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R. H K Lei Lindsey, Akaka Bill: Native Hawaiians, Legal Realities,
and Politics as Usual , 24 University of Hawaii Law Review 693-727,
693-696 (Summer, 2002) (240 Footnotes)
Preface
It is important to acknowledge, at the outset, a significant legal
paradox of the Native Hawaiian situation. Hawai'i became a U.S.
territory by unilateral act of Congress. See Joint Resolution to Provide
for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat.
750 (1898) [hereinafter Joint Resolution]. No treaty. No purchase. No
conquest. No consent. Based, in part, on this historical fact, many
Native Hawaiians advocate for independence from the United States.
However, independence from the United States is, in significant ways, an
unfashionable remedy for U.S. courts and one that politics dictate
cannot be enforced by an international forum. In a climate of increasing
settler racism, Native Hawaiians are left with a choice to hold
steadfast to independence and traditional notions of justice, or to race
to the federal government for recognition of the political relationship
available to Native peoples under domestic law that will protect Native
Hawaiians
This land is ours, our Hawai'i. Shall we be deprived of our
nationality?"
More than 104 years have passed since Native Hawaiians united in
protest to support their nation-the Hawaiian Kingdom-and to oppose
annexation to the United States. The century since has witnessed
significant changes that have had a detrimental impact on the Native
Hawaiian peoples and their culture. The United States annexed Hawai'i
against the will of the Native people. When Hawai'i became the
"Fiftieth State," the Native Hawaiian peoples were deprived of
their right of self-determination. The Hawaiian culture has become the
erotic symbol for the tourist industry. In their homeland, Native
Hawaiians suffer from the worst statistics on social indicators. For
example, Native Hawaiians have the highest rates of breast cancer, the
highest rates of adult and juvenile incarceration, and one of the lowest
rates for attaining college degrees. And now the Native Hawaiian peoples
face a potential onslaught of constitutional challenges to their
inherent rights.
Spurred by a sense of urgency following the U.S. Supreme Court
decision in Rice v. Cayetano, the Akaka Bill (S. 746) was introduced in
Congress to establish a government-to-government relationship between
the "Native Hawaiian governing entity" and the United States.
Using the context of federal Indian law, the Akaka Bill is intended to
recognize the Native Hawaiian peoples' right of self-determination
within the United States. Several important goals will be achievedby
creating a government-to-government relationship. Foremost among these
goals is to enable the Native Hawaiian peoples to exercise
self-determination within the confines of U.S. law. Additionally,
federal recognition of the Native Hawaiian peoples will create parity
among Native peoples of the United States. The Native Hawaiian peoples
will have increased authority over certain ancestral lands and control
over the administration of trust assets. Moreover, Native Hawaiian
rights will have greater protection from constitutional challenges in
the wake of Rice.
Meanwhile, many Native Hawaiians advocate for an international
resolution of Native Hawaiian claims and against any dealings with the
United States. The international arena is an important forum for the
Native Hawaiian peoples on two levels. One level involves
standard-setting activities at the United Nations as an indigenous
peoples. The other level involves claims to independence rooted in the
United States' participation in the overthrow of the Hawaiian Kingdom
and encompasses subsequent milestones in United States-Hawai'i
relations.
This paper analyzes the relationship the Akaka Bill will create
between the Native Hawaiian peoples and the United States. First, this
paper argues that a government-to-government relationship with the
United States will benefit the Native Hawaiian peoples. Second, this
paper maintains that the creation of a government-to-government
relationship will not settle the Native Hawaiian peoples' international
claims against the United States.
Part II provides an overview of history in Hawai'i, from pre-contact
to the changes brought by the U.S. Supreme Court decision in Rice,
against the backdrop of Native resistance and calls for sovereignty.
Part III analyzes the effect of the Akaka Bill-the kind of relationship
it creates with the United States, the importance of recognizing a
government-to-government relationship for the Native Hawaiian peoples,
and the changes to the bill that have caused concern throughout the
Native Hawaiian community. Part IV explores what effect the creation of
a government-to-government relationship with the United States will have
on the Native Hawaiian peoples' international claims. Part V concludes
that while the current version of the Akaka Bill creates a
government-to-government relationship, which increases the exercise of
Native Hawaiian self-determination, creation of the
government-to-government relationship with the United States does not
settle international claims. The Native Hawaiian peoples must therefore
continue to pursue federal recognition and international avenues to
maximize the exercise and protection of their rights. |
