The Lichfield Group

This article appeared in the July 18, 2005 issue of the Hawaii Reporter.

Attorney General Mark J. Bennett’s high-voltage polemic against my adamant opposition to the Akaka Bill — “The Akaka Bill is Fair, Just, Long Overdue and Constitutional” — displays an alarming ignorance of Jim Crow, American history, and constitutional law. In the manner of Al Jazeera and Middle East tyrants, Hawaii’s premier legal officer tacitly deplores the democratization of Hawaii under the umbrella of the United States Constitution after the Hawaiian Monarchy was replaced by a republic in 1893. As Goethe warned, nothing is as dangerous as ignorance in action. [The original article that Bennett was responding to was: “New Racism in New Bottles”]

Contrary to Mr. Bennett, the Akaka Bill is worse than Jim Crow. At least a handful of blacks were permitted to vote despite racist “grandfather” and “good character” clauses in southern voting laws held unconstitutional by the Supreme Court in such cases as Lane v. Wilson (1939) and Hunter v. Underwood (1985). Indeed, the race-based disenfranchisement of all non-Native Hawaiians in the Akaka Bill is indistinguishable from the alteration of the boundaries of Tuskegee, Alabama, to exclude all but a handful of its black voters and held odious to the Fifteenth Amendment in Gomillion v. Lightfoot (1960). The Akaka Bill’s embrace of Jim Crow in voting is exceptionally squalid because the right to vote is preservative of other basic civil and political rights, as the Supreme Court amplified in Reynolds v. Sims (1964).

The Attorney General falsely insists that “Native Hawaiians…have suffered substantial [racial] discrimination for more than a century—from outright prejudice in all walks of life, and wholesale deprivations of their native lands, to bans on speaking their native tongues….” Not a syllable in either the 1993 Apology Resolution or the Akaka Bill itself suggests racial discrimination was ever official or unofficial state policy. No race-based law is cited by Mr. Bennett to substantiate his discrimination claim. No Native Hawaiian lost a single square inch of land because of race or otherwise with the 1893 overthrow of Queen Liliuokalani or with annexation. The Native Hawaiian language was never banned. It was routinely used in churches and private affairs, but was not permitted as an official state government language until 1978, or in public education until 1987. The language limitation was akin to the preeminence of the French language in France.

Mr. Bennett errantly maintains that Congress, like the Pope, can declare ex cathedra that the ancestral inquiry required under the Akaka Bill as a condition to participation in the new Native Hawaiian entity is non-racial.

The United States Supreme Court categorically repudiated that proposition in Rice v. Cayetano (2000): “Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification… . In the interpretation of the Reconstruction era civil rights laws we have observed that “racial discrimination” is that which singles out “identifiable classes of persons … solely because of their ancestry or ethnic characteristics.”

The very object of the statutory definition in question … is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.”

The Attorney General ridiculously insists that the United States Constitution, federal laws, and state laws would apply in full force to the Native Hawaiian governing entity. If that were true, the entity could not exclude non-Native Hawaiians from the vote or deny them any right or and privilege afforded Native Hawaiians because of the Fifth, Fourteenth and Fifteenth Amendments and federal civil rights laws.

The whole purpose of the Akaka Bill is to evade the color-blind mandates of the Constitution, the 1964 Civil Rights Act, the 1965 Voting Rights Act, and sister non-discrimination laws.

The Supreme Court in United States v. Sandoval (1913) declared that congressional power to recognize Indian tribes was not plenary, but subject to judicial review for arbitrariness. And from the beginning of the Kingdom of Hawaii in 1810, Native Hawaiians were never organized or governed as Indian tribes. They were ruled by a common sovereign with non-Native Hawaiians. Intermarriage and assimilation was non-coercive and substantial.

The United States in its treaties antedating annexation dealt with Hawaii as a foreign nation, not as an Indian tribe. The authoritative historian of the Hawaiian Kingdom, R.S. Kuykendall, has observed: “[W]e can see that the policy being followed [in the Kingdom] looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king.”

Mr. Bennett also stumbles in asserting that the Akaka Bill permits neither secession nor the eviction of the U.S. military from Pearl Harbor. The negotiating agenda authorized by section 8 of the legislation is unlimited. No subject is out of bounds, and in Hawaii succession is openly discussed.

The Attorney General outlandishly asserts that Native Hawaiians have suffered like Indian tribes. But the history of Native Hawaiians chronicles no Sand Creek massacre, no echo of General Phil Sheridan’s “The only good Indians I ever saw were dead,” and, nothing like government bounties paid for Indian scalps. Indeed, Native Hawaiians have never been treated as less than equal with non-Native Hawaiians.

Finally, Mr. Bennett insinuates that Native Hawaiians were harmed by the non-violent overthrow of the Monarchy provoked by the Queen’s unconstitutional and anti-democratic designs. What was the harm? The priceless freedoms and liberties conferred by American citizenship and the United States Constitution?

The right to celebrate Native Hawaiian culture as guaranteed by the Bill of Rights? Economic prosperity equivalent to that of non-Native Hawaiians? As Queen Lilioukalani understood better than Mr. Bennett in communicating to Senator George Hoar: “The best thing for [Native Hawaiians] that could have happened was to belong to the United States.”

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group and a consultant to the Grassroot Institute of Hawaii.