Hawaiians – a Nation, a Tribe, or wards of the State?

September 3, 2003
by Rob Lafferty

The federal legislation known as S.344, or the Akaka Bill, would settle the issue of Hawaiian sovereignty once and for all in the minds of those who support it. For some Hawaiians involved in the sovereignty movement, it’s a troubling distraction from their ultimate goal. For others, it signals the final dismantling of the Hawaiian Nation.

In its current form, the legislation sets up a “Hawaiian governing entity” that would be determined and administered by the US Department of Interior. It also proposes a settlement that would end all claims for Native Hawaiian rights and to the “ceded lands” – the remaining crown and government lands that were owned by the Hawaiian Kingdom in 1893.

As many as 1.8 million acres in Hawai‘i are still held in trust as ceded lands, and 20 percent of the income those lands produce is legally required to be paid into Native Hawaiian organizations and programs.

Ceded lands include the military bases around Pearl Harbor, the University of Hawai‘i campus, Honolulu International Airport and almost all of the land administered by the state throughout the islands.

The recent leak of a March 11, 2003 secret document from OHA, the “Report of the Ad Hoc Committee on Public Land Trust,” chaired by Boyd Mossman and including Rowena Akana, Dante Carpenter, Linda Dela Cruz, Colette Machado, Oswald Stender, and John Waihe‘e IV, shows OHA’s intent to negotiate “a full and final resolution of all claims which could be made on behalf of Native Hawaiians.”

The Akaka Bill is being promoted as a way to ensure the continued flow of between $70-100 million in federal funds into the OHA and Hawaiian Homelands programs. Those payments are under challenge in the courts for being racially discriminatory, and a recent Kamehameha Schools discrimination case decision makes it likely those challenges will succeed. The actual language in the bill, however, does not guarantee that any federal entitlements for any existing agencies will be protected.

S.344 is also being called the “Akaka/Stevens Bill” due to the involvement and support of Alaska Senator Ted Stevens, who is responsible for the Alaska Native Claims Settlement Act. The ANCSA legislation divided all Alaska Natives into two groups: those who have financial agreements with the oil industry and those who don’t. In addition, they lost hunting and gathering rights in many areas of Alaska. ANCSA did to Alaska’s native people what the Akaka Bill promises to do to Hawaiians: extinguish all native rights to the use of aboriginal lands.

The bill makes the Department of the Interior the lead agency responsible for all policies that affect Native Hawaiians. The DOI, which manages federal programs for Native Americans, is an “unfit trustee” according to a recent federal court decision. Officials of the department have been cited for contempt by a federal judge for destroying documents, disobeying court orders and lying to the court repeatedly in cases that seek an accounting for over 40 million acres and as much as $137 billion that are missing from Native American assets.

Any settlement will be offered based on a DOI “best guess” as to the extent and value of the ceded lands. The Ad Hoc Committee report suggests that “A new inventory of ceded lands is not recommended because of cost and time. There is enough information available to provide a reasoned decision for purposes of negotiations.” This opinion is offered despite legal and political arguments over the state’s failure to keep accurate accounts of those lands.

Governor Linda Lingle would like to see the matter resolved by following the Native American tribal model. "This bill is vital to the survival of the native Hawaiian people, it is vital to the continued character of our state, and it is vital to providing parity and consistency in federal policy for all native peoples in America," Lingle told the Indian Affairs Committee in February.

The bill offers a racial definition of “Hawaiian” as the descendants of pre-contact aboriginal people. It will change the legal status of Native Hawaiians to Native Americans, a change in definition that ignores the whole point of self-determination. That definition also ignores the many descendants of non-Hawaiian citizens of the original nation.

If the Akaka Bill passes, attempts to restore Hawaiian independence would become unlawful acts. Title 25 of the US code states, “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power.”

By extension, that prohibition would apply to all Hawaiian sovereignty groups as well.

True believers in the sovereignty of the Hawaiian Nation don’t really care what U.S. law says about their legal status. Most folks who are part of the sovereign movement are law-abiding people, but they don’t respect American law as being historically valid in Hawai‘i.

Regardless of what happens with the Akaka Bill, with OHA and with the Hawaiian Homelands program, the sovereignty movement will continue. Mana flowing from the ‘aina – a pure, powerful force that transcends any human law – will always feed the desire for restoration. The trend of current events may even energize that movement.

A precedent exists for the restoration of American territory to the indigenous people. In 1986 the Reagan administration granted independence to the Marshall Islands, which lead to a free association relationship with the US. There are no laws – none at the moment, anyway – which would prevent the federal government from allowing the restoration of the Nation of Hawai‘i.

Instead, if the Akaka Bill becomes law, in the eyes of the US government, the Nation of Hawaii‘i will cease to exist once and for all.

But the Hawaiians will still be here, and they will not forget their cause.