The Lichfield Group

Hawaii Attorney General Mark Bennett is dead wrong in his support of the Akaka Bill. The proposed legislation celebrates race-based divisiveness over America’s highest aspirations for unity and equality. The bill is blatantly unconstitutional.

E Pluribus Unum is the nation’s birth certificate.

Ben Franklin sermonized that if we do not all hang together; we assuredly shall all hang separately. Abraham Lincoln preached that “A house divided against itself cannot stand.” Supreme Court Justice Benjamin Cardozo in Baldwin v. Seelig (1935) observed: “The Constitution was framed…upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Justice Antonin Scalia lectured in Adarand Constructors v. Pena (1995) that the Constitution acknowledges only one race in the United States. It is American.

Attorney General Mark J. Bennett’s spirited defense of the Akaka Bill (Hawaii Reporter, December 20, 2004) ignores this wisdom. It is nonsense on stilts. He talks about Congress’ power to recognize tribes, but the Akaka Bill is not about recognizing a real tribe that truly exists. Instead, it proposes to crown a racial group with sovereignty by calling it a tribe. But to paraphrase Shakespeare, a racial group by any other name is still a racial group. Congress cannot circumvent the Constituiton with semantics. The United States Supreme Court in United States v. Sandoval (1913) expressly repudiated congressional power arbitrarily to designate a body of people as an Indian tribe, whether Native Hawaiians, Jews, Hispanics, Polish Americans, Italian Americans, Japanese Americans, or otherwise. Associate Justice Willis Van Devanter explained with regard to congressional guardianship over Indians:

“[I]t is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe, but only that in respect of distinctly Indian communities the questions whether, to what extent, and for what time they shall be recognized and dealt with as dependent tribes requiring guardianship and protection of the United States are to be determined by Congress, and not by the courts.”

Attorney General Bennett incorrectly argues that the Supreme Court has interpreted the Indian Commerce Clause to endow Congress with plenary “power to deal with those it finds to be Indian Tribes….” No such interpretation has ever been forthcoming, and thus Mr. Bennett is unable to cite a single case to support his falsehood. Indeed, it is discredited by the Sandoval precedent.

Congress enjoys limited powers under the Constitution. They are generally enumerated in Article I, section 8, and include the power to regulate commerce “with the Indian tribes.” Clause 18 also empowers Congress to make all laws “necessary and proper” for executing its enumerated authorities. Contrary to the Hawaii Attorney General, the Indian Commerce Clause has been understood by the Supreme Court as conferring a power to regulate the nation’s intercourse with Indian Tribes, but not to summon a tribe into being with a statutory bugle. The Attorney General is also unable to articulate a connection between any enumerated power of Congress and the Akaka Bill’s proposal to endow Native Hawaiians with the quasi-sovereignty and immunities of Indian Tribes.

He absurdly insists that the Founding Fathers intended an open-ended definition of Indian Tribe because contemporary dictionaries defined tribe as “[a] distinct body of people as divided by family or fortune or any other characteristic.” But the Constitution’s makers employed “Indian” to modify tribe. That modifier was understood to include only peoples with an Indian ancestry coupled with a primitive culture that necessitated federal protection from predation by States or private citizens. In Sandoval, for example, Congress properly treated Pueblos as an Indian tribe because “considering their Indian lineage, isolated and communal life, primitive customs and limited civilization, this assertion of guardianship over them cannot be said to be arbitrary….” Chief Justice John Marshall in The Cherokee Nation v. Georgia (1831) likened an Indian Tribe’s dependency on the United States to the relation of a ward to his guardian. The Akaka Bill, however, does not and could not find that Native Hawaiians need the tutelage of the United States because of their backwardness or child-like vulnerability to exploitation or oppression. Indeed, their political muscle has made them spoiled children of the law, as Attorney General Bennett himself underscores. Finally, the Constitution aimed to overcome, not to foster, parochial conflicts or jealousies. That goal would be shipwrecked by a congressional power to multiply semi-sovereign Indian tribes at will.

He stumbles again in attributing to a court the statement, “Indian tribes do not exist in Alaska in the same sense as in [the] continental United States.” The statement was made by the Secretary of the Interior in a letter noting that Alaskan tribes occupied land which had not been designated as “reservations,” in contrast to Indian tribes.

Section 2 of the Fourteenth Amendment further undermines the Attorney General’s accordion conception of Indian Tribe. It apportions Representatives among the States according to population, but “excluding Indians not taxed.” Mr. Bennett’s argument would invite the majority in Congress to manipulate apportionment by designating entire States that generally voted for the opposition as Indian Tribes.

Finally, the Attorney General wrongly insinuates that Congress would be powerless to rectify historical wrongs to Native Hawaiians absent the Akaka Bill. Congress enjoys discretion to compensate victims or their families when the United States has caused harm by unconstitutional or immoral conduct, as was done for interned Japanese Americans in the Civil Liberties Act of 1988. Congress might alternatively establish a tribunal akin to the Indian Claims Commission to entertain allegations of dishonest or unethical treatment of Native Hawaiians. As the Supreme Court amplified in United States v. Realty Co. (1896):

“The nation, speaking broadly, owes a ‘debt’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based on considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of the individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition of claims against the government which are thus founded.”

Bruce Fein is a constitutional attorney and international consultant at Bruce Fein & Associates and The Lichfield Group.