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Home , Akaka Bill, Apology Resolution, Ceded lands, Government of Hawaii, Native Hawaiians, Republic of Hawaii

An Introduction to B a c k g r o u n d 1 1842, 1849, 1875, and 18 87.16 I n Almost 240,000 people2 n o w the Rights of the the year 1893, the living in are descendants of Minister assigned to the sovereign the Polynesian people who had a Native Hawaiian and independent Kingdom of complex thriving culture in the Hawaii, John L. Stevens, conspired Hawaiian Islands until We s t e r n e r s with a small group of non- s t a rte d arriving at the end of the P e o p l e Hawaiian residents of the eighteenth century.3 N a t i v e Kingdom, including citizens of the H a w a i i a n s 4 had a stable political B Y United States, to overthrow the o r d e r, a self-sustaining economy J O N M . V A N D Y K E indigenous and lawful government based on agriculture and fishing, A N D M E L O D Y K . M A C K E N Z I E of Hawaii. In pursuing that con- and a rich spiritual and artistic life, s p i r a c y, the United States Minister as evidenced by intricate feathered and the naval representative of the capes and adornments, large temples of worship, striking carved United States caused armed naval forces of the United States to images, formidable voyaging canoes, sophisticated tools for fish- invade the sovereign Hawaiian nation in support of the overt h r o w ing and hunting, weapons of war, and beautiful and moving of the indigenous and lawful government of Hawaii. The United chants and dances.5 The newcomers from Europe and the States Minister thereupon extended diplomatic recognition to a United States brought their technology, their religions, their ideas provisional government formed by the conspirators without the about property and government, and their diseases to the consent of the native people of Hawaii or the lawful government i s l a n d s . 6 By the end of the nineteenth century, the Native of Hawaii, in violation of treaties between the two nations and of Hawaiian population had plummeted,7 their traditional practices international law. and communal land structures had been replaced by We s t e r n Although the Provisional Government was able to obscure m o d e l s ; 8 the independent Kingdom of Hawaii had been illegally the role of the United States in the illegal overthrow of the o v e rt h r o w n ; 9 Hawaiian lands had been taken without compensa- Hawaiian monarchy, it could not rally the support of two-thirds of tion to or consent of the Hawaiian people;10 and Hawaii had been the Senate needed to ratify a treaty of annexation. In a message annexed by the United States as a territory.11 are to Congress on December 18, 1893, President now at the bottom of the socio-economic scale in their own r e p o rte d fully and accurately on these illegal actions, and admit- i s l a n d s . 12 ted that the government of a peaceful and friendly people was Ever since the illegal overthrow and annexation, the native illegally overthrown. “A substantial wrong has thus been done,” people of Hawaii — identified as “Kanaka Maoli,” “Native concluded the President, “which a due regard for our national Hawaiians,” or “Hawaiians” — have struggled to regain their cul- character as well as the rights of the injured people requires that ture, recover their lands, and restore their sovereign nation.13 we should endeavor to repair.”17 On July 4, 1894, the Provisional Some argue that this process should be undertaken without gov- Government declared itself to be the of Hawaii.18 ernmental assistance while others believe accepting financial sup- Queen Lili‘uokalani, the lawful monarch of Hawaii, and the p o rt from the state and federal governments is appropriate Hawaiian Patriotic League, representing the aboriginal citizens of because these governments have benefited from lands and Hawaii, petitioned the United States for redress of these wrongs resources that should belong to the Native Hawaiian people.14 and for restoration of the indigenous government of the Hawaiian Some have focused on regaining a land base and becoming eco- nation. These petitions went unanswered. nomically self-sufficient while others have argued that restoring the Native Hawaiian nation should come before any negotiations Annexation and Territorial Pe r i o d take place regarding the return of lands.15 Some favor complete In 1898, the United States annexed Hawaii through the Joint independence from the United States while others favor the Resolution to Provide for Annexing the Hawaiian Islands to the establishment of a “nation within a nation,” similar to the sover- United States,19 “without the consent of or compensation to the eign status of the large Indian tribes in the 48 contiguous states. indigenous people of Hawaii or their sovereign government who Although considerable disagreement exists among different were thereby denied . . . their lands and ocean resources.”20 Th e Native Hawaiian groups, the momentum behind the movement Native Hawaiian people actively opposed the annexation of for a return of land and a restoration of sovereignty remains strong Hawaii, as evidenced by petitions signed by 21 , 269 people rep- and continues to gr o w. resenting more than half of the Native Hawaiian population at the t i m e . 21 Through the 1898 Joint Resolution and the 19 0 0 The 1893 Overthrow and the Uncompensated Seizure of Organic Act,22 the United States received 1.8 million acres of lands, formerly Crown and Government Lands under the Throughout the nineteenth century, the United States recog- , and exempted these lands from the existing nized the independence of the Kingdom of Hawaii; extended full public land laws of the United States by mandating that the rev- and complete diplomatic recognition to the Hawaiian govern- enue and proceeds from these lands be ‘’used solely for the ben- ment; and entered into treaties and conventions with the efit of the inhabitants of the Hawaiian Islands for education and Hawaiian monarchs to govern commerce and navigation in 18 26 , other public purposes,’’23 thereby establishing a special trust rela- Ju ly 2006 HAWAII BAR JOURNA L 6 3 tionship between the United States and the inhabitants of “special relationship” that exists between the United States and H a w a i i . 24 These lands are referred to as the “Ceded Lands” or the Native Hawaiian people. Congress confirmed in the Apology the “Public Lands Tr u s t .” In 19 21, Congress passed the Hawaiian Resolution that Native Hawaiians are an “indigenous people,” Homes Commission Act25 in recognition of the deteriorating con- which is the key characterization that establishes that a “political” dition of the Hawaiian people, setting aside about 200,000 acres (rather than “racial”) relationship exists between the Native of ceded lands for a homesteading program to provide resi- Hawaiian people and the United States government.4 3 This char- dences, farms, and pastoral lots for native Hawaiians of fifty per- acterization is important because United States courts have dis- cent or more Hawaiian ancestry.26 tinguished explicitly between statutes authorizing separate or pref- erential treatment for native or indigenous people and those The 19 59 Admission Act granting separate or preferential treatment for other racial or eth- When Congress admitted Hawaii as the 50th state of the nic categories. United States in 19 59, it enacted an Admission Act,27 w h i c h Although styled as a “joint resolution,” the Apology required the new state to accept responsibility — as a condition of Resolution was enacted by Congress as a public law and signed statehood — for the Hawaiian Homes Commission Act. Congr e s s by President William Clinton. It is therefore a statute of the United also conveyed in trust to the State another 1,200,000 acres of the States and has the same effect as any other law enacted by lands that had been ceded to the United States in 1898. Th e C o n g r e s s . 4 4 In the 1993 , Congress found that Admission Act reaffirmed the trust relationship between the the Hawaiian people “never directly relinquished their claims to United States and native Hawaiians and transferred part of the their inherent sovereignty as a people,” and listed among the trust responsibility to the new State of Hawaii.28 Section 5(f) of the wrongs done to them “the deprivation of the rights of Native Act required the State to use the revenues from the ceded lands Hawaiians to self-determination.”4 5 The right to self-determination for the betterment of the conditions of native Hawaiians, as well is the most basic of human rights under federal and international as for general public purposes.29 The State interpreted the provi- l a w,4 6 and efforts to facilitate the exercise of this right are man- sion as allowing it to use the revenues for any one of five stated dated by fundamental principles of human rights and human trust purposes and allocated all revenues to public education.30 d e c e n c y. In the Apology Resolution, the U.S. Congress also Because of this neglect, the delegates to Hawaii’s 1978 acknowledged that (1) the ceded 1,800,000 Constitutional Convention proposed a series of amendments to acres of Crown, Government and Public Lands of the Kingdom of the state Constitution that were subsequently adopted by Hawaii without the consent of or compensation to the Native Hawaii’s people. One of these amendments affirmed that the Hawaiian people or their sovereign government, (2) the Native State holds the ceded lands as a Public Land Trust with Native Hawaiian people never directly relinquished their claims to their Hawaiians and the general public as the two named beneficiar- inherent sovereignty over their national lands to the United States, i e s . 31 Other amendments created the Office of Hawaiian Affairs and (3) the overthrow was illegal. (OHA) and required the State to allocate revenues from a pro rata The Congress thereby expressed its commitment to acknowl- share of the Public Land Trust to OHA to be used explicitly for the edge the ramifications of the overthrow of the Kingdom of Hawaii, betterment of native Hawaiians.32 In 1980, the Hawaii Legi s l a t u r e in order to provide a proper foundation for reconciliation between determined that OHA should receive 20% of the revenues gen- the United States and the Native Hawaiian people, and urged the erated from the ceded lands held in trust by the State.33 A l t h o u g h President of the United States to support reconciliation effort s substantial disputes remain as to how much revenue OHA is between the United States and the Native Hawaiian people.47 owed, this revenue stream has already allowed OHA to accumu- This reconciliation process is now underway. In 2000, the United late more than $300 million in assets.34 States government released a substantial study of the current Since the early 1970s, Congress has enacted over 16 0 plight of Native Hawaiians.4 8 In 2004, Congress established the statutes providing separate programs for Native Hawaiians or Office of Native Hawaiian Relations in the Office of the Secretary including them in laws and benefit programs that assist other of the Interior to “continue the process of reconciliation with the native people.35 Examples of separate acts benefiting Native Native Hawaiian people,”4 9 and the U.S. Congress is now consid- Hawaiians include the Native Hawaiian Healthcare Improvement ering a bill50 that would establish formal federal recognition of the A c t 36 providing programs and services designed to improve the Native Hawaiian people as indigenous people under United health status of Native Hawaiians, the 1994 Native Hawaiian States law and lead to negotiations that would return lands and Education Act (reauthorized in 2000) establishing programs and resources to a reestablished autonomous Native Hawaiian Nation. funding for educational initiatives,37 and the Hawaiian Homelands Homeownership Act of 2000 relating to affordable housing for Rice v. Cayetano ( 20 0 0 ) 51 Native Hawaiian families.38 Native Hawaiians have been included Despite the compelling arguments that support the unique in the Native American Languages Act protecting native lan- political status of Native Hawaiians, the United States Supreme g u a g e s , 39 the Native American Graves Protection and Repatriation C o u rt ruled in February 2000 that the election procedure for the Act protecting native burials and calling for the repatriation of nine-member OHA Board of Trustees was unconstitutional as human remains and funerary objects,4 0 and the American Indian violative of the Fifteenth Amendment,52 because the only people R e l i g ious Freedom Act expressing the federal policy protecting allowed to vote were those of Native Hawaiian ancestry. Th e native religi o n s . 41 C o u rt was careful to avoid undercutting the Morton v. Mancari53 line of cases, which allow Congress to “fulfill its treaty obligations The 1993 U.S. Apology Resolution and its responsibilities to the Indian tribes by enacting legi s l a t i o n One of the most important recent Congressional enactments dedicated to their circumstances and needs.”54 But it concluded is the 1993 Apology Resolution4 2 explicitly acknowledging the that the election process for OHA did not qualify under this doc-

64 Ju ly 2006 HAWAII BAR JOURNA L trine because the OHA election was administered by the State to before the Hawaii Supreme Court seeking a moratorium on the elect “public officials” rather than being an election run by a native sale or transfer of any of the lands that were “ceded” to the group to select its leaders, which would be “the internal affair of United States through the 1898 annexation and subsequently a quasi-sovereign.”55 transferred to the State in the 19 59 Admission Act until the claims The Court’s majority thus appeared to recognize that the out- of the Native Hawaiian people are resolved.6 5 come would be different if Native Hawaiians formed a “quasi-sov- ereign” political entity and conducted election of their leaders C o n c l u s i o n themselves, because it is solely on this basis that Justice Anthony Native Hawaiians are one of the largest groups of indigenous Kennedy (writing for the majority) distinguished the OHA election peoples in the United States. They stand alone, however, in hav- from the many elections conducted by natives across the country ing never been granted a settlement or access to a claims com- to select their leaders.56 Hawaii’s Congressional delegation acted mission. The deprivations and injustices they have suffered are swiftly to facilitate the process of establishing such a “quasi-sov- well documented. Congress acknowledged in the 1993 Apology ereign” entity by drafting a new statute57 designed to (a) recon- Resolution that the United States violated international law when firm the special political relationship between the United States it provided the crucial support to the overthrow that allowed it to and the Native Hawaiian People and (b) establish a process to succeed, and Congress called for a “reconciliation” between the create a self-governing autonomous political entity to enable the United States and the Native Hawaiian people. Although some Native Hawaiian People to achieve self-governance and make steps have been taken in that direction, the recognition of claims p r o gress toward their goal of self-determination. This law, known to sovereignty and the return of the land and resources to the as the “” after Hawaii Senator , complies Native Hawaiian people remain unfinished business. with the road map set forth in Justice Kennedy’s opinion,58 w h e r e In 1893, President Cleveland acknowledged that a substan- he cites the Menominee Restoration Act59 and the Indian tial wrong had been done to the Hawaiian people and urged that Reorganization Act6 0 as examples of appropriate Congr e s s i o n a l “a due regard for our national character” required repair of that enactments to establish quasi-sovereign political entities within wrong. After more than a century, the failure to address and which native-only elections are permissible. If this statute, pend- resolve the claims of the Native Hawaiian people continues to be ing before the Congress as of this writing, is enacted, the Native a significant stain on the national character of the United States. Hawaiian people will take their place among other Native ______Americans, with sovereignty over their internal affairs, and author- 1 Some of the material in this background section is adapted and updat- ity over their own resources. If it is not enacted, then Native ed from Jon M. Van Dyke, The Political Status of the Native Hawaiian Hawaiians will likely face constant challenges to the programs that P e o p l e, 17 YALE L. & POLICY RE V. 95-147 (1998). have been established on their behalf. 2 O FFICE OF HAWA I IAN AFFA IRS, NATIVE HAWA IIAN DATA BOOK—20 0 6 The ambiguities in the Supreme Court’s Rice v. Cayetano at 17 (Office of Board Services, Lea K. Young, 2006) (hereafter cited as opinion have invited such challenges, and several cases are now N ATIVE HAWA IIAN DATA BOOK). At least another 200,000 people of pending before federal and state courts. One challenge to the Hawaiian ancestry live in other parts of the United States, with about 30 % constitutionality of the Office of Hawaiian Affairs and the of those living in . I d . at 17- 18 . D e p a rtm ent of Hawaiian Home Lands was dismissed by the 3 See generally PAT R ICK VIN TON KIRCH, FE AT HE R ED GODS AND FIS H - United States Court of Appeals for the Ninth Circuit because the HOOKS (1985); SAMUEL MANAIAKA LA N I KA M A K AU, THE WO RKS OF plaintiffs lacked sufficient personal injuries to have “standing” to T HE PEO P LE OF OLD (1976); DAV I D MALO, HAWA I IAN ANTIQUI T IE S bring this challenge and because the United States was an indis- ( 19 51); JOHN PA PA II, FRAG MENTS OF HAWA IIAN HISTORY (19 59); E.S. C R A I G HILL HANDY AND ELIZA BETH GREEN HANDY, NATIVE PLA N T E R S pensable party but could not be sued because of its sovereign IN OLD HAWA II (1972); LIL I KA L A KA M E ‘ E L E IHI WA, NATIVE LA N D AND i m m u n i t y.61 A similar challenge brought subsequently by state F O R EIGN DESIRE S — P E HEA LA E PONO AI? (19 9 2 ) . t a xpayers was dismissed on standing grounds on most claims and 4 The term “native Hawaiian” is defined in § 201(7) of the Hawaiian is likely to be dismissed completely based on a recent U.S. Home Commission Act, 19 20, 42 Stat. 108 (19 21), as referring to per- 6 2 Supreme Court decision on state taxpayer standing. sons with 50% or more Hawaiian blood, but in other federal statutes this A challenge has also been filed against the admissions poli- term is used to cover all persons who are descended from the people cy of the , which effectively limits admis- who were in the Hawaiian Islands as of 1778, when Captain sion to children of Native Hawaiian ancestry. The Schools were “discovered” the islands for the Western . In this article, “Native established by the will of Princess , the last Hawaiian” is used to refer to all persons descended from the Po l y n e s i a n s direct descendant of , and are funded largely by who lived in the Hawaiian Islands when Captain Cook arrived. lands of Hawaiian royalty placed into a trust. In August 2005, a 5 S e e, e . g ., JOSEPH FE HER, HAWA II: A PI C TO R IAL HISTORY 36 - 132 three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ( 1969); PETER H. BUCK (TE RANGI HIR OA), ARTS AND CRA FTS OF ruled two-to-one that the Hawaiians-only admission policy violat- H AWA II (19 57 ) . 6 ed the 1866 Civil Rights Act prohibiting racial discrimination with See, e . g . , Melody K. MacKenzie, Historical Ba c k g r o u n d, in NAT I V E regard to the making of contracts. In February 2006, the Ninth H AWA IIAN RIGHTS HANDBOOK 3-25 (Melody K. MacKenzie ed. 19 91 ) ; KA M E ‘ E L E IHI WA, s u p r a note 3; DAV I D E. STA N N A RD, BE F O RE THE HOR- Circuit agreed to establish an en banc panel of 15 judges to ROR (19 8 9 ) . reevaluate this decision.6 3 7 Estimates of the population of the Hawaiian Islands prior to Captain In state court, the Hawaii Supreme Court has rejected previ- Cook’s arrival in 1778 vary gr e a t l y. C o m p a r e, DAV I D E. STA N N A RD , ous claims brought by the Office of Hawaiian Affairs regarding the BE F O R E THE HORROR: THE POPULATION OF HAWA II ON THE EVE OF revenue stream it should be receiving from ceded lands, ruling W E ST E RN CO N TACT (1989) (at least 800,000) with ROBE RT C. that these claims present non-justiciable political questions or are SC HMI TT, HISTO R I C AL STAT IST ICS OF HAWA I I 7 (1977) (citing estimates 6 4 barred by other procedural barriers. A case is now pending from 100,000 to 400,000). By 18 50, the population in the Islands had

Ju ly 2006 HAWAII BAR JOURNA L 6 5 dropped to 84,165, and by 1872 it had dropped further to 56 , 8 97. Th i s Native Hawaiian Perspective, 8 ARIZ. J. INT’L AND CO MP. L 2:77 (19 91 ) . population decline was “due in part to venereal disease–resulting in steril- 14 In 1994, the created the Hawaiian Sovereignty i t y, miscarriages, and death–and epidemics such as small pox, measles, Elections Council as a semi-autonomous body to conduct an election to whooping cough, and influenza. Decline was also accelerated by a low determine the views of the Native Hawaiian people regarding self-deter- f e rtility rate, high infant mort a l i t y, poor housing, inadequate medical care, mination. In 1996, this Council conducted a mail-ballot in which 73% of inferior sanitation, hunger and malnutrition, alcohol and tobacco use. the voters indicated that they favored moving toward self-determination. Over two centuries after European contact many of these situations still H AWA IIAN SOV E R E I G N T Y ELEC T I O NS CO UN C IL, FINAL RE P O RT 28 e x i s t ”. Office of Hawaiian Affairs, Native Hawaiian Data Book - 1996 at 4 (Dec. 1996). Some Native Hawaiian groups boycotted this process (Mark Eshima ed. 1996). See infra note 12 . because they felt it was tainted since it was financed and supported by 8 S e e, e . g ., MacKenzie, s u p r a note 6, at 3-10; Neil Levy, Native Hawaiian the state government, and some have criticized its result, because fewer Land Rights, 63 CA L I F. L. RE V. 848 (1975); Jon Van Dyke, Williamson B.C. than half of the Native Hawaiians who received a mail ballot voted. Chang, Nathan Aipa, Kathy Higham, Douglas Marsden, Linda Sur, Manabu 15 For articles discussing various perspectives s e e e.g., Trask, s u p r a n o t e Tagamori, and Ralph Yukumoto, Water Rights in Hawaii, in LA N D AND 13, Dennis Pu‘uhonua “Bumpy” Kanahele, Clandestine Manipulation WATER RE SO U RCE MANAG E M ENT IN HAWA II 146-66 (1979); NAT I V E Toward Genocide, 34 ARIZ. ST. L.J. 63 (Spring 2002); R. Hokulei Lindsey, H AWA II A NS ST UDY CO MMISSION, RE P O RT ON THE CULT U RE NE E D S Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual, 24 U. A ND CO N C E R NS OF NATIVE HAWA II A N S (1983); RA L P H S. KUYK- H AWA II L. RE V. 693 (Summer 2002); Poka Laenui, Walking the Crooked E NDALL, THE HAWA I IAN KINGDOM 1778 - 18 54 (19 38, reprinted 19 8 9 ) . Path Straight, 8 UCLA ASIAN PAC. AM. L.J. 225 (Spring 2002). 9 Joint Resolution to Acknowledge the 100th Anniversary of the January 16 A p o l o gy Resolution, s u p r a note 9, at para. 3. The description of histor- 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. No. 10 3 - 150, 107 ical events in this section of this article is taken from the Apology Stat. 1510 (1993) (hereafter cited as Apology Resolution), Section 1(1) R e s o l u t i o n , and (3), which refers to the “illegal overthrow of the Kingdom of Hawaii 17 I d . at para. 15 . on January 17, 1893” (emphasis added) and “the participation of agents 18 I d . at para. 20. and citizens of the United States.” The Senate passed this public law on 19 Annexation Resolution, s u p r a note 11. Oct. 27, 1993, the House passed it on Nov. 15, 1993, and President 20 A p o l o g y Resolution, s u p r a note 9, at para 25. Clinton signed it on Nov. 23, 1993. “Congress drafted the joint resolu- 21 S e e Nalani Minton & Noenoe Silva, Ku‘e: The Hui Aloha ‘Aina Anti- tion with great care because it is an enforceable statute.” Lisa Cami Annexation Petitions 18 97- 1898 (1998). Oshiro, Comment, Recognizing Na Kanaka Maoli’s Right to Self- 22 Act to Provide a Government for the , ch. 339, 31 De t e r m i n a t i o n , 25 N.M.L. RE V. 65, 86 (19 9 5 ) . Stat. 141 (1900), r e p r i n t e d in 1 Hawaii Revised Statutes (Haw. Rev. Stat.) 10 A p o l o g y Resolution, s u p r a note 9, para. 25: “Whereas the Republic of 43 (hereafter cited as Organic Act). Hawaii also ceded 1,800,000 acres of crown, government and public 23 Annexation Resolution, s u p r a note 11, at para. 3. lands of the Kingdom of Hawaii, without the consent of or compensation 24 S e e Trustees of the Office of Hawaiian Affairs v. Ya m a s a k i, 69 Haw. to the Native Hawaiian people of Hawaii or their sovereign government” 154, 159, 737 P.2d 446, 449 (Haw. 19 87), cert. denied, 484 U.S. 898 (emphasis added). ( 19 87 ) . 11 Joint Resolution to Provide for Annexing the Hawaiian Islands to the 25 Act of July 9, 19 21, ch. 42, 42 Stat. 10 8 . United States, ch. 55, 30 Stat. 750 (1898) (hereafter cited as the 26 S e e Ahuna v. Department of Hawaiian Home La n d s , 64 Haw. 327, Annexation Resolution). 640 P.2d 1161 (1982), in which the Hawaii Supreme Court found that 12 For instance, in 1999, 16% of all Native Hawaiian families lived below the purpose of the HH C A was to rehabilitate Native Hawaiians. The court the poverty level, compared to 10.7% of all families in the state. KA drew on language in the legislative history of the HH C A to conclude that HUA KA‘I 2005 NATIVE HAWA I IAN EDUCATIONAL ASSESSMENT 34 2 there was “an intent to establish a trust relationship between the govern- (Kamehameha Schools 2005). The data for 2002 show that 32% of ment and Hawaiian persons.” I d . at 338, 640 P.2d at 116 2 . families receiving temporary assistance and 29.2% of individuals on gen- 27 An Act to Provide for the Admission of the State of Hawaii into the eral assistance in Hawaii were Native Hawaiian. NATIVE HAWA I IAN DATA Union, approved March 18, 19 59, Pub. L. No. 86-3, 73 Stat. 4 (hereafter BOOK, s u p r a note 2, at 118, 121. Hawaiians are disproportionately rep- cited as Admission Act). resented in the prison population, making up approximately 40% of all 28 Trustees v. Ya m a s a k i, 69 Haw. at 16 2 - 163, 737 P.2d at 451. Th e inmates incarcerated under Hawaii law. I d . at 169. In 2004, Hawaiians Hawaii Supreme Court held that by virtue of Section 5(f) of the accounted for 45% of all births in the state to unmarried mothers and Admission Act, the ceded lands are “held by the State as a public trust for 31% of all infant deaths. I d . at 28, 31. In a speech on the floor of the native Hawaiians and the general public.” U.S. Senate in 2005, Sen. noted that Native Hawaiians 29 I d . at 160, 737 P.2d at 450 . have the highest cancer mortality rate in Hawaii, 21% higher than the rate 30 M a c Kenzie, s u p r a note 6, at 19 . for the total male population and 64 percent higher than the rate for the 31 H a w. Const. art. XII, sec. 4; s e e generally MacKenzie, s u p r a note 6, at total female population; nationally, Native Hawaiians have the third high- 19 - 20; Jon Van Dyke, The Constitutionality of the Office of Hawaiian est mortality rate as a result of breast cancer. In 2000, Native Hawaiians A f f a i r s, 7 U. HAW. L. RE V. 63 (1985); Kahanu and Van Dyke, s u p r a n o t e had the highest mortality rate associated with diabetes in the state—a rate 13, at 446-51 . 138% higher than the statewide rate for all racial groups. The Native 32 H a w. Const. art. XII, secs. 5-6. The term “native Hawaiian” in this pro- Hawaiian mortality rate associated with heart disease is 68% higher than vision refers to those entitled to benefit under the Hawaiian Homes the rate for the entire state, and the mortality rate for hypertension is Commission Act, primarily those with 50% or more Hawaiian blood. 84% higher than that for the entire state. 151 CONG. REC. S 647, 660 33 H a w. Rev. Stat. §§ 10-3(1), 10 - 13 . 5 . (daily ed. Jan. 31, 2005) (Statement of Sen. Inouye). 34 H O ‘ O LA HOU, OFFICE OF HAWA IIAN AFFA IRS ANNUAL RE P O RT 20 0 3 , 13 S e e, e.g., MacKenzie, s u p r a note 6; S. James Anaya, The Native 4 4 . Hawaiian People and International Human Rights Law: Toward a 35 S e e Van Dyke, Political Status, s u p r a note 1, at 106 n. 67 (listing Remedy for Past and Continuing Wr o n g s, 28 GA. L. RE V. 309 (19 9 4 ) ; statutes); and see also the complete list found in Appendix A in the Noelle M. Kahanu and Jon M. Van Dyke, Native Hawaiian Entitlement to Amicus Curiae brief of Hawaii’s Congressional Delegation in Rice v. Sovereignty: An Overview, 17 U. HAW. L. RE V. 427 (1995); Mililani B. C a y e t a n o, 528 U.S. 495 (No. 98-518 ) . Trask, Historical and Contemporary Hawaiian Self-Determination: A 36 Pub. L. No. 10 0 - 5 79, § 2, 102 Stat. 2916, and Pub. L. No. 10 0 - 6 9 0 ,

66 Ju ly 2006 HAWAII BAR JOURNA L Ashford & Wriston Ad Title II, Subtitle D, § 2302, 102 Stat. 4223 (1988), and Pub. L. No. 10 2 - h t t p : / / w w w. o h a . o r g / p d f / r e p o r t 10 23 f i n . p d f. The Report recommended 396, Title IX, § 9168, 106 Stat. 1948 (1992), codified as 42 U.S.C. § that as a matter of justice and equity: 11701 et seq. 37 Pub. L. No. 10 3 - 3 82, 108 Stat. 3794 (1994). The Native Hawaiian [T]he Native Hawaiian people should have self-determina- Education Act was re-enacted as part of the No Child Left Behind Act of tion over their own affairs within the framework of Federal 20 01, as part B of title VII of Pub. L. No. 107- 110 (2002), and is currently l a w, as do Native American tribes. . . . To safeguard and codified at 20 U.S.C. § 7512 et seq. enhance Native Hawaiian self-determination over their 38 Pub. L. No. 10 6 - 5 69, § 201 & Subtitle 5, §§ 511– 514, 114 Stat. 29 6 6 lands, cultural resources, and internal affairs, the ( 2000), codified at 25 USCS § 4221 et seq. D e p a r tments believe Congress should enact further legi s l a - 39 Pub. L. No. 101- 477, Title I, 104 Stat. 1153 (1990), codified at 25 tion to clarify Native Hawaiians’ political status and to create U.S.C. § 29 01 et seq. a framework for recognizing a government-to-government 4 0 Pub. L. No. 101- 6 01, 104 Stat. 3048 (1990), codified at 25 U.S.C. § relationship with a representative Native Hawaiian governing 30 01et seq. b o d y. 41 Pub. L. No. 95–341, 92 Stat. 469 (1978), codified as amended at 42 U.S.C. § 1996 et seq. 4 9 Consolidated Appropriations Act of 2004, Pub. L. No. 10 8 - 199, 118 4 2 A p o l o gy Resolution, s u p r a note 9. Stat. 3, div. H, sec. 148 (2004). This Office was established by the 4 3 The Apology Resolution, s u p r a note 9, states that United States military Secretary of the Interior in Order No. 3254, June 24, 2004, and the and diplomatic support was essential to the success of the 1893 over- Interior Department has named a director to head the office. throw of the Hawaiian Monarchy and that this aid violated “treaties 50 The “Native Hawaiian Government Reorganization Act of 2005,” gen- between the two nations and international law.” Among the other findings erally referred to as the “Akaka Bill,” after Hawaii Senator Daniel Akaka, in the Apology Resolution are the following: which is discussed i n f r a in text at notes 57-60. 51 Rice v. Cayetano, 528 U.S. 495 (20 0 0 ) . Whereas the Republic of Hawaii also ceded 1,800,000 52 The Fifteenth Amendment states, “The right of citizens of the United acres of crown, government and public lands of the States to vote shall not be denied or abridged by the United States or by Kingdom of Hawaii without the consent of or compensation any State on account of race, color, or previous condition of servitude.” to the native Hawaiian people of Hawaii or their sovereign 53 Morton v. Mancari, 417 U.S. 535 (1974 ) . government . . . . 54 528 U.S. at 519 . 55 I d . at 520 . Whereas the indigenous Hawaiian people never direct- 56 I d . at 519 - 521. The Court seems to have invited Native Hawaiians to ly relinquished their claims to their inherent sovereignty as pursue that solution, but then in an enigmatic paragraph also says that it a people or over their national lands to the United States, is unclear whether Congress “has determined that native Hawaiians have either through their monarchy or through a plebiscite or ref- a status like that of Indians in organized tribes,” 528 U.S. at 518, that “[i]t erendum . . . . is a matter of some dispute...whether Congress may treat the native Hawaiians as it does the Indian tribes,” I d ., and that it is a “question[] of I d . at paras. 25, 29. After documenting in detail the wrongs done to the considerable moment and difficulty” whether Congress has or could “del- Hawaiian people at the time of the illegal overthrow — including “the dep- egate to the State a broad authority to” establish preferential or separate rivation of the rights of Native Hawaiians to self-determination” — the p r o g rams for Native Hawaiians. I d . To illustrate the competing views on A p o l o gy Resolution urges the President of the United States to “support this question, Justice Kennedy cited Van Dyke, Political Status, s u p r a n o t e reconciliation efforts between the United States and the Native Hawaiian 1, and Stuart Minor Benjamin, Equal Protection and the Special p e o p l e .” I d . at §1(5). Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537 (1996). 4 4 S e e, e . g ., Ann Arbor R. Co. v. United States, 281 U.S. 658, 666 (19 30 ) Justice Kennedy’s majority opinion closes by explaining that the (treating a joint resolution just as any other legislation enacted by “essential ground” for the Court’s holding is that any classification utilizing C o n gr e s s ) . a racial criteria is “demeaning,” that it is improper to assume that a non- 4 5 A p o l o gy Resolution, s u p r a note 9, at para. 29 and at §1(3); similar lan- Hawaiian would cast an “unprincipled vote” on the selection of leaders to make decisions regarding Native Hawaiian resources and policies, and guage is in the 2000 reauthorization of the 1994 Native Hawaiian that the State of Hawaii’s initiative to promote Native Hawaiian self-gov- Education Act, which reconfirmed that “Native Hawaiians are a distinct ernance by facilitating their election of their own leaders “would give rise and unique indigenous people,” and that the United States had apolo- to the same indignities, and the same resulting tensions and animosities, gized for “the deprivation of the rights of Native Hawaiians to self-deter- [that] the [Fifteenth] Amendment was designed to eliminate.” 528 U.S. m i n a t i o n .” 20 U.S.C. § 7512(1) & (5). at 523. This characterization is based either on an ideological perspec- 4 6 S e e, e . g ., Jon M. Van Dyke, Carmen Di Amore-Siah, and Gerald W. tive that rejects the value of diversity in our pluralistic country and the obli- B e r k l e y - Coats, S e l f - Determination for Nonself-governing Peoples and for gation to rectify the injustices imposed on the Native Hawaiian People, or : The Cases for and Hawaii, 18 U. HAWAI‘I L. on a complete misunderstanding of the careful balance that has been RE V. 623 (1996). achieved in Hawaii – based on the respect and honor that all races have 47 S e e A p o l o gy Resolution, s u p r a note 9, § 1: Acknowledgment and toward Native Hawaiians – and the widespread support that exists in A p o l o gy, (4)-(5). The Hawaii State Legislature approved of the Apology Hawaii for a just resolution of the claims of the Native Hawaiian people. In a poll of 429 Hawaii voters conducted September 5-9, 2000, for Resolution and agreed that the actions of the United States were illegal instance, those expressing an opinion supported a bill for Native Hawaiian in Act 359 (1993) and Act 329 (19 97 ) . federal recognition by a two-to-one margin (49% in favor, 25% opposed, 4 8 U.S. Dept. of the Interior and U.S. Dept. of Justice, From Mauka to with 27% expressing no opinion). Pat Omandam, Most Isle Voters Plan Makai: The River of Justice Must Flow Freely ( 2000), available at

68 Ju ly 2006 HAWAII BAR JOURNA L to Take Part in OHA Ba l l o t, STA R - B UL L ET IN, Sept. 15, 20 0 0 , at A1, col. 1. 57 This bill, denominated as S. 147, is formally called the Native Hawaiian Reorganization Act of 2005. S. 147 was favorably reported out of the U.S. Senate Comm. on Indian Affairs on May 16, 2005. S e e g e n e r a l l y J o h n H e f f n e r, Between Assimilation and Revolt: A Third Option for Hawaii as a Model for Minorities Wo r l d - W i d e, 37 IN T E RN ATIONAL LAW J O URN AL 591, 600-01 (20 0 2 ) . 58 528 U.S. at 520 . 59 25 U.S.C. § 903b. 6 0 25 U.S.C. § 476 . 61 Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 20 0 3 ) . 6 2 In Arakaki v. Lingle, 423 F.3d 954 (9th Cir. 2005), cert petition pend - i n g, the 9th Circuit Court of Appeals upheld the dismissal of all claims relating to the Hawaiian Homelands program and most claims against OHA. The claim challenging state expenditures is likely to be dismissed based on DaimlerChrysler v. Cuno, 126 S. Ct. 18 54 (20 0 6 ) . 6 3 Doe v. Kamehameha Schools, 416 F.3d 10 25 (9th Cir. 2005), r e h e a r - ing en banc granted and opinion vacated, 2006 U.S. App. LEXIS 4167 ( 20 0 6 ) . 6 4 Trustees of the Office of Hawaiian Affairs v. Ya m a s a k i, 69 Haw. 154 , 737 P.2d 446 (19 87), cert denied, 484 U.S. 898 (19 87); Office of Hawaiian Affairs v. State, 96 Hawaii 388, 31 P.3d 901 (20 01); Office of Hawaiian Affairs v. State, 110 Hawaii 338, 133 P.3d 767 (20 0 6 ) . 6 5 Office of Hawaiian Affairs v. Housing and Community De v e l o p m e n t Corporation of Hawaii, now pending before the Hawaii Supreme Court as S.C. No. 25570 (20 0 3 ) .

Jon M. Van Dyke has been Professor of Law at the William S. Richardson School of Law at the University of Hawaii at Manoa since 1976, where he teaches Constitutional La w, International La w, International Ocean La w, and International Human Rights. Previously he taught at the Hastings College of the La w (University of California) in (1971 - 76) and Catholic University Law School (19 67-69) in , D.C. He earned his J.D. degree at Harvard (19 67) and his B.A. degree at Yale (1964), both cum laude. His most recent book is a co- authored casebook entitled International Law and Litigation in the U.S. (West, 2nd ed. 2005), and his next book is entitled Wh o Owns the Crown Lands of Hawaii? which is scheduled for publi - cation by the University of Hawaii Press in the coming year. Va n Dyke has represented the Office of Hawaiian Affairs (OHA) in several cases and projects involving the resources and rights of the Native Hawaiian People, and he is currently co-counsel for OHA in the case of Arakaki v. Lingle.

Melody Kapilialoha MacKenzie is an Assistant Professor of Law and Director of the Center for Excellence in Native Hawaiian Law at the William S. Richardson School of La w, University of Hawaii at Manoa. A graduate of Beloit College and the University of Hawaii School of La w, she served as a law clerk to Chief Justice Richardson of the Hawaii Supreme Court and then joined the staff of the Native Hawaiian Legal Corporation, a pub - lic interest law firm protecting and advancing the rights of Native Hawaiians. She is project coordinator and chief editor for revi - sions to the Native Hawaiian Rights Handbook, which she origi - nally edited and helped to write, is a contributor to the 2005 Edition of Felix S. Cohen’s Handbook of Federal Indian La w, and is member of OHA’s litigation team in the Arakaki v. Lingle litigation.

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