The constitutionality of Congress establishing a sovereign government by and for Native Hawaiians alone under the Akaka bill is assisted neither by Menominee Restoration Act of 1973 nor the Supreme Court's decision in United States v. Lara (2004), contrary to Charles Wilkinson ("Wisconsin tribe faced those same arguments," commentary, Aug. 21).

Indeed, these precedents discredit any attempt to liken Native Hawaiians to an Indian tribe.

In Lara, one tribe prosecuted an Indian of a different tribe based on a congressional statute authorizing the same. Earlier Supreme Court rulings had declared that inherent tribal sovereignty was confined to prosecuting its own members.

Writing for the court in Lara, Justice Stephen Breyer reasoned that Congress was empowered to enlarge or contract the powers of Indian tribes in experimenting with varying degrees of autonomy. The decision was exceptionally narrow. The court cautioned: "[W]e are not now faced with a question dealing with potential constitutional limits on congressional efforts to legislate far more radical changes in tribal status. In particular, this case involves no interference with the power or authority of any state. Nor do we now consider the question whether the Constitution's due process or equal protection clauses prohibit tribes from prosecuting a nonmember citizen of the United States."

The questions raised by the Akaka bill bear no resemblance to the narrow issue decided by Lara.

The Akaka bill would sanction creation of a Native Hawaiian governing entity that would displace laws of Hawai'i and the United States, not expand or contract the power of a recognized and functioning Indian tribe. In Montoya v. United States (1901), the Supreme Court explained that "[b]y a 'tribe' we understand a body of Indians of a same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory." The over 400,000 Native Hawaiians living throughout all 49 Census districts of the state of Hawai'i and throughout all 50 states of the United States fall decisively outside that definition.

From the inception of the kingdom in 1810 under King Kamehameha I, both Native Hawaiians and non-Native Hawaiians enjoyed a common sovereign. The races were indissolubly linked. They served in the legislative, executive and judicial branches side by side. They voted on common rolls. Intermarriage was commonplace. Racial fusion and equal treatment rather than division was the kingdom's signature.

In its diplomacy and negotiation of treaties, the United States dealt with the kingdom as a foreign nation, not as an Indian tribe. A foreign nation is not an Indian tribe under the Indian Commerce Clause — The Cherokee Nation v. Georgia (1831).

The Supreme Court saluted the power of Congress to afford existing Indian tribes, as quasi-sovereign political entities located within the jurisdiction of the United States, the extraordinary authority to operate outside the constraints of the United States Constitution because of the convergence of three factors: Members of Indian tribes were not citizens; they lacked training in the arts of democracy; and, they were the subjects of oppression at the hands of state governments and private individuals.

In Board of County Commissioners of Creek County v. Seber (1943), the court elaborated in part: "In the exercise of war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent qualified members of the modern body politic."

Native Hawaiians, however, have been citizens of the United States from the moment the Organic Act of 1900 created the territory of Hawai'i. They were literate, conversant, skilled and experienced in democratic arts. They were never the subjects of systematic plunder or official subjugation. To the contrary, Native Hawaiians dominated Hawai'i's political landscape in the first decades of the territory and since then have continued to wield political influence beyond their numbers.

When Queen Lili'uokalani was overthrown in 1893, Native Hawaiians were neither killed nor injured nor molested nor dispossessed of property. Crown and government lands of the kingdom had been held for the benefit of all subjects. That common dedication continued. None of the extraordinary circumstances that occasioned the indulgence of Indian tribes operating outside of constitutional limitations applies to Native Hawaiians.

The Menominee Restoration Act is as lame as Lara in justifying a Native Hawaiian sovereign state. The Menominee Indians were a recognized tribe. In pursuing a policy of assimilation, Congress withdrew recognition in 1961 and transferred all real and personal property held in trust in the expectation that the tribe would prove economically viable. When these hopes proved faulty, Congress restored autonomy in 1973 to the Menominee Tribe that had never disappeared.

In sum, the feeble precedents enlisted by professor Wilkinson to find constitutional authority for the Akaka bill substantiate that it will be mired in litigation for years with incalculable convulsions for the people and economy of Hawai'i.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group. He is an adviser to the Grassroot Institute of Hawaii. He wrote this commentary for The Advertiser.