Letter from James Sensenbrenner, Chairman of House Judiciary Committee, to Speaker Dennis Hastert, July 19, 2001

July 19, 2001

The Honorable J. Dennis Hastert
Office of the Speaker
H232 Capitol
Washington, D.C. 20515-6501

Re: H.R. 617, a bill to express the policy of the United States regarding the United States’ relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the Native Hawaiian government, and for other purposes.

Dear Mr. Speaker:

I am writing to request that H.R. 617 not be brought to the floor of the House of Representatives for a vote, especially under suspension of the rules. In the alternative, I request that the bill not be brought to the floor of the House for a vote until the Committee on the Judiciary has had an opportunity to conduct oversight hearings on the constitutionality of creating a quasi-sovereign state limited to persons of the Native-Hawaiian race.

The primary purpose of H.R. 617 is to establish a separate government for a particular race of people called "Native Hawaiians." Section 7 of the bill provides a detailed procedure for preparing a "roll" for the purpose of organizing a "Native Hawaiian Interim Governing Council,"and eventually a "Native Hawaiian government."

The impetus for the bill and the proposed creation of a "Native Hawaiian government"was Rice v. Cayetano, which was decided by the United States Supreme Court on February 23, 2000. In Rice, the Supreme Court held that Hawaii’s limitation on the right to vote -- to persons of Native-Hawaiian ancestry -- for trustees of a state agency that administers programs designed for the benefit of Native Hawaiians, was a clear violation of the Fifteenth Amendment to the United States Constitution which prohibits the denial or abridgment of the right to vote on account of race. In so holding, the Court determined that ancestry can be a proxy for race and that it was such a proxy in the case of Native Hawaiians.

By creating a Native-Hawaiian, quasi-sovereign state, persons of the Native-Hawaiian race who become members of such a state can receive certain preferences that are akin to those available to Native Americans. However, as the Supreme Court stated in Rice, "[i]t is a matter of some dispute . . . whether Congress may treat the native Hawaiians as it does the Indian tribes." And if Congress is powerless to treat the Native-Hawaiian race in the same manner in which it treats Indian tribes, then the establishment of a quasi-sovereign state limited to persons of the Native-Hawaiian race would likely be in contravention of the Constitution. According to the Supreme Court, any racial preference enacted into law must satisfy the strict scrutiny standard to be deemed constitutional under the Equal Protection Clause -- a standard that is rarely met.

In light of the decision to reject this Committee’s request for a sequential referral, the Subcommittee on the Constitution is considering holding oversight hearings on the constitutionality of creating a quasi-sovereign state limited to persons of the Native-Hawaiian race. The Judiciary Committee brings particular expertise to civil-liberties issues, particularly voting-rights issues, and could therefore assist Congress in determining whether to establish such a state.

I very much appreciate your attention to this matter. If you have any questions, please contact Will Moschella or Jonathan Vogel at 5-3951.

Sincerely yours,

Committee on the Judiciary

cc: The Honorable Dick Armey
The Honorable Tom DeLay
The Honorable David Dreier
The Honorable James Hansen
The Honorable Nick Rahall,


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Email: ken_conklin@yahoo.com