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Cultural Rights in the United States: a Conflict of Aluesv Minnesota Journal of Law & Inequality Volume 5 Issue 2 Article 3 June 1987 Cultural Rights in the United States: A Conflict of aluesV Sharon O'Brien Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Sharon O'Brien, Cultural Rights in the United States: A Conflict of aluesV , 5(2) LAW & INEQ. 267 (1987). Available at: https://scholarship.law.umn.edu/lawineq/vol5/iss2/3 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Cultural Rights in the United States: A Conflict of Values Sharon O'Brien* Introduction ................................................... 268 I. Historical Development of Minority Rights ............. 270 Historical Examples of Pluralistic Arrangements ..... 271 International Protection of Group Rights ............. 273 Leading National Examples of Group Rights Protection ............................................. 279 Twentieth-Century Pluralist Thought ................. 281 The United States and the Rights of Minorities ...... 283 Available Constitutional Mechanisms ................. 287 II. Am erican Indians ....................................... 290 Historical Background and Assimilation Efforts ...... 290 Cultural Protection ................................... 296 Freedom of Religion .................................. 298 III. Native Hawaiians ........................................ 308 Historical Background ................................. 308 Cultural Protection ................................... 314 Protection of the Land Base .......................... 315 Recognition of Native Hawaiian Customary Law ..... 320 Office of Hawaiian Affairs ............................ 323 IV . Chicanos ................................................. 328 Historical Background and the Fight Against Discrim ination ........................................ 328 Cultural Protection ................................... 338 Political Representation ............................... 339 Language Toleration and Promotion .................. 345 Conclusion .................................................... 354 * Ph.D., Political Science, University of Oregon; Associate Professor, Depart- ment of Government and International Studies, University of Notre Dame. Law and Inequality [Vol. 5:267 Introduction There can be no assumption that today's majority is 'right' and the Amish and others like them are 'wrong.' A way of life that is odd or even erratic but interferes with no rights or in- terests of others is not to be condemned because it is different. 1 The HarvardEncyclopedia of American Ethnic Groups iden- tifies more than 100 minorities and 170 surviving Indian tribes in the United States.2 The social, economic, political, and legal inter- actions of these immigrant and nonimmigrant ethnic groups have helped to shape the history, values, and legitimacy of the United States. The question of how a political system accommodates various ethnic and racial groups constitutes a principal concern of political and legal philosophy. Two basic models exist: assimilation and cul- tural pluralism.3 The United States' approach to minority accom- modation is basically assimilationist. The United States' juridical tradition which emphasizes individual rights, equality of opportu- nity, and protection against discrimination promotes and supports the assimilationist process. The alternative route, and one that prevails in many other nations, is to implement a system of cultural pluralism. While the extent of cultural pluralism can vary widely, such arrangements do, at a minimum, recognize minority groups as having an identifi- able status with their own legal claims to special powers and rights. But cultural pluralism is an anathema in the melting pot, 1. Wisconsin v. Yoder, 406 U.S. 205, 223-24 (1972). 2. Harvard Encyclopedia of American Ethnic Groups vi (1980). More than 20,000 immigrants from 110 countries live in the Elmhurst section of Queens, New York. Minorities, Community and Identity 248 (C. Fried ed. 1983) [hereinafter Fried]. By the year 1990, it is estimated that 56% of California public school chil- dren in grades K-12 will be Black, Hispanic, or Asian. Ronald Takaki, Reflections on Racial Patterns in America: An HistoricalPerspective, in 1 Ethnicity and Public Policy 1 (Winston A. Van Horne ed. 1982). There is virtually no state in the world without minorities. Among the more homogeneous nations are Ireland, Korea, Denmark, Japan, and Germany. It is esti- mated that in 1967, 892 ethnic groups were living within the borders of the more than 160 nations. George P. Murdoch, Ethnographic Atlas 7 (1967). See also Jay A. Sigler, Minority Rights: A Comparative Analysis 205-13 (1983). 3. Milton Gordon has defined cultural pluralism within the United States as "[t]he preservation of the communal life and significant portions of the culture of the later immigrant groups within the context of American citizenship and political and economic integration into American society." Milton Gordon, Assimilation in American Life 85 (1964). According to Thomas Hoult, cultural pluralism is the "doctrine that a society benefits when it is made up of a number of interdependent ethnic groups each of which maintains a degree of autonomy." Thomas Ford Hoult, Dictionary of Modern Sociology 239 (1969). 1987] CULTURAL RIGHTS: A CONFLICT OF VALUES 269 virtually an insult to the United States's rich immigrant heritage and an assault on a concept of justice valuing individual equality. United States history is not solely a history of immigration. It is also a history of expansion and conquest. The Indian, the Hawaiian, and the Mexican-American, 4 did not immigrate. They gave no "consent of the governed." 5 Rather, they were dispos- sessed, without their consent, of their lands and resources.6 By and large, these groups have not assimilated. Indians, Hawaiians, and Chicanos cling tenaciously to their identities and their cul- tures. Seeking to maintain their group identity and cultural rights, these nonimmigrant groups fear the death of their cultural iden- tity in a system that recognizes only the individual and enforces only nondiscrimination. This article considers the extent to which the United States exhibits characteristics of a pluralistic state despite its general as- similationist stance. That is, to what extent has the federal (and state) government recognized, and how has it protected, the cul- tural rights of these nonimmigrant groups? Section I gives a gen- 4. The term "Chicano," derived from "mejicano," was first used as a nickname for the refugees of the Mexican Revolution after 1910. The term re-emerged in the 1960s used by militants such as Rudolfo "Corky" Gonzales to "announce a distinct people, once suppressed but now reclaiming their integrity." Womack, The Chica- nos, N.Y. Review of Books, Aug. 31, 1972, at 12, 14. The term Chicano will be used interchangeably with Mexican American. The term "Hispanic" generally refers to a wide category of Spanish-speaking groups, in- cluding Cubans, Puerto Ricans, and other Latin Americans, as well as Chicanos. The Chicano population is obviously a mixture of people descended from the large region conquered from Mexico and individuals who have immigrated from Mexico, especially since the turn of the century. The American Indian, Native Hawaiian, and Chicano are not the only nonim- migrant people who have come under United States jurisdiction. The United States conquered the Puerto Ricans and the Chamorros of Guam during the Spanish. American War. The Virgin Islands were purchased from Denmark in 1917. Ameri- can Samoan native leaders ceded their sovereignty to the United States at the turn of the century. In addition, the United States has recently negotiated four separate status agreements with the people of the Trust Territories of the Pacific to define their legal relationship with the United States. Arnold Leibowitz, Colonial Emanci- pation in the Pacific and Caribbean: A Legal and Political Analysis 77-104 (1976); A. John Armstrong, The Emergence of the Micronesians into the International Com- munity: A Study of the Creation of a New InternationalEntity, 5 Brooklyn J. Int'l L. 207 (1979). 5. See infra note 21 and accompanying text. 6. Interestingly, the United States did employ various concepts of group iden- tity to legitimize the exclusion of some of these nonimmigrant groups from the ben- efits and rights of the political system. The Indians belonged to alien tribes and lay outside the federal system. See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Elk v. Wilkins, 112 U.S. 94 (1884). For the first ten years after Puerto Rico's annexation to the United States, the islanders had their own identity as "the people of Puerto Rico." Foraker Act, ch. 191, § 7, 31 Stat. 77 (1900) (codified as amended 48 U.S.C. §§ 731-916 (1982)). Even in the case of Blacks, slaves were characterized as property and therefore legally excluded from the system. See infra note 78. Law and Inequality [Vol. 5:267 eral overview of cultural pluralism, including a discussion of the historical development of pluralistic societies. The section reports on minority rights under international law, outlines the status of cultural rights recognition and implementation in other nations, and reviews twentieth century scholarship related to pluralistic thought. Sections II, 11, and IV examine the historical back- grounds of the American Indian, the Native Hawaiian, and the Chicano, respectively, and analyze how successful they have
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