University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

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1 ,. The Akaka Bill Wm. S. Richardson Law School March 13, 2004 A View from the Trenches Jon M. Van Dyke What Is the Problem? Justice Anthony Kennedy Rice v. Cayetano (2000) 1. The provisions in Hawaii's Constitution that limit voting for OHA Trustees to persons of Hawaiian ancestry constitute a proxy for race and thus establish a racial classification. Rice v. Cayetano (2000) 2. The State's argument that the Manear; exemption from strict scrutiny applies would require the court to move into "difficult terrain" and to address: A. Whether Congress has - through the Hawaiian Homes Commission Act, the 1993 Apology Resolution and other enactments "determined that native Hawaiians have a status like that of Indians in organized tribes." B. Whether Congress "may, and has, delegated to the State a broad authority to preserve that status." 1

2 Rice v. Cayetano (2000) 3. The Court need not reach these issues because the Fifteenth Amendment is absolute in its requirements, and because it is applicable to OHA, which is a state agency rather than a quasisovereign entity. "As the court of appeals did, we assume the validity of the underlying administrative structure and trusts, without intimating any opinion on that point." FEDERAL, STAn AND HAWAIAN HOME LANDS OAHU - O'Shu... ~ ~. I'I!D lw.,stateahqhawaianttoiielah08 CUlID a.- 111'\.1 HOU>PI feoeral, STATE AND KAWAU.N HOME LANDS ClOBIWIOImtaltOUlllll i~ ~i 2

3 John Goemens Harold "Freddy'.. Rice at the Supreme Court Solicitor General Theodore Olsen Earl Arakaki Thurston Twigg-Smith 3

4 William Burgess What Is the Existing Legal Situation Under the U.S. Constitution and Laws? pm on January a detachment of over 160 American Troopswere landed ro es ueen Lili' uokalani 17th day of January 1893 "Now, to avoid anycol1ision ofanned forces and perhaps the loss of life, I do under this protest, and impelled by said force, yield my authority until such time as the government ofthe United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim, as the constitutional sovereign of the Hawaiian Islands." Native Hawaiian Resistance To Annexation :\1' In 1897, over 38,000 signatures were ;:I~ collected on a petition protesting annexation.,4,\,.,; Queen LiIi'uokalani presented the petition to t~.;'i the United States Senate. 46 Senators voted \i~~~~~. for the treaty of annexation; 60 votes were ~~;.:.. t necessary. ~~f)'. In 1898, the Newlands Resolution to annex ~~,~.,..a Hawaii 8S a Territory was passed by a ~ simple majority in each house of Congress..:~{;\ U.S. Constitution. Art. I. Sec. 3 The Indian Commerce Clause grants Congress power "to regulate commerce... with the Indian Tribes." 4

5 'I" Treaties Between 1778 to 1871, the U.S. Senate had ratified 370 Indian treaties., " The U.S. Congress prohibited new i:~ 7ne~~;~.made with indigenous people '::,-t., Since then, relations with indigenous ~~r:' people are by Congressional acts, '<, ~ Executive Orders and Executive ~ Agreements. Indian Reorganization Act of 1934 Applied only to 48 states. Amended 1936 to include certain Alaska natives Allows Natives to petition Dept of Interior for recognition Permits tribal autonomy Tribal lands held in trust by USA,,".": 258 elections were conducted by ;~ federal officials to determine ifindian '~.'" Tribes accepted IRA.1, Federally Recognized Tribes Since 1978, 156 groups have petitioned BIA for recognition -13 received recognition Native People Have a Separate and Distinct Status and Are Entitled to Autonomy The United States formally affirmed the legitimacy of native autonomy in President Nixon's Special Message to Congress of July 8, Native Hawaiians are just as native as other Native Americans in the continental United States and Alaska, and Congress has said repeatedly that they must be governed by the same constitutional principles. International law also recognizes the rights of all indigenous peoples to autonomy and separate programs, Alaska Native Claims Settlement Act of I H 1971 ij;:: Indigenous people who are not ;}, anthropologically "Indians" i~.!:~:~i::::r::l~:~c::i::::r as ;~ ;i' t~ "I;:'...a. { Alaska Natives, but. :~ extinguished aboriginal title ~,~~;, $962.5 million cash settlement Morton v. Mancari (1974) Supreme Court ruled that an employment preference for Indians to work in the Bureau of Indian Affairs should be reviewed under the "rational basis" level of judicial scrutiny, rather than the "strict scrutiny" level, because it was based on a "politicaf' classification rather than a "raciar' one. [22 & n,24] Should preferential and separate programs for Native Hawaiians also be governed by ralional basis scrutiny, because they are also native people entitled to self-determination and autonomy? J ~~ 'J 1978 Constitutional Convention Committee of the Whole Report No. 13 p t',, "Your Committee found that the Office of " t, Hawaiian Affairs is a pi/bile Imsl enlity that 1~~\'t1 provides a democratic process for the '~.. 'II' beneficiaries,..if one looks to the precedent.:~ of other native peoples, one finds that they ;'t'; have traditionally enjoyed self?~f.! determination and selfgovemment." ;,...l. Creation ofthe Office of Hawaiian Affairs m. ratified in 1978 General Election by all 110~~. citizens of Hawaii Apology Resolution Congress acknowledged that the "illegal overthrow" of the Kingdom occurred "with the active participation of agents and citizens ofthe United States." 1993 Apology Resolution Congress admitted that the overthrow of the Kingdom of Hawaii resulted in the "suppression ofthe inherent sovereignty of the Native Hawaiian people and the deprivation of Native Hawaiians' right to self determination" and that the overthrow of the Kingdom of Hawaii was "illegal." 5

6 .j.~,'" "1 I:' 'J, 'tl\" }.:'~'f!.\ t~ ~,:.~,. fc,~i) 1993 Apology Resolution Whereas through the Newlands Resolution (that provided for the annexation of Hawaii) the self declared Republic of Hawaii ceded sovereignty over the Hawaiian Islands to the United Sates. Whereas the Republic of Hawaii also ceded 1,800,000 acres of crown, government, and public lands ofthe kingdom of Hawaii. without the consent of or compensation to the Native Hawailall people of Hawaii or their sovereign government..j 1: ~. :{"'/.'-. '~ ~;f:~~ (t;lr~ :).:. \~ ~.:r '~f"h " 1993 Apology Resolution The indigenous Hawaiian people never directly relinquished 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. t::l ~ Hawaii Legislature Confirmed Historical Accuracl! of A(!ologl! Resolution The Hawaii Legislature confinned l '~'\"1 the historical accuracy of the 'f~ Apology Resolution in Section 1 of /"~L.$f."~, Act 329 (1997) and called it an,~ accurate recounting of "the events ~~ of history relating to Hawaii and ~'~h Native Hawaiians." See Act 319, Sec. /. '.' What Is the Effect of Statehood? (1959) Home KU alcu OKO a The Independent Homerule Party June 1900 One of the most prominent tenets of the platform was to strive to secure statehood for Hawaii D. Kalauokalani Robert Wilcox J.K.Kaulia John Wise Etc Constitutional Convention * 63 delegates * 27 European ancestry * 19 Japanese ancestry * 12 Hawaiian ancestry * 5 Chinese ancestry 1950 Constitutional Convention Delegates of Hawaiian Ancestry Trudy M. Akau Samuel K. Apoliona, Jr. J. Pia Cockett Flora Kaai Hayes William H. Heen Charles E. Kauhane Samuel Wilder King Richard J. Lyman, Jr. Arthur K. Trask James K. Trask 6

7 William H. Heen * Went to Washington in 1954 to lobby for statehood. * Served as Vice Chair of the Hawaii Statehood Commission. Chief Justice William S. Richardson June 17, 1959 The voters of Hawaii approved statehood by a margin of 17 to I. Bya similar margin, the voters approved a separate question concerning an amendment to the Hawaiian Homes Commission Act. The "haves" and those with close ties to Washington opposed statehood. The "have nots" and those frustrated with the lack of local control supported statehood. Duke Kahanmoku At March Celebrating Statehood The Rev. AbrtI.zm Ak4ka Stu-BuJldlanJepboco Th< Rev. AhNIMttt Ak.rk.r w<u pas'" 0/ igluxli4hao Cbtm:b Apology Resolution The Apology Resolution expressed the commitment of Congress and the President ofthe United States to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support recoilciliatioll efforts between the United States and Native Hawaiians. U.S. District Judge Susan Oki Mollway Akakaki v. ing~ (D.Hawaii, Jan. 14, 2004) "Although Congress has enacted legislation that appears to equate Hawaiians to Indians and/or Indian tribes in some contexts, Congress has not yet passed the "Akaka Bill," which has been pending... for several years and purports to express the policy of the United States with respect to the United States' relationship with "Native Hawaiians," defined by the Akaka Bill without reference to blood quantum... Congress may have recognized Hawaiians as being in need of certain preferences in some contexts, but it has not yet clearly recognized Hawaiians as being equivalent to Indians or Indian tribes for purposes of the Mortoll analysis as to all benefits being provided to Hawaiians." Arakaki v. Lingle (D.Haw. 2004) "Whether Hawaiians should be treated as being recognized by Congress such that the more lenient review standard found in Mortoll should be applied to Plaintiffs' Equal Protection Challenge to programs being administered by ORA is an issue that is a nonjusticiable political question." 7

8 What wi" happen next? Congress is Establishing a Procedure for Formal Recognition of a Political Entity Representing the Native Hawaiian People. This Political Entity will need ".. to have a land base and " ~ resources, just like other ""0i'h native peoples. f1", How Does International Law and Activities in Other Countries Affect the Native Hawaiian Struggle to Recover Land and Resources? Who Are Indigenous Peoples? 1. Preexistence - the population is descended from persons who were in an area prior to the arrival of another population. 2. Nondominance - their cultural style does not dominate. 3. Cllltllral difference - their culture is different from the dominant culture. 4. Self-identification as indigenolls - the people identify themselves and the group as indigenous. International Covenant on Civil and Political Rights Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. Illtematiollal Labor Orgall/zallo" Treaty No.169, ColtceTIIllIg Indigenous alld Tribal Peoples III Illdepelldelll COUldries is explicit in requiring governments to assist native peoples in attaining self-governance and self-sufficiency. Article 2 of the convention calls for governments to play an active role with indigenous peoples in developing and protecting their rights. Article 4 requires governments to take "special measures" to safeguard the institutions, property. and culture of native people, and Article 6.1.c requires governments, in appropriate situations, to provide the resources necessary to enable native people to establish their own institutions and initiatives. The current version of the Draft Declaration on the Rights ofindigenous Peoples similarly emphasizes their right to a separate and distinct status. The Inter-American Commission on Human Rights, an organ of the Organization of American States (OAS) with representation from the United States, has stated that "special protection for indigenous populations constitutes a sacred commitment" of all members of theoas. o icy easons xp aining y a Specia Status for Native Peoples Is JustIfiable: Unlike most other ethnic groups who migrated voluntarily to the United States, and implicitly agreed to participate in a multi ethnic society, native people never made such a commitment. *. Unlike other ethnic groups, natives have ll.q "mother culture" elsewhere where their historical and cultural traditions are maintained. If they are not permitted to maintain some unique and special status here. their culture and traditions will be lost forever. Policy Reasons Explaining Why a Special Status for Native Peoples Is Justifiable: ** Native American groups are "peoples" under international law principles and are entitled to self determination. autonomy and self-government. ** Native peoples have a distinctive and frequently unfortunate political and historical relationship with the U.S. government, and in the case of Native Hawaiians have strong unresolved claims to reparations and land. The special status accorded to natives is justified because of the obligations owed to these peoples. = political status 8

9 DOBO<I~ \. \. ~, '. 16G Zj',.;" What Would the Akaka Bill Do? \\V.h"o'~ V"... ~r;:~1.., (..<>KIo<t'.. J {J... r""~ :fr)f<>l,,ya S.344-Natlve HawaIIan Recognition Act of 2003 Section I - Title Section 2 - Findings Section 3 - Definitions Section 4 - United States Policy Section 5 - Establishment of the United States Office for Native Hawaiian Relations {already ellacted] Section 6 - Native Hawaiian Interagency Coordinating Group S.344-Native HawaIIan Recognition Act of 2003 Section 7 - Process for the Recognition of the Native Hawaiian Governing Entity Section 8 - Reaffinnation of Delegation of Federal Authority; Negotiations Section 9 - Applicability of Certain Federal Laws Section 10 -Ethics Section II - Severability Section 12 - Authorization of Appropriations Section 2 The Akaka Bill Findings * United States has a "special responsibility" for the welfare of Native Hawaiians. * Native Hawaiians are a "distinct indigenous group" within the scope of the federal government's Indian affairs power. * The United States has delegated broad authority to administer a portion of its trust responsibility to the State of Hawaii. 9

10 S.344-Natlve HawaIIan Recognition Act of 2003 "Native Hawaiiall" is defined as a person who is descended "from the aboriginal, indigenous, native people who lived in Hawaii in 1893 or " from an individual who had 50% Native Hawaiian blood in 1921 ***** The Interim Council and the Native Hawaiian governing entity can subsequently change the criteria for citizenship. The Akaka Bill " Contains strong findings " Establishes a process to organize a Native Hawaiian governing entity " Guarantees federal recognition after organizing process is complete " Calls for negotiations for the transfer of land, natural resources and other assets and governmental authority over them " Settles no claims against the United States S.344-Native Hawaiian Recognition Act of 2003 Automatic federal recognition ofthe Native Hawaiian governing entity upon certification by the Secretary ofthe Interior that the process was fair. Then negotiations begin for transfer ofland, resources, and other assets to the governing entity.... "Nothing in this Act serves as a settlement oraoy claim against the United States."... Native Hawaiian entity is not authorized to conduct gaming activities or participate in Bureau of Indian Affairs programs. Akaka bill called divisive By Oerrlck DePledge, Honolulu Advertiser, Sept. 24, 2003 WASHINGTON - U.S. Sen. Jon Kyl, a key opponent of a Native Hawaiian federal recognition bill, has called the legislation a "recipe for pennanent racial conflict." In a detailed letter to a constituent outlining his objections, the Arizona Republican wrote that he respected Native Hawaiians and their traditions but described the bill as unconstitutional and impractical. Kyl argued that the bill would "create a divisive and unworkable system of government. II Senator Jon Kyl, Arizona Akaka bill called divisive eyderrltkoel'ledge, HonoIulUAdverlIser,Sept. 2<4,2001 Senator Kyl questioned whether Hawaiians and Hawaiian-owned businesses under a new government would be immune from state laws, regulations and taxes, and asked how Hawaiians would interact with Hawai'i residents who live in the same neighborhoods and cities. "Persons of different races, who live together in the same society, would be subject to different legal codes," Kyl wrote. "This would not produce racial reconciliation in Hawai'i. Instead, it is a recipe for permanent racial conflict." Akaka bill called divisive ByDetrkkDef'ledal.',HoooIuluActYertlser,$ept.1-4,2001 Kyl also wrote that the bill is an attempt to insulate Hawaiian-only programs from legal challenges arising from Rice v. Cayetano, the 2000 Supreme Court decision that ruled it was unconstitutional to bar non-hawaiians from voting for trustees of the state Office of Hawaiian Affairs. Secretary of the Interior Gale Norton Dr. J. Kehaulani Kauanui 10

11 Dr. J. Kehaulani Kauanui (Advertiser 2/3/04) "[O]nce the bill sets up the process for the formation of a governing entity, approved by the U.S. federal government, the governing officials elected by Hawaiian people would be seen as already having waived the right to our national claims under intemationallaw." Is tllis true? Section 8(b)(2): ''Nothing in this Act serves as a settlement of any claim against the United States." Could tllis be written. ally clearer? Dr. J. Kehaulani Kauanui (Advertiser 2/3/04) * "It is true that prioritizing the independence claim in lieu of federal recognition will not serve to protect the federal funding for Hawaiians now threatened by the lawsuits... [T]he federal funding stream to the state for its agencies serving Hawaiians, is estimated at $70 million a year. In other words, the OHA trustees aim to sell us down the river to try to save less than I percent of the entire state's budget. "Don't fall for iu" What about state flmdillg? Attacks will continue against existing federal and state programs for Native Hawaiians, arguing that they are illegal racebased programs. If the Akaka Bill is not enacted, it will become increasingly difficult to defend these programs against such attacks. The Akaka Bill has no real down side for Native Hawaiians. It preserves all of their claims, while allowing them to organize and work toward a better future. 11