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The Honolulu Advertiser
Posted on: Sunday, July 17, 2005 Posted on: Sunday, July 17, 2005 Posted on: Sunday, July 17, 2005

Akaka bill a recipe for racial conflict

By Sen. Jon Kyl


Editor's note: Arizona Sen. Jon Kyl, chairman of the U.S. Senate Republican Policy Committee, has produced a paper in opposition to the Akaka bill.

What follows is a letter Sen. Kyl sent to his constituents explaining his opposition to the measure:

While I support efforts to preserve the heritage and culture of Native Hawaiians, I oppose this bill. By creating a separate, race-based government within the state of Hawai'i, (it) would violate the United States Constitution and create a divisive and unworkable system of government.

The Akaka bill would authorize persons with some Native Hawaiian blood to form a Native Hawaiian government. This government would have powers identical to those of a reservation Indian tribe — the power to tax, regulate and make laws for its members.

On a practical level, it is difficult to imagine how such a government would interact with the rest of Hawai'i's people.

Tribal Indians on a reservation generally are immune from state laws — from the taxes and regulations that apply to other residents of the state. But unlike reservation Indians, Native Hawaiians do not live in one area of the state that is set aside for Indians. They live in the same cities and neighborhoods, and on the same streets, as other (residents of Hawai'i) do.

Would the citizens of the new Native Hawaiian government — like reservation Indians — be immune from state laws, regulations and taxes? Would a Native Hawaiian-owned business — like a reservation Indian business — be exempt from the taxes that its non-Native competitors must pay? If Congress were to create a separate tribal government for Native Hawaiians, it would be imposing just such a system on the people of Hawai'i.

Persons of different races, who live together in the same society, would be subject to different legal codes. This would not produce racial reconciliation in Hawai'i. Instead, it is a recipe for permanent racial conflict.

I believe that the Akaka bill also violates the U.S. Constitution. The tribal governments on Indian reservations in the continental United States were preserved as separate entities when their surrounding states entered the union. These governments are not subject to the U.S. Constitution's Bill of Rights.

The proposed Native Hawaiian government likewise would not be bound by the Bill of Rights. But unlike reservation Indians, all of Hawai'i's citizens have been subject to state law ever since Hawai'i entered the union — and all Hawaiians receive the full protection of the Bill of Rights.

By subjecting Native Hawaiians to a government that is not bound by the Constitution, the Akaka bill effectively would take away these constitutional rights from persons who currently enjoy their protection. This is something that I believe Congress neither can nor should do.

Finally, it is apparent that (the bill) is, in large part, motivated by a desire to immunize government preferences for Native Hawaiians from constitutional scrutiny under the U.S. Supreme Court's decision in Rice v. Cayetano, 2000. The Supreme Court generally has frowned on legislative efforts to reverse the effect of its decisions.

I do not think that the Akaka bill would fare any better. If particular preferences in current laws violate the Constitution, Congress and the state ought to fix those laws rather than attempt to insulate them from equal-protection scrutiny.

While I respect Native Hawaiians and their traditions, I believe that we must preserve those traditions in a manner that is consistent with the U.S. Constitution.