Federalism and the Akaka Bill

The House of Representatives recently passed the Akaka bill, H.R. 2314, which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes. Most of the debate over the bill has focused on the racial aspect, since it apparently seeks to create a government entity under the exclusive control of a single ethnic group. This may be a violation of the Equal Protection Clause. Whether this constitutional objection is valid or not, I think there are serious constitutional federalism problems with the legislation.

I. The Commerce Clause Doesn’t Give Congress the Power to Create an New Indian Tribe for Native Hawaiians.

Supporters claim that Congress has the power to enact this bill under the so-called Indian Commerce Clause, which gives Congress the authority to “To regulate Commerce . . . with the Indian tribes.”

As legal scholar and US Commission on Civil Rights Commissioner Gail Heriot pointed out in her testimony against the bill, this is “a thin reed indeed upon which to predicate a power to create a tribal government.” Heriot emphasizes that the power to regulate commerce with existing Indian tribes does not include the power to create a wholly new tribe:

The United States has long recognized the sovereign or quasi-sovereign status of certain 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. Federal policy toward them was simply an appropriate bow to reality. To withdraw recognition to any such group without very good reason would be an injustice.

By retroactively creating a 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, H.R. 2314 would be breaking new ground.

Proponents could argue that the Necessary and Proper Clause gives Congress the power to create new tribes. However, it’s hard to see why the power to create a new tribe is in any way a “necessary” or “proper” means to the objective of regulating commerce with existing tribes. Congress’ ability to do the latter is in no way facilitated by the establishment of a new “tribe” for native Hawaiians.

Nor is it persuasive to argue that native Hawaiians are analogous to an Indian tribe because Hawaii was an independent nation prior to its annexation by the US in the 1890s. As Heriot notes, that independent sovereignty was terminated by the annexation itself and never revived until now. Moreover, she explains that the earlier independent Hawaiian state was in no way ethnically exclusive, and included a high percentage of non-Hawaiians among its citizens (mostly Americans and British). If Hawaii’s independence prior to annexation gives Congress the power to create a new Indian tribe for native Hawaiians, presumably Congress could also create a tribe for descendants of Texans who lived in the Republic of Texas prior to its annexation by the US.

II. Creating a New Tribe for Native Hawaiians May Violate State Sovereignty.

There is also a second potential federalism problem with the Akaka bill. By authorizing the creation of a tribal government for native Hawaiians, Congress is carving out a new sovereign entity within the territory of the existing state of Hawaii. It’s far from clear that Congress has the power to do such a thing under the Constitution. Article IV, Section 3 of the Constitution states that “no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The new Hawaiian tribal government may not have powers great enough for it to count as a “State” within the meaning of Article IV. Still, the federally mandated creation of a new sovereign entity within the boundaries of an existing state is constitutionally dubious. It is not authorized by the enumerated powers of Congress.

It also runs counter to the logic of Supreme Court decisions such as New York v. United States and Printz v. United States, holding that the Tenth Amendment forbids the federal government to “commandeer” agencies of state governments. If it is unconstitutional for the federal government to infringe state sovereignty by commandeering its government agencies even in relatively modest ways (e.g. – in Printz, where they were merely required to conduct background checks on gun buyers), surely it is at least equally problematic for the federal government to in effect commandeer the state’s control over a substantial proportion of the state’s territory and population, and transfer that power to a new political entity.

Indian tribes have broad exemptions from control by state law by virtue of their special political status. If the new Hawaiian “tribal” government has similar powers, it would be a substantial limitation on Hawaii’s sovereignty. As Heriot puts it:

Ultimately, this purported tribe would almost certainly have powers like those of mainland Indian tribes–including the power to make and enforce laws, promulgate a criminal code, punish offenders, impose and collect taxes and exercise eminent domain–as well as police powers and the privilege of sovereign immunity.

In its exercise of such powers, the Hawaiian tribe would be free of state government control, as is also true of Indian tribes.

Unlike many conservatives and libertarians, I am not categorically opposed to the use of racial classifications for the purpose of compensating victims of historical injustices. Perhaps Congress or the Hawaii state legislature would be justified in enacting some such measure for the benefit of native Hawaiians. I doubt, however, that the creation of a tribal government is likely to be a particularly good way to provide compensatory justice for them. In any event, the bill has serious constitutional problems entirely aside from its racial and ethnic elements.

CONFLICT OF INTEREST WATCH: My fiancee is Gail Heriot’s special assistant at the US Commission on Civil Rights, and Heriot has long been a leading critic of the Akaka Bill. I don’t think this fact significantly influences my position the issue. I held much the same view before I ever met my fiancee. Still, I mention it just to be on the safe side.