The Federalist Society

Debate Comments

[Paul R. Jones]

I read with interest this debate over the Akaka Bill and Title 25 et al. I would note two fatal flaws to the overall debate re. Akaka Bill and Title 25 U.S.C. inclusive of the Indian Reorganization Act of 1934. First fatal flaw exhibited by all the folks contributing to the debate is: Accepting without question the fallacious logic used to perpetuation premises and inferences stemming from SCOTUS decisions in the 1800s by Chief Justice Marshall and other SCOTUS decisions re. Federal Indian Law and Programs, and carried forward to today's debate (all the while ignoring Stare Decisis) that Title 25 et al is Constitutional to begin with which it is not. The Indian Citizenship Act of 1924 changed everything! That which is disobedient to the Constitution is disobedient from the beginning and not when so branded! The second fatal flaw: The Indian Citizenship Act of 1924 making all "Indians" who had not achieved citizenship (sui juris), citizens of the United States (assuming you don't like the 14th Amendment's paragraph #2) which makes this debate moot for both the "Native Hawiians and "Native Americans" are citizens first and their ancestry is second. Reversing that fundamental Constitutional tenet turns U.S. citizenship upside down and eviscerates the Constitution. And, the Constitution was written to protect the individual sovereign Body-Politics not groups! They (Native Americans and Native Hawaiians) possess the whole mantle of the conceded protections of the Constitution. As such citizens, nothing in the Constitution including the Commerce and Treaty Clause is applicable to regulating these citizens of Indian/Hawaiian ancestry as to do so would make such legislation an 'invidious racial classification discrimination' enactment contrary to Bolling v. Sharpe, 347 U.S. 497 (1954) and the whole of the Constitution. SCOTUS has upheld on National Security emperatives only two racial classification discrimination enactments by Congress per DeFUNIS v. ODEGAARD, 416 U.S. 312 (1974)-Toyosaburo Korematsu v. United States, 323 U.S. 81 (1944)and Kiryoshi Hirabayashi v. United States, 320 U.S. (1943) This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U.S. 214 , and Hirabayashi v. United States, 320 U.S. 81 , involving curfews and relocations imposed upon Japanese-Americans. Why? Because there is nothing in the Constitution authorizing the womb to tomb regulation of a select group of U.S. citizen with Indian ancestry (or Native Hawiian for that matter) based upon a blood quantum and Title 25 specifically spells out a blood quantum absent National Security imperitives. The parties to this debate have miss-read and miss-interpreted the original Founding Father's exact words on the Commerce Clause. The Treaty Clause makes no provisions for treaties by the National Government with its own constituency. Justice Scalia summed up the notion of a "CREDITOR AND A DEBTOR RACE" in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995): Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, see Amdt. 14, 1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote "on account of race") or based on blood, see Art. III, 3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, 9 ("No Title of Nobility shall be granted by the United States"). To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American. In closing, while I found the debate interesting, those who participated missed the point entirely. Neither the proposed Akaka Bill or Title 25 et al is Constitution as both are unambigiously a blood quantum raced based 'indivious racial classification discrimination' enactment. Regrettably, the myth of Native American 'inherent sovereign nation status' has not be abutted by the whole of the United State Constitution in a case that was accepted by SCOTUS. Why is that?

[Elizabeth Campbell]

First the presumption, that there are all these "wrongs" that were perpetuated. That is an on-going popular claim that is made in these indigenous rights cases. It is often blown out of proportion and fails almost always to present the totality of the situation(s) as they existed at the time. Ultimately too, this is another attempt to institute privileges based on race, something that with the 13th Amendment and other legislation we determined was repugnant.

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