Hawaiian Native Rights and Self Determination

Mar 17, 2008

The 110th Congress is almost certain to vote on the political status of indigenous people in Hawaii. The Native Hawaiian Government Reorganization Act, S. 310/H.R. 505 , based on similar legislation which nearly passed last year, was introduced in the opening weeks of the new Congress. There was a public hearing on the bill before both the House Resources Committee and the Senate Committee on Indian Affairs at the beginning of May, in which both bills were marked up. The bills have the strong support of the governor of the State of Hawaii, the Office of Hawaiian Affairs and the National Congress of American Indians. However, some Hawaiian indigenous rights groups are opposed to its passage, wanting to protect their claims to total independence from the U.S. This article provides background information on the issue.

History. While aboriginal people have lived on Hawaii for more than a thousand years, the overthrow of the Kingdom of Hawaii in 1893 and its subsequent annexation by the United States in 1898 without the consent of the Hawaiian people means there is no federally recognized native governing body. Entities and offices which now represent indigenous Hawaiians do not have government-to-government relationships comparable to those enjoyed by either federally recognized native tribes in the lower 48 states or the indigenous people of Alaska.

All native people share much in common: their land and resources are desired by developers, their rights are often not recognized, and government promises to them frequently are not honored. The unique situation of indigenous Hawaiians has already been recognized; in 1993, as the start of a reconciliation process, they received an apology from the U.S. government for the way their land was appropriated and the way they suffered and were subjugated. Yet many details remain before they can fully exercise all their rights and claims. The Kingdom of Hawaii has been recognized as a nation-state internationally, so the situation is not parallel to the American Indian tribes which are nations within a nation.

Problem. Much of the impetus for federal recognition of the indigenous people of Hawaii is to ward off legal challenges to native-specific federal funding as well as to maintain separate cultural identity. Native Hawaiians lost a case before the Supreme Court in 2000 because the justices did not recognize them or their government offices as comparable to tribes and tribal governments. A case is also pending before the Ninth Circuit Court of Appeals challenging the separate existence of the State Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, because they are based on a "racial preference." A U.S. district court found that argument to be without merit last year. The decision was appealed and a ruling is expected later this year.

Proposed Remedy. Leaders in Hawaii want to establish a process that will improve Native Hawaiians' ability to negotiate for land, resources, and independent jurisdiction. In the past the Hawaiian congressional delegation has introduced legislation to create a Native Hawaiian government on behalf of 400,000 Native Hawaiians (160,000 live outside Hawaii). In January Sen. Akaka (HI) introduced the Native Hawaiian Government Reorganization Act (S.310) and Rep. Abercrombie (HI) introduced H.R. 505 as a companion bill in the House. The bills would establish a process leading to a Native Hawaiian governmental entity, and would also officially establish an Office for Native Hawaiian Relations within the Department of Interior. The legislation makes clear that Native Hawaiians would not be made eligible for the programs which exist to assist mainland and Alaska tribes. It also states that Native Hawaiians are prohibited from gambling enterprises unless some future Congress specifically authorizes it. The bills have the support of the National Congress of American Indians, the Alaska Federation of Natives, and the National Association for the Advancement of Colored People.

The bill has not been embraced, however, by some Native Hawaiian leaders who are concerned about who will ultimately be in control. They worry that achieving a status similar to that of Native American tribes is not enough. In their view, passage of this bill would weaken the claims which they are pursuing through international organizations to reverse the American seizure of the Hawaiian Kingdom in 1893 and to grant them full autonomy and sovereignty. They note the U.S. Apology Resolution acknowledged Hawaiian sovereignty to be inherent, and believe that supports their claim for total independence.

Indigenous Rights and Protections. Although they are indigenous people, Native Hawaiians do not have self-governance rights. There has been a growing sovereignty movement by Native Hawaiians to spell out their needs, to acknowledge their status as native people, to resurrect their language, and to protect their resources. The state government's Office of Hawaiian Affairs works to better the conditions of Native Hawaiians. Indigenous Hawaiians have certain entitlements based on their ancestry, distinct community, culture, history, and lands. They can establish homesteads on certain land that has been set aside in trust for them. However, there has been ongoing resistance to fully returning their land or even giving them all revenues from land held in trust.

For example, most of the Honolulu airport is built on land that was set apart for Native Hawaiians, with an understanding that 20 percent of the revenues received by the state would be transferred into trust accounts. That has not happened to the chagrin of some of the Native Hawaiian leaders.

Recently, some non-native Hawaiians have challenged limitations based on ancestry for the trustees of the Office of Hawaiian Affairs; entry to the famous Kamehameha School established for students of Native Hawaiian ancestry; access to homesteading opportunities on land set apart for Native Hawaiians; and other programs for indigenous people. What had seemed to be a clearly defined status is being undercut by reverse discrimination arguments. There is also a question of power; those of native ancestry constitute a diminishing percentage in a state with many newcomers.

Why Some Native Hawaiians Oppose the Recognition Bill:

A number of Native Hawaiian organizations which have been part of the sovereignty movement in Hawaii are opposed to passage of S. 310. In their view, the proposal does not go far enough to give true independence and self-determination to the indigenous people there. They believe passage of the bill would establish Native Hawaiians as a tribal entity, subject to the same control by the federal government as Native American tribes experience. Rather than being viewed as a nation within a nation, these Hawaiian natives wish to achieve what they term "decolonization" or "de-annexation." They seek to reverse the overthrow of the Hawaiian Kingdom in 1893, and what they see as the totally illegal action of annexation by the United States which followed in 1898.

They point out that passage of the bill would not directly give them any additional control over the land which has been set apart for them, nor would it grant them any additional territory. Domestic status would weaken, they assert, their claims under international law for recognition as an indigenous people entitled to full self-determination. Finally, they state they are troubled that the bill has been formed in a top-down process by policy-makers without true consultation with the indigenous people themselves.

FCNL's Perspective:

Many of the differences of opinion among Native Hawaiians stem from their view about the relationship between mainland tribes and the federal government. Some view it as an advantage to be treated the same as the 562 federally recognized tribes in Alaska and the 48 states. Others view the tribes' problems with the federal government as a cautionary tale and do not want equivalent legal and political status. Due to the differences of opinion within the affected groups, FCNL has taken no position favoring or opposing this bill. However, since the bill may pass, FCNL is providing this update and background information. You may wish to take a stand and contact your representative one way or the other.

While proponents want to protect current Native Hawaiian programs, opponents decry privileges that they say will be created by reverse discrimination. Arguments regarding reverse discrimination usually involve phrases such as "preferential treatment," "quotas" or other "formulaic" approaches to affirmative action, and a "compelling state interest" in diversity. The focus is on the rights of individual citizens vis-a-vis each other versus integration of groups into the larger society. Think of the 1978 Bakke case (University of California medical school versus a white applicant) and recent University of Michigan cases. However, the arguments about recognition are about political status and whether this community constitutes a distinct entity, even though the uniqueness of the Native Hawaiian culture, language, and history has generated numerous laws and programs and an apology. The focus is on the Kingdom of Hawaii, identity, governing authority, political vehicles, ceded lands, and trusts--issues similar to mainland tribal issues.

Now as a vote is imminent, critics such as Bruce Fein, Paul Weyrich, Ed Meese, the Heritage Foundation, and the National Review are vigorously opposing passage of S. 310 arguing that it creates a race-based government. FCNL asks: Why does recognizing the existence of aboriginal people (those who were "here first") and honoring their desire for some form of indigenous governance constitute a divisive racial preference? After all, Canada, New Zealand, and Australia are forging new respect for indigenous cultures, creating formal representation of such groups, and settling land claims. The opposition to S. 310 seems to come from a fear of liability and domestic consequences. An honest appraisal of the merits or deficiencies of the bill is called for, not scare tactics or rhetoric from white Americans who do not live in Hawaii. Native Hawaiians who support and oppose the bill certainly should be heard. Those opposing the bill have many legitimate concerns such as their fears about the way Interior has mishandled Indian land and profits on the mainland and whether that could happen again in Hawaii.

The way it is playing out, the Hawaiian Congressional Delegation is being forced to debate the right to federal recognition with conservative leaders and a Justice Department, who question the constitutionality of what they view as a race-based decision.


Links
Senator Inouye says Akaka Bill has votes to pass
Point of View of Supporters of Native Hawaiian Government Reorganization Act
http://www.nativehawaiians.com
http://www.stopakaka.com
http://www.senate.gov/~scia/
http://www.oha.org

Resources
Nation Within: the Story of America's Annexation of the Nation of Hawaii, by Tom Coffman
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