Author: Joshua Thompson
Our friends over at the Center for Equal Opportunity have shed some light on some shady tactics by our lame-duck congress. It seems that the outgoing members might try to push through the "Akaka Bill." That Bill attempts to get native Hawaiians classified as Indian tribes so that preferences granted by Hawaiian government entities do not have to be subjected to strict scrutiny. ("Indian tribe" classifications are not considered racial or ethnic under current law).
Back in 2000, the Supreme Court invalidated a Hawaiian law that only permitted "native Hawaiians" to vote in elections for trustees for the Office of Hawaiian Affairs. In Rice v. Cayetano, the Supreme Court held that such a qualification was racial, and Hawaii's attempt to argue that it was ancestral, was "a proxy for race." Rice was a 7-2 decision, and even Justice Breyer, writing in concurrence, noted that the classification, "does not sufficiently resemble an Indian tribe."
Of course, even if there was a congressional proclamation that native Hawaiians are "Indian tribes," that does not make it true. As my colleague Tim Sandefur has pointed out recently in a series of posts, simply declaring 2+2=5 does not make it true. Or, as President Lincoln put it (HT: Roger Clegg), "If you call a tail a leg, how many legs does a dog have? The answer is still four, since calling tail a leg doesn’t make it one." Similarly, calling native Hawaiians an Indian tribe does not make it so.
We applaud our friends over at CEO for working to defeat this bill, a bill that would likely result in discrimination across Hawaii (not to mention potential preferences for "native Hawaiians" throughout the United States), but, if this bill passes, I don't think it will pass constitutional scrutiny. 2+2 will always equal 4, no matter what Congress says.