second, while the Constitution implicitly gives the federal government the power to recognize tribes with a long and continuous history of separate self-governance, it does not give the power to confer sovereignty on new tribes, or to reconstitute a tribe whose members have long since become part of the mainstream culture.”

The Senate will take up the legislation in the coming months.  The Governor of Hawaii, who had formerly supported the legislation, has withdrawn her support for the bill.  The bill represents the establishment of separate rules for people of the same state based on race.  I believe we had that battle back in the 1960’s.  Racial preferences are wrong, regardless of what race is being preferred.