by Jere Krischel
E pluribus unum. Present on the Great Seal of the United States since 1782, its meaning is both simple and profound – “Out of many, one.” Originally it may have been but a literal acknowledgment of the Union of the thirteen colonies, but as the years have gone by it has become a philosophical premise which we apply as a standard of morality. It is today a clarion call for the respect of diversity, an acknowledgment that while we may have our differences, we are one people, under one law. Each citizen of the United States takes for granted that regardless of their racial background, cultural background, or family history, they are endowed by their Creator, the same unalienable rights as all their other fellow citizens.
The startling truth, however, is that we have a lot further to go before our laws and our country are aligned with this noble motto. Just as the institution of slavery stood as a stain against the noble ideals upon which our constitution was based, today we live under a government which has yet to make good on the motto, ‘E Pluribus Unum.’ While our constitution expressly prohibits denying people equal treatment under the law with the fourteenth amendment, our government has often both willfully and woefully ignored this basic guarantee.
The race-based quota system of affirmative action is perhaps the most visible example of this violation of constitutional rights (with a low point in Grutter v. Bollinger, and some progress recently with Ricci v. DeStefano). The idea of treating people differently because of their racial background is anathema to the concept of civil rights, and the “fighting fire with fire” philosophy of fixing racial discrimination by using more racial discrimination is hypocrisy at its worst. However, an even more egregious violation of the principle of equal treatment exists in current Indian law, and an even greater danger is presented to us with the Akaka Bill that has been proposed in various forms for the past ten years.
As it stands today, we have three distinct classes of citizenry in the United States – tribal leaders, tribal members, and non-tribal citizens. Tribal leaders stand generally above the law, with no constitutional checks on their power. The Supreme Court in its Nevada v. Hicks (2001) case stated, “it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes.” This exemption from the basic protections afforded to other citizens places tribal members in the most disparaged class of the three, leaving them at the whim of their tribal governments. While under tribal jurisdiction, non-tribal citizens fare just as poorly, but they at least have the wherewithal to escape from the reservation, while tribal members face the threat of tribal expulsion, confiscation of the lands their family may have lived on for generations, and even loss of custody of their own children.
Today, there are 565 federally recognized tribes which may freely violate the constitutional rights of their members. The Shinnecock Nation, backed by Gateway Casino Resorts, with only 1,292 members, became number 565 on October 1, 2010, after all appeals to their recognition (including objections from other already established casino tribes) were exhausted. The Shinnecock, and the other 564 federally recognized tribes, are granted exemptions from state and local jurisdictions, creating a special class of citizenry not subject to the rights and laws of their peers. These federally recognized tribes also have access to lucrative federal assistance programs (regardless of any tribal casino income), funded by non-tribal taxpayers and controlled exclusively by tribal leaders.
So instead of ‘E Pluribus Unum,’ the truth is that today we live in a country governed by ‘E Pluribus Pluribus,’ with a constant, yet often overlooked, division of people into different strata of citizenship. The Akaka Bill serves as yet another continuation of that deplorable trend, promising to “reorganize” everyone with the smallest drop of native Hawaiian blood into an Indian tribe, with all the equal protection problems that come with it. Specifically constructed to protect current race-based programs targeted at native Hawaiians, the Akaka Bill is a headlong dive into the constitutional loophole provided by Indian Law, and promises to divide the State of Hawaii in the most wrongheaded manner imaginable.
From a purely self-interested point of view, it’s no wonder that future Akaka Tribe leaders want to get in on the Indian Tribe game – between the casino money, and the federal dollars appropriated (regardless of whether or not a tribe is economically self-sufficient), even the most reasonable and rational person might be sorely tempted. An investigation into recent native Hawaiian grants handed out by the government, athttp://4hawaiiansonly.com, has already identified over 766 grants totaling over $273 million dollars. While only a drop in the bucket compared to the more than 4 billion spent on Indian tribes every year (the BIA is unable to give any exact number), there is no question that we’re talking a lot of money, and a lot of temptation.
It will be a long road for our country, to repair the self-inflicted wounds of ‘E Pluribus Pluribus.’ Ending the second and third class citizenship status of existing Tribal Law, and preventing the enactment of further injustices like the Akaka Bill will not be easy – the forces arrayed against a nation of one people, under one law, have resources common citizens simply cannot match. But in the end, no matter how long or difficult the struggle, the United States will one day live up to its noble ideals of its founding – E Pluribus Unum
Jere Krischel is a civil rights activist and senior fellow with the Grassroots Institute of Hawaii.