Trouble in paradise?

Brian McNicoll

July 15, 2005

I've been talking to some buddies from high school, and we're thinking of getting together and forming an Indian tribe.

Though most of us have a little Indian blood, we're not Indians per se. We don't live together … most of them are still in Louisiana, and I'm 1,200 miles away here in Washington. We don't share a culture in any real sense.

But if Sen. Daniel Akaka's Native Hawaiian Recognition Act (s. 147) becomes law, we're going to take our shot.

Why? The benefits are just too good. We'd get to claim some land, divvy up some government loot, maybe open a casino, and we'd get to create a sovereign government. Indian tribes are exempt from many federal laws, collect their own taxes and generally can ignore the Bill of Rights, discriminate in favor of their "tribe" members and operate their own justice system.

I know what you're thinking: What kind of peace pipe is this guy smoking? You can't just create a tribe out of whole cloth, declare yourself exempt from the Constitution and start cordoning off property.

Oh yeah? The Senate seems prepared to do exactly that for a group about as homogenous and culturally coherent — and as much an Indian tribe in any meaningful way — as me and my pals from high school. In fact, when Hawaii was trying to earn statehood, it campaigned on the theme that its aboriginal natives were part of an "America in microcosm" — a mini-melting pot that, as Sen. Herbert Lehman, D-N.Y., put it in 1954, "has produced a common nationality, a common patriotism, a common faith in freedom and in the institutions of America."

What's sad is that the current Senate measure would impose racial balkanization and have neighbors living side by side but under different laws in a place that has been largely spared racial strife. The Hawaiian monarchy, which held power till 1893, certainly never viewed itself as a race-based government. It embraced and made use of the expertise of its immigrants almost as soon as those immigrants arrived.

By the mid-1850s, the royal family had subjects from 150 countries and a white American attorney general. The earliest white settlers — missionaries from Europe — often married natives. Today, 46 percent of the marriages in Hawaii are interracial, compared to a national average of less than 5 percent.

Oddly, under the Akaka bill, race would be the only requirement for membership in this tribe. That means that anyone who can prove he or she is a direct lineal descendant of the aboriginal, indigenous native people who resided and "exercised sovereignty" in the Hawaiian Islands on or before Jan. 1, 1893, is in. It doesn't matter if you live in Hawaii, if you've ever been to Hawaii or if you participate in the native Hawaiian culture in any way.

These are not Indians. This is not a tribe. And this remedy for various imagined wrongs does not hold water.

For one thing, Congress can't create tribes. It can't confer sovereignty on any one or any entity. Otherwise, it could exempt, say, General Motors from the equal protection clause and let it hire whites only if it so chose. The tribes that exist today were recognized as quasi-sovereign national entities at the time of the framing and have had a continuous political existence since then. Their lands and pre-existing sovereignty are recognized either from treaties made with the United States or as part of the bargains that brought some states into the Union.

None of this holds for the native Hawaiians. They are spread the breadth and width of our nation. If everyone officials believe to be eligible signs up, this new tribe would be the largest in America, with more than 400,000 members. It would have members, and thus jurisdiction, in all 50 states.

What's doubly sad is that this monstrous abuse of both process and basic American values could be law before we know it. Six Republicans have agreed to join all 45 Democrats in support of the bill. Prospects in the House are unknown at this time, but the Resources Committee, which would have jurisdiction, has not scheduled hearings on the matter and doesn't expect to in the near future, committee staffers said. But given that President Bush has not checked the box marked "veto" once in nearly six years in office, the smart money would not look to the White House for a bailout on this one.

I can accept it if my high school buddies and me don't get our tribe. We were never very organized anyway. But neither are the native Hawaiians. They've long-since learned to live side-by-side with people of other cultures. Why on earth would we mess with that now?

Brian McNicoll is contributing columnist for Townhall.com and a senior writer at The Heritage Foundation, a TownHall.com member group.

©2005 Brian McNicoll