Native Hawaiian Chamber of Commerce July 17, 2014 Melody Kapilialoha MacKenzie Wm. S. Richardson School of Law
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Native Hawaiian Chamber of Commerce
July 17, 2014
Melody Kapilialoha MacKenzie
Wm. S. Richardson School of Law
!!Historical Background !!Relevant Federal & State Laws !!Rice v. Cayetano !!Hawaiian Sovereignty "!Federal Recognition/State Recognition "!Occupation/Deoccupation "!Decolonization "!U.N. Declaration - Indigenous Peoples
1892 - Queen Lili`uokalani succeeds to the throne upon Kal!kauas death. 1893 – Prepares a new constitution limiting the vote to Hawaiian-born or naturalized citizens, in an attempt to undo the harm of the 1887 Bayonet Constitution.
A small group of businessmen
who controlled the islands'
economy and private
property oppose the new
constitution and want
U.S. Minister Stevens annexation to the U.S.
U.S. Minister to
Hawaii John L.
Stevens orders
U.S. Marines to
land in Honolulu to
aid the
annexationists.
Annexationist take control of the government building, declare the monarchy abolished, and proclaim the existence of a provisional government until annexation with the United States. The Queen relinquishes her authority to the U.S. with the full expectation that the U.S. will restore her government. Lorrin Thurston and Sanford Dole
U.S. Special Comm’r
Bount finds the United
States responsible for the
overthrow.
President Cleveland
withdraws a pending
treaty of annexation,
declaring U.S. action in
Hawai`i as "an act of
war" on a "feeble, but
President Cleveland friendly state."
1894 Members of the provisional government realize annexation will not happen while Cleveland is President. They adopt a constitution establishing the Republic of Hawai`i. Having already taken the Government Lands, they declare the Crown Lands to be public lands.
1896 William McKinley, who supports Hawai`is annexation to the U.S. wins the U.S. Presidency 1897 U.S. Senate again considers annexation An estimated 95 percent of Native Hawaiian adults sign petitions protesting annexation The U.S. Senate rejects the McKinley annexation treaty
Page from 1897 petition against annexation to U.S.
Hawai`i is annexed to U.S. by joint resolution, with a majority vote in each house, rather than through treaty process requiring 2/3 vote of the Senate. The Republic of Hawaii cedes sovereignty of the Islands to the United States and cedes approximately 1.8 million acres of Government and Crown lands.
1900 Congress passes the Organic Act establishing a territorial government. Ceded Crown and Government land open to military use, also large acreages leased for sugar and ranching 1919 The Native Hawaiian population declines to an alarming 22,600 although part- Hawaiian population appears to be growing
Congress concerned by
decrease in Native Hawaiian
population and homeless
condition of Hawaiian
people
Congress enacts the Hawaiian
Homes Commission Act
setting aside over 200,000
acres of ceded land for
homesteading by Native
Prince K!hi" Hawaiians – defined as those
of 50% or more Hawaiian
ancestryAfter WW II, the push to admit Hawai`i as a State intensifies. Although Hawai`i was listed on the U.N.s list of non-self- governing territories, Statehood was the only option presented
As a compact with the U.S., State must adopt Hawaiian Homes Commn Act in constitution The United States transfers to the State of Hawai`i approximately 1.4 million acres of former Government and Crown Lands, including Hawaiian Home Lands. “Ceded” lands are to be held by the State in a public trust for one or more of 5 trust purposes including 'the betterment of conditions of Native Hawaiians,' as defined in the HHCA.
•! Ceded lands are to be held as a
public trust for two beneficiaries –
native Hawaiians and the general
public – Art. XII, § 4
•! Office of Hawaiian Affairs created
•! Pro rata share of ceded lands funds
to benefit Native Hawaiians – as
defined in HHCAJohn D.
Waihee III
Frenchy DeSoto
Frenchy
DeSoto,
William
Paty, John
H. William Waihee
Burgess•! Unite Hawaiians
•! Gain a portion of ceded lands trust
revenues
•! Self-government and self-
determination
•! Establish a trust, with trustees
elected by all Hawaiians, to control
and manage assets1993
Apology
Resolution
100 Years After Overthrow
United States Apologizes!!Whereas the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government . . . !!Whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum . . .
Ted Olsen Plaintiff Harold Freddy Rice
•! Plaintiff Harold Freddy Rice, Big Island Rancher, descendant of mid-1800s missionary family •! Defendant Governor Benjamin Cayetano, in his official capacity. •! Challenged “Hawaiians-only” restriction in voting for OHA trustees
John H. Defendant
Roberts Governor Ben
Cayetano
OHA Chair
Clayton Hee!! TheStates may not violate
a fundamental principle:
They may not deny or
abridge the right to vote
on account of race.
!! The design of the (15th)
Amendment is to reaffirm
the equality of races at
the most basic level of the
democratic process, the
Justice Kennedy exercise of the voting
franchise.!!Morton v. Mancari case – Laws that benefit native peoples do not violate Equal Protection because native peoples/governments have a political relationship with the U.S. !!If special treatment can be tied rationally to Congress unique obligation toward the native group - especially in furthering self- government - then it will be upheld
It would be necessary to conclude that Congress . . . has determined that Native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. . . .
We can stay far off that difficult terrain, however. The State's argument fails for a more basic reason - the elections for OHA trustees are elections of the State, not of a separate quasi- sovereign, and they are elections to which the Fifteenth Amendment applies.
!! There is no "trust" for native Hawaiians here !! OHA's electorate, as defined in the statute, does not sufficiently resemble an Indian tribe
The Federal Government must be, and has been, afforded wide latitude in carrying out its obligations arising from the special relationship it has with the aboriginal peoples, a category that includes native Hawaiians, whose lands are now a part of the territory of the United States.
•! Clarify status of Native
Hawaiians under U.S. law
•! Bring U.S. policy on
Native Hawaiians in line
with U.S. policy toward
other Native peoples
•! Establish a government-
to-government relationship
Former U.S. between U.S. and Native
Sen. Daniel Hawaiian government
Akaka!!Federal government recognizes the “inherent powers of a limited sovereignty which has never been extinguished.” !!Examples of “inherent” powers: "! Determine form of government "! Determine citizenship criteria "! Control over domestic affairs "! Administer justice "! Control entry into native territory "! Sovereign immunity from suit
!! Recognizes that Native Hawaiians are the only indigenous, aboriginal, maoli population of Hawai`i. !! Identifies Native Hawaiians as a distinctly native community. !! Reaffirms that the State has had a special political and legal relationship with the Native Hawaiian people and has continuously enacted legislation for the betterment of their condition. !! Establishes 5-member Roll Commission to “enroll” Native Hawaiians.
!!18-month effort to enroll Native Hawaiians !!Hawaiians or native Hawaiians per HHCA and descendants; significant cultural, social or civic connection to the Hawaiian community; 18 years old. !!Those on the roll would be the base roll for a Native Hawaiian government
!! The Queen yielded her authority to the United States – not to the annexationists !! U.S. President Cleveland sent Comm’r. Blount to investigate and, based on that investigation, believed U.S. had committed an act of war and that the Queen should be restored to the throne. !! Cleveland sent Minister Willis to Hawai`i with instructions to gain the Queen’s agreement to grant amnesty to those involved in the overthrow and to abide by 1887 Constitution
Queen Lili`uokalani
U.S. Minister
Albert Willis
U.S. Commissioner
James Blount!!Although the Queen initially stated that she would have to follow Hawaiian Kingdom law and impose the death sentence or at least banishment on the instigators, she eventually agreed to amnesty and to follow 1887 Constitution !!The actions of Cleveland and the Queen thus formed an Executive Agreement, but Cleveland never fulfilled the agreement – it remains an obligation of the United States
! Everyaction of the U.S. since then has violated
the agreement; these actions include:
"! Recognition of the Republic
"! Annexation & institution of a civil government
through the Organic Act
"! Listing Hawai`i on the list of non-self-governing
territories with the UN
"! Admission of Hawai`i as a state of the U.S.
"! Designating Native Hawaiians as indigenous
peoples
! The U.S. is estopped from denying the validity
of the Executive Agreement because the Queen
and her subjects relied upon the Agreement.!! The U.S. violated Hawaiian neutrality during the Spanish-American war !! The U.S. took and occupied Hawai`i, an independent State, for military purposes in 1898 through the Joint Resolution of Annexation !! An independent Nation State can only be “annexed” to the U.S. through treaty, not through an act of Congress since congressional acts have no force beyond the territory of the U.S.
!!The Joint Resolution of Annexation is invalid and Hawai`i is an occupied State. !!The remedy for occupation is de- occupation !!The laws of the Hawaiian Kingdom should be applied by the occupying power !!Native Hawaiians should be seeking de- occupation in the international arena; not indigenous status under International Law or federal recognition within the U.S. system
Members of UN . . . that assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants are paramount, and accept as a sacred trust the obligation . . . to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its people and their varying stages of advancement. U.N. Charter, Ch. XI, Art. 73
!!In 1946, Hawai‘i was inscribed on the UN list of non-self-governing territories, with the United States as the administering power and, thus, became eligible for decolonization. !!In 1953, the U.N. General Assembly passed Resolution 742 (VIII), setting specific guidelines by which an administering power could determine whether a non- self-governing territory had attained an adequate measure of self-governance.
!!Resolution 742 stated a preference for the “attainment of independence” as the primary way in which non-self-governing territories could become fully self- governing. !!Resolution 742 also recognized that “self- government can also be achieved by association with another State or group of States if this is done freely and on the basis of absolute equality.”
! Operative question on the ballot: Shall Hawaii
immediately be admitted into the Union as a
State?
! Flaws in the process?
" No other options besides statehood presented –
no option for independence
" Hawai`i’s status as a Non-Self-Governing
territory not presented to electorate (or known
in Hawai`i)
" Any American citizen residing in Hawai‘i for at
least one year was eligible to vote – not just
those subject to colonization!!Only precinct that voted against Statehood – Ni`ihau !!U.S. reported to the General Assembly that the people of Hawai`i had properly exercised their right to self-determination in a referendum. !!On December 12, 1959, the U.N. General Assembly passed Resolution 1469 (XIV), removing Hawai‘i from its list of non-self- governing territories.
!! Puerto Rico - taken off the non-self-governing territories list in 1953, after voting for “commonwealth” status but it has been placed by the United Nations under “continuous review” to ensure the legitimate exercise of the right to self- determination !! New Caledonia - after being “delisted” by France in 1947, the U.N. General Assembly re-inscribed New Caledonia on the list of non-self-governing territories in 1986. !! French Polynesia – “delisted” in 1947, but re- inscribed by the U.N. General Assembly in May 2013.
!! Adopted by U.N. General Assembly on September 13, 2007 with 143 countries voting in favor; 11 countries abstained !! Four countries – Australia, New Zealand, Canada, and the U.S. – voted against, but have all changed their positions since then. !! U.S. last country to change position on December 16, 2010 !! Process – announcement by State Dept. that U.S. was reviewing its position; months of consultation and comments
President Announces
U.S. Support
Navajo Code
Talkers!! Not legally binding – not treaty or convention that would have to be agreed to by U.S. Senate !! Aspirational in nature but provides the basis for norms that all nations should adopt !! General agreement by so many nations can lead to these precepts becoming international consensus and thus “customary” international law, which is recognized even in U.S. courts as “binding.”
!! Non-dominant peoples who lost traditional ownership and power over their lands as part of the colonization process; !! Have historical continuity with the inhabitants of the same land prior to its invasion or colonization by a foreign power; !! Are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. !! Worldwide, 370 million indigenous peoples in at least seventy countries
Self-Determination
•! Article 3
Indigenous peoples
have the right to self-
determination. By
virtue of that right
they freely determine
their political status
and freely pursue
their economic,
social and cultural
development.!! Article4 - Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. !! Article 46 - 1."Nothing in this Declaration may be . . . construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.
! “[A]s explained in Article 46, the Declaration does not imply any right to take any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” ! For the United States, “the Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self- governance.”
!!Federal Recognition – is it best for Native Hawaiians? !!Without Federal Recognition, will Native Hawaiian programs withstand constitutional challenges? !!How viable is an independence option? And is that what Native Hawaiians would really choose?
You can also read
