B. CONGRESS HAS NO COMPELLING INTEREST TO DEAL SPECIALLY WITH NATIVE HAWAIIANS. None of the factors that this Court has considered critical for Congress to deal specially with American Indian tribes and their members—factors that have provided Congress arguably with a “compelling interest” for enacting such special legislation—exists as to Native Hawaiians: • Native Hawaiians have not been the exclusive subjects or members of any 84 See generally, Hawaiian Kingdom Constitution of 1887; available at http://www.hawaii-nation.org/constitution-1887.html. 31 sovereign nation since 1810; rather, they have been subjects of a King in a diplomatically recognized Kingdom, as were the many non-Hawaiian subjects of that Kingdom. • Native Hawaiians have never been subjected to the authority of any occupying foreign power, including the United States, that claimed ownership of their land, leaving them with only possessory rights. • Native Hawaiians have not ceded vast portions of their land to the United States or any other foreign power, nor in any way have been removed from their lands by treaty or by force of arms. In fact, the United States has never taken land from Native Hawaiians, by force, by treaty, or otherwise, nor did the Hawaiian Revolution take lands from Native Hawaiians. • Native Hawaiians have never been promised, as a result of a treaty with the United States, protection from incursions by other foreign powers or from other non-Native groups of people in Hawaii. • Native Hawaiians have never been warred against by the United States, nor has the United States fired a single shot at Native Hawaiians. • Native Hawaiians have not been victimized by actions of the United States in 32 which the United States, through occupation of the territory of Native Hawaiians, destroyed the ecology of their land, took their means of sustenance, or removed them to enclaves and reservations, and thus reduced them to a state of total pupilage and dependency. Therefore, Native Hawaiians have not needed protection against the selfishness of others and their own improvidence. • Native Hawaiians were never the exclusive members of a sovereign entity, nor were they ever dependent on the United States for the supply of their essential wants. Indeed, since 1810, Native Hawaiians, as an identifiable group, have not had any sovereignty of any sort. • Native Hawaiians are not now nor have they ever been in a guardian-ward relationship with the United States that grew out of their historical relationship with the United States. • Native Hawaiians have never been recognized by the United States as a separate sovereign people or government, nor may Congress constitutionally recognize Native Hawaiians as a sovereign, politically distinct community. • Native Hawaiians have never entered into a treaty with the United States; in fact, the treaties into which the United States entered—pursuant to the Foreign Nation Clause of the Commerce Clause, 33 not the Indian Commerce Clause—were with the Hawaiian Kingdom and were applicable with equal force to the Kingdom’s subjects, who were persons of many national origins and ethnicities, including Native Hawaiian. • Native Hawaiians can point to no enumerated constitutional power provided to Congress by which it may deal specially with Native Hawaiians. • Native Hawaiians have never been subjected to any plenary authority by Congress, nor does Congress have such constitutional authority. • Native Hawaiians have not been a distinct political community since before 1810. Thus, the requisite basis for Congress to claim a compelling interest to act specially with regard to Native Hawaiians, even in the limited fashion allowed by Mancari, does not exist with respect to Native Hawaiians. That they are indigenous peoples to the Hawaiian Islands, and that their numbers have been reduced over the years, or that they may otherwise be in need of special aid and assistance fails to provide Congress with a compelling interest to act specially toward the racial group to which they belong, any more than it does for any other disadvantaged racial or ethnic group.

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