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A GOP roadmap: From 'treaty' to 'race-based'

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A faction of Republicans has decided to interpret the GOP collapse in last November's mid-term elections as a call to conservative action. Moderate Republicans were the big losers because they abandoned the conservative camp on social values, fiscal responsibility and law enforcement. To restore the party's credibility with the electorate, a corps of the ever-faithful must impose a conservative agenda from within the halls of Congress. It is known as the Republican Study Committee.

As evidenced so far, they go to some faraway places for their legislative interpretations. Philosophically speaking, they seem to have adopted the fatal steady-state intellectual modeling system - everything else will stay the same while they get their act together. On the political front, some fellow Republicans speak of them in disparaging terms, asserting that some of their positions, on Native people for instance, are not in fact ''Republican.''

So while it will be inconvenient to have Republican Study Committee members hindering every Indian-specific bill as race-based law and offering amendments to any bill that so much as contains the words ''Native Hawaiian,'' still the question arises of whether this handful of steady-state nostalgias represents any larger threat to Indian country.

Probably not. But they count on the court system to help them effectuate policy change. They have allies in the Department of Justice and believe a majority of U.S. Supreme Court justices will prove tonic to their social agenda; few legal interpretations are set in stone.

For instance, in offering an amendment to a Native Hawaiian housing reauthorization bill on Feb. 13, the Republican Study Committee and its members wanted not just to stop the reauthorization. The larger goal was the de-authorization of all Native Hawaiian housing programs, based on a previous Supreme Court decision that found Native Hawaiian voting preferences unconstitutional.

In the eyes of the federal government, Native Hawaiians are neither tribes nor Alaska Native villages. The Supreme Court has ruled, therefore, that a voting preference for Native Hawaiians is not based on a government-to-government relationship, but on race, which makes it unconstitutional under the 14th Amendment.

Efforts to establish a Native Hawaiian governing entity are ongoing in Congress, and the Native Hawaiian housing reauthorization bill has been swept up in the opposition. Look for a similar scenario to play out around Native Hawaiian issues throughout the current 110th Congress. In the last Congress, the bill to authorize a Native Hawaiian governing entity, better known as the ''Akaka Bill,'' got a hearing only because Linda Lingle, Hawaii's governor and a strong advocate of the Akaka Bill, happens to be a Republican. It will be interesting to see whether Republicans, now in the minority, are more prepared than last time to meet the Supreme Court's stand for justice under the 14th Amendment by extending an equally elemental justice to Native Hawaiians in the form of the Akaka Bill.

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This is not the place to consider the fine points of the Akaka Bill. Here we simply hope to understand why Republicans who are returning to a traditional GOP agenda would be against it -

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.

It's a scenario that hasn't played out yet and that may never get traction in Congress or the legal system. But that lawmakers consider it worth pursuing at a time like this in the nation's history is tragic. After decades of berating all things ''tribal'' as parochial and benighted, and after long insisting that local allegiances give way before a loyalty owed to the union, the United States has become too enormous for governance. We saw it in the aftermath of the terrorist attacks of Sept. 11, 2001, when atrocities might not have occurred had bureaucracies been able to communicate with each other. Again, we saw it when members of Congress had good reason to risk their re-electability just long enough to give their best on obscure intelligence committees. We see it in federal agencies that can't mend their spectacularly wasteful ways and in war planning that couldn't have damaged this country more if it had come from an al-Qaida cell.

Tribes are, among other things, living examples of just what America needs: sustainable cultural cohesion on a territorial scale. Shame on those who seek to weaken the Constitution, and the country itself, at their expense.