"Republicans are generally against the extinction, by the state, of local communities and their norms. Conservatives should want to conserve, and that should include the social institution of self-governing tribes. But inspired by the outcry against illegal immigrants and the distress of small communities over off-reservation gaming proposals, they now find it politically expedient to define Native Hawaiians not as Native people or tribes, but as special interests.
Should they get another Native Hawaiian case before the Supreme Court, their hope is that a majority of justices will narrow the definition of ''Indian tribes'' in the Constitution so as to preclude any accommodation for Native Hawaiians under the commerce clause: ''The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ...''
Historically, Congress and the courts have interpreted ''Indian tribes'' in the commerce clause somewhat broadly, to include, for example, Alaska Natives and Native Hawaiians. But if the high court can be persuaded to adopt an interpretation narrow enough to exclude Native Hawaiians, would Alaska Natives be susceptible to court challenge on grounds that the Alaska Native Claims Settlement Act treats Alaska Natives not as tribes, but as corporations?
The table would then be set for challenges to tribes and nations in Indian country. Perhaps ''Indian Tribes'' in the commerce clause meant only federal treaty tribes? Perhaps it doesn't mean tribes of more than 20,000 in population?
Every conceivable iteration of ''Indian Tribes'' under the Constitution will be probed for weaknesses of interpretation, always in hopes of narrowing plain language for partisan purposes. In the wings will be a Supreme Court that ought to have more sense than to defy its own precedents; yet it has also spoken of tribes as anomalous within the federal system."
Get the Story:
Editorial: A GOP roadmap: From 'treaty' to 'race-based'
(Indian Country Today 2/23)
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