Equal protection and the special relationship: the case of native Hawaiians.

• Author: Benjamin, Stuart Minor

In the 1970s, the Supreme Court rejected several equal protection chalLenges to government programs that singled out members of Indian tribes,(1) invoking a constitutionally grounded "special relationship"(2) between the United States and Indian tribes under which tribal classifications were political, not racial, and were subject to mere rational basis review.(3) More recently, the Supreme Court has held that all government programs with racial or ethnic classifications are subject to strict scrutiny.(4) The Court has never squarely addressed the relationship between these two lines of cases, however, or explicitly delineated the boundary between tribal and racial classifications. In particular, the Court has not had occasion to decide whether the rational basis review for programs singling out members of Indian tribes applies to programs that utilize nontribal categorizations of Native Americans.(5) This Article addresses the constitutional status of such programs, using as a case study the programs involving one particular indigenous group - Native Hawaiians.(6)

The issue considered here is a significant one in both constitutional and Native American law, for it sheds light on the breadth of the principles articulated in Adarand Constructors, Inc. v. Pena(7) and City of Richmond v. J.A. Croson Co.,(8) and therefore on whether, and to what extent, federal and state governments can enact legislation for the benefit of Native

Americans - including American Indians who are not members of Indian tribes,(9) Alaska Natives who are not part of entities that constitute tribes,(10) and possibly native groups who live in United States territories.(11) The answer to this question will have important ramifications, because there are many statutes that single out members of native groups, defined racially. This Article concentrates on programs that benefit Native Hawaiians, as the stakes are particularly high for them: Whereas much legislation benefiting American Indians is tied to membership in a tribe, all legislation for Native Hawaiians define "Native Hawaiian" by ancestry, as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778,"(12) or, in those programs without a blood quantum requirement, simply as the descendants of pre-1778 inhabitants.(13) Thus, if such a definition constitutes a racial classification under the Supreme Court's case law, all legislation treating Native Hawaiians specially is presumptively invalid.(14)

An examination of statutes for Native Hawaiians is particularly timely in light of the recent vote among Native Hawaiians regarding whether "the [Native] Hawaiian people [shall] elect delegates to propose a Native Hawaiian government."(15) This Article casts light on the political significance of the decision to create such a government, as it concludes that, without a Native Hawaiian political entity that can constitute an "Indian Tribe[]" for constitutional purposes, there is no "special relationship" between Native Hawaiians and the federal government pursuant to which programs singling out Native Hawaiians would be subject to rational basis review.(16)

Interestingly, despite the fact that dozens of statutes treat Native Hawaiians specially (including one that sets aside approximately 200,000 acres of land for dollar-per-year leases to those with fifty percent or more Native Hawaiian blood),(17) the Supreme Court has never addressed the constitutionality of programs for Native Hawaiians. In fact, there have been only two challenges in the federal courts to programs singling out Native Hawaiians (the second involving the aforementioned Native Hawaiian vote), and in each case the district court addressed the question fairly briefly, concluding that preferences for Native Hawaiians were subject to rational basis review.(18) Similarly, commentators have uniformly contended that programs for Native Hawaiians have the same constitutional status as those for Indian tribes. These commentators, however, generally have not developed the argument at length.(19) This Article examines anew the constitutional status of programs for Native Hawaiians, considering the arguments that could be raised in support of rational basis review and the implications of applying heightened scrutiny.(20)

The larger issue, though, is how the current case law treats statutes that benefit native groups and that are not tied to membership in a tribal organization. Analyzing this question brings to light the difficulties and peculiarities arising out of the uneasy relationship between the Court's construction of the authority granted by the Indian Commerce Clause and of the limitations entailed in the equal protection component of the Fifth and Fourteenth Amendments; between the federal government's special relationship with Indian tribes recognized in Morton v. Mancari(2) and the hostility to racial classifications in Adarand and Croson; and, ultimately, between the historical tradition of treating native groups differently and the idea that racial classifications are repugnant and therefore are presumed to violate equal protection norms.

This Article's focus on current doctrine as reflected in the case law differs from that of most commentators on Native American law. Those commentators usually write normatively about how the courts should be construing Native American law, and they often criticize the existing case law (in particular the Supreme Court's cases) as poorly reasoned and inconsistent.(22) That the Court's reasoning may lack a sound theoretical foundation or fail to support its conclusions does not, however, render its cases indeterminate or unworthy of analysis. For better or worse, the cases addressed in this Article have, in my view, clearly drawn a distinction between tribal and ethnic classifications, and have given rise to discernible doctrines. The possible tensions in the Court's cases do not condemn the enterprise of understanding the doctrines those cases create; on the contrary, identifying and evaluating such tensions is a powerful reason to understand the Court's doctrines. A judgment on the distinctions the Supreme Court has drawn must rest on an understanding of the current state of the case law. The purpose of this Article, therefore, is to explore the case law on statutes singling out Native Americans, and in particular Adarand and Mancari, not in an attempt to justify the cases, but rather in an attempt to bring to light the interplay between them, and the difficulties that such interplay produces.

The first Part of the Article sets out the legal standards for legislation treating Indian tribes specially. The second Part addresses the history of Native Hawaiians and the enactment of laws singling them out for different treatment. The third Part posits arguments that could be made in favor of application of rational basis review to legislation for Native Hawaiians, ultimately concluding that current statutes would be subject to strict scrutiny. The fourth Part briefly discusses the potential impact of this conclusion on programs singling out Native Hawaiians. The fifth Part addresses ways of bringing Native Hawaiians within the special relationship. The sixth and concluding Part notes the ramifications of the analysis contained in this Article for native groups more generally.

1. Constitutional Standards for Legislation That Singles Out

   Indian Tribes

   Before 1974, the Supreme Court considered a number of challenges to government actions with respect to Indians, but none involved an equal protection challenge to the singling out of Indian tribes (or Native Americans more generally) for different treatment; instead, the litigants usually contended that a particular action exceeded the scope of Congress's power over Indians. The Court consistently rejected these challenges, finding that Congress had broad - often called "plenary" - power over Indians.(23) Over the years, the

   Court has articulated different sources for this authority. Chief Justice Marshall grounded it in both history and the Indian Commerce Clause of the Constitution, which gives Congress the power "[t]o regulate Commerce ... with the Indian Tribes."(24) Later, in United States v. Kagama,(25) the Court rejected reliance on the Indian Commerce Clause(26) and instead concluded that the federal government's power "must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes."(27) More recently, the Court has moved away from Kagama's suggestion of extraconstitutional powers and has instead grounded Congress's power over Indians - and the concomitant special relationship between the federal government and Indian tribes - in the Indian Commerce Clause and, at least to some extent, the Treaty Clause of Article II.(28) Under both the former extraconstitutional approach and the current one based on the Indian Commerce Clause, the Court invariably found Congress's power to be quite broad(29) - encompassing measures that harmed as well as helped Indians.(30)

   The only successful challenges to Congress's power to enact a particular law have argued not that the Indian Commerce Clause was insufficient, but rather that an independent constitutional limitation - most recently, the penumbral emanations from the Eleventh Amendment - constrains Congress's exercise of its authority.(31) One set of such cases (albeit one that has never met with success in the Supreme Court) involved the contention that a given federal government action violated the equal protection component of the Due Process Clause of the Fifth Amendment. The central case, decided in 1974, is Morton v. Mancari,(32) the first in which the Supreme Court confronted an equal protection challenge to a law...