The Akaka Bill
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,
''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.