Download PDF: Letter Regarding Executive Order Implementing Akaka Bill

In September 2013, Commissioners Heriot, Kirsanow, Gaziano and Thernstrom sent a letter to President Obama in response to media reports that he was being urged to implement portions of the Native Hawaiian Government Reorganization Act (the “Akaka bill”) via executive order. The letter restated the commissioners’ longstanding opposition to any such provisions. The commissioners point out that neither Congress nor the President has the authority to create an Indian tribe or to recreate a polity that existed in the past. A tribe is not based on bloodline, but is defined by the enduring existence of a separate society. Native Hawaiians are a race, not a tribe, and do not have a separate society. The Kingdom of Hawaii itself was a mixed-race society. The efforts to confer tribal status upon Native Hawaiians is an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Cayetano v. Rice.