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,
F. JAMES SENSENBRENNER, JR.
Chairman
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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