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Obama Administration Ignores Congress, Pursues Administrative Akaka Bill

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As the country celebrates Memorial Day weekend and remembers those who died for our country, the Obama administration quietly issued an Advanced Notice of Proposed Rulemaking (ANPRM) that will drive a wedge between neighbors. By way of background, Native Hawaiians are not a tribe, but a race. They are not eligible for tribal status under the Constitution. In 2000, the Supreme Court’s decision in Rice v. Cayetano cast doubt on the constitutionality of set-asides for Native Hawaiians because those set-asides confer a benefit on the basis of race. Ever since Rice v. Cayetano, Native Hawaiian activists have been trying to attain tribal recognition so they can preserve these preferences by recasting them as preferences on the basis of tribal status instead of race. In response to rice, the late Sen. Daniel Akaka proposed “the Akaka bill,” which would grant tribal status to people of Native Hawaiian blood despite the lack of an historical tribe and the unconstitutionality of such a measure.

Congress rejected the bill every time Sen. Akaka proposed it. As Commissioners Heriot and Kirsanow wrote in a 2010 Wall Street Journal op-ed, the bill would establish two systems of government for American citizens living side-by-side – one for people of Native Hawaiian descent, and another, less favorable regime for people who are not of Native Hawaiian descent.

Last year, rumors began to circulate that if Congress did not pass a version of the Akaka bill, the Obama administration would attempt an end-run around Congress and unilaterally confer tribal status upon the Native Hawaiians. This is exactly what yesterday’s ANPRM does. Conferring tribal status upon the Native Hawaiians would be unconstitutional if Congress did it. It is doubly unconstitutional, and lawless, for the Administration to confer tribal status upon Native Hawaiians on its own authority. It has no authority to confer tribal status upon Native Hawaiians, but hopes that doing this through the bureaucratic process will stymie the opposition and perhaps leave its action invulnerable to legal challenge.

Commissioners Heriot and Kirsanow, along with former Commissioners Gaziano and Thernstrom, sent a letter to the Administration last year warning against any attempt to confer tribal status upon Native Hawaiians. Read the entire letter here: Letter to President Obama Opposing Executive Order Implementing Akaka Bill (September 2013).