J. Kēhaulani Kauanui
Kanaka Maoli (Native Hawaiians) have always considered the overthrow of the Kingdom of Hawai‘i and the incorporation of the islands into the United States a gross violation of sovereignty. Whether reconciliation could ever be achieved remained an open question throughout the twentieth century. In 1993 Congress took some responsibility for the past by issuing a formal Apology Resolution. The succeeding years saw Hawai‘i’s senators champion legislation to recognize Native Hawaiians as “American Indians” and to extend the federal government’s trust relationship to them. Each iteration, and there have been several, has proved divisive. Some Kanaka Maoli support recognition, arguing that it serves as a necessary, if not fully satisfactory, first step toward restoring sovereignty. The following document clarifies the position taken by nationalists opposed to incorporative legislation. Consider how Kanaka Maoli scholar J. Kēhaulani Kauanui called upon a history of resistance, distinguished between racial and political identities, and articulated a different vision of citizenship and belonging to test the limits of sovereignty.15
The current draft of the bill S. 344 proposes to recognize Hawaiians as an indigenous people who have a “special trust relationship” with the United States and, hence, a right to self-determination under U.S. federal law. The passage of the bill would lay the foundation for a nation-within-a-nation model of self-governance, like that of over three hundred federally recognized American Indian tribal nations—as a domestic dependent nation. But dozens of Hawaiian sovereignty groups have persistently and consistently rejected the application of U.S. federal Indian law that would recognize a Hawaiian domestic dependent nation “as ward to guardian” under the plenary power of Congress.
Senator Akaka16 has described the proposal as the reconciliation piece of legislation he spearheaded nearly a decade ago which amounted to an apology by the U.S. to the Hawaiian people for its role in the overthrow of the Kingdom of Hawai‘i. But there are severe contemporary conditions that serve as forces for the proposal regarding federal recognition of Hawaiians. The U.S. Supreme Court ruling in the case of Rice v. Cayetano in February 2000 prompted the legislation. In the case, the court held in favor of Harold F. Rice, a fourth generation white resident of Hawai‘i who was denied the right to vote. He was turned away because, identifying as a white American, he is not Hawaiian by any statutory definition. This was a case about Hawaiian-only elections for trustees of the Office of Hawaiian Affairs. Since the Office’s inception in 1978, trustee elections were limited to residents of Hawai‘i who are of Hawaiian ancestry but without any minimum blood criterion. The U.S. Supreme Court’s majority opinion decreed that the state’s electoral restriction—limited to Hawaiians—enacted race-based voting qualifications and violated the 15th Amendment’s guarantee that the right of citizens to vote shall not be denied or abridged on account of race, color or previous condition of servitude. . . .
Now, while the majority opinion in Rice v. Cayetano did not rule on the 14th Amendment (and so did not affect the actual trust that the Office of Hawaiian Affairs is meant to manage), there are now several more lawsuits in motion. These suits threaten the very existence of all Hawaiian-specific funding sources and institutions—based on plaintiffs’ charges that they are unconstitutional and racially discriminatory, and so violate the equal protection clause of the U.S. Constitution. These lawsuits call into question the Office of Hawaiian Affairs, all federal funds for Hawaiian health, education, and housing, the state Department of Hawaiian Home Lands, and the lands they manage, based on the 1920 Hawaiian Homes Commission Act (which is also being challenged). Within this context of assault, many Hawaiians and their allies support Akaka’s proposal for federal recognition because it is understood as a protective measure against these lawsuits.
Some people think we need this legislation to protect Hawaiian entitlements from future lawsuits like what we saw in Rice v. Cayetano. Those same advocates have faith that federal recognition would redefine Hawaiians as a political entity and so challenges of “racial” distinctions would be moot in terms of equal protection under the U.S. Constitution. But it is clear to me that there is no guarantee whatsoever that federal recognition for Hawaiians would guarantee that protection. It seems more likely that this limited model would be more like those of over 200 Alaska Native villages—where the U.S. Supreme Court has already ruled that their lands do not constitute “Indian Country” and the current Administration is attempting to remove the villages from the Department of Interior’s list of indigenous self-governing entities. It is not at all clear that the passage of S. 344 bill would protect anything at all for Hawaiians. But it is guaranteed that the federal recognition will not provide for our claims under international law. Supporting S. 344 or any bill akin to it would ultimately severely limit assertions of Hawaiian sovereign self-determination by containing them within a U.S. federal framework. A self-governing model provided by the bill would be no more than a domestic dependent entity under the full and exclusive plenary power of Congress.
Indeed, Section 1(1) of the bill states: “The Constitution vests Congress with the authority to address the conditions of the indigenous, native people of the United States.” For any bill Hawaiian federal recognition to pass, it would have to include some claim that Congress has plenary power over Native Hawaiians under the commerce clause of the Constitution, in order for it to pass constitutional muster. But that is precisely the problem: the proposal minimizes the political and legal spheres inherent in the sovereign expression of native self-determination and does not account for the need and application of United Nations and international law in the domestic arena.
Furthermore, S. 344 undercuts what the 1993 Apology Resolution already acknowledges. In the Apology Resolution, Public Law (103–150), S. J. Res. 19, United States government admitted guilt to the Hawaiian people for its role in the illegal and armed overthrow of Queen Lili‘uokalani and the Kingdom of Hawai‘i in 1893. . . . I say illegally because the United States never upheld U.S. constitutional law or international law when it purportedly annexed Hawai‘i. There was no treaty of annexation. . . .
Under President McKinley, pro-annexationists proposed a joint-Senate resolution even though to admit Hawai‘i this way as a new territory (and not a state) violated the U.S. Constitution. With a joint-senate resolution, all that was needed was a simple majority in both houses of Congress. And so the Newlands Resolution passed in 1898. One hundred years later, in 1998, the United Nations issued the findings of a nine-year treaty study and called the annexation of Hawai‘i into legal question. More specifically, it assessed that the so-called annexation is invalid.17
. . . Hawaiians continue to contest to the problematic process by which Hawai‘i became a state. Like many other colonial territories, in 1946 Hawai‘i was inscribed onto the United Nations list of Non-Self-Governing Territories. And as such, Hawai‘i was eligible for decolonization under international law. However, the United States—in clear violation of U.N. policies and international law at the time and existing through the present—predetermined statehood as the status for Hawai‘i. . . .
The U.S. Apology does not mention this history of the illegal annexation or the details of so-called statehood. But it does include some very strong language, admissions, and findings of fact. On November 28, 1993, the U.S. Congress issued this apology in a joint-senate resolution, now Public Law 103–150. Specifically, the U.S. government apologized to the Hawaiian people for its role in the illegal, armed overthrow of Queen Lili‘uokalani and the Kingdom of Hawai‘i in 1893. The Apology maintains, “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.” But the current proposal for federal recognition refuses to acknowledge our inherent sovereignty as a people over our national lands. At the very least, these lands are the Kingdom Crown and Government Lands (now unfortunately better known as the so-called “ceded” lands), amounting to 1.8 million acres of land.
Nonetheless, the Apology Resolution is a finding of fact. Importantly, this resolution defines “native Hawaiian” as “any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawai‘i.” As many of you know, 1778 is the year Captain Cook first arrived in the island archipelago. Hence, that year marks a time when it is assumed that there was no one other than Hawaiians present in these Islands. The way that “native Hawaiian” is defined here is the most inclusive statutory definition of a Hawaiian person; it makes no reference to any blood quantum minimum or state residency requirement. Aside from this all-encompassing definition of indigeneity for Hawaiian people, the apology was not extended to those who are not Hawaiian but who also endured the legacy of the overthrow—namely, those descendants of other citizens of the Kingdom of Hawai‘i.
Hawaiian Kingdom sovereignty was not lost via conquest, cession, or adjudication. And, in addition, the Hawaiian people’s loss of self-determination at no time amounted to a legal termination of indigenous inherent sovereignty. With regard to these claims under international law, one need only read the current federal proposal to see the fine line being negotiated between indigenous and national claims. Indeed, within S.344, there are internal contradictions and problems. For example, the language reveals how the drafters of the bill need the history of the overthrow to justify the right for Hawaiians to have federal recognition. While the 1893 marker provides a timeline tied to Hawaiian sovereignty, it complicates any definition that is exclusively aboriginal. So then, it should not come as a surprise that the definition specifically references both the overthrow date and the status of aboriginality. But to take the history of the overthrow seriously calls the model of federal recognition itself into question as the solution. And, the specific requirement that one also be the lineal descendant of a Hawaiian also works to limit broader sovereignty claims that could be made not only by Hawaiians but also by any lineal descendant of a Kingdom citizen. This containment of the sovereignty claim staves off demands for Hawai‘i’s independence and decolonization from the United States, based on international law, for both Hawaiian people and others. Federal protection is now being sold to Hawaiians as a defense against average citizens who challenge the Hawaiian trusts that the United States has never upheld in the first place; a trust that itself is based on the theft of a nation. . . .
In Hawai‘i today, the independence claims can be roughly divided into two different categories—decolonization and de-occupation. One centers on the political process of decolonization under U.N. protocols while the other centers on the restoration of the Kingdom of Hawai‘i based on the law of nations and The Hague Regulations. These two projects differ from pushing for the rights if indigenous peoples under international law. In the Hawaiian context, activists who support the rights of indigenous peoples at the U.N. tend to also support U.S. federal recognition for a Hawaiian governing entity, and so that work cannot fairly be described as pro-independence.
Hawaiians are being compelled by the state to support federal recognition to protect indigenous-specific funding sources and institutions, but at the expense of the total independence claim. Senator Akaka has claimed, “We must not let this window of opportunity close.” But our sovereignty cannot fit through any old window. While some scramble to keep a window open, the federal government could forever close its doors to an independent nation. This is why the voice of Hawaiians-at-large rings a resounding “no consent!” Hawaiian sovereignty and self-determination are inherent—as acknowledged in the U.S. Apology Resolution—and, therefore, cannot be legislated by the United States.