By Derrick DePledge
Half of the eight-member U.S. Commission on Civil Rights wrote to President Barack Obama on Monday and urged the president not to implement Native Hawaiian federal recognition through executive action.
U.S. Sen. Brian Schatz and others have suggested that the federal government could take some executive action to help Native Hawaiians achieve self-governance. Federal legislation, known as the Akaka bill for former U.S. Sen. Daniel Akaka, its original sponsor, has stalled in the U.S. Senate since 2000 because of conservative Republican-led opposition.
The U.S. Commission on Civil Rights has opposed the Akaka bill since 2006.
The letter to Obama was from Abigail Thernstrom, the commission's vice chair, and commissioners Peter Kirsanow, Gail Heriot, and Todd Gaziano. Thernstrom and Kirsanow are Republicans, while Heriot and Gaziano are independents. The other four members of the commission are Democrats.
We believe that provisions of the Akaka bill are both unwise and unconstitutional. Executive action implementing provisions of the Akaka bill would be at least as unwise and unconstitutional.
Neither Congress nor the President has to power to create an Indian tribe or any other entity with the attributes of sovereignty. Nor do they have the power to reconstitute a tribe or other sovereign entity that has ceased to exist as a polity in the past. Tribes are “recognized,” not created or reconstituted. The federal government may on appropriate occasions assist tribes in transforming their internal political structure, but they cannot bring into existence a tribe or other sovereign entity that has never existed or has ceased to exist as a separate polity.
Real tribes—the kind the Federal government may recognize—are defined by political structure and the maintenance of a separate society, not by bloodline. A mere shared blood quantum among the members of a group is not sufficient for the federal government to recognize an Indian tribe.