Akaka bill testimony by Roger Clegg delivered on August 20, 2007 to the Hawaii Advisory Committee to the U.S. Commission on Civil Rights, by invitation. Roger Clegg is president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization based in Falls Church, Virginia

An edited summary of Mr. Clegg's testimony was published in the Honolulu Advertiser on Sunday August 26 at

Full text of Mr. Clegg testimony was made available on the Honolulu Advertiser's online edition at

Following is full text of Mr. Clegg's testimony as published in Hawaii Reporter online newspaper on August 15, 2007 at:

If Akaka Bill Passes, Native Hawaiians Can Claim Special Economic and Political Power and Authority Not Available to Other Ethnic Groups

By Roger Clegg

[This is the testimony of Roger Clegg, president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia, regarding the Native Hawaiian Government Reorganization Act of 2007. This testimony was submitted to the Hawaii State Advisory Committee of the United States Commission on Civil Rights.]

My name is Roger Clegg, and I am president and general counsel of the Center for Equal Opportunity, a nonprofit research and educational organization that is based in Falls Church, Virginia. Our focus is on public policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation.

Our chairman is Linda Chavez -- whom, you may recall, was once the staff director of the U.S. Commission on Civil Rights, and is now the chair of the Virginia State Advisory Committee. I should also note that I was a deputy in the U.S. Department of Justice’s Civil Rights Division for four years, from 1987 to 1991.

The Native Hawaiian Government Reorganization Act of 2007, a bill that has been introduced in both the U.S. House of Representatives and the U.S. Senate, is not the easiest 22 pages of prose that you’ll ever read, but I think I can boil it down to this:

The bill will use a one-drop rule to define membership in an ethnic group, namely Native Hawaiians, whom it will then allow to organize themselves into a governmental entity that can claim a “special political and legal relationship” with the U.S. government of “the type and nature [that the U.S. government] … has with the several federally recognized Indian tribes.”

Members in this group will be made separate and distinct from the rest of the people in your state, will be able to claim preferences more easily than other racial and ethnic groups, and will be able to claim special economic and political power and authority in Hawaii.

I don’t like this bill, and the objections to it fall into two basic categories: first, that it is unconstitutional; and, second, that even if it were constitutional, it would be a bad idea. Although the bill itself can be hard to follow, the problems with it are straightforward. The Native Hawaiian Government Reorganization Act of 2007 Is Unconstitutional

Let me talk about the constitutional problems first. The Equal Protection Clause of the Fourteenth Amendment makes it illegal for any state to “deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court has ruled that the Due Process Clause of the Fifth Amendment makes it illegal for the federal government to deny equal protection as well. The definition of “equal protection” can be complicated, but one thing that it definitely applies to is treating people differently because of their race or ethnicity.

The Supreme Court, in its 2000 ruling in Rice v. Cayetano, ruled explicitly that Native Hawaiians are an ethnic group, and that it is illegal to give anyone preferential treatment on account their membership in that group.

Putting this together means that Congress cannot pass a law that gives Native Hawaiians the special right to organize into a separate group that can claim, in turn, still more special rights. It’s as simple as that.

Now, how can anyone think he can get around this? You really can’t, but here is the argument that is being made: There’s another part of the Constitution--Article I, Section 8, clause 3--called the Commerce Clause.

It provides: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes ….” So the argument is that, since Congress has authority to regulate commerce with Indian tribes, therefore it has the power to create what are essentially new Indian tribes, based on membership in an ethnic group.

If that sounds like a weak argument to you, you are exactly right.

For starters, of course, no one can claim with a straight face that this bill is about regulating commerce, let alone regulating commerce with Indian tribes. More fundamentally, the Commerce Clause gives Congress the power to deal with Indian tribes, not to create new ones.

The fact that the Commerce Clause gives Congress authority to deal with “foreign Nations” has never been claimed to give Congress the power to create new foreign nations, and the fact that Congress is given authority by the Commerce Clause to deal with the states doesn’t give it authority to create new states.

That latter power is explicitly set out in Article IV, Section 3, clause 1--and indeed the fact that the Framers felt that they had to spell it out there proves that they cannot have thought that they had already created that power in the Commerce Clause (and if the Commerce Clause doesn’t give Congress the power to create new states, then how can the same words in it give Congress the power to create new Indian tribes?).

Let me add that the Commerce Clause argument is the best argument that the proponents of this bill have for its constitutionality. And even if you think there is something to it, I don’t know why whatever power Congress has to recognize Indian tribes should trump the Equal Protection limitations on what Congress can do. (Other clauses sometimes cited are the Treaty Clause, the Debt Clause, and the Property Clause, but there is even less of a connection between any of them and the necessity of creating an ethnicity-defined new Indian tribe.)

Let me also give you my opinion of what is going on here. There are people who would like to give special preferences to Native Hawaiians, and to maintain the special programs they already have. But they know that such preferences will likely be struck down by the Supreme Court as unconstitutional, since--as I have discussed--Native Hawaiians are an ethnic group and it is unconstitutional to give one ethnic group a special preference over another ethnic group or groups.

So the supporters of this kind of ethnic preference had the ingenious idea getting Congress to declare that Native Hawaiians are no longer an ethnic group; instead, they are now an Indian tribe, and the Supreme Court has said--Morton v. Mancari (1974)-- that giving preferences on the basis of membership in an Indian tribe is not ethnic discrimination. Very clever.

But, as has been pointed out, this calls to mind Lincoln’s joke about how many legs a dog has if you call a tail a leg--the answer is still four, since calling a tail a leg doesn’t make it one. Calling Native Hawaiians an Indian tribe will not make them one, at least if there are limits on whom Congress can declare to be an Indian tribe.

As the U.S. Department of Justice has noted in its recent testimony (at page 12) [link:
http://indian.senate.gov/public/_files/Katsas050307.pdf ]:

Although the Supreme Court has consistently acknowledged Congress’s broad power to determine when and how to recognize and deal with Indian tribes, it has also observed that a predicate for the exercise of this power is the existence of a “distinctly Indian communit[y].” United States v. Sandoval, 231 U.S. 28, 45-46 (1913).

Moreover, the Court has cautioned that Congress may not “bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe,” id. at 46, and that the courts may strike down “any heedless extension of that label” as a “manifestly unauthorized exercise of that power,” Baker v. Carr, 369 U.S. 186, 215-17 (1962).

The U.S. Department of Interior has a well-developed set of regulations for determining whether an “Indian group” is an “Indian tribe.” The focus of those regulations is on whether the group is already a distinct political community, not whether it might become one once recognized. Native Hawaiians do not come close to passing muster under DOI regulations, nor under the criteria that the Supreme Court itself has laid out [see DOJ testimony, again at page 12].

One of your fellow Hawaiians, Kenneth Conklin, has noted [letter to '''The Washington Times''', November 30, 2004, page A18] that, according to the 2000 census, there are more than 400,000 Native Hawaiians, including 240,000 in Hawaii, 60,000 in California, and 100,000 scattered throughout each of the other 48 states; this would be larger than any other tribe and, at 20 percent of Hawaii’s population, a much larger percentage of the state than any other tribe makes up in any other state.

The vast majority of Hawaiians with Native Hawaiian blood are of mixed ethnicity (versus what the vast majority of those living on Indian reservations consider themselves to be). This is simply not an Indian tribe.

I am in good company in seeing these constitutional problems. The United States Department of Justice has noted them this year, in testimony before Congress that I have already cited:

A Senate report has likewise pointed out these and other problems:

I urge you all to read these two documents. And, of course, the U.S. Commission on Civil Rights has opposed passage of this bill because it “would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.” http://www.usccr.gov/

The Native Hawaiian Government Reorganization Act of 2007 Is Bad Policy

But even if you thought that Congress had the authority to pass this bill, it would still be a bad idea for it to do so.

The United States is a multiracial, multiethnic society. It always has been, and indeed its multiethnicity increases every year. Hawaii also has this multiracial and multiethnic description, if not more so.

In such a society, it is simply untenable to have a legal regime where some of us are singled out for special treatment, whether that special treatment is better or worse than everyone else, because of skin color or what country our ancestors came from or when our ancestors came here.

It would be especially dangerous to pick a large group out of that population, and not only allow them special treatment, but give them a separate government and rights. What could be more divisive than that?

Let’s face it: The reason that preferences for some groups have a visceral appeal is because of the fact that some groups were better treated and others worse treated in our history, and so superficially it seems fair to “make up” for this past discrimination by discriminating in the other direction, especially if the group continues to lag in some way.

Now, I’m not an expert on your state’s history, and I know that people have different opinions about who did what to whom and why a hundred or 114 or 229 years ago. But let’s just assume for the sake of argument this morning that Native Hawaiians have suffered historical wrongs.

Even making that assumption--which many do not share--you would have to admit that similar or worse wrongs have been suffered by African Americans, and the Irish, and the Jews, and the Japanese, and the Chinese, and so forth. All of them can claim historical wrongs--and also to have a cultural heritage worthy of continuation, by the way.

But if you start fudging the laws to give groups that have suffered historical wrongs a mechanism to claim special treatment--call it tribal status, call it reparations, call it whatever you like--then where do you stop?

You have simply made it inevitable that there will be more division, more resentment, more stigmatization. And, of course, these wrongs are always far enough in the past that it is impossible to say with certainty that this person over here today is entitled to be given something from that person over there today, since they may have little in common with the original victim and wrongdoer except their respective skin colors. Indeed, most Native Hawaiians today are descendants of both the supposed victims and the supposed oppressors.

But, it is claimed, these are not just historical wrongs: There are social disparities to this very day, and someone will show that Native Hawaiians have more poverty and less health care, and more substance abuse and less education, and so forth. Here again, I’m going to assume for the sake of argument that these disparities exist--although I know that there is vigorous disagreement over particular points.

Even making this assumption, though, you would have to acknowledge that often these social disparities are suffered by other groups, too--by, for instance, African Americans, and Latinos, or at least some subgroups of African Americans and Latinos, and some Asian groups, but not most of them, and even some white subgroups, and so forth. Do we slice and dice every race into those subgroups and, if some of those subgroups suffer some social disparity, then make them all into Indian tribes?

Of course not. The logical thing to do is to try to help poor people, and people who lack access to health care, and people with substance abuse problems, and people who go to failing public schools--but help all of them, regardless of skin color or ethnicity. There are plenty of poor whites, plenty of Asians who go to lousy public schools, plenty of Jews who abuse drugs, plenty of Irish who don’t get good medical care.

And, I should add, there are also plenty of Native Hawaiians who are healthy and wealthy, and hardly in need of any special preference. Separating people into a new Indian tribe on the basis of ethnicity is, to say the least, a very odd and inefficient way to go about helping them.

Let me end my discussion with one last point, which is too often lost in debates of this kind. Even if you think that there might be some good that is accomplished by this legislation, you also have to ask: Does this possible good outweigh the undeniable costs--the divisiveness, the unfairness, and so on--including the unforeseen consequences of creating a huge, powerful, ethnically-defined government within a government?

The bill deliberately and dramatically encourages a separatist mindset; it institutionalizes an us-versus-them approach to public policy; it requires a division, a literal dis-integration of your islands’ peoples. Is that what you want? Conclusion

In conclusion, the Native Hawaiian Government Reorganization legislation is unconstitutional and, even if it weren’t, it would still be a bad idea. It is divisive, unfair, and discriminatory. Whatever legitimate purposes it claims can be accomplished in other, more direct, less unfair and--especially--less divisive ways.

Thank you very much, Mr. Chairman, for the opportunity to testify today. I look forward to trying to answer any questions the Committee may have.


Send comments or questions to: