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January 2006 Archives

By Gail Heriot

This is an updated version of an article that ran in the San Diego Union-Tribune Aug. 28, 2005. The U.S. Civil Rights Commission has scheduled a Jan. 20 briefing on the proposed "Native Hawaiian Government Reorganization Act", at which Prof. Heriot is scheduled to testify.

America's 50th State has always been known for its friendly and welcoming "Spirit of Aloha." But for the last decade or so, Hawaii has begun to earn a reputation for something else entirely: the nation's most divisive racial politics. And with the proposed "Native Hawaiian Government Reorganization Act" (known as the Akaka bill) currently pending before the U.S. Senate, it may only get worse. The bill was scheduled for Senate vote back in September, but emergency legislation relating to Hurricane Katrina had to be taken up instead. The bill's supporters now expect that it will be taken up sometime in 2006.

Put simply, the Akaka bill will allow the nation�s approximately 400,000 ethnic Hawaiians to organize themselves into one vast Indian tribe—the largest in the nation. A commission appointed by the U.S. Secretary of the Interior and consisting of nine "Native Hawaiian" commissioners with "expertise in the determination of Native Hawaiian ancestry" will sit as judges to ensure that only those who can prove their Native Hawaiian bloodline are permitted to join.

Why would 400,000 American citizens want to retroactively declare themselves an Indian tribe? There's a good chance they don't. The only full-scale poll indicates that ethnic Hawaiians reject the notion of a tribe�48% to 43%�when they are informed that under a tribal government they would not be subject to the same laws, regulations and taxes as the rest of the state. And Hawaiians generally oppose the so-called "reorganization" by an astonishing 2 to 1 ratio. But vocal leaders in the ethnic Hawaiian community, many of whom no doubt fancy that they will be the tribal leaders themselves, consider tribal status a top priority. And politicians are falling in line behind them. Senator Daniel Akaka, for whom the bill is named, claims to have the votes he needs to pass the bill.

To understand why ethnic Hawaiian leaders want tribal status, one must know a bit about Hawaiian racial politics. In an age in which racial entitlements are an unfortunate feature of the political landscape in so many parts of the country, Hawaii is in a league by itself. The State's Office of Hawaiian Affairs administers a huge public trust�worth billions�which in theory benefits all Hawaiians, but for reasons that are both historical and political, actually provides a bonanza of benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians are eligible for special home loans, business loans, housing and educational programs. On the OHA web site, the caption proudly proclaims its racial goal, "Office of Hawaiian Affairs: For the Betterment of Native Hawaiians."

The problem for supporters of special benefits came in 2000, with the Supreme Court case of Rice v. Cayetano. Unsurprisingly, the Court ruled that the Constitution's Fifteenth Amendment, which prohibits States from discriminating on the basis of race in voting rights, applied to Hawaii just as it does to every other state in the union. Hawaii could not prohibit non-ethnic Hawaiians from voting in state elections for OHA trustees.

That ruling caused an uproar in Hawaii that has not yet subsided. If the Fifteenth Amendment prohibits Hawaii from limiting voting rights to ethnic Hawaiians, the Fourteenth Amendment's Equal Protection Clause and other civil rights laws might prohibit all or part of the OHA's massive system of exclusive benefits. Cases like the Ninth Circuit�s decision last month prohibiting the Kamehameha Schools from operating for the exclusive benefit of ethnic Hawaiians only added to this controversy. The whole racially-exclusive system is in legal jeopardy.

That's where the Indian tribe idea comes in. States cannot discriminate on the basis of race except in extraordinary cases. But Indian tribes can. They are essentially exclusive racial groups and are not directly (or in many respects even indirectly) bound by the U.S. Constitution (or by most civil rights laws). If ethnic Hawaiians can be morphed into an Indian tribe, and the State of Hawaii can then transfer the OHA's functions (and the vast acres of real estate and other property it administers) to the tribe, the racial spoils system can be preserved�or so its advocates hope.

There are many reasons that the Akaka bill is a bad idea�including a strong likelihood that both the bill and the overall plan to transfer the OHA's functions and property to the "tribe" are simply unconstitutional. If the State of Hawaii cannot confer preferential benefits on its citizens based on race, it cannot give away land and property to a newly-minted tribe created for the purpose of conferring benefits based on race. The Constitution's requirements cannot be by-passed that easily.

But perhaps the most important reason to oppose the Akaka bill is the disturbing precedent it sets. The United States has long recognized the sovereign status of Indian tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Our policy towards them was simply a bow to reality.

By retroactively creating an Indian tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a long and continuous history of separate self-governance, the Akaka bill will be breaking new ground. If ethnic Hawaiians can be an Indian tribe, why not Chicanos in the Southwest? Cajuns in Louisiana? Religious groups�like Orthodox Jews in New York or the Amish in Pennsylvania�may be particularly interested in gaining tribal status, since doing so will arguably allow them to take on governmental authority without being subject to Constitutional prohibitions on the establishment of religion. Who will say no to these (and other) groups?

In August of 2005, Senator Akaka was asked in a National Public Radio interview whether the sovereign status granted in the bill "could eventually go further, perhaps even leading to outright independence." The question might have seemed extraordinary for anyone unfamiliar with how strong the push for Hawaiian independence has become. Back in the 1970s, its supporters were considered kooks and lunatics. But today, although by no means a majority, they are a political force to be reckoned with. It's hard to drive down a Hawaiian road without seeing an upside down Hawaiian flag, the symbol of the movement, flying over someone's home. Even more extraordinary was Akaka's answer: "That could be. That could be. As far as what's going to happen at the other end, I�m leaving it up to my grandchildren and great-grandchildren."

Akaka's fellow Senators should think long and hard about the whether the Akaka bill will, in the long run, lead to greater harmony among Hawaiians and among Americans�or less. Is our "One Nation" indivisible or not?

Gail Heriot is a professor of law at the University of San Diego and blogs at

By Ralph R. Reiland

The bombing of the World Trade Center, on Feb. 26, 1993, was the most destructive terrorist attack on U.S. soil up until that time. Planted in a rental van, a 1,500-pound, urea-nitrate bomb exploded in the parking garage beneath the World Trade Center complex, creating a crater 200 feet across and seven stories deep.

The blast killed six people, injured nearly 1,000, and caused hundreds of millions of dollars in property damage and business interruptions. It could have been worse. "If the van had been parked a few feet closer to one of the pillars," writes James Bovard, a policy analyst for The Future of Freedom Foundation, "it could have collapsed an entire tower of the Trade Center, killing tens of thousands."

In fact, the terrorists' plan was designed to topple New York City's tallest tower onto its twin, creating maximum havoc during a busy workday with perhaps as many as 50,000 people being killed and a cloud of cyanide gas chasing the survivors through the streets of Manhattan.

Now, after a dozen years of legal maneuvering, a jury in the state Supreme Court of New York has taken the terrorists off the hook for the majority of the blame in their 1993 attack. On Oct. 26, unanimously, the jury said the guys who carried out the bombing were only 32 percent responsible for the damages.

The majority wrongdoer, 68 percent at fault for the death and destruction, said the jury, was the Port Authority of New York and New Jersey, the then-owner of the World Trade Center—which means that the party with the deepest pockets is getting the bill, which means that the taxpayers of New York and New Jersey will be picking up the tab for most of the losses.

On the day of the 1993 blast, Mario Cuomo, New York's governor at the time, told journalists: "We all have that feeling of being violated. No foreign people or force has ever done this to us. Until now, we were invulnerable."

Today, playing Monday-morning quarterback more than a decade after the attack, the New York jury has said the Port Authority "should have known" an attack was coming, even if, as Cuomo said, nothing like that had ever happened before. Further, the Port Authority "should have known" to shut down the garage to the public, and to its upstairs tenants, even if, as Cuomo said, no one had felt vulnerable before to a foreign force in the center of Manhattan.

Because the jury apportioned more than half the liability to the Port Authority, the plaintiffs' principal lawyer, David Dean, said the agency will have to pay 100 percent of any damages for pain and suffering that might be awarded, so-called non-economic damages, as well as 100 percent of any economic damages, such as lost business. As it currently stands, explained Dean, lawyers for the plaintiffs are seeking an estimated $1.8 billion in alleged damages.

Being perfectly efficient, of course, the managers of the Port Authority could have been flawless fortune tellers—better than the CIA, NSA and FBI—and closed the garage. But then the terrorists might have gone the route of exploding anthrax bombs in the lobby, or crashing jets into the upper floors.

In similar blame-shifting news from England, Carl Murphy, 18, was recently awarded a payout of $1.1 million in a liability suit for injuries suffered nine years ago when he fell through the roof of a warehouse in Bottle, near Liverpool. Some newspapers reported only that Murphy "had been trespassing" while others added that he "fell through a skylight while trying to break into the warehouse."

Either way, Murphy's lawyer successfully argued that the fence surrounding the warehouse wasn't in full repair, thereby permitting a too-easy entry to the property.

Boasting about his newfound wealth to the press, Murphy, who has 17 metal plates in his head as a result of the fall as well as prior convictions for burglary, robbery and assault, said he is going to buy "a few houses and a flash car" and was unconcerned about the negative responses from the public.

"I'm going to buy a big house so I have a place to live with me mum when she gets out of jail," he explained. Mum is behind bars for selling crack and heroin.


Ralph R. Reiland is the B. Kenneth Simon professor of free enterprise at Robert Morris University and a columnist with the Pittsburgh Tribune-Review.

Reprinted by permission from the Pittsburgh Tribune-Review, where this column originally ran on December 5, 2005.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.