Rooted in Reason: Nurturing the Seeds of Liberty

Plenary Power Through Legislation by grassroothawaii
July 6, 2011, 4:32 pm
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By Cannon Brooke

Governor Neil Abercrombie signed into law SB1520 recognizing the official status of native Hawaiians. The legislation by the name of “First Nations Government Bill” will approve the formation of a Native Hawaiian governing entity.

The legislation recognizes Native Hawaiian people as “the only indigenous, aboriginal, maoli people of Hawaii,” and further, requires an appointed five-member Native Hawaiian commission to create and publish a list of people who are of “native” descent.

Whatever good intentions the authors of this bill had, in reality, it represents the acquiescence to the Federal Government.

Whenever there is any legislation that classifies people into categories and sub-categories, I get a little reluctant. After reading the bill, there are some questions that I feel need to be raised.  One instance is in article (3) section A where the bill states:

(i)               An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii; or

(ii)             An individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that individual;

The language of the bill raises some red flags as well. First of all, why is the cut off of eligibility at 1778? To me, it seems since this is an historic period, the date is meant to impose racial restrictions on citizens of Asian and European-mixed descent.

Additionally, the language of the bill is nebulous and the racial connotations are questionable. For example, SB1520 notes that in order to be qualified you have to be an individual who is one of “indigenous, native people of Hawaii.”

This notion is most problematic. The word indigenous means originating in and characteristic of a particular region.  Under this definition, then NO ONE is native to Hawaii. Different dates have been thrown around, however; it can be generally accepted that the original settlers of the archipelago arrived around 1500 years ago. Therefore, there are no truly “native” people that sprang up here. Another way to look at this issue is, since under the Federal Government I am classified as “Caucasian” and of English-isle decent; therefore, I am indigenous to England (since the Anglo-Saxons arrived around 400 AD) and consequently, deserve a special title and hyphenation after my name by this logic.

This bill does not legally recognize “Native Hawaiians” as equals, contrary to what Senator Solomon claims. Conversely, it does exactly the opposite. Senate Bill 1520 opens the door to a slippery slope of racial classification. I find it hard to believe there needs to be legislation in order to keep culture or civic connections. If anything, this is going to impact Hawaiian sovereignty.

I have posted a foreword to Voices From Across America written by Dr. W.B. Allen emeritus professor of political philosophy at Michigan State University and former Chairman of the United States Commission on Civil Rights. He articulately discusses the dangers of Congress asserting authority over tribes and warns of the implications of the “Akaka Bill.” I highly recommend reading it.

Please comment on your thoughts.

W.B Allen

Rights Before Rules: The People Speak

WE know the United States as a government of laws. We like it that way. It means that the settled deliberations of communities and not the arbitrary whims of officials fix our notions of public order and welfare. That makes the restraints and permissions of laws much more predictable – and safer. Even here, though, free citizens commit to law abidingness only because they can count on laws being narrowly tailored to defend and support the exercise of individual rights. For, it is the recognition that we have such rights that persuades us, in the first instance, to permit law making. If laws are the rules of community life, the preservation of rights is the game the rules aim to sustain. Voices from America reinforce the public’s awareness that those who make the rules must consistently consult the purpose or end of the rule making in order for the rules to serve their proper function. Yet, in too many instances (though not yet most), the opposite is witnessed, and nowhere is this more apparent than in the case of Federal Indian Law.

The 1924 blanket grant of citizenship to all American Indians proved to be the gift of an “Indian giver,” for a decade later Congress passed an Indian Reorganization Act, assuming a “plenary power” which no mere delegated authority can exercise over citizens. Congress reasserted authority over tribes as wards of the federal government. (1) But once tribal members had become U.S. citizens they were no longer “outsiders.” This claim of total power, then, means that Congress claimed authority under the Constitution to treat citizens as dependent wards. The implications for all citizens, and not merely Indians, are obvious. And if it were not obvious, the so-called “Akaka Bill,” still pending in Congress, would make it so. For that purpose law defines certain citizens in Hawaii as sub-category of citizens termed “indigenous,” and those who are therefore subject to federal ward ship. Persons who are “wards” can make no reasonable rights or claims; for them, rules for their conduct must come before any rights they can enjoy. While children have rights as human beings, they are in fact wards who cannot defend their rights. They benefit rather from adult proxies, whose own individual rights serve to protect not only themselves but their offspring.

Respecting people’s rights, the United States Constitution prohibits the government-classifying citizens by race, and the prohibition is absolute. Accordingly, the assertion of authority over Indians, per se, and Indian tribes in consequence, exceeds the authority of Congress every bit as much as it would if urged with reference to the Amish. That is why the emancipation of Indians from an excessive claim of political power is the necessary condition to protect not only Hawaiians but, indeed, all United States citizens from an aggrandizing federal power.

One area where we could see the effect of this danger is the federal government’s continuing campaign of transforming fee simple property rights into “sovereign Indian territory” – a major component in the growth of Indian gaming in recent years. When tribal recognitions require subordinating non-Indian municipal and state jurisdictions to manufactured sovereignties taking orders from federal officials, the rights of all citizens and not merely Indians have been invaded. This effect was well summarized in Carcieri pleadings:

This court finally applied the equal protection clause of the fourteenth Amendment to overrule Dred Scott in Saenz v. Roe, 526 U.S. 489, 502 Fn. 15 (1999). Removing land from state jurisdiction by placing fee lands into federal trust for one group of state residents because they are recognized as “Indians” completely removes the political process rights of all other state residents. Removing the state political process rights of the non-Indian people nullifies their exercise of local self-governance. Local self-governance is the political sovereignty to make their own laws and be governed by them

                                                  Williams v. Lee, 358 U.S. 217, 220 (1959).2 {2}

The plea voice in this volume is to recognize equal rights for all, and to limit rule making (or law making) to what reinforces equal rights. While federal Indian policy is and will remain for a time yet extremely complicated, there is no good reason those complications should reach into the rights commonly enjoyed by all by virtue of their very humanity. And none is more important than the common right of self-government.

Indian policy has its roots in the experience of the American Revolution and its aftermath. “The three types of colony-provincial, proprietary, and charter – exercised varying degrees of self-government.” (1 story, §159) By the time of the revolution, however, all the colonies maintained that their authority to govern themselves derived from the British Crown. They argued that they were subjects of the King rather than of Parliament, which latter, they claimed, could not rightfully interfere with their internal affairs. (Bailyn, 224-25) They did not borrow their relationship to the Indians from England, because that would tend literally to undermine justifications of American independence and, more importantly, to surrender the claim to recognize principles of human rights, newly enunciated.

1950s Indian “self-determination” originated in the 1834 United States Trade and Intercourse Act” “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, the same shall not extend to crimes committed by one Indian against the person or property of another Indian” (1 Cohen 2-3). Primitive “self-government” was a federal license for Indian to abuse one another, even if it did convey by implication a kind of racially construed “sole and exclusive jurisdiction” over tribes themselves. U.S. jurisdiction must follow the power to punish crime by non-Indians against Indians and crimes by Indians against non-Indians; so tribes did not actually have “sole and exclusive jurisdiction” within their tribal lands. That is why “Indians Country” was defined to be “County within which Indians laws and custom and federal laws relating to Indians are generally applicable.” The concession that Indian tribes can handle crimes of Indians against Indians produces jurisdiction as to race alone. If that ever made sense (and I doubt that it did) it could only do so in the case that Indians were regarded as “outsiders,” not a part of the government of the United States and therefore not included within its guarantees of individual rights. When Indians became a part of US, everything changed.

The time has come for those lawmakers who have slept van Winkle-like through that massive change to wake up and redeem the promise of America – rights before rules!
W.B. Allen

Havre de Grace, MD

  1. See “The Wheeler-Howard Bill – Questions and Answers” in Bulletin, Mission Indian Agency, Riverside, California, April 16, 1934:

Q. Will this bill end Federal guardianship of Indians?

A. This bill specifically provides, in section 11 of title 1, that Federal guardianship of Indians and tax exemption of Indian lands shall be continued.


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