Who is Hawaiian, What Begets Federal Recognition, and How Much Blood Matters
Ryan William Nohea Garcia
affiliation not provided to SSRN
April 14, 2010
Asian-Pacific Law & Policy, Journal Vol. 11, p. 85, 2010
The Akaka bill proposes to federally recognize a Hawaiian governing entity similar to those of federally recognized Indian tribes. As the Akaka bill will institutionalize a political difference between Hawaiians and non-Hawaiians, who is Hawaiian is a timely, and controversial, issue. Also controversial is whether Congress possesses the authority to federally recognize a Hawaiian governing entity. This article addresses three questions that probe the heart of the controversy surrounding the Akaka bill: who is Hawaiian, what begets federal recognition, and how much blood matters. After analyzing relevant Indian jurisprudence, this article demonstrates that political history, not indegeneity, begets federal recognition. As such, it is the political-historical, not racial, definition of Hawaiian that is legally significant to the Akaka bill. Since, however, the Akaka bill utilizes an ethnic Hawaiian blood eligibility criterion, another important question – and one Justice Breyer raised in Rice v. Cayetano – is how much blood is necessary to distinguish ideological self-identification from legitimate racial identity. To the extent racial preferences may coexist with the equal protection components of the Constitution, this article contends that a preponderance of preferred blood is the logical quantum, but a fifty percent requirement is the most practicable.
Number of Pages in PDF File: 78
Keywords: Pure Equal Treatment, Federal Recognition, Hawaii, Ethnic Hawaiian, Blood QuantumAccepted Paper Series
Date posted: February 12, 2011 ; Last revised: February 21, 2011
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