Revising Hawaiian History for an Unambiguous Age

Modern American society does not tolerate ambiguity. So the historically complex and legally ambiguous situation of Hawai`i's native population is crying out for clarification. Legislation to recognize Native Hawaiians as a sovereign indigenous nation -- the"Native Hawaiian Government Reorganization Act" or"Akaka Bill," which is stalled in the U.S. Senate -- would place a patchwork of special programs facing increasing challenges to their exclusive mandates and memberships in a coherent and legally sound constitutional position. This would, in effect, revise U.S. history to make native Hawaiians fit our legal and historical model of an appropriately situated indigenous people.

Hawai`i was an independent monarchy, with strong trade and political ties to both the United States and Great Britain. As a symbol of the balance of influence the two great powers shared in Hawai`i in the mid-nineteenth century, the official flag of the kingdom was the U.S. stripes, with the field of stars replaced by the Union Jack. The monarchy maintained a balance of influence between the two as best it could, but U.S. influence in the Pacific grew, and the most successful businesses based in Hawai`i -- sugar and pineapple plantations -- were largely owned by Americans. As U.S. power grew, Hawai`i's last king, David Kalakaua, even made overtures to the Japanese, then a newly declared modernizing state, for an alliance that might check American influence.

In 1887, the plantation owners forced the Hawaiian monarchy to limit its own authority through what is known as the"Bayonet Constitution," and in 1893 the monarchy was forced out of power entirely in favor of a white-led Republic. The Republic of Hawai`i petitioned the United States for annexation almost immediately, but resistance from both the president and Congress delayed a decision. The Spanish-American War, however, pulled the U.S. further into the Pacific, and the strategic value of the islands was too great to turn down, even if concerns about Hawai`i's racial diversity remained. Hawai`i became a U.S. Territory in 1898, and our fiftieth state in 1959. The state flag remains that of the Hawaiian kingdom.

Every one of the transitions -- 1887, 1893, 1898, 1959 -- was carried out almost, but not quite, legally, and there are some who argue that this effectively invalidates U.S. sovereignty over Hawai`i. David Keanu Sai, currently a footnote to his more famous cousin, Keanu Reeves, has taken the issue to the World Court and won. The U.S. government apologized in 1993"to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination." But there is an array of activists who want nothing less than a return to full Hawaiian sovereignty over the islands (e.g. Hawai`i Nation). There is quite a range of opinion among sovereignty activists, though, about the form a reconstituted Hawaiian nation would take, including calls for restoration of the monarchy (e.g. Free-Hawaii). Some have formed"shadow governments" which deny the jurisdiction of the U.S. or State of Hawai`i and offer alternative laws and even some administrative functions (e.g. Hawaiian Kingdom). While these movements may seem implausibly ambitious, particularly with the massive U.S. military presence in the archipelago, consider how unlikely a Jewish homeland in Israel seemed in the 1890s, when the Zionist movement began.

A significant part of the problem is that Hawaii Kingdom tried to be a modern multi-ethnic nation before it was overtaken by colonial power, so the native Hawaiian population had no special status in the state that was annexed by the U.S. In fact, the Republic of Hawai`i disenfranchised some native and Asian residents. So the Hawaiians are in a position of having a language, a culture, a native place that is now U.S. territory, but no legal status. In some ways, Native Hawaiians are treated as an indigenous people already. The recent case of burial remains offered via eBay is being tried as a violation of Indian Burial Law, and Native Hawaiians are considered equivalent to Native Americans for a number of federal programs. There are institutions which were established to serve the Native Hawaiian population with land grants, education, and cultural affairs. But those institutions are being challenged as discriminatory, and the lack of federal recognition of Native Hawaiians as a distinct people -- not to mention the lack of an agreed upon definition of"native" (descendant of pre-contact peoples or of any Kingdom citizens?) -- makes their mandates difficult to defend.

• The Kamehameha schools, operated by the Bishop Trust, are the most prominent and frequently discussed program for Native Hawaiians. Their language immersion programs have been instrumental in the revitalization of Hawaiian language, now a model for indigenous language partisans throughout the world. The schools, which emphasize a quality education in a culturally rich environment, sometimes do admit non-Hawaiians, but only at the risk of public outcry pro and con.
• The Department of Hawaiian Home Lands is a state agency which holds in trust massive amounts of land throughout the islands, which can be transferred to native Hawaiians for use as residential land, but which can only be leased by non-natives: the first thing you look for when shopping for real estate in Hawai`i is"leasehold" or"fee simple," the latter meaning that you own the land outright. Some jurisdictions have implemented"forced leasehold conversions" which means that non-Hawaiians can buy leasehold land under certain circumstances, even if DHHL doesn't want to sell. DHHL has been attacked for moving too slowly to transfer land to Hawaiians in need, but has been making progress recently (see the Hawaiian Independence Weblog).
• The Office of Hawaiian Affairs is a statewide, but non-state, agency that promotes economic development, creation of community leadership institutions and federal recognition for Hawaiians as a sovereign people. But as the leadership of OHA is elected, it has faced legal challenges to its procedure on the grounds of discrimination. Nonetheless, they are moving ahead with attempts to build a"Hawaiian Registry" which will be the basis for a voting roll in the event of sovereignty-related decisions.

Withdrawal of the U.S. from Hawai`i, as the sovereignty hardliners want, is implausible: though the U.S. has returned protectorates before -- e.g. the Panama Canal Zone, the Philippines -- it has never surrendered territory containing hundreds of thousands of its citizens, not to mention a dense concentration of strategically vital military infrastructure. Without some legal shelter, on the other hand, Native Hawaiian institutions will be harassed by constitutional challenges which could eventually force dismantling of important communal and cultural resources, with the attendant disruption to Hawaiian cultural life. And without some legal shelter, the U.S. will be subject to continued attacks in international legal forums, which are both embarrassing and interfere with substantive U.S. engagement with international law and institutions of justice.

The Hawaii Congressional delegation has been trying to resolve these issues for some time now, building up understanding of the history and issues in Congress and working with the Indian sovereignty model. The Akaka bill, currently held up in the Senate by John Kyl (R-Ariz.) on grounds that it would be racially divisive and unwieldy, was first introduced in the 2000 session, and has been recently amended to respond to Bush Administration concerns. The bill would create a new office under the Department of the Interior -- but not within the beleaguered Bureau of Indian Affairs -- which would be responsible for recognizing a sovereign Hawaiian nation, overseeing the establishment of a formal government, and -- in the fullness of time -- negotiating territorial and jurisdictional issues including finalization of compensation for past wrongs (see OHA's Pro-Recognition Native Hawaiians site). The bill is eligible for a vote in the House; Hawai`i Senators Akaka and Inouye are going to try to attach the legislation to upcoming appropriations bills to get it to the floor of the Senate. The Republican Party platform includes a statement of support for"equitable participation in federal programs by Native Americans, Native Alaskans, and Native Hawaiians and [efforts] to preserve their cultures and languages." (p.78) Senator Kerry has openly endorsed the Akaka bill.

Effectively, the Akaka bill would put the Hawaiian people in the same position as most Native American groups: sovereign under the"nation-within-a-nation" model and subject to congressional and judicial restraints. The Akaka bill leaves a great deal to be determined later: the form of a Native Hawaiian government and its relationship with the U.S. government and non-Hawaiians, its territory and resources, and its membership. The Akaka bill is under attack by hard-line sovereignty activists who want more, by some who object on principle to the" creation" of a new racial/ethnic category, and by some non-Native residents of Hawai`i who are concerned about the effect of a revived native sovereignty on life in the islands. Though the middle ground is not always the right place to compromise, the Akaka bill process seems most likely to result in viable, constitutional Hawaiian institutions and a fair resolution to a typically sloppy historical process.

Update: Senators Akaka, Inouye, Kyl and Domenici have come to an agreement that the bill will be shelved for the current session, but will be brought to the floor for debate and vote next summer. Party caucus leaders Frist and Daschle have signed on as well.