Restore federal trust for Hawaiian Natives
Contemporary Native Hawaiians are at a crossroads. A battery of recent court cases is putting pressure on Native Hawaiians to establish and clarify their trust relations with the federal government and state of Hawaii. Native Hawaiians have a history of self-government, land ownership and distinct cultures that precede the formation of the United States. Native Hawaiians are not parties to the U.S. Constitution. Under most definitions, Native Hawaiians are indigenous people like American Indian tribes.
Since the United States has gained control of Hawaii, the question arises about the legal and political status of Native Hawaiians. The Hawaiian government, before 1893, negotiated several commercial and diplomatic treaties with the United States. In 1893, sugar plantation owners, who were also descendants of Calvinist missionaries, overthrew, with the help of the U.S. Navy and troops, Queen Lili'uokalani. The plantation owners felt the Hawaiian government was an impediment to business enterprise. The Queen abdicated to the United States, pending investigation. U.S. authorities quickly recognized Hawaii as a protectorate, although an official investigation, the Blount Report, supported Native Hawaiian claims to the illegality of the takeover. Subsequent administrations ignored the report and annexed Hawaii as a U.S. territory in 1898. In the Hawaiian Organic Act of 1900, Native Hawaiians were not recognized as distinct indigenous people and were included as U.S. citizens of Hawaii.
Since Native Hawaiians lost control over considerable amounts of land, some members of the royal Hawaiian line and community members lobbied for land and protection to provide opportunities for many economically and culturally depressed Native Hawaiians. The plantation interests obstructed Congressional actions to provide support or aid for Native Hawaiians. In 1921, Congress passed the Hawaiian Homes Commission Act, which set aside 203,500 acres of land for Native Hawaiians of 50 percent or more blood. The act was analogous to Indian policy for upholding Indian reservations or for providing Indian allotted lands under federal trust. The HHCA established a permanent land base for use by Native Hawaiians, supporting their long term land tenancy, and providing water and infrastructure. In addition, the act enabled to the Hawaiian Homes Commission to promote economic self-sufficiency, ''community-based development, [as well as] the traditions, culture, and quality of life of native Hawaiians ...''
During the 1920s, U.S. Indian policies dismantled Indian reservations by allotment of lands, boarding school education and discouraging autonomous tribal government and expression of culture. A trust relation between Native Hawaiians and the federal government was clarified during the years leading to statehood.
During the 1930s and '40s, legal doctrines of trust and tribal sovereignty were developed by tribal leaders and codified in the Handbook of American Indian Law, authored by Felix Cohen and associates, at the Department of Interior. The Hawaiian Homes Commission, part of the Hawaiian territorial government, managed affairs concerning Native Hawaiians, somewhat like the Office of Indians Affairs in those days. When Hawaii became a state in 1959, the Admissions Act transferred the obligations of the HHCA to the state of Hawaii. Along with the administration of lands and well-being for qualified Native Hawaiians, the state of Hawaii, through the Hawaiian Homes Commission, administered a trust fund that managed assets derived from ceded Hawaiian lands annexed by the United States.
American Indian policy during the late 1950s saw tribal communities mobilizing and ultimately defeating termination policy, which was designed to withdraw federal trust relations with American Indian communities and delegate responsibilities to state and local governments. The transfer of responsibilities of the Hawaiian Homes Commission to the state of Hawaii was in effect the termination of federal trust relations with Native Hawaiians. In contrast, none of the Alaska Native communities were terminated with the admission of Alaska to the union in 1958.
The termination of federal trust relations with Native Hawaiians has caused considerable difficulties for them. The Rice v. Cayetano case [528 U.S. 495 (2000)] challenged the voting by and election of Native Hawaiians only to administer the Hawaiian trust assets. Relying on the 15th Amendment of the Constitution, the Supreme Court ruled that the Office of Hawaiian Affairs, established in 1978 to promote Native self-determination, could not exclude other state citizens from voting and holding office on the OHA board of directors, which administers Hawaiian trust and land assets. The case generated considerable consternation throughout the Native Hawaiian community, since the decision inhibited self-determination. Several bills aimed at gaining federal recognition for Native Hawaiians have been submitted to Congress, generally known as variations of the Akaka bill, named after the junior Hawaiian senator, Daniel Akaka.
The Akaka bill uses the Commerce Clause in the U.S. Constitution to argue that Native Hawaiians are indigenous peoples; the expression ''Indian tribes'' is interpreted to include Native Hawaiians. The bill seeks to support Native Hawaiian status as an indigenous people, and put them on the road to federal recognition through the Office of Federal Acknowledgment, which is a long and difficult task. Native Hawaiians should be supported as an indigenous tribe in their use of the commerce clause. Since the termination period, however, most of the 110 Indian tribes terminated have been restored to trust relations with the federal government. Native Hawaiians should be restored to federal trust relations after their termination expressed in the Hawaiian statehood act. Restoring federal trust relations will withdraw trust responsibility from the state of Hawaii, reestablish government to government relations, and promote greater possibilities for self-determination, self-sufficiency and cultural continuity. The Native Hawaiians need a bill for restoration of federal trust to remedy their termination, not a bill for establishing a right to pursue federal recognition as an unrecognized indigenous community.