Akaka Bill would be 'win-win'


POSTED: Sunday, August 09, 2009

The Star-Bulletin's editorial on Aug. 9 suggested redrafting the Akaka Bill to protect it against court challenges. This bill has been redrafted many times and its current version is designed to provide flexibility to the Hawaiians, to allow the Hawaiian people to decide how they want to govern themselves and to define their own membership. Although court challenges may be filed, the bill will certainly be found to be constitutional, because it is fully consistent with U.S. and international law.

The editorial characterized Hawaii before the 1893 overthrow as a “;multiracial kingdom,”; observing that some Westerners had become naturalized. But Hawaii was hardly a happy, peaceful “;multiracial kingdom”; in the early 1890s. It was seething with fierce struggles for power.

The Bayonet Constitution, forced upon King Kalakaua in 1887 by Westerners, introduced sharp racial divisions with regard to voting. Only those “;of Hawaiian, American or European birth or descent”; could vote, which excluded Asians, even if they had been born in Hawaii or had become naturalized. Contract-laborers from Portugal and Puerto Rico could vote, but not Asians—“;a clever device for securing to the [foreigners] the control of the Kingdom,”; as stated in the 1959 “;The Hawaiian Revolution: 1893-94.”;

But the Hawaiians did not give up, and in the 1890 election the National Reform Party, led by Hawaiian leader Robert Wilcox, took control of the Legislature, and forced the Cabinet, including Lorrin Thurston, to resign. These deep divisions came into clear focus in the 1893 overthrow and 1898 annexation.

This divide continue to resonate in our islands. Although we cannot turn back the clock, we must try to achieve some measure of justice, in light of the wrongs that took place at the time of the overthrow and annexation. Congress observed in its 1993 Apology Resolution that the participation of U.S. agents in the overthrow was “;illegal”; and violated “;international law.”; This Resolution states that the Crown and Government Lands were transferred to the United States in 1898 without “;the consent of or compensation to the Native Hawaiian people,”; and calls for a reconciliation to heal these wounds. The Akaka Bill would be a major step forward in this reconciliation process and would allow the Hawaiian people to control their destinies once again.

The U.S. Constitution recognizes that indigenous peoples have a separate and distinct status within the U.S. political system, and our national government stated formally in 1970 that native groups are entitled to govern their own lands and to maintain their culture and heritage. The United Nations in 2007 passed the Declaration on the Rights of Indigenous Peoples, which confirms the right of native people to control their lands and resources through their own governmental bodies. Native Hawaiians are “;indigenous”; under U.S. and international law, as our federal and state legislature have said repeatedly. The fact that the kingdom's monarchs sought advice from Westerners in no way undercuts the right of the Hawaiian people to reform a governmental entity and to define their membership in a manner that is appropriate for them.

The Hawaiian people were resourceful and self-sufficient before Western contact, developing aquaculture in a way that still marvels us; navigating across vast oceans; creating beautiful dances, chants, songs, and feather capes; and building formidable temples and intricate tools for fishing and hunting. Their culture was cut short by diseases and the efforts of others to control their land and government. They deserve a chance to come together once again, to build upon their dynamic heritage.

The Maori in New Zealand (Aotearoa) also suffered great losses after Westerners came, but their experiences during the past 35 years provide a road map we can examine as we move forward with passage of the Akaka Bill. The people of New Zealand established the Waitangi Tribunal in 1975 to permit the Maori to pursue their claims. This Tribunal, after lengthy hearings, made recommendations for each Maori group, which led to settlements negotiated with the government. The Maori have received lands, factories, fishing vessels and fishing rights, and are now economic players, leading to greater prosperity for all the people of New Zealand. Similarly, passage of the Akaka Bill will be a “;win-win”; solution, addressing and resolving long-festering injustices, and encouraging our host people to once again play a major role in our economy and community.


Jon M. Van Dyke, law professor and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law, UH-Manoa, authored “;Who Owns the Crown Lands of Hawaii?”; and is an occasional Office of Hawaiian Affairs consultant.