Sunday, August 14, 2005

Roots of freedom

The U.S. Constitution provides
for recognition of native rights

The U.S. Constitution addresses the status of the indigenous, native people of America by stating that Congress has the power "to regulate commerce with foreign nations and among the several states, and with the Indian tribes."

Patricia Zell recently retired from 25 years of service with the U.S. Senate Committee on Indian Affairs, where she served as Democratic staff director and chief counsel. She recently contracted with the Office of Hawaiian Affairs to perform research related to the Akaka Bill.

That status is founded not upon considerations of race or ethnicity, but upon the reality that the indigenous, native people occupied and exercised sovereignty over the lands and territories that were later to become part of the United States.

Their sovereignty existed before the formation of the United States, and the Constitution recognizes their status as sovereigns, in the same clause of the Constitution that recognizes the sovereignty of the several states and the foreign nations.

The laws of the United States reflect the constitutional status of the indigenous people of America. Upon this constitutional foundation, hundreds of federal laws have been enacted that express the nature of the political and legal relationship the United States has with the sovereign governments of the native people of this land -- American Indians, Alaskan natives and native Hawaiians.

The Constitution neither requires nor provides that the pre-existing sovereignty of the indigenous people of the United States must be "preserved" through treaties or statehood enabling laws. In fact, the Constitution establishes a legal framework under which the federal government has the principal responsibility of conducting relations with the native people, and many statehood enabling acts expressly disavow any authority over the native people and their lands. The notion that sovereignty requires periodic preservation suggests a serious misunderstanding of the nature of sovereignty.

The Hawaii Admissions Act and the Alaska Statehood Act are unlike many of the other Western states' enabling laws in that both expressly recognize and preserve the rights of the indigenous people of the two states. The Hawaii Admissions Act not only provides for the protection of lands set aside under federal law for native Hawaiians, but further directs that revenues from lands ceded back to the state are to be used for five purposes, one of which is the betterment of the conditions of native Hawaiians. In addition, the Hawaii Constitution explicitly recognizes the rights of native Hawaiians to self-determination and self-governance.

Throughout America's history as a nation, the executive and legislative branches of the U.S. government have entered into treaties and carried on a course of dealings with the indigenous people of America, and the judicial branch of the federal government has consistently reaffirmed that the treaties and conduct of relations with the indigenous people is based on a political and legal relationship.

Congressional powers and native peoples

Congress has the constitutional power and authority to address the conditions of the indigenous, native people of America.

Although those who first immigrated to America's shores called the indigenous people they found here "Indians," the terms "Indians" and "Indios" were, for centuries, employed around the world to describe the indigenous people of other countries as well. Upon his arrival in Hawaii in 1778, Captain James Cook recorded in his diaries his discovery of the original inhabitants of Hawaii, referring to the native people as "Indians." In a similar manner, the term "tribe" was the word Europeans assigned to the sovereign nations or groups of America's indigenous people.

While the U.S. Constitution vests the Congress with authority to conduct relations with Indian tribes, the U.S. Supreme Court has upheld Congress' exercise of its constitutional authority as applied to the indigenous people of Alaska -- not all of whom are organized as Indian tribes. And since 1910, Congress has enacted more than 160 federal laws that address the conditions of the indigenous people of Hawaii.

The indigenous people of America are not all "Indians," nor are they all organized as "tribes," but they do share the same status under the U.S. Constitution and federal law -- a status that arises out of their  inherent sovereignty and the fact that their sovereignty pre-existed the formation of  the United States.

As early as the 1830s, Chief Justice John Marshall articulated these principles in the court's rulings. From that time forward, the Supreme Court has continued to sustain the constitutionality of federal laws that are built upon the legal foundation of the political and legal relationships that the United States has had for more than 200 years with the indigenous people who exercised sovereignty in America prior to the establishment of the United States -- American Indians, Alaskan natives and native Hawaiians.

In contemporary times, the Supreme Court's rulings have expressly held that those laws are not based on race or ethnicity, and that Congress has the authority to address the conditions of the indigenous, native people of the United States.

Application of Federal Indian Law in Hawaii

While considered to be part of the body of federal Indian law, the enactment of the Alaska Native Claims Settlement Act in 1971 reflected a significant departure from the federal laws that give expression to the relationships between the United States and American Indian tribal governments. The act authorized the establishment of Alaska native regional and village corporations that would hold title to native lands and in which the native people would be shareholders.

In the ensuing 34 years, the existence of the Alaska native corporations -- and the manner in which they have fostered economic growth in some of the most geographically remote and isolated areas of that state and this country -- have brought the citizens of Alaska together, not divided them, as they share in the economic development opportunities that the native corporations have brought to the rural areas of the state.

In like manner, S.147, the Akaka Bill, does not seek to replicate conditions in Indian country, but rather to reflect the unique circumstances of the indigenous people of Hawaii. S.147 does not, for instance, propose the establishment of "Indian reservations" nor does it suggest that native Hawaiians will want to organize themselves as a "tribe." S.147 does not authorize eligibility for federal Indian programs. While Hawaii is one of two states in the union that criminally prohibits all forms of gaming, S.147 reinforces state law by providing that the principal federal law that authorizes gaming in Indian country will not apply in Hawaii.

And, like the Alaska Native Claims Settlement Act, rather than adopting the legal framework that informs relations between governments in Indian country, S.147 authorizes a process of negotiations between the United States, the state of Hawaii and the native Hawaiian government to address such matters as civil and criminal jurisdiction, the management of lands and natural resources, and the range of governmental powers and authorities to be exercised by each government.

The suggestion that the United States and the state of Hawaii would readily abdicate their respective sovereignty in deference to the native Hawaiian government in the negotiations process is simply not credible.


In 1934, with the enactment of the Indian Reorganization Act, Congress provided a process for the reorganization of tribal governments in Indian country -- governments that had been discouraged by U.S. policies and laws from exercising their inherent sovereignty. The Supreme Court has repeatedly sustained Congress' exercise of its constitutional authority in enacting the Indian Reorganization Act.

S.147 provides a process for the reorganization of a native Hawaiian government so that the indigenous, native people of Hawaii might give expression to their rights as one group of America's native people to self-determination and self-governance, consistent with U.S. policy of the past 35 years.

Twenty-seven years ago, in 1978, the citizens of Hawaii amended the state Constitution to assure that the federal policy of the rights of America's native people to self-determination and self-governance would be extended to native Hawaiians.

They did so not to establish racial or ethnic divisions but to strengthen the fabric of the multi-cultural society that is Hawaii, by honoring the legacy of the aboriginal, indigenous, native people of Hawaii whose culture, history, language and traditions have, for generations, been so enthusiastically embraced by all of the citizens of Hawaii and serve as the foundation upon which governance in Hawaii is built.

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