View Point

Saturday, April 17, 1999

Sovereignty rhetoric
is too divisive

By H. William Burgess


IT was depressing to read Haunani Kay-Trask's April 9 View Point on proposed tuition waivers for Hawaiian students at the University of Hawaii. Trask trotted out the old myths about "stolen lands," "indigenous people," "lost sovereignty" and a "political relationship" between Hawaiians and the state.

We hear these canards so often, they have become part of our daily speech. But they are not truthful. In fact, it is essential to remember that they are dangerous, racist and expensive nonsense.

Careful study of these claims shows that they have no merit, either as a foundation for tuition waivers or as a basis for special treatment for "Hawaiians" in any other context:

Bullet "Stolen lands?" Certainly not, if Trask is referring to ceded lands. Although Hawaiians claim that the lands were, are or should be "theirs," those claims don't hold water. Two federal studies have found that.

In 1983, the Native Hawaiians Study Commission examined the claims of Hawaiians to ceded lands. In a thorough and detailed analysis, the majority concluded that there was no valid basis for these claims. Twelve years later, the issue came up again when federal officials prepared an environmental impact statement for new usage of Bellows Air Station. Hawaiians claimed that, because Bellows was largely on ceded lands, it should be returned to "the Hawaiian people" or at least that Hawaiians should have a say in its future.

The EIS, prepared without reference to the 1983 study, nevertheless came to the same conclusion as the earlier work: that Hawaiians do not have and never had special rights to ceded lands different from the rights of other subjects of the kingdom or citizens of successor governments.

Bullet "Indigenous people?" Not if we are talking about persons of Hawaiian ancestry today. They are neither "indigenous" nor a "people." Their ancestors were "indigenous," perhaps, at least in the sense of being here for a long time.

Bullet "Lost sovereignty?" Hawaiians, as a racial or ethnic group, never had "sovereignty" under the monarchy. It was not "their" country; it was the king's country. Power did not come from the people; it resided in the monarch. That's what the constitution of the kingdom said. That's what the Supreme Court of the kingdom said in Rex v. Booth. That's what Kamehameha V and Liliuokalani said.

Hawaiians never had any sovereignty to lose and, when the monarchy ended, Hawaiians were only 40 percent or so of the population. Hawaiians got "sovereignty" when they became citizens of a democracy and, exercising this sovereignty through the vote, they dominated the legislatures of the territory until after World War II.

Bullet "Political relationship?" This supposedly justifies special preferences for Hawaiians. This phrase comes up because the U.S. Supreme Court held, in a case challenging preferences for American Indians, that the preference was not "racial" but applied only to members of Indian tribes, which had a political relationship with the U.S.

But the court was talking about real political relationships between genuine governing bodies. A political relationship requires a political entity, a polity. There is no Hawaiian political entity. Without that, there is simply no "political" relationship.

Thus, none of the reasons Trask offers for race-based UH tuition waivers has any constitutional validity. But do they have any moral validity? Has any society ever profited from racial segregation?

Ultimately, of course, even if the courts tell us that preferences for Hawaiians are permissible, the question we must face is whether they are wise.

The answer is clear: As long as race is a factor, we will be a divided people. And we will be shamed and diminished because of it.

H. William Burgess is a retired attorney
who practiced law in Hawaii for 35 years

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