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Indian Country Today
April 20, 2007
Native Hawaiians maintain their inherent sovereignty
by: Gale Courey Toensing / Indian Country Today
NEW HAVEN, Conn. - Why should Native Hawaiians who have never
relinquished their inherent sovereignty settle for the lesser status
of federal recognition that is being put forward in the ''Akaka
Bill''?
They shouldn't, says J. Kehaulani Kauanui.
Kauanui, a Native Hawaiian and an assistant professor of anthropology
and American studies at Wesleyan University in Middletown, presented
a short history of Hawaii/U.S. relations and her views of the Akaka
Bill in a talk called ''The Politics of Native Hawaiian
Self-Determination: U.S. Federal Policy v. International law'' at
Yale University on April 4.
She began with thanks to the event sponsors - the Yale Group for the
Study of Native America and the Program in Ethnicity, Race and
Migration - and acknowledged the land now known as New Haven as the
original homeland of the Quinnipiac people.
A heated debate about Hawaiian sovereignty now centers on the
proposed Hawaiian federal recognition bill reintroduced into Congress
by Sen. Daniel Akaka, D-Hawaii, in January after six years of defeat
in the Senate, Kauanui said.
The Hawaiian sovereignty movement is split between those who support
federal recognition and those who want full independence from the
United States based on decolonization and de-occupation under
international law, Kauanui said.
''At the heart of this division between federal recognition and
independence is the debate as to whether or not, and if so, how
Native Hawaiians fit into U.S. policy on Native American governing
entities,'' Kauanui said.
A compelling argument against federal recognition is how federally
recognized tribes are treated now, Kauanui said.
''You have a backlash against tribal nations in this area who are
absolutely entitled to federal recognition and you have the state
bearing down on them, and the courts continue to erode tribal
sovereignty. So the challenge for me, intellectually, legally and
politically, has been how to formulate my critique of federal
recognition for Hawaiians without it ever being misinterpreted as
something that can be used against tribes here, because I support the
federal recognition of tribes here,'' Kauanui said.
But the central argument against federal recognition rests on ''the
particularity of the Hawaiian claims given the legal history of the
Hawaiian kingdom,'' Kauanui said.
Those particularities are embedded as facts in Public Law 103-150 -
an apology to the Hawaiian people that was signed in 1993 by
President Bill Clinton.
The apology acknowledges the illegality of the U.S. government's
military-backed regime change of ''the sovereign Hawaii nation'' in
1893 and its support for the illegally created ''provisional
government'' in violation of treaties and international law. The
insurgents were wealthy American and European financiers and
colonists who owned sugar plantations.
The key statement in the apology reiterates Hawaii's continuing
independence: ''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.
''This legal genealogy makes the current push for federal recognition
as reflected in the Akaka Bill extremely problematic,'' Kauanui said.
The word ''people'' itself puts Hawaiians in line with international
law that says all
peoples have the right to determine their political structures.
''When you say 'people,' you're saying a nation. A people is not an
ethnic group,'' Kauanui said, quoting Lumbee legal scholar David
Wilkins, who outlined four elements that set American Indians apart
from racial minorities.
''Indians are nations, not minorities,'' Wilkins said, because they
were the original inhabitants of the land; their pre-existence
necessitated the negotiation of political compacts, treaties and
alliances with European nations and the United States. As
treaty-recognized sovereigns, Indian peoples are subject to U.S.
trust doctrine, which is supposed to be a unique legal relationship
with the federal government that entails protection; and, stemming
from the trust relationship, the United States asserts plenary power
of tribal nations, which it deems exclusive and pre-emptive.
Native Hawaiians who want to pursue self-determination through
international law contest this U.S. use of the ''doctrine of
discovery'' to indigenous peoples' lands and U.S. assertion to legal
title to those lands while only recognizing tribal nations' use of
the land, Kauanui said.
The ''provisional government'' ceded 1.8 million acres of Hawaiian
lands to the United States in 1898, but those lands have never fallen
into private hands.
''These are lands the U.S. government accepted from the people that
stole them from the Hawaiian monarchy. Never has a penny exchanged
hands and never has a case about the legal title of these lands ever
been adjudicated so this is a major outstanding land claim - 1.8
million acres of some of the most expensive real estate in the world
and one of the most militarized place in the world,'' Kauanui said,
referring to the massive U.S. nuclear base in Honolulu, which is the
central command for U.S. military interests in the Pacific Ocean.
Supporters of federal recognition say there is nothing in the Akaka
Bill that would compromise or foreclose Hawaiian national claims
under international law, but U.S. actions in asserting its plenary
power to keep tribal nations both domestic and dependent belie that
claim, Kauanui said.
Hawaiians may not be able to realize their independence right now,
''but just because you can't see it come to fruition right now
doesn't mean you throw it down the toilet. You protect the claims.
I'd rather stick with the status quo for the moment and work on
cultural sovereignty, get the people stronger and work on educating
people about their political rights,'' Kauanui said.
Under the Akaka Bill, Hawaii could never have casinos, never have
criminal and civil jurisdiction, never petition the secretary of the
Interior Department to take land into trust and never be able to make
land claims under the 1790 Non-Intercourse Act, which would mean
''there goes those 1.8 million acres,'' Kauanui said.
No competing Hawaiian sovereignty group would have legal standing in
any domestic court or at the United Nations. The Native Hawaiian
government would be formed by a commission appointed by and
answerable to the Interior secretary, unlike federally recognized
Indian tribes who determine their own leadership and membership. And
Hawaiians could not have their own civil or criminal jurisdiction.
''Why should we do that? It seems a more critical time than ever for
Hawaiians and all U.S. citizens to critically question why there
should not be a Hawaiian embassy in Washington, D.C. Instead of
negotiating with the Department of the Interior, Hawaiians have the
un-extinguished right to negotiate instead with the U.S. Department
of State,'' Kauanui said.
Indian Country Today
April 20, 2007
Native Hawaiians maintain their inherent sovereignty
by: Gale Courey Toensing / Indian Country Today
NEW HAVEN, Conn. - Why should Native Hawaiians who have never
relinquished their inherent sovereignty settle for the lesser status
of federal recognition that is being put forward in the ''Akaka
Bill''?
They shouldn't, says J. Kehaulani Kauanui.
Kauanui, a Native Hawaiian and an assistant professor of anthropology
and American studies at Wesleyan University in Middletown, presented
a short history of Hawaii/U.S. relations and her views of the Akaka
Bill in a talk called ''The Politics of Native Hawaiian
Self-Determination: U.S. Federal Policy v. International law'' at
Yale University on April 4.
She began with thanks to the event sponsors - the Yale Group for the
Study of Native America and the Program in Ethnicity, Race and
Migration - and acknowledged the land now known as New Haven as the
original homeland of the Quinnipiac people.
A heated debate about Hawaiian sovereignty now centers on the
proposed Hawaiian federal recognition bill reintroduced into Congress
by Sen. Daniel Akaka, D-Hawaii, in January after six years of defeat
in the Senate, Kauanui said.
The Hawaiian sovereignty movement is split between those who support
federal recognition and those who want full independence from the
United States based on decolonization and de-occupation under
international law, Kauanui said.
''At the heart of this division between federal recognition and
independence is the debate as to whether or not, and if so, how
Native Hawaiians fit into U.S. policy on Native American governing
entities,'' Kauanui said.
A compelling argument against federal recognition is how federally
recognized tribes are treated now, Kauanui said.
''You have a backlash against tribal nations in this area who are
absolutely entitled to federal recognition and you have the state
bearing down on them, and the courts continue to erode tribal
sovereignty. So the challenge for me, intellectually, legally and
politically, has been how to formulate my critique of federal
recognition for Hawaiians without it ever being misinterpreted as
something that can be used against tribes here, because I support the
federal recognition of tribes here,'' Kauanui said.
But the central argument against federal recognition rests on ''the
particularity of the Hawaiian claims given the legal history of the
Hawaiian kingdom,'' Kauanui said.
Those particularities are embedded as facts in Public Law 103-150 -
an apology to the Hawaiian people that was signed in 1993 by
President Bill Clinton.
The apology acknowledges the illegality of the U.S. government's
military-backed regime change of ''the sovereign Hawaii nation'' in
1893 and its support for the illegally created ''provisional
government'' in violation of treaties and international law. The
insurgents were wealthy American and European financiers and
colonists who owned sugar plantations.
The key statement in the apology reiterates Hawaii's continuing
independence: ''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.
''This legal genealogy makes the current push for federal recognition
as reflected in the Akaka Bill extremely problematic,'' Kauanui said.
The word ''people'' itself puts Hawaiians in line with international
law that says all
peoples have the right to determine their political structures.
''When you say 'people,' you're saying a nation. A people is not an
ethnic group,'' Kauanui said, quoting Lumbee legal scholar David
Wilkins, who outlined four elements that set American Indians apart
from racial minorities.
''Indians are nations, not minorities,'' Wilkins said, because they
were the original inhabitants of the land; their pre-existence
necessitated the negotiation of political compacts, treaties and
alliances with European nations and the United States. As
treaty-recognized sovereigns, Indian peoples are subject to U.S.
trust doctrine, which is supposed to be a unique legal relationship
with the federal government that entails protection; and, stemming
from the trust relationship, the United States asserts plenary power
of tribal nations, which it deems exclusive and pre-emptive.
Native Hawaiians who want to pursue self-determination through
international law contest this U.S. use of the ''doctrine of
discovery'' to indigenous peoples' lands and U.S. assertion to legal
title to those lands while only recognizing tribal nations' use of
the land, Kauanui said.
The ''provisional government'' ceded 1.8 million acres of Hawaiian
lands to the United States in 1898, but those lands have never fallen
into private hands.
''These are lands the U.S. government accepted from the people that
stole them from the Hawaiian monarchy. Never has a penny exchanged
hands and never has a case about the legal title of these lands ever
been adjudicated so this is a major outstanding land claim - 1.8
million acres of some of the most expensive real estate in the world
and one of the most militarized place in the world,'' Kauanui said,
referring to the massive U.S. nuclear base in Honolulu, which is the
central command for U.S. military interests in the Pacific Ocean.
Supporters of federal recognition say there is nothing in the Akaka
Bill that would compromise or foreclose Hawaiian national claims
under international law, but U.S. actions in asserting its plenary
power to keep tribal nations both domestic and dependent belie that
claim, Kauanui said.
Hawaiians may not be able to realize their independence right now,
''but just because you can't see it come to fruition right now
doesn't mean you throw it down the toilet. You protect the claims.
I'd rather stick with the status quo for the moment and work on
cultural sovereignty, get the people stronger and work on educating
people about their political rights,'' Kauanui said.
Under the Akaka Bill, Hawaii could never have casinos, never have
criminal and civil jurisdiction, never petition the secretary of the
Interior Department to take land into trust and never be able to make
land claims under the 1790 Non-Intercourse Act, which would mean
''there goes those 1.8 million acres,'' Kauanui said.
No competing Hawaiian sovereignty group would have legal standing in
any domestic court or at the United Nations. The Native Hawaiian
government would be formed by a commission appointed by and
answerable to the Interior secretary, unlike federally recognized
Indian tribes who determine their own leadership and membership. And
Hawaiians could not have their own civil or criminal jurisdiction.
''Why should we do that? It seems a more critical time than ever for
Hawaiians and all U.S. citizens to critically question why there
should not be a Hawaiian embassy in Washington, D.C. Instead of
negotiating with the Department of the Interior, Hawaiians have the
un-extinguished right to negotiate instead with the U.S. Department
of State,'' Kauanui said.
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