RECONCILIATION BETWEEN THE UNITED STATES AND NATIVE HAWAIIANS:

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1 RECONCILIATION BETWEEN THE UNITED STATES AND NATIVE HAWAIIANS: The Duty of the United States to Recognize a Native Hawaiian Nation and Settle the Ceded Lands Dispute I. INTRODUCTION II. BACKGROUND A. The Legal Framework of Federal Recognition B. Land Base of a Native Hawaiian Nation Consisting of Ceded Lands Initial provisions for a land base History of the ceded lands III. ANALYSIS A. Federal Recognition of the Native Hawaiian Government is Constitutional Congress has the power to treat Native Hawaiians the same as Indian Tribes The constitutionality of state programs currently dedicated to Native Hawaiians is a separate issue B. The Model of a Native Hawaiian Nation According to the Akaka Bill and Other Indigenous Governments Citizenship in a NHN Negotiating the limits of the authority of a NHN within the state and federal governments C. Transfer of Land and Assets to a Native Hawaiian Nation Kaho`olawe Replacing OHA after the recognition of a NHN The exact location of the ceded lands and possibilities of transfer to a NHN Compensation to a Native Hawaiian nation for ceded lands retained by the state and federal governments IV. CONCLUSION

2 470 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) I. INTRODUCTION Native Hawaiians, 1 descendants of the inhabitants of the Hawaiian Islands before the arrival of European explorers, consider themselves an indigenous people, yet they are not afforded the same federal recognition as, for example, the Cherokee or Alaska natives. 2 Federal recognition allows indigenous peoples to exercise sovereignty through a separate governmental entity within the United States, 3 such as the Cherokee Nation in Oklahoma. 4 Currently, Native Hawaiians are organizing a separate government by convening to write organic governing documents for a Native Hawaiian nation 1 Native Hawaiians as used in this paper, means 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 Hawaii. 100th Anniversary of the Overthrow of the Hawaiian Kingdom, S.J. Res. 19, 103d Cong., Pub. L. No , 107 Stat. 1510, 1513 (1993) [hereinafter Apology Resolution]. This definition is borrowed from the joint resolution passed by the U.S. Congress to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii. Id. at See Le`a Malia Kanehe, Recent Development, The Akaka Bill: The Native Hawaiians Race For Federal Recognition, 23 U. HAW. L. REV. 857, (2001). The United States recognizes native peoples right to self-determination through federal recognition. Since 1978, twenty-one groups have successfully become federally recognized nations through either procedures under the Bureau of Indian Affairs, Department of Interior, or congressional action. Currently, more than 550 federally recognized Native American nations exist in the contiguous United States and Alaska. Also since the 1970s, under fifty federal statutes, Native Americans have been considered to include American Indians, Alaska Natives and Native Hawaiians. Within that class, Native Hawaiians are the only group that has not been extended federal recognition. Id. 3 Id. 4 The Cherokee Nation of Oklahoma has a constitution and a Cherokee Nation Code Annotated. See CHEROKEE NATION CODE ANN. (Equity 1986). In the Foreword to the Code, Wilma P. Mankiller, Principal Chief of the Cherokee Nation of Oklahoma, explains the importance to the Cherokee people of their ability to organize their own government: This embodiment of the legislative acts of the Cherokee Nation of Oklahoma is the first of its kind since the adoption of the Constitution of the Cherokee Nation of Oklahoma on October 2, It represents the continual endeavor of the Cherokee people to govern themselves and maintain their cultural identity while at the same time adjusting to the social and economic demands of the day. The power of the Cherokee people to enact a Constitution and Code and govern themselves by them are the fundamental attributes of their sovereignty. It is my sincere hope that this publication will allow more people to know and understand our purpose and what it means to be free to govern ourselves. Id. Foreword at ix (emphasis added).

3 Reconciliation 471 (NHN). 5 The Akaka Bill, 6 now pending before Congress, would create a mechanism whereby the United States could extend federal recognition to a NHN, 7 acknowledging its legitimacy as a quasi-sovereign legal entity. 8 Also, Section 8 of the Akaka Bill authorizes the United States and the State of Hawai`i to negotiate the transfer of land and assets to a NHN. 9 This article seeks to persuade federal lawmakers that Congress should pass the Akaka Bill, and also to convince Native Hawaiians that if they want self-government over their own territory, the Akaka Bill is the best method to achieve it. Considering the amounts of land and wealth involved, the integrity of the state and federal constitutions, and the need to resolve the claims for sovereignty of Native Hawaiians, it is imperative that lawmakers understand the myriad of issues surrounding the Akaka Bill and federal recognition. The 5 Vicki Viotti, OHA Unveils Nationhood Plan, HON. ADVERTISER, May 2, 2003, at B1. The Office of Hawaiian Affairs yesterday added more fuel to the drive toward sovereignty by unveiling a nationhood timetable that calls for a council to convene in late November and draw up documents for a native Hawaiian government. Id. 6 This article uses the Akaka Bill to refer to Senate Bill 344, introduced into the 108th Congress by Hawai`i Senator Daniel Akaka. S. 344, 108th Cong. (Feb. 11, 2003). An Office of Hawaiian Affairs (OHA) press release states S. 344 was known previously as the Akaka Bill, but should now be known as the Native Hawaiian Recognition Bill. See Press Release, Office of Hawaiian Affairs Public Information Office, OHA Board Unanimously Supports the Intent of S. 344 Seeking Federal Recognition of Native Hawaiians (Feb. 14, 2003), at (last visited June 5, 2003). This article, however, continues to refer to S. 344 as the Akaka Bill in order to be consistent with general perceptions and previous literature. See Kanehe, supra note 2. See also R. Hokulei Lindsey, Comment, Akaka Bill: Native Hawaiians, Legal Realties, and Politics as Usual, 24 U. HAW. L. REV. 693 (2002). 7 See S. 344, 108th Cong. 3(b) (2003). Purpose - It is the intent of Congress that the purpose of this Act is to provide a process for the recognition by the United States of a Native Hawaiian governing entity for purposes of continuing a government-to-government relationship. Id. 8 Quasi-sovereign is a term applied to indigenous governments within U.S. borders. See Rice v. Cayetano, 528 U.S. 495, 518 (2000) The decisions of this Court, interpreting the effect of treaties and congressional enactments on the subject, have held that various tribes retained some elements of quasi-sovereign authority, even after cession of their lands to the United States. Id. See also Morton v. Mancari, 417 U.S. 535, 554 (1974) (stating [t]he preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. ). 9 See S. 344, 108th Cong. 8(b) (2003). Negotiations Upon the Federal recognition of the Native Hawaiian governing entity by the United States, the United States is authorized to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian governing entity regarding the transfer of lands, resources, and assets dedicated to Native Hawaiian use to the Native Hawaiian governing entity. Nothing in this Act is intended to serve as a settlement of any claims against the United States. Id.

4 472 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) Akaka Bill must build the foundation for stable government, rather than digging complicated legal pitfalls. This article informs the reader about federal recognition of a NHN in order to establish its feasibility, and to aid lawmakers in their decisions by identifying and offering solutions to potential problems. This article argues from a conviction that the United States has a duty to effect reconciliation between itself and Native Hawaiians, and that federal recognition of a NHN is the most viable path to that end. Already, the United States has acknowledged its duty to the Native Hawaiian people, and codified it into law. In 1993, the U.S. Congress passed a joint resolution 10 [t]o acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawai`i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai`i. 11 The Apology Resolution recounts the events surrounding the overthrow in considerable detail, including the direct participation of U.S. military forces. 12 The United States admits in the Apology Resolution that without its assistance, the overthrow of the Kingdom of Hawai`i would have failed; 13 that the overthrow was illegal; 14 that the United States took title to 1.8 million acres of land belonging to the Kingdom of Hawai`i without the consent of or compensation to Native Hawaiians; 15 and that Native Hawaiians 10 A joint resolution, passed by a simple majority in both houses of Congress and signed by the President, is a binding public law. For example, through a joint resolution, the United States annexed the Hawaiian Islands. Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, 30 Stat. 750 (July 7, 1898). 11 Apology Resolution, supra note 1, at Id. at Whereas, in pursuance of the conspiracy to overthrow the Government of Hawaii, the United States Minister and the naval representatives of the United States caused armed naval forces of the United States to invade the sovereign Hawaiian nation on January 16, 1893, and to position themselves near the Hawaiian Government buildings and the Iolani Palace to intimidate Queen Liliuokalani and her Government[.] Id. 13 Id. at Whereas, without the active support and intervention by the United States diplomatic and military representatives, the insurrection against the Government of Queen Liliuokalani would have failed for lack of popular support and insufficient arms[.] Id. 14 Id. at Whereas, although the Provisional Government was able to obscure the role of the United States in the illegal overthrow of the Hawaiian monarchy, it was unable to rally the support from two-thirds of the Senate needed to ratify a treaty of annexation[.] Id. 15 Id. Whereas the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government; Whereas the Congress, through the Newlands Resolution, ratified the cession, annexed Hawaii as part of the United States, and vested title to the lands in Hawaii in the United States[.] Id.

5 Reconciliation 473 have never relinquished their claims to their national lands or to their right to sovereignty. 16 Congress stated the Apology Resolution: [E]xpresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people[.] 17 Reconciliation is a term of art that signifies the need for the dominant party, in this case the United States, to work towards a compromise and solution to remedy the injured party, the Native Hawaiians, in a manner acceptable to both parties. 18 This article contends federal recognition of a Native Hawaiian nation is the appropriate path to reconciliation because it would allow Native Hawaiians to recover what they lost upon annexation, their own government over their own land, in accordance with U.S. law. The Akaka Bill is an excellent vehicle for federal recognition of a Native Hawaiian nation, in large part because it establishes the legal authority to transfer land and assets to a NHN. 19 Critics of this position abound among both Native Hawaiian advocates, and opponents of Native Hawaiian claims. Some Native 16 Id. Whereas 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[.] Id. 17 Id. 1(4), at 1513 (emphasis added). 18 See BLACK S LAW DICTIONARY 1272 (6th ed. 1991) (defining reconciliation as [t]he renewal of amicable relations between two persons who had been at enmity or variance; usually implying forgiveness of injuries on one or both sides ). See also William Bradford, With a Very Great Blame on Our Hearts : Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 AM. INDIAN L. REV. 1, (2003). Reconciliation, or restorativism, is a nonpunitive, eclectic paradigm that reorients redress from money toward healing, via demythification and exchange of apologies for forgiveness, a wounded body politic. Remedies are jointly crafted to encourage the dominant group to recognize moral responsibility for past injuries, to reconstruct and repair, by affirmative measures, the dignity and position of the aggrieved group, and to usher in a new moral economy in which repetition of the past is unthinkable. Although there may be no legal obligation incumbent upon a state to reconcile social groups, by ushering in a right relationship and a multicultural ethic of trust and respect, reconciliation hasten[s] the day when people actually think in a color-blind way and a relegitimized nation moves forward with all its social groups marching in step. Id. 19 See S. 344, 108th Cong. 8(b) (2003).

6 474 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) Hawaiians view the Akaka Bill as a renunciation of their claims 20 and instead seek a completely independent sovereign nation. 21 At the opposite extreme, some argue that Native Hawaiians are no different from other Americans and have no foundation for their claims. 22 This article rejects both arguments at the outset. It appears that most Native Hawaiians do not wish to create an independent nation, one of the chief reasons being Native Hawaiians enjoy their American citizenship. 23 Rejecting that Native Hawaiians merit separate 20 See Anne Keala Kelly, The Akaka Bill and Hawaiian Self-Determination, HON. WEEKLY, Jan. 30, 2002, (last visited June 5, 2003) Kekuni Blaisdell, Coordinator of the Hawaiian Sovereignty Roundtable, Ka Pakaukau, states that: These bills violate our inherent right to self-determination... and place us under U.S. federal Indian law, creating a process whereby we are a puppet government that has to be acceptable to the Secretary of the Interior and approved by the State of Hawai`i. It is worse than what we have now. This legislation exists for the purpose of having kanaka maoli [Native Hawaiians] go on record as formally relinquishing our rights to our sovereignty and our lands. Id. 21 Id. Charles Lehuakona Isaacs, Jr., a Hawaiian activist and co-producer of states, I d rather use the 93 Apology Resolution, that apologizes for the U.S. complicity in the illegal overthrow, as a path for looking at potential models of independence. Id. 22 See Paul Sullivan, Recognizing the Fifth Leg: The Akaka Bill Proposal to Create a Native Hawaiian Government in the Wake of Rice v. Cayetano, 3 ASIAN-PAC. L. & POL Y J. 308, 324 (2002) at The asserted separateness and distinctness of Hawaiians from other groups living in the islands are not supported by factual evidence set out in the Akaka Bill itself or in the Senate Report that supports it. Id. 23 Information distributed about federal recognition by the Office of Hawaiian Affairs (OHA), a state agency, and Ka Lahui Hawai`i (Ka Lahui), an independent sovereignty organization, stress that federal recognition will not affect Native Hawaiians U.S. citizenship. See PONO KĀKOU: HAWAIIAN RECOGNITION NOW, Getting to Know the Issues: Frequently Asked Questions About the Akaka Bill, in NATIVE HAWAIIANS: A QUEST FOR SELF- DETERMINATION, at (last visited June 9, 2003). [I]f the Akaka Bill is enacted and Native Hawaiians choose to reorganize a government, its members would retain their United States citizenship in addition to their Native Hawaiian nation citizenship. All of the rights, programs, and services guaranteed or provided to U.S. citizens would still be provided to Native Hawaiians[.] Id. at 8. See also Ka Lahui Hawai`i, Commonly Asked Questions About Ka Lahui Hawai`i, at (last visited June 9, 2003) [hereinafter Ka Lahui]. Ka Lahui citizenship will not change your U.S. or state citizenship, or affect your job, social security, retirement or pension from the U.S. or the state. All citizens of Hawai`i are now under two constitutions: the U.S. Constitution and the State Constitution. If you enroll as a citizen of Ka Lahui you will fall under an additional constitution, that of Ka Lahui Hawai`i. Id.

7 Reconciliation 475 special treatment under U.S. law, however, denies Native Hawaiians the same legal opportunity afforded the Cherokee, 24 the Alaska natives, 25 the Mashantucket Pequot, 26 the Oneida, 27 the Jicarilla Apache, 28 or any of more than 550 federally recognized indigenous governments. 29 This article walks through the legal process of federal recognition of a Native Hawaiian nation via the Akaka Bill, and considers the transfer of land and assets to a NHN. Part II examines the origin and development of the legal parameters of federal recognition, and explores how the Akaka Bill would extend such recognition to a NHN. Part II then details how federal recognition would provide the legal underpinnings for the establishment of a land base for a NHN consisting of some parts of the ceded lands. The term ceded lands refers to approximately 1.8 million acres of Kingdom of Hawai`i land ceded to the United States upon annexation. 30 Ceded lands form the basis of Native Hawaiian claims against the state and federal governments See The Cherokee Nation, Official Site, (last visited June 12, 2003). 25 See Alaska Native Claims Act of 1971, Pub. L. No , 85 Stat. 688 (1971). 26 See The Mashantucket Pequots, mptn_history.html (last visited June 12, 2003). [T]he Connecticut Legislature unanimously passed legislation to petition the federal government to grant tribal recognition to the Mashantucket Pequots and settle the claim. With help from the Connecticut delegation, the Mashantucket Pequot Indian Land Claims Settlement Act was enacted by the U.S. Congress and signed by President Reagan on Oct. 18, It granted the Tribe federal recognition, enabling it to repurchase and place in trust the land covered in the Settlement Act. Currently, the reservation is 1,250 acres. Id. 27 See Oneida Indian Nation, (last visited June 12, 2003). 28 See The Jicarilla Apache Nation, tribalgovernment.htm (last visited June 12, 2003). The tribal government was established in 1937 with its own constitution and by-laws. The Nation is setup as a three branch government with the legislative being a elected president, a vice-president, and eight council members. Id. 29 See Kanehe, supra note 2, at See OFFICE OF THE LEGISLATIVE AUDITOR, FINAL REPORT ON THE PUBLIC LAND TRUST, Rep. No , at 7 (Haw. 1986) [hereinafter FINAL REPORT]. Technically speaking, ceded lands are lands that were ceded to the United States by the Republic of Hawai`i under the joint resolution of Annexation of Hawai`i approved July 7, 1898 (30 Stat. 750) and those that have been acquired in exchange for the lands so ceded. Id. at See Melody K. MacKenzie, The Ceded Lands Trust [hereinafter MacKenzie, Ceded Lands Trust], in NATIVE HAWAIIAN RIGHTS HANDBOOK 40 (Melody K. MacKenzie ed., 1990) [hereinafter HANDBOOK].

8 476 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) because the United States acquired the ceded lands at annexation without paying compensation to Native Hawaiians. 32 Control of land is essential to a NHN because Native Hawaiians depend upon a relationship with the land ( āina) for their sense of cultural and spiritual wholeness. 33 Part III opens by discussing competing arguments regarding the constitutionality of federal recognition of a Native Hawaiian nation, concluding it is both constitutional and an effective way for Native Hawaiians to exercise sovereignty. The constitutionality of a NHN, however, is a separate issue from that of state programs dedicated to Native Hawaiians, such as the Office of Hawaiian Affairs (OHA) and the Department of Hawaiian Homelands (DHHL). Currently, both programs face a constitutional challenge alleging they constitute impermissible racial discrimination by the State of Hawai`i. 34 Similar programs administered by a NHN, however, would not face such challenges because a NHN would not be a state actor; it would be a separate, quasi-sovereign entity. 35 Ultimately, Native Hawaiians seek return of Government and Crown Lands [ceded lands] from both the state and federal governments. How such lands would be cared for and managed, who would have jurisdiction over them, and what rights Native Hawaiians could exercise upon them are crucial aspects of Native Hawaiian self-governance and sovereignty. Id. 32 See Apology Resolution, supra note 1, at Whereas the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government[.] Id. 33 Fundamentally, Native Hawaiians practice mālama āina caring for the land and view the āina, or land, as a partner in the production of life-sustaining materials. For a more detailed discussion of the importance of land in the Native Hawaiian culture and belief system, and the practice of mālama āina, see LILIKALĀ KAME`ELEIHIWA, NATIVE LAND AND FOREIGN DESIRES: PEHEA LĀ E PONO AI? HOW SHALL WE LIVE IN HARMONY? (1992). The Hawaiian does not desire to conquer his elder female sibling, the Āina, but to take care of her, to cultivate her properly, and to make her beautiful with neat gardens and careful husbandry. Id. at See Arakaki v. Cayetano, 198 F. Supp. 2d 1165 (2002). See also infra Part III.A See Rice v. Cayetano, 528 U.S. 495, 521 (2000). In Rice, the Supreme Court emphasized the difference between OHA and a quasi-sovereign indigenous government: If a non-indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of Hawaii. OHA is a state agency, established by the State Constitution, responsible for the administration of state laws and obligations. Id.

9 Reconciliation 477 Next, Part III outlines the possible contours of a Native Hawaiian nation, using as a model the provisions of the Akaka Bill and the governments of other indigenous peoples. This inquiry focuses on who would belong to a NHN, what kind of authority it would have, and how it would hold its land and assets. Part III then examines the possible sources from which a NHN could expect to receive land and assets. This article recommends that Section 8 of the Akaka Bill be used to transfer the island of Kaho`olawe in its entirety to a NHN. Assets held by OHA should also be transferred to a NHN, as well as a portion of ceded lands proportional to the amount dedicated to OHA by the State of Hawai`i in its constitution. In an effort to assist this process, this article identifies the location of ceded lands to the extent currently possible. Finally, this article suggests compensation should be paid to a NHN by state and federal governments for ceded lands those governments retain. The result of these actions would be a de facto quasi-sovereign NHN, possessing its own land base with solid financial standing. Such a NHN would be completely separate, politically and financially, from the State of Hawai`i, and able in this context to carry on its own government-to-government relationship with the United States. 36 II. BACKGROUND A. The Legal Framework of Federal Recognition Early in its history, the United States recognized the right of indigenous peoples within its borders to exercise sovereignty through separate governments. 37 In three decisions written from 1823 to 1832, now known as the Marshall Trilogy, 38 Supreme Court Chief Justice John Marshall established the beginnings of a system wherein indigenous governments function similarly to states, distinctly independent from other state governments, yet still subject to the plenary authority of the federal 36 See S. 344, 108th Cong. 3(b) (2003) The purpose of the Akaka Bill is to provide a process for the recognition by the United States of a Native Hawaiian governing entity for the purposes of continuing a government-to-government relationship. Id. 37 See Noelle M. Kahanu & Jon M. Van Dyke, Native Hawaiian Entitlement to Sovereignty: An Overview, 17 U. HAW. L. REV. 427, (1995) (describing judicial recognition of the right to self-governance and its exercise by Indian Tribes and arguing that Native Hawaiians have the same right). 38 Worcester v. Georgia, 31 U.S. 515 (1832); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Johnson v. M Intosh, 21 U.S. 543 (1823).

10 478 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) government. 39 Today, the legacy of the Marshall Trilogy is that the United States has extended federal recognition to the governments of some 550 indigenous peoples. 40 Congress decides which indigenous governments merit federal recognition, drawing its authority from the Constitution s grant of power [t]o regulate Commerce with foreign nations, and among the several States, and with the Indian tribes. 41 Federal recognition constructs a government-to-government relationship between the governments of indigenous peoples and the United States. 42 The nature and boundaries of individual indigenous authorities are determined through negotiations with related state and federal governments on a case-by-case basis. 43 Federal recognition works via a fundamental change in the United States perception of the members of indigenous governments; they are no longer regarded as a racial class, but instead acquire a special political status. In Morton v. Mancari, 44 the Supreme Court upheld a hiring preference for Indians within the federal Bureau of Indian Affairs (BIA) because: The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasisovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion. 45 Laws affecting members of Indian Tribes are not subject to the strict scrutiny standard of judicial review applied to racial classifications. 46 Under Mancari such laws are reviewed using the more easily satisfied rational basis standard: 39 Worcester v. Georgia, 31 U.S. at 561 (1832). The Cherokee nation, then is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. Id. 40 See Kanehe, supra note 2, at 859, U.S. CONST. art. I, 8, cl. 3. See also Kahanu & Van Dyke, supra note 37, at 428 n.5 (noting how the Commerce Clause equates the status of Indian tribes to that of states and foreign nations. ). 42 See Kanehe, supra note 2, at See Kahanu & Van Dyke, supra note 37, at (describing the varieties of native sovereign nations ). 44 Morton v. Mancari, 417 U.S. 535 (1974). 45 Id. at Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (holding that strict scrutiny applies to all governmental racial discrimination regardless of intent).

11 Reconciliation 479 As long as the special treatment can be tied rationally to the fulfillment of Congress unique obligation towards the Indians, such legislative judgments will not be disturbed. 47 In Rice v. Cayetano, 48 the State of Hawai`i sought to extend the holding of Mancari to defend a provision in its state Constitution 49 mandating that voters in elections for trustees of its Office of Hawaiian Affairs include only Native Hawaiians 50 and Hawaiians. 51 The state argued restricted elections are permissible to afford Hawaiians a measure of self-governance in fulfilling the special trust relationship that exists between Native Hawaiians and the state and federal governments. 52 The Supreme Court disagreed, holding the Fifteenth Amendment prohibits the State of Hawai`i from restricting elections to a state agency, such as OHA, on account of race or ancestry. 53 The Court emphasized OHA is a state agency and a fortiori OHA elections are state elections, which do not constitute elections of a federally recognized indigenous government. 54 In contrast, the Court pointed out that elections held by indigenous governments restricting the vote to members of 47 Mancari, 417 U.S. at Rice v. Cayetano, 528 U.S. 495 (2000). 49 See HAW. CONST. art. XII, 5. There is hereby established an Office of Hawaiian Affairs. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians. There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative: Oahu, Kauai, Maui, Molokai and Hawaii. The board shall select a chairperson from its members. Id. 50 Rice, 528 U.S. at 516 (citing HAW. REV. STAT which defines Native Hawaiians as any descendant of not less than one-half of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii. ). 51 Id. at 515 (citing HAW. REV. STAT which defines Hawaiian as any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii. ). 52 Id. at Id. at 522, Id. at 521.

12 480 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) that government are not the action of a state bound by the Fifteenth Amendment, but rather the internal affair of a quasi-sovereign. 55 The only way a Native Hawaiian nation could become a quasisovereign is through the Akaka Bill, or similar legislation, because Department of Interior (DOI) regulations administering the federal recognition process apply only to indigenous people located in the continental United States. 56 In Kahawaiolaa v. Norton, Native Hawaiians sued the Secretary of the Interior, challenging their exclusion as an equal protection violation of the Fifth Amendment because Native Hawaiians were being treated differently than other indigenous peoples. 57 In considering this challenge, the District Court of Hawai`i held that the issue raised was a nonjusticiable political question reserved for Congress to resolve, specifically citing to the Akaka Bill. 58 It is important to realize that passage of the Akaka Bill would not immediately extend federal recognition; rather, it details the process whereby elected officers of a Native Hawaiian nation would submit organic governing documents to the Secretary of the Interior (Secretary) for approval. 59 The Secretary, then, must certify that the documents define the contours of a NHN in compliance with applicable federal law, including provisions detailing 55 Id. at Kanehe, supra note 2, at 862. The DOI regulations providing for petition to the Secretary of the Interior (Secretary) for federal recognition are available only to those American Indian groups indigenous to the continental United States. Thus, although Native Hawaiians are indigenous to an area now constituting part of the United States, they are geographically excluded from the DOI s federal recognition petition procedures because Hawai`i is not part of the continental United States. Id. 57 Kahawaiolaa v. Norton, No. CIV ACKBMK, 2002 WL at *1 (D. Haw. 2002). This action arises out of an attempt by a group of Native Hawaiians ( Plaintiffs ) to have certain regulations promulgated by the defendant Department of Interior... declared unconstitutional and permanently enjoined. In particular, Plaintiffs object to the regulations at issue because the scope of such regulations exclude Native Hawaiians from the universe of indigenous groups that may become federally acknowledged as an Indian tribe with all the benefits with respect to that recognition. Id. 58 Id. at *7-8. Again, it would appear that the course of action to achieve a government-to-government relationship between Native Hawaiians and the federal government would be to pursue the pending Akaka Bill. Id. at *8. 59 S. 344, 108th Cong. 6(b)(1) (2003).

13 Reconciliation 481 membership criteria, the holding of assets, the exercise of authority, how to conduct negotiations with state and federal governments, and the security of members civil rights. 60 The Akaka Bill provides that the documentation goes back and forth between a NHN and the Secretary until certified, after which the United States would extend federal recognition to a NHN. 61 B. Land Base of a Native Hawaiian Nation Consisting of Ceded Lands 1. Initial provisions for a land base A Native Hawaiian nation would not be a nation without a land base. Federal recognition is the first step toward establishing a land base for a NHN, because it would receive partial control of the island and waters of Kaho`olawe. 62 Potentially more significant than the acquisition of Kaho`olawe, Section 8 of the Akaka Bill provides: Upon the Federal recognition of the Native Hawaiian governing entity by the United States, the United States is authorized to negotiate and enter into an agreement with the State of Hawaii and the Native Hawaiian governing entity regarding the transfer of lands, resources, and assets dedicated to Native Hawaiian use to the Native Hawaiian governing entity. 63 The Senate Committee Report on the Akaka Bill, written by the Committee on Indian Affairs, states that lands referred to include the ceded lands: Id. 60 Id. 6(b)(2)(A) (2003). 61 Id. 6(b)(2)(C) (2003). 62 HAW. REV. STAT. 6K-9 (2002). Upon its return to the State, the resources and waters of Kaho`olawe shall be held in trust as part of the public land trust; provided that the State shall transfer management and control of the island and its waters to the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii. All terms, conditions, agreements, and laws affecting the island, including any ongoing obligations relating to the cleanup of the islands and its waters, shall remain in effect unless expressly terminated. 63 S. 344, 108th Cong. 8(b) (2003).

14 482 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) It is the Committee s intent that the reference to lands, resources and assets dedicated to Native Hawaiian use include, but not be limited to lands set aside under the Hawaiian Homes Commission Act and ceded lands as defined in section 2. The Committee believes that if an inventory of the ceded lands is required to facilitate negotiations addressing ceded lands, then such an inventory should be conducted. 64 Section 2 of the Akaka Bill defines ceded lands as follows: The term ceded lands means those lands which were ceded to the United States by the Republic of Hawaii under the Joint Resolution to provide for annexing the Hawaiian Islands to the United States of July 7, 1898 (30 Stat. 750), and which were later transferred to the State of Hawaii in the Act entitled An Act to provide for the admission of the State of Hawaii into the Union approved March 18, 1959 (Public Law 86-3; 73 Stat. 4). 65 The language of the Akaka Bill and the explanatory notes in the Senate Committee Report declare Section 8 is to be used as the mechanism to transfer part of the ceded lands to a Native Hawaiian nation. Such a transfer would satisfy the strong desire among Native Hawaiians for the return of ceded lands. 66 The amount of ceded lands to be transferred must be negotiated between the state and federal governments and a NHN, as authorized by Section The next section provides a brief history of the ceded lands 68 in order to explain the merits of Native Hawaiian claims to them, and to facilitate the transfer of some amount of ceded lands to a NHN. 64 S. REP. NO , at 47 (2001). 65 S. 344, 108th Cong. 2(3) (2003). 66 S. 344, 108th Cong. 1(9) (2003). Throughout the years, Native Hawaiians have repeatedly sought access to the Ceded Lands Trust and its resources and revenues in order to establish and maintain native settlements and distinct native communities throughout the State. Id. See also 1(10) (2003). The Hawaiian Home Lands and the Ceded Lands provide an important foundation for the ability of the Native Hawaiian community to maintain the practice of Native Hawaiian culture, language, and tradition, and for the survival of the Native Hawaiian people. Id. 67 Id. 8(b) (2003). 68 For a more thorough history of the ceded lands, see Sheryl Miyahara, Hawaii s Ceded Lands, 3 U. HAW. L. REV. 101 (1981).

15 Reconciliation History of the ceded lands The origin of the ceded lands may be traced to the Māhele 69 of 1848 when the monarch Kauikeaouli (Kamehameha III) decreed the official start of private ownership of land. 70 In so doing, Kauikeaouli retained some 1 million acres as private lands and 1.5 million acres as government lands. 71 The king s private lands became known as the crown lands in 1865 after the legislature declared them the inalienable property of the office of the monarch, not the property of any individual person. 72 After the illegal overthrow of Queen Lili uokalani in 1893, the Republic of Hawai`i expropriated about 1.8 million acres of former crown and government lands, and ceded all of it to the United States upon annexation in In 1908, the Supreme Court of Hawai`i took judicial notice that title to the crown lands vested in the United States, declining to question the validity of the transfer of title from the Republic of Hawai`i. 74 In 1910, Queen Lili`uokalani sued the United States for compensation for the taking of the crown lands. 75 The Court of Claims held that since the crown lands had belonged to the office of the monarch, and not the individual person of the monarch, when that office ceased to exist, the Queen had no further claim to the lands See KAME`ELEIHIWA, supra note 33, at 9. Māhele means to divide or to share. Id. See generally id. at (discussing the circumstances surrounding Kauikeaouli s decision to decree the Māhele). 70 See Miyahara, supra note 68, at Id. at Id. at 112 n.70 (citing Liliuokalani v. United States, 45 Ct. Cl. 418 (1910) which held that the crown lands belonged to the office and not the individual). 73 Id. at Territory of Hawaii v. Kapiolani Estate, 18 Haw. 640, 644 (1908) The validity of the declaration in the constitution of the Republic of Hawaii [which ceded the crown Lands to the United States], under which the present title is derived, does not present a judicial question. Id. 75 Liliuokalani v. United States, 45 Ct. Cl. 418, 424 (1910). The Queen argued her case by asserting that she had a life estate in the crown lands, a property right that the Republic of Hawaii deprived her of without due process of law when it declared the crown lands to be part of the public domain, which were later ceded to the United States. Id. at 418. The Court of Claims rejected her argument without questioning the validity of the cession to the United States. Id. at Id at 428. It seems to the court that the crown lands acquired their unusual status through a desire of the King to firmly establish his Government by commendable concessions to his chiefs and people out of the public domain. The reservations made were to the Crown and not the King as an individual. The crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached.

16 484 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) In 1921, Congress enacted the Hawaiian Homes Commission Act (HHCA) to set aside some 200,000 acres of ceded lands to lease as homesteads to Native Hawaiians of at least 50% blood quantum. 77 In 1959, when Hawai`i became a state, the United States transferred about 1.4 million acres of ceded lands (including the HHCA lands) to the State of Hawai`i 78 via the Admission Act. 79 The United States retained about 400,000 acres. 80 The Admission Act contains a trust provision restricting the state s use of the ceded lands to five purposes, one being to benefit Native Hawaiians as defined in the HHCA. 81 In addition, the Admission Act required the State of Hawai`i to take over responsibility for the HHCA, resulting in the state s establishment of the Department of Hawaiian Homelands (DHHL) to administer the HHCA and its 200,000 acres. 82 The state placed revenues from the other 1.2 million acres of ceded lands in its general funds, spending the money mainly on education. 83 In 1978, the State of Hawai`i clarified the Admission Act trust in an amendment to its Constitution, Article XII, 4, which reads: PUBLIC TRUST. The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain. Id. 77 Alan Murakami, The Hawaiian Homes Commission Act, in HANDBOOK, supra note 31, at Miyahara, supra note 68, at 131. Pursuant to section 5 of the Admission Act, the federal government in 1959 granted title to all but approximately 400,000 acres of the originally 1,750,000 acres of ceded land. Id. 79 Admission Act of March 18, 1959, Pub. L. No. 86-3, 73 Stat. 4 [hereinafter Admission Act]. 80 See MacKenzie, Ceded Lands Trust, supra note 31, at 26, 28. In 1964, the federal government retained title to 373, acres and leased an additional 30, acres of ceded lands. Id. at 28. The exact number of acres of ceded lands currently under federal control is unknown. Various federal government documents give conflicting figures. Id. at Admission Act, supra note 79, 5(f). Ceded lands received by the State of Hawai`i shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended [Act July 9, 1921, ch 42, 42 Stat. 108, as amended], for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Id. 82 See Murakami, supra note 77, at See Melody K. MacKenzie, Historical Background, in HANDBOOK, supra note 31, at 3, 19.

17 Reconciliation 485 Section 7, of the State Constitution, excluding therefrom lands defined as available lands by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public. 84 The Article XII, 4 public trust governs roughly 1.2 million acres of ceded lands. 85 New amendments to the Constitution also established the Office of Hawaiian Affairs (OHA) 86 to serve Native Hawaiians having 50% blood quantum from races inhabiting the islands in 1778, and Hawaiians as descendants of the peoples inhabiting the islands in The amendments provided that OHA would be funded from a pro rata portion of revenues from the Article XII, 4 public trust. 88 Statutes implementing the funding set OHA s share at 20%. 89 Since its inception, OHA has engaged in protracted litigation over determining the proper amount of revenue payments due to it from ceded lands. 90 There is no comprehensive inventory of the 1.2 million acres of land in the Article XII, 4 public trust, 91 therefore it is impossible to accurately determine how much revenue the lands produce, and how much 84 HAW. CONST. art. XII, These lands are the 1.4 million acres the state received upon admission minus the 200,000 acres of HHCA lands. See Rice v. Cayetano, 528 U.S. 495, (2000). 86 HAW. CONST. art. XII, HAW. REV. STAT (2003). 88 HAW. CONST. art. XII, HAW. REV. STAT (2003). Use of public land trust proceeds. Twenty percent of all revenue derived from the public land trust shall be expended by the office for the betterment of the conditions of native Hawaiians. Id. 90 For a detailed history of this litigation, see OHA v. State, 96 Haw. 388, (2001). 91 See OHA v. HCDCH, Civ. No , slip op. at 43 (1st Cir. Haw. Dec. 5, 2002), available at ohavhcdch.pdf (last visited June 9, 2003). Thousands of acres of ceded lands have been sold by the State of Hawaii since statehood. Although it is estimated that the ceded lands now comprise around 1.2 million acres, the actual acreage and metes and bounds of the Public Lands Trust is unclear. Through Act 329 of 1997, the Hawaii Legislature ordered that a comprehensive inventory be conducted of all lands comprising the public lands trust by the end of Extensions of this deadline have been granted, but this inventory has yet to be completed. Id. at

18 486 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 4, Issue 2 (Spring 2003) should go to OHA. 92 When disputes have arisen, the state has consistently resorted to settlements where it simply pays OHA a fixed sum. 93 In 2001, the Hawai`i Supreme Court resolved a dispute between OHA and the state over revenues connected to use of the ceded lands beneath the Honolulu International Airport in OHA v. State of Hawaii. 94 OHA sought its pro rata share of revenues received by the State based on Waikiki Duty free receipts (in connection with the lease on ceded lands at the Honolulu International Airport) dating back to The court first found that OHA was entitled to the revenues under existing legislation. 96 The court then held, however, that because the existing legislation conflicted with federal regulations, a nonseverability clause in the legislation rendered it invalid in its entirety, thus ending Article XII, 4 public trust payments to OHA until further legislative action. 97 In February 2003, Governor Linda Lingle issued executive orders paying $2.8 million dollars to OHA and instructing state departments to resume ceded lands payments to OHA. 98 In April 2003, the governor signed into law a bill appropriating an additional $9.5 million to OHA For example, in 1996, circuit court Judge Dan Heeley ruled for OHA in the litigation preceding OHA v. State of Hawaii. OHA v. State, 96 Haw. at 391. In the aftermath of the Heeley ruling, estimates of the amount due OHA ranged from $178 million to $1.2 billion. See Alan Matsuoka, The Ceded Lands Ruling: Will it Break the Bank?, HON. STAR- BULLETIN, Jan. 13, 1997, at A-5, available at (last visited June 12, 2003). 93 See, e.g., OHA v. State, 96 Haw. at 392. In 1993 the state paid OHA approximately $130 million dollars as a partial settlement for previous years. Id. In 1997, the Hawai`i state legislature fixed the ceded lands payments to OHA at $15.1 million each year for the fiscal years and Id. at OHA v. State, 96 Haw. 388 (2001). 95 Id. at 392. The lawsuit also sought pro rata shares from Hilo Hospital receipts, receipts from HHA & HFDC projects on ceded lands, and interest on withheld revenues. Id. 96 Id. at Accordingly, under HRS 10-2, as amended by Act 304, OHA is entitled to twenty percent of the rent paid for its lease or use of that portion of the Airport premises situated on ceded land, irrespective of whether that rent is calculated at a flat rate or is based on DFS [Duty Free Store] receipts, including those from the WDF. Id. 97 Id. at Pat Omandam, Lingle Signs Bill to Restore Land Payments to OHA, HON. STAR BULLETIN, Apr. 24, 2003, available at story12.html (last visited June 9, 2003). 99 See H.B. 1307, 22d Leg. (Haw. 2003) (appropriating over $9.5 million to OHA trust fund from various state funds, including general revenues, state parking revolving fund,