Advertisement - Click to support our sponsors.

Recognition
of Hawaiians just
the first step

After federal recognition,
experts say, working out the
complexities of self-determination
could take years

Shortcut: Native Hawaiians are bypassing
the usual route to recognition
Issues: Like Indian tribes, Hawaiians
could face such issues as gambling
and land claims

By Christine Donnelly
Star-Bulletin

Native Hawaiians have been edging toward "federal recognition" for years, even as sovereignty activists continue to debate the merits of gaining that measure of independence within the confines of the U.S. government.

More than 150 federal bills have given native Hawaiians special rights, for example, by including them with American Indians and Alaska natives in funding for health, housing and health care programs and expanding Hawaiian homelands.

The central argument of the state's defense in the Rice vs. Cayetano case was that it was legal to exclude non-Hawaiians as voters in Office of Hawaiian Affairs trustee elections because native Hawaiians had a unique "trust relationship" with the federal government. The U.S. solicitor general himself made the argument.

But the U.S. Supreme Court disagreed, ruling that barring non-Hawaiian voters was an illegal racial exclusion and opening the door to lawsuits against other Hawaiian preferences. For those who supported the state's reasoning, the natural next step was to urge passage of a U.S. law explicitly recognizing native Hawaiians as a distinct indigenous people with a continuing right to self-determination despite historical wrongs, including the 1893 overthrow of the Hawaiian kingdom.

Now, as U.S. Sen. Daniel Akaka (D, Hawaii) prepares to introduce such a bill and the U.S. Justice and Interior departments put the finishing touches on a report expected to support that move, Hawaiians and non-Hawaiians alike are finding out more about the pros and cons of federal recognition.

Leaders of several Native American tribes have come to OHA to explain their forms of self-government, and an educational and strategic initiative called Project Hawaiian Justice, underwritten with a grant from native Alaskans, has given workshops throughout the state.

Besides being morally right, federal recognition could be an economic boon for the state, said Susan Masten, president of the National Congress of American Indians, which supports federal recognition for native Hawaiians. "I would hope all the people of Hawaii would welcome this as an exciting possibility to bring healthy and stable economic partnerships to the area."

Recognized tribes, with their federal funding, separate governments and own laws and regulations, bring "unique opportunities to create business ventures" with private businesses and state and local governments, said Masten, a member of the 4,100-member Yurok tribe of northern California. "Our status is a plus for the surrounding community."

But outspoken critics such as retired teacher Ken Conklin disagree, saying "superior" rights for native Hawaiians would come at the expense of others in the state.

Not so, counters Richard Bordner, an anthropologist at Chaminade University who believes native Hawaiians deserve a greater degree of self-governance than currently offered by the U.S. Department of the Interior.

"Tribalizing" Hawaiians won't put them "in sovereign position but ... at the mercy of the federal government and U.S. Supreme Court," which have eroded native rights throughout the 1990s, Bordner said.

"As long as they're doing their own thing to themselves, (tribes) really do have a lot of freedom, but the minute the larger public good is affected, they lose ground," he said.

Masten said some legal attacks were based on "unfounded fears" and signaled that tribes were growing in wealth and authority.

Bordner acknowledged that given U.S. politics -- with Congress under Republican control and a Democratic president friendly to native rights about to exit -- "maybe the best Hawaiians can get right now is federal recognition, especially as the United States is getting more conservative and afraid of ethnic splinterism. It's better than nothing, but it's not independence."

Gaining federal recognition is just the first step in a long process of creating "the nation-within-a-nation" that most people envision when they think of tribal governments.

Akaka has said two pieces of legislation would be required. The first would be a "short-form bill" simply stating that native Hawaiians are indigenous people with distinct political status and the right to self-determination -- in other words, more like an Indian tribe than simply a racial minority.

"The objective is to clarify the status so there is no disagreement. Congress and the executive branch have been very clear that Hawaiians have political status. Only the judicial branch has disagreed," said Patricia Zell, minority staff director of the U.S. Senate Indian Affairs Committee.

If that bill passes, it would be followed in a later session by a more complex measure spelling out a process for recognizing a government of the native Hawaiians' own choosing.

OHA trustee Mililani Trask, a member of the Native Hawaiian Community Working Group advising Akaka's task force, says some native Hawaiians fear Congress will pass the first bill, but not the second.

"I know we need short-form legislation, something to clarify our political status quickly. But we have to fight for the follow-up bill, too. It doesn't stop at federal recognition alone," said Trask. "If a nation gets formed and it's bankrupt and impoverished and has no land, what is the outcome?"

(Some in Washington, including U.S. Rep. Patsy Mink, (D, Hawaii) have downplayed even the short-form bill's chances of passing this year. But key Capitol Hill staffers cite the clout of Democrat Dan Inouye in the Senate and on the Indian Affairs committee in particular, and the close working relationship U.S. Rep. Neil Abercrombie (D, Hawaii) has with key Republicans on the House Resources Committee, as encouraging signs for passage.)

Ray Soon, director of the state Department of Hawaiian Home Lands, which provides inexpensive homes and land for people with at least 50 percent Hawaiian blood, estimates it would take five to 10 years after a short-form bill passes for a "substantial" native Hawaiian nation to develop.

Federal recognition is the vital first step, he said, discounting criticism from those who say it locks native Hawaiians into "federal wardship" with no chance of true independence.

Those critics would rather continue efforts with the United Nations and other international tribunals aimed at achieving complete autonomy from the United States.

"We must deal with the political realities," Soon said recently. "Without this political status, all federal programs are at risk. And I mean all. We can't let our own internal disagreements" allow that to occur.

---

Tribes face
lengthy process

Hawaiians are bypassing red
tape and taking a shortcut
to self-determination

By Christine Donnelly
Star-Bulletin

By going straight to Congress, native Hawaiians would bypass the cumbersome administrative process most Indian tribes must survive before achieving self-governance.

The usual route to U.S. recognition is via the federal acknowledgement process in the Bureau of Indian Affairs' Branch of Acknowledgement and Research (BAR). The bureau is a division of the U.S. Department of the Interior.

Petitioning tribes must meet seven strict criteria before earning federal recognition and the political autonomy that brings; failure to meet any one of the criteria means rejection and rejected tribes can never reapply.

More than 200 native groups in Alaska and the Lower 48 states are going through the process right now, which can last for years.

The criteria are aimed at guaranteeing the petitioning tribe has existed "substantially" continuously since at least 1900 as a distinct entity with authority over its members.

"Federal acknowledgment does not just say that your ancestry is Indian or that your cultural heritage is Indian. It acknowledges your tribe's status as a government with independent sovereignty derived from your historical status as a tribe before European contact and maintenance of your government without break since then," according to the guidelines.

Assimilation into the larger culture is not grounds for rejection, as long as the tribe also maintained its own identity. But simply being descended from a historical tribe is not enough for approval.

Bureau officials say the standards have to be tough to ensure that tribes granted federal recognition withstand legal challenges.

Critics say the fact that native Hawaiians never sought recognition this way proves they don't meet the requirements. But experts on Indian affairs say the criteria were never meant for native Hawaiians.

"There would be no reason for them to go through that. It was intended for Indian tribes, not native Hawaiians ... Hawaii's history is very different from the rest of the country," said Patricia Zell, minority staff director of the U.S. Senate Indian Affairs Committee.

Besides recognizing native Hawaiians as indigenous people with the right to self-governance, legislation Hawaii Sen. Daniel Akaka is to introduce next month also would create a federal Office of Hawaiian Affairs -- similar to but separate from the Bureau of Indian Affairs -- to underscore native Hawaiians' unique circumstances.

The administrative recognition process began in 1978 to instill uniformity in how tribes seeking self-government were judged. Before that, some tribes were recognized by federal legislation (as native Hawaiians will attempt), others by presidential executive order and still others by winning lawsuits in federal courts. All those avenues still exist, but petitioners generally must exhaust their administrative remedies first.

The National Congress of American Indians has passed a resolution supporting federal recognition for native Hawaiians. President Susan Masten said tribes struggling through the long administrative process would not begrudge native Hawaiians gaining it from Congress or even President Clinton.

"The BAR process doesn't work for everyone," she said. "I'm pleased that any tribe is able to attain (federal) status, however they achieve it."

---

Issues concerning
native Hawaiians

By Christine Donnelly
Star-Bulletin

Here are some frequently discussed issues involving native Hawaiians. Sources include the U.S. Department of the Interior, Bureau of Indian Affairs, National Congress of American Indians, the Office of Hawaiian Affairs and specific tribes.

DEFINITIONS

THERE are more than 557 federally recognized "Indian tribes" (variously called nations, bands, pueblos, communities, rancherias and villages) in the United States. About 226 are in Alaska; the rest are scattered among 34 other states. The total population is 2.3 million.

The legal term "federal recognition" describes a government-to-government relationship between the United States and an indigenous people. The tribes have the political status of a "domestic dependent nation," meaning they are treated as separate governments, rather than as racial minorities or some other special-interest group.

Once recognized, a native group has the right to self-government, but members also retain their U.S. citizenship and residency in the state where they live, hence the common description of a "nation-within-a-nation." They receive federal funding and other benefits based on a "trust" relationship with the United States, including the right to decide their own membership, develop their own governments and legal systems, manage their own natural resources and create enterprises exempt from state and federal income taxes. They cannot declare war or coin their own money.

Still, the federal government remains a powerful force in Indian affairs, including deciding which tribes to recognize, designating funding, regulating gambling and investigating major crimes on tribal land.

State governments generally lack authority over neighboring tribes, but they frequently collaborate as partners. When disputes arise, states can ask the federal government to intervene if the larger public good is at risk.

GAMBLING

PROMOTING gambling is a criminal offense in Hawaii and that means even a recognized native Hawaiian government could not open casinos or other gambling enterprises, authorities said.

With the passage of the Indian Gaming Regulatory Act in 1988, Congress formalized but also limited the right of federally recognized tribes to conduct gambling.

The U.S. Supreme Court has interpreted the law to mean that if a state government criminally prohibits a form of gambling, then tribes within that state may not engage in that activity. However, if a state civilly regulates a form of gambling, then tribes within it may promote that gambling free of state control. For example, if a state sponsors a lottery, tribes are much freer to set up a variety of their own gambling operations.

In states such as Utah, where gambling is a criminal offense as it is in Hawaii, no tribal gambling has developed. States such as Oklahoma have criminal laws that limit tribes to bingo. Meanwhile, in states such as Connecticut, California and Arizona, casinos have flourished.

"It depends a lot on the state. Hawaii has been very clear it's against gambling. There's not even a lottery. That would go for native Hawaiians, too," said Jade Danner of the educational initiative Project Hawaiian Justice.

So far, 184 of the 558 recognized tribes sponsor some form of gambling, according to the U.S. Bureau of Indian Affairs. To open casinos, tribes must first negotiate compacts with state governments concerning games to be played and other regulations; smaller bingo operations do not require such compacts.

TAXES

NATIVE governments are exempt from federal and state income taxes, but individual tribe members do pay taxes, with some exceptions.

Those who live on tribal land and derive their income from tribal enterprises are exempt, as are members who earn their money from traditional fishery or timber enterprises.

Hawaii tax officials said there are no estimates on how revenues might change if a native Hawaiian government is recognized.

MEMBERSHIP

RECOGNIZED tribes set their own membership criteria. The majority require a minimum blood quantum (most commonly 1/4) or proof of lineal descent from a tribal member. There have been a few instances of tribes rejecting for other reasons people who met the genetic requirements.

No blood quantum requirement has been set for native Hawaiians should they attain federal recognition. Local leaders say the most commonly discussed standard is any drop of native Hawaiian blood, while allowing existing programs to keep their own stricter criteria. For example, the Department of Hawaiian Home Lands provides inexpensive housing and land to people who are at least 50 percent Hawaiian.

The "any drop of blood" standard would make native Hawaiians among the largest native groups, with a population of about 211,000 scattered throughout the United States, according to the 1990 U.S. Census. (The Navajo Nation in the U.S. Southwest numbers about 275,000.)

But such a loose definition could prompt legal challenges from critics who say many part-Hawaiians are too assimilated into the islands' mix of cultures to be considered part of a distinct "tribe."

U.S. Supreme Court Justice Stephen Breyer outlined such an argument when he wrote in his concurrence to the Rice vs. Cayetano ruling that defining as native Hawaiian anyone who had one ancestor living in Hawaii prior to Western contact would include people who are less than one/500th native Hawaiian (assuming nine generations between 1778 and now). "I have been unable to find any Native American tribal definition that is so broad," he wrote.

MONEY

THE U.S. government annually contributes hundreds of millions of dollars to programs for Native Americans and Alaska natives, mainly in the areas of health, housing and education. Native Hawaiians have benefited, as well, but the amount stands to grow if they receive official recognition.

Department of Interior officials say newly recognized native groups get "start-up" money to communicate with their members and lay the foundation to build their own governments and other aspects of the new nation.

But they refused to predict how much money native Hawaiians might receive, saying it depended on the size and the needs of the group.

LAND

INDIAN tribes hold more than 55 million acres of land, or about 2 percent of the United States.

Most reservations are in arid and remote regions, including the largest -- the Navajo Nation -- which encompasses 25,000 square miles of northeast Arizona, northwest New Mexico, southeast Utah and a sliver of southwest Colorado. Some reservations are just a few acres while other tribes own no land.

Land is acquired in a variety of ways, including seizure by the federal government, purchase by the tribes, negotiated settlements and litigation.

The state of New York has the most pending land claims of any state, and has also been the slowest to resolve them. Separate claims totaling roughly 620 square miles upstate are pending by five separate tribes of the Iroquois federation, which have demanded return of the land based on treaties dating back to George Washington's administration.

Two of the cases are headed for a court showdown within the next few months, with anger intensifying on both sides, the New York Times reported last week. The tribes argue the government stole their land, then ignored their claims for redress. Some of the current owners don't want to sell and fear being annexed. The federal government is backing the Iroquois, who have pledged not to evict any landowners.

If native Hawaiians gain federal recognition and later build their own government, it, too, could file land claims that likely would take years to resolve. But U.S. officials said progress likely would be swifter than in upstate New York (where one claim dates to 1970), for a variety of reasons: the state Department of Hawaiian Home Lands already has more than 200,000 acres of land that could be a starting point for negotiations, the island of Kahoolawe has already been earmarked for return to a native Hawaiian government if one is ever recognized (and after the island is cleared of debris left from its time as a military bombing range), and the U.S. government owns a lot of other land, lessening the need to acquire state- or privately owned land for native Hawaiians.

Holo I Mua Hawaiian Roundtable The Star-Bulletin gathered 10 Hawaiian leaders for a timely dialogue about what's next for Hawaiians in the wake of Rice vs. Cayetano. Representing various views within the Hawaiian community, the participants were provocative and candid during a 90-minute discussion on March 13, 2000. To read a full transcript of the discussion, Click Here You can also hear the audio recording of the discussion as well as view a panoramic photo of the participants.