What's Not Happening? Hawaiian Sovereignty

by Cliopatria

One of the great challenges in history, I think, is the"why not?" question. Once something happens, proximate causes and long-term roots are usually pretty easy to tease out. But explaining the failure of a cause, an idea, a proposal, is more challenging. Particularly when it seems like a reasonable idea to most, a minor adjustment fixing a festering problem.

At the end of the last Senate session, Hawaii senators Akaka and Inouye clashed with the leadership, the result of which was a commitment by the Republicans to bring the Akaka Bill to the floor for a vote,"up or down" as we say now. It hasn't happened and though Senate Majority Leader Frist's office has reiterated his commitment to the deal, there are now not one but six Republican holds on the bill. House Republicans are also beginning to move to organize opposition, though they don't have the Senate's procedural options of hold or filibuster. Both sides admit that the bill will probably pass if it does come to a vote, unless it gets really bad amendments attached.

The objections to the bill are interesting: the bill itself establishes a process by which a Native Hawaiian governing body can be elected and can begin negotiating status with the US government. The objections, therefore, mostly fall into the"we don't trust the negotiators to protect our interests, so we'll bind their hands now" category:

Gambling: Nevada's senator raised this one pretty quickly. I will just note that Hawai'i does not have legal gambling, and so most Hawaiians go to Nevada to gamble. Also, one of the largest Native Hawaiian communities in the country is in Las Vegas. Obviously, if gambling were legalized in Hawai'i, Nevada would suffer, at least some. More to the point, the bill already contains language that limits the likelihood of legalized gambling under tribal sovereignty.
Military Preparedness: Sure, Hawai'i has some very important military installations, and I could see some concern about land use and access. But does Congress seriously think that any future administration would give up bases or training facilities instead of negotiating some sort of trade?
Liability shield: well, why not? Every other major industry has one, now; why not the federal government? Seriously, though, the Akaka bill allows issues of compensation to be negotiated, not adjudicated.
Draw money away from existing Native American funds and programs: again, the language in the bill, and the clear intent of Congress is to not let this happen. This should be a non-issue.
Racial Divisiveness: Instead of" creating new racial category," we should all be melting into one...
"God created us all in his image and he draws no distinction between us. I think it's an affront to God to draw distinctions among us based on image." -- Rep. Steve King (R-Iowa)
The recognition of sovereignty doesn't create a new racial category: it includes a new group of people in an existing legal category, sovereign native. Yes, lineal descent is how membership in the new sovereignty is defined, but that's also how personal property and citizenship is usually passed down, and nobody calls the right of inheritance"racist."
Constitutionality: since the Supreme Court ruled that Hawaiians weren't recognized as a racial category under the law (Rice v. Cayetano which our current Supreme Court nominee argued on behalf of the Hawaiians, and lost) some have argued that it would be unconstitutional to recognize Hawaiians. That's absurd: the ruling only acknowledged the lack of existing legal standing; it never precluded Congress from recognizing them in the future. Some have even argued that the Constitution doesn't give Congress the power to do this, but it's been doing it with North American tribes for centuries.
Effects on Hawai'i, particularly law enforcement and on relations with non-Native residents: While I'm touched by the concern showed by representatives from Oklahoma and Nevada, they're not the ones I voted for. Law enforcement issues are part of the negotiated items, and how those work will depend a great deal on the status of the Hawaiian Homelands properties, which is also a negotiated item. Some have argued for a referendum on sovereignty, clearly hoping it will fail [note: the language of the question asked is biased:" could" not"would" would be more neutral; like the objections noted here, the poll clearly assumes that the Native Hawaiians are extraordinary negotiators who will win every point]. Hawai'i is the most diverse state in the nation, and hasn't had a really stable ethnic mix for about two centuries: we're adaptable, and anyone who says that the status quo is the best we can do is ignoring the fact that status rarely stays quo for long.
Apology to other Native groups: I can't figure out if this is supposed to be a poison pill to tick off those who fell the US shouldn't apologize for anything or a heartfelt move towards historic reconciliation. Either way, it's irrelevant.

I'm ignoring the Hawaiian independence objections, because nobody in Congress seems to be representing them. I strongly suspect that the bill will get shunted aside again by the nomination hearings, etc., which raises the question of how Akaka and Inouye will respond: the bill itself has strong Democratic support, but I doubt that it's an issue over which Democratic officials will go to war over. A single senator or two can do an awful lot of procedural damage, though, and after six years, Akaka is losing patience with his colleagues.

As I've said before, I think this bill is a good compromise, which will preserve Native Hawaiian institutions and rectify the ambiguity in the position of Native Hawaiians under US law. I also think it quite remarkable that the Republican leadership would let their Senators reneg on an agreement by blocking the floor debate and vote.

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More Comments:

Jonathan Dresner - 7/27/2005

That's not a bad capsule history, though I'd make two comments: first, it starts with the monarchy, which is really, as these things go, a pretty recent development, and not a static one, either. So defining the monarchical period as "traditional" is a particular stance, not a universal one.

Second, the description, which looks an awful lot like divine-right feudalism, I admit, understates the direct connection between the people and the gods, and the people and the land. The traditional right of individuals to land and resource access is decidedly underplayed in this description.

John H. Lederer - 7/27/2005

http://www.blm.gov/nils/bus-req/Reqs-pdf-3-00/AppE.pdf

Jonathan Dresner - 7/27/2005

No, feudalism doesn't really cover it, at least not any definition with which I'm familiar. Don't get me wrong: the traditional nobility of Hawai'i were no democrats; when the sovereignty, or cultural heritage folks, talk about the great Hawaiian tradition and returning to their roots, I wonder about the extent to which the ali'i [nobility] and kapu [taboo] systems are in their minds. I suspect not at all, but that means that there's some serious selectivity going on....

The lands held by the royalty were a byproduct of the Mahele, the transition of land ownership in Hawai'i (under considerable pressure from Westerners) from traditional tribal/communal property to individual property rights. Considerable land was held back from the division of property and held by the royalty to be used as common property.

John H. Lederer - 7/26/2005

"...huge real estate holdings which were held... by the Hawaiian royalty as part of the common property of the Native Hawaiian people"

What a nice way of phrasing feudalism.

Jonathan Dresner - 7/26/2005

Hawaii has some analogous issues, most notably the Hawaiian Homelands trust: huge real estate holdings which were held (I'm doing this from memory now; I reserve the right to say "Doh!" and change it later) by the Hawaiian royalty as part of the common property of the Native Hawaiian people. After annexation, these lands were placed under the jurisdiction of a state agency, the Department of Hawaiian HomeLands and they are now used as income property and as homestead territory for registered Native Hawaiians. It is, in no small part, to protect this patrimony that the Akaka bill seeks to properly define the Hawaiians as a sovereign group with distinctive property rights systems.

John H. Lederer - 7/26/2005

Texas Indian reservations have a singular history:

"When Texas was annexed to the United States, it retained control of its public lands. As a result, the Texas Legislature had the authority to set aside land for Indian reservations. Under the so-called "Location Bill," the legislature set aside twelve leagues of land for the use of the United States government for Indian reservations. These lands would revert to Texas when no longer needed for use by the Indians. Explorer and Army officer Randolph Marcy teamed up with Indian agent Robert S. Neighbors to locate and survey northwest Texas for suitable sites for these reservations."
http://www.tsl.state.tx.us/exhibits/indian/statehood/page2.html

Aaargh. This is the stuff of law school exams -- a clear candidate for displacing Florida water rights law (Florida's rules are Spanish in origin) and Louisiana contract law (Napoleonic Code).

Derek Charles Catsam - 7/26/2005

Question: More than a hundred years hence, should "native Hawaiians" be privileged over other citizens of the state whose citizenship rights as Americans are protected by, say, the 14th Amendment (and I would assume Hawaii's own state constitution)?

Jonathan Dresner - 7/26/2005

You raise some legitimate issues, I think, but you've mistaken the object of my ire: it's those people who are using the previous supreme court decision as the basis for their constitutional arguments that I find absurd.

On the matter of executive v. congressional authority in foreign relations (the subject of the only ConLaw class I took as an undergrad, actually), there is considerable ambiguity still in the degree to which Congress can dictate terms through advise/consent and budget authority. More to the point, the treaty to which you refer did not create the state of Hawai'i: it made Hawai'i a US Territory; at this point, particularly as a state, Hawai'i is equally subject to Congressional legislative authority.

I've got a question, to which I honestly don't know the answer, but which bears on this subject, particularly as you've framed it. Are there Native American groups and territories in Texas? If so, and if the situation of Hawai'i really is analogous to Texas, then it seems to me that Congress has just as much authority to recognize and the US has authority to enact treaties with, Native Hawaiians as with Native Texans.

Jonathan Dresner - 7/26/2005

You've hit on a significant part of the problem. As I pointed out in my earlier article, almost every step of annexation, from the Bayonet Constitution to the statehood vote, was marred with procedural errors. As others have pointed out, that doesn't mean that Hawai'i isn't a state, or some such nonsense (there's a "courthouse character" here in Hilo who thinks that there are only 13 legitimate states! He's going to be appealing his case to the Federal District soon: should be entertaining), but it does create a legal ambiguity which should, I think, allow Congress to take a "do over" by effectively negotiating the treaty with Native Hawaiians which was precluded by the Republican revolution.

John H. Lederer - 7/25/2005

I have to take back part of what I said (but not the part about my poor knowledge of Hawaiian history!).

The treaty of annexation was not ratified by the Senate. Instead Hawaii was annexed by Joint Resolution after the start of the Spanish American War.

How murky things get. I suppose the argument would be that since the Constitution gives Congress the power to add states, but no details...

John H. Lederer - 7/25/2005

Sorry for all the typos above. Martians apparently took control of my fingers.

John H. Lederer - 7/25/2005

I would not so blithely dispose of the Constitutional issues. They are profound. These seem the possibly applicable powers of the federal government:

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
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Congress' territorial and state admission powers have been excercised and no longer seem applicable as a new source of power.

What gives it the power to "create" a new "tribe", "Native Hawaiians", and regulate their affairs?

Most of Congress's present powers over Indian tribes arise from provisions of the treaties with the Indians, an implicit guardianship from those treaties, as a power over a conquered territory, or from the commerce clause.

These powers may all be a bit different in regard to Hawaii.

I am not an expert on Hawaiian history (someone speak up), but my rough understanding is that Hawaii is somewhat analagous to Texas and not to the other states. Hawaii was a recognized sovereign nation that negotiated a <a href = "http://www.alohaquest.com/archive/treaty_annexation_1897.htm"> treaty </A> with the U.S. to become a territory (Texas went directly to statehood).

That "sovereign nation" may have been a bit thin, but I think that the general rule is that the power to recognize sovereign nations is exclusively executive. s that took over the Hawai

So what is this new Act? A unilateral abrogation by Congress of the treaty? May Congress unilaterally abrogate other treaties such as the Louisiana Purchase? May Congress decide that Acadians are a special group entitled to their own government? Is it an assertion of the "plenary power" over a conquered territory -- which is no longer a territory. May Congress specially regulate Wisconsin because Wisonsin was once "conquered territory"?

The treaty was not a treaty with the native polynesians -- it was a treaty with a government that purported to represent both native polynesians and later whie settlers (who under the previous native government had been granted full citizenship).

I think this Act is a real consitutional can of worms. It both seems to abrogate to Congress an executive power, violates the 14th Amendment, throws into issue a statehood act, the terms of centruy old treaty,.... and the words "ex post facto" keep coming into my mind.

All these might be resolved, but I don't think an assertion that the problem is absurd is a very realistic one.