Summer 2006

Congress Acts on Important Section Issues

The 109 th Congress has recently taken up several issues of interest to the Section, most notably, Native Hawaiian Federal Recognition, the Federal Marriage Amendment, Immigration Reform, and Flag Desecration.

  Federal Recognition of Native Hawaiians

On Thurs., June 7, S 147 (the Akaka bill), was defeated by a vote of 56-41. The bill was first introduced in 2000, in response to the U.S. Supreme Court decision in Rice v. Cayetano (No. 98-818), which held that the state of Hawaii cannot restrict eligibility to vote in elections for the Board of Trustees of the Office of Hawaiian Affairs to only persons of Native Hawaiian descent. The Court rejected the notion that Native Hawaiians are entitled to exclusion from the 15th Amendment as indigenous native people similar to the status provided to American Indians. The Court’s decision has put countless state policies and programs, intended to benefit Native Hawaiians who are some of the poorest Americans, at great risk of elimination.

The Native Hawaiian Government Reorganization Act (the Akaka bill) has, over the years, undergone revisions meant to address concerns voiced by those opposed to the bill. Yet with all of these modifications, the main objective of the legislation remains the same: to formally acknowledge Native Hawaiians’ special status as an indigenous people, and to establish a process for official U.S. recognition of a future Native Hawaiian representative body. The bill has widespread partisan support in Hawaii, including state and county governments, as well as strong support from other indigenous peoples, including the National Congress of the American Indian, Alaska Natives, and other national minority rights groups. The ABA adopted a Section-sponsored policy in Feb. 2006 calling for recognition of a Native Hawaiian governing entity.

Opposition to the bill centers on the argument that it would set up an unconstitutionally “race-based” government. However, proponents say that the U.S. Constitution addresses the status of the indigenous, native people of the U.S. and clearly states that their status is founded not upon considerations of race or ethnicity, but upon the fact that these people exercised sovereignty over lands which later became part of the U.S.  Further, they argue, it is upon this constitutional foundation that hundreds of Federal laws have been enacted which express the nature of the political and legal relationship the United States has with American Indians, Alaska Natives, and Native Hawaiians

In a letter sent to Senate Majority Leader Bill Frist on June 7, the U.S. Department of Justice asserted that the recognition afforded to Indian tribes is “inappropriate” for Native Hawaiians. While the indigenous, native people of America are not all “Indians” nor are they all organized as “tribes”, they do share the same pre-existing sovereign status that is granted to Indian tribes. Congress has enacted hundreds of Federal laws that address the conditions of the indigenous, native people of Hawaii and Alaska, and the U.S. Supreme Court has upheld Congress’ exercise of this authority.

While the failure to invoke cloture on June 7, precludes the bill from moving forward during this congressional session, Senators Inouye and Akaka have indicated that they will reintroduce the legislation next term.

Federal Marriage Amendment

On June 7, 2006, the U.S. Senate voted 49 to 48 to defeat the Federal Marriage Amendment (FMA). The bill, which reads, “Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any state, nor State or Federal Law, shall be construed to require that marital status or the legal incidents thereof be conferred up on unmarried couples or groups,” would write discrimination into the Constitution by excluding a specific group of individuals from its guarantees of equal protection. Opponents of the legislation argue that by amending the U.S. Constitution, the FMA would not only effectively strip states of their previously exclusive jurisdiction over marriage, but it could also invalidate existing benefits and protections currently granted at the state and local level for gay and lesbian and/or any other unmarried couples. In Feb. 2004, the ABA adopted a Section-sponsored policy opposing any federal enactment that would restrict the ability of a state to define marriage within its jurisdiction.

The FMA was first introduced in the U.S. House of Representatives in May 2002, and gained renewed momentum in Feb. 2004 when President Bush called for constitutional amendment to “protect marriage.” He stated,

Activist courts have left the people with one recourse. If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America… Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”

Since the adoption of the Bill of Rights in 1791, the Constitution has only been amended seventeen times and, with the exception of prohibition which was later repealed, the FMA would, for the first time in history, restrict and deny rather than establish and expand individual rights for specific classifications of people.

Immigration Reform

On May 25, the Senate passed a comprehensive bill on immigration reform (S 2611) by a vote of 62-36. Among the bill’s controversial enforcement measures are, authorization to construct 370 miles of border fencing; increasing the number of Border Patrols; increasing the use of indefinite detention and expedited deportation; and increasing penalties for employers who hire undocumented workers. Additionally, under S 2611, undocumented workers who have been in the country less than two years would face automatic deportation while those who can prove they have been in the U.S. for two to five years would be required to leave the country and obtain a work visa before returning. Undocumented workers who can prove residency of five years or more would be allowed to remain and obtain a work visa, but would be required to wait several years before applying for citizenship. The bill also authorizes the Department of Homeland Security, in an effort to verify the legal status of workers, to develop a massive database of worker identities, which would include U.S. citizens as well as immigrant workers.

Some provisions of the bill have received criticism from immigration advocates who fear that enforcement provisions, such as the 370 miles of border fencing, will force immigrants to cross the border in more treacherous locations, thereby increasing risks to their health and safety. Another concern is that many immigrants will have no way of proving how long they have been residing in the U.S. since many of them pass through the border illegally and are paid “off the books” by employers.

The Senate bill, in its current form, still must be reconciled in the House, which has passed an enforcement-only version and is vastly different from the Senate bill.

Flag Desecration

On June 15, the Senate Judiciary Committee voted 11-7 in favor of the Flag Desecration Amendment (S.J. Res. 12), a measure which would make physical desecration of the American flag unconstitutional. The U.S. House of Representatives has passed similar amendments in every term of Congress since 1995, but the Senate had failed to do so until now. If the bill passes the full Senate with enough votes (2/3) it will then go to the states for ratification. In 1989, the ABA passed a resolution opposing the adoption of a constitutional amendment to prevent flag desecration in the interest of preserving the right to freedom of speech under the First Amendment. On June 9, ABA President sent a letter to members of the U.S. Senate, urging them not to vote for the bill. Senate Majority Leader Bill Frist has said the bill will get go up for a vote before the end of June.

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