536
Stevens, J., dissenting
Of greater concern to the majority is the fact that we are confronted here with a state constitution and legislative enactment—passed by a majority of the entire population of Hawaii—rather than a law passed by Congress or a tribe itself. See, e. g., ante, at 519-522. But as our own precedent makes clear, this reality does not alter our analysis. As I have explained, OHA and its trustee elections can hardly be characterized simply as an "affair of the State" alone; they are the instruments for implementing the Fed-this Court's holding that tribes' power to define membership is at the core of tribal sovereignty and thus "unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority," Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978)—is thus inappo-site.) Nothing in federal law or in our Indian law jurisprudence suggests that the OHA definition of native is anything but perfectly within that power as delegated. See supra, at 531-534, and nn. 6-7. Indeed, the OHA voters match precisely the set of people to whom the congressional apology was targeted.
Federal definitions of "Indian" often rely on the ability to trace one's ancestry to a particular group at a particular time. See, e. g., 25 CFR, ch. 1, § 5.1 (1999) (extending BIA hiring preference to "persons of Indian descent who are . . . (b) [d]escendants of such [tribal] members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation"); see also n. 7, supra. It can hardly be correct that once 1934 is two centuries past, rather than merely 66 years past, this classification will cease to be "reasonable." The singular federal statute defining "native" to which Justice Breyer points, 43 U. S. C. § 1602(b) (including those defined by blood quantum without regard to membership in any group), serves to underscore the point that membership in a "tribal" structure per se, see ante, at 525, is not the acid test for the exercise of federal power in this arena. See R. Clinton, N. Newton, & M. Price, American Indian Law 1054-1058 (3d ed. 1991) (describing provisions of the Alaska Native Claims Settlement Act creating geographic regions of natives with common heritage and interest, 43 U. S. C. § 1606, requiring those regions to organize a native corporation in order to qualify for settlement benefits, § 1607, and establishing the Alaska Native Fund of federal moneys to be distributed to "enrolled natives," §§ 1604-1605); see also supra, at 535, and n. 10. In the end, what matters is that the determination of indigenous status or "real group membership," ante, at 526 (Breyer, J., concurring in result), is one to be made by Congress—not by this Court.
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007