Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The room where the Senate Indian Affairs Committee meets is awash in Native American art — a statue of a warrior poised to launch an arrow skyward and watercolors depicting buffalos, rain dances, and hunting parties swathed in white wolf skin. This is where Native Hawaiians had to plead for recognition, in a room where their lack of representation on the walls is a metaphor for their political status — largely forgotten. Today, Hawaiians are trying to change that. Stunned by a February Supreme Court decision that endangers all special programs for the indigenous Polynesians on the island, Hawaiians are fighting for political recognition as a quasi-sovereign group, a designation they hope will allow them to fully control what happens to their political and economic future. As the days run out on the congressional session, Hawaiians and their representatives, led by Democratic Sen. Daniel Akaka, are desperately trying to push through a bill that they believe will shore up the status of the descendants of the island’s once self-governing kingdom. “Today, more than 550 indigenous groups have already obtained special recognition,” Clayton Hee, chairman of the board of trustees of the Office of Hawaiian Affairs, said in his testimony in the Senate Indian Affairs room three weeks ago. “They have the authority to govern themselves. Sadly, the Hawaiian islands have remained the islands of neglect.” The bill, which would grant sovereignty to Native Hawaiians and allow them to create their own government, has already made it through the House in near record time, from committee hearing to full approval in a week. The Senate Indian Affairs Committee also approved an identical version of the House legislation, and the Hawaii delegation is trying to fast-track it onto the floor. Numerous Hawaiians flew into Washington during the past few weeks to testify before Congress and meet with White House representatives. Groups representing other indigenous people, including the National Congress of American Indians and the Alaska Federation of Natives, are strongly backing the bill. “Our objectives are simple and straightforward,” said Democratic Sen. Daniel Inouye in his testimony. “We want to see the U.S. government deal with all the indigenous people of the United States in a consistent manner and recognize their right to self-government and self-organization.” But the proposal has highlighted some clear divisions among Hawaiians and others about how best to deal with Hawaii and its native people. Democratic Rep. Patsy Mink, the fourth member of the delegation, initially expressed concerns about rushing the legislation for fear that it lacked support back home. Nevertheless, she voted for it on the House floor. Then, there are some who would go even further. A small but very vocal group of pro-independence Native Hawaiians are fighting the legislation, saying that Hawaiians should instead concentrate on freeing the island from the United States altogether. “The first problem with the bill is that it’s being imposed from Washington, D.C.,” says Francis Boyle, a law professor at the University of Illinois at Urbana-Champaign who has worked on issues for pro-independence Hawaiians. “The second problem is that, as originally introduced, the bill would have attempted to turn native Hawaiians into Indians for constitutional law purposes. Many of them see that as a one-way path toward extermination.” CONTROL QUESTIONS To outsiders, the bill might seem quirky and bizarre — just what exactly do the Hawaiians want to accomplish? To natives of the island, the legislation is fundamentally about control: Who has the right to control Hawaiian homelands and programs, and do Native Hawaiians even have the right to homelands or entitlements? These are long-standing issues for Native Hawaiians. U.S. expatriates, including the official American minister to Hawaii, overthrew the nation’s constitutional monarchy in 1893, setting up their own provisional government. The United States first berated their actions, then changed its mind and annexed Hawaii as a territory. In 1920, Congress, in an effort to improve the worsening condition of native Hawaiians, set aside more than 200,000 acres for them. By many accounts, the government handed over a fairly typical indigenous land grant — undesirable, agriculturally inferior lands. Since the Hawaiian Homes Commission Act, Native Hawaiians have received numerous other forms of federal government relief, such as special education and health programs. All these benefits were endangered earlier this year when the Supreme Court issued a 7-2 decision in Rice v. Cayetano. The case involved the Office of Hawaiian Affairs, a state office that manages Hawaiian aid programs. Previously, only Hawaiians, defined as descendants of those inhabiting the islands before 1778 (the year Captain Cook discovered Hawaii), could vote or run for the trustee positions. The court ruled that the voting regulations were illegal because they violated the 15th Amendment, which bars restricting voting rights because of ethnicity or race. The significance of the decision was quite clear to Hawaiians: The Court did not buy the state and federal governments’ arguments that Native Hawaiians were entitled to the same sovereignty that numerous Native American tribes enjoy. With that sovereignty challenged and voting restrictions deemed racist, the legality of all other special programs for Native Hawaiians is highly questionable. Lawyers in Hawaii have been publicly discussing challenging programs such as Native Hawaiian schools and the Hawaiian homelands. After the Rice decision, Hawaiians immediately started looking for a way to head off those challenges. The solution that made the most sense to them was a formal declaration by Congress that would make Native Hawaiians a tribe in principle, not in name. The bill would give the Native Hawaiians the same quasi-sovereign status enjoyed by Indian tribes, but not make the Hawaiians part of a “tribe.” But quasi-sovereign status is no panacea. After all, the federal government has been long criticized for atrocities committed against Native Americans, and more recently for mismanaging Native American trust funds and rescinding recognition of tribal groups. Hawaiians say they don’t want to relive the problems that other American indigenous groups have faced, but believe that federal recognition may bring new benefits. The bill explicitly states that Native Hawaiians have a right to self-determination and self-governance. It creates an Office of Special Trustee for Native Hawaiian Affairs in the Interior Department, a Department of Justice appointee for Hawaiian issues, and a Native Hawaiian Interagency Task Force. In addition, the bill describes the general process by which Native Hawaiians can set up a government. The Native Hawaiians themselves would be in charge of deciding the form and membership of their sovereign government. The bill sketches out in broad terms the new government’s potential power: negotiate with the U.S. government, protect Native Hawaiian civil rights, and consent to all property agreements. It’s quite clear to Native Hawaiians what the bill would accomplish — it would reassert their control. HOPES AND DESIRES Native Hawaiians point to the gains other indigenous people have won with sovereignty — fishing and hunting rights, mining and mineral contracts, protections of ancestral lands. Many bill backers want the government to take over the Hawaiian homelands and the special aid programs, currently run by a variety of state and federal agencies. It could also begin to renegotiate the rights to an additional 1.2 million acres held by the state in a trust to help improve Hawaii and the lives of Native Hawaiians. “The problem is that the Hawaiians are at the bottom of the socioeconomic totem pole,” says Jon Van Dyke, a professor of law at the University of Hawaii. “They want the right to be at the table when economic decisions are made and they want to share in the prosperity.” By granting Native Hawaiians the same political status as tribes, supporters say it will head off the Supreme Court’s findings of racial discrimination. But it may be a difficult argument. Opponents and even some supporters say a challenge is almost guaranteed. “I don’t think they can do it constitutionally,” says Theodore Olsen, a partner with the D.C. office of Los Angeles’ Gibson, Dunn & Crutcher, who argued against Hawaii in Rice. “They will be asking Congress to declare the Native Hawaiians as comparable to a Native American tribe — they are not. It would be like saying that people of Irish descent could be pronounced to be an Indian tribe just because the Congress said so.” The Supreme Court itself acknowledged the stickiness of the Native Hawaiians’ political status — not quite tribe, not quite ethnic group. “It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes,” the Court wrote in its majority opinion. The dissent by Justices John Paul Stevens and Ruth Bader Ginsburg supported the argument that Native Hawaiians did enjoy a special tribe-like relationship with the U.S. government. Even without the constitutional challenge, implementing the bill may be difficult back home. The bill does not satisfy those Hawaiians who want to re-establish the independent nation, and they may choose not to participate in the new quasi-sovereign government. “We still have our freedom of choice,” says Anna Marie Kahunahana, who is organizing an umbrella group of secession organizations. “The United States is still going to have to deal with us on this issue.” Several Native Hawaiian groups are now operating as representatives of the pre-colonial Native Hawaiian government. They are taking their case to the United Nations and the Permanent Court of Arbitration at the Hague, hoping to sway global public opinion against the United States. Although court cases are unlikely to lead to a tangible change in Hawaii’s status, advocates of Hawaiian independence are not backing off. “I don’t see the United States giving up Hawaii,” says Poka Laenui, who runs the Institute for the Advancement of Hawaiian Affairs. “That should never be the measure of right and practicality. After all, Great Britain never wanted to give up the colonies.” For most Hawaiians, though, independence is not what they want — protection and autonomy is. And they just may get it. The bill appears just days away from approval — a fact that Hawaiians are thankful for. “If this bill doesn’t pass, then we have nothing to look forward to in the future,” says the Rev. Charles Kauluwehi Maxwell Sr., a radio talk show host and bill supporter. “We are really second-class citizens in a place that was once all ours.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.