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House Chamber, Washington, D.C.
February 23, 2010
It pains me to rise in opposition to the valedictory measure of the gentleman from Hawaii, but I believe this bill strikes at the very foundation of a nation dedicated to equality under law. It establishes a different set of laws, a different set of rights and a different government for one group of Americans based solely on their race.
Two American families, living next door to one another, would be accorded two different sets of rights enforced by two separate sovereignties – all based entirely by accident of birth.
Ever since Brown v. Board of Education buried the “Separate but equal doctrine” of Plessy v. Ferguson, the Supreme Court has consistently ruled that such an arrangement is fundamentally incompatible with the American Constitution.
Ten years ago, in the case of Rice v. Cayetano, the Supreme Court, in a 7-2 decision, struck down identical race-based voting qualifications for the Office of Hawaiian Affairs.
The state argued that it could impose race-based voting qualification, based on the precedent of Indian tribes. The court responded:
“Even were we to take the substantial step of finding authority in Congress, delegated to the state, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a state to create a voting scheme of this sort.”
That is EXACTLY what this bill does.
This bill establishes a precedent that will allow any distinct group within our nation to demand its own separate organic rights and government. Were this bill to pass, there would be no grounds to deny any other racial group with historic grievances their own separatist government and exclusive rights.
Having enacted this law, on what basis do we deny every other demand to tear our country apart? This is a precedent that does tremendous damage to a multi-racial nation founded upon the principles of e pluribus Unum and equal justice under the law.
How exactly do we establish two separate governing systems and two separate populations with two separate sets of civil and legal rights within the same territory? Under whose law are competing claims to be settled?
The bill explicitly provides that the Native-Hawaiian government and its official acts cannot be challenged in an American court.
And how exactly can Congress cede by statute the very essence of its Constitutional authority, requiring civil and criminal jurisdictions and property rights to be negotiated away to this new governing entity that is defined solely by the race of its members.
The analogy with American Indian tribes is absurd both historically and legally.
Historically, American Indian tribes never voted to join the Union, they were conquered by force and extended by treaty certain lands in which they could exercise sovereignty, and they maintained continuous self-government.
Whatever the circumstances involved in the revolution of 1893 and the annexation of 1898, they became irrelevant in 1959, when the people of Hawaii voted by a 17-to-one margin – almost 95 percent — to join the Union and to become an integral and indivisible part of the American nation.
The Admission Act never contemplated the establishment of a separatist government. The provisions that proponents cite merely provided an option of land for homes and small farms of a very small number of Hawaiians with 50 percent native ancestry.
The Admission Act DID contemplate assuming the full protection of the American Constitution and its prohibition against race-based separatism and race-based rights.
Legally, a tribe exists only when it has a government that has exercised substantial authority over its members from before Western contact continuously until the present and when its members mostly live separate and apart from surrounding populations. The sovereignty of that government is limited to the trust lands of the tribe. These long-established criteria are entirely inapplicable to American citizens of Hawaiian descent — 40 percent of whom don’t even live in Hawaii according to the 2000 census.
Mr. Speaker, There is no more effective way to destroy a nation than to divide its people by race and accord them different rights and different government based upon their race.
Yet that is exactly what this bill does.