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Hawaiian Sovereignty
Author(s): Norman Meller and Anne Feder Lee
Source: Publius, Vol. 27, No. 2, The State of American Federalism, 1996-1997 (Spring, 1997),
pp. 167-185
Published by: Oxford University Press
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Hawaiian Sovereignty
Norman Meller
University of Hawai'i at Manoa
Anne Feder Lee
Honolulu, Hawai'i
The movementfornational sovereigntyamongpersonsof Hawaiian ancestryhas burgeonedduring
the last severaldecades,with someseekingsecessionof the State of Hawai'i from the American Union.
Themovement'srootsaremultiple,amongwhichfiguresprominentlytheoverthrowof QueenLili'uokalani
in 1893 with theconnivanceof the armedforcesof the UnitedStates,for whichthe U.S. Congressrecently
apologized.SomeindigenousHawaiians dismisstheannexationof Hawai'i and its subsequentstatehood
as having occurredwithouttheirindependentchoice.TheHawaiian sovereigntymovementmayberoughly
dividedinto threecategories:"HawaiianNation Separatists"supportingan independentHawai'i nation;
advocates desiring a status comparableto that of AmericanIndians; and
"Nation-within-a-Nation"
thoseHawaiians supportingthestatus quo but with redressin manyforms. Stepsare underwayto hold
a constitutionalconventionof all Hawaiians to proposea native Hawaiian government.Whetherthe
U.S. Congresscan respondto the thrustof the movementwithin the constraintsof theAmericanfederal
systemremainsproblematical.
What do Alcatraz in California, Proudhon Bay in Alaska, Waitagi in
New Zealand, pig farmers in Kalama Valley on the Island of Oahu, United
States Navy target practice, the United Church of Christ, President Grover
Cleveland, and Queen Lili'uokalani share in common? Despite their
diversity,all have a relationship to Hawaiian sovereignty, the burgeoning
political movement aiming to revise Hawai'i's linkage to the United States.
This movement has raised questions about the ability of the Congress to
respond under the U.S. Constitution to the demands of persons of Hawaiian
ancestry,and holds potential for their sponsoring the secession of the State
of Hawai'i from the American Union, an issue once considered resolved by
the CivilWar.1
Sovereignty is, at best, an ambiguous term; what is most significant in
considering the debate in Hawai'i is how sovereignty is viewed within the
state. For the various contesting Hawaiian groups, it has differing, but sometimes mutually overlapping, meanings.2 As expressed by Ka Paukaukau
AUTHORS' NOTE: We wish to thank Phyllis Turnbull and Davianna P. McGregor for their helpful
comments.
'Under the logic of the Unequal Treaty Doctrine, there would be no secession because Hawai'i has
never been legally part of the Union. See Bradford H. Morse and Kazi A. Hamid, "American Annexation
of Hawai'i: An Example of the Unequal Treaty Doctrine," ConnecticutJournalofInternationalLaw 5 (Spring
1990): 407456. For a bibliography of Hawaiian Sovereignty and Self-Determination, see Chieko Tachihata,
"The Sovereignty Movement in Hawai'i," ContemporaryPacific 6 (Spring 1994): 202-210.
2See Jean Kadook Mardfin, Examining the Idea of Nationhoodfor the Native Hawaiian People(Honolulu,
HI: Legislative Reference Bureau, 1994): pp. 4-8.
? Publius: The Journal of Federalism 27:2 (Spring 1997)
167
168
Publius/Spring 1997
(The Roundtable), a coalition of a number of Hawaiian sovereignty groups
set up to investigate various models of government, it "isthe right possessed
by a culturally distinct people inhabiting and controlling a definable territory, to make all decisions regarding itself and its territory free from outside interference."3 "Among Hawaiian sovereignty groups, it would likely
be agreed that a sovereign native government has the power to: (1) determine what form of government best meets the cultural, religious, and social needs of its people; (2) define membership in the sovereign group; (3)
legislate in matters of law and order within its territorial boundaries; and
(4) protect lands of tribal interest...." For average citizens of non-Hawaiian
ancestry in the state, sovereignty probably, connotes an amorphous challenge by Hawaiians to the status quo, a cause viewed as premised upon a
basis evoking ambivalent empathy because of a shared sense of historical
guilt. Also, most likely, it implicitly holds the threat of violence should
adequate reparations and some form of Hawaiian political severance not
be forthcoming.
ROOTS
It is difficult to date the beginning of the sovereignty movement in Hawai'i,
because it emerged out of an amalgam of factors which have shaped its
various formats. Many people in the state share in common the dissatisfaction of Hawaiians with the role they play in their ancestral homeland. From
the vantage point of history, it may be argued that the movement dates
back to the 1893 overthrow of Queen Lili'uokalani, the Hawaiian monarch, through the connivance of the armed forces of the United States, for
which the U.S. Congress recently apologized,5 followed by the annexation
of the islands in 1898 after the short interregnum of the Republic of Hawai'i.
In 1843, a half century before the toppling of the monarchy, the captain of
a British man-of-war had committed the international indiscretion of
raising the Union Jack over Hawai'i. The Hawaiian monarch of that day
provisionally ceded the islands to Great Britain, only to be restored to power
five months later. It was obviously to this precedent that Queen
Lili'uokalani was referring when she yielded up her authority. As President
Cleveland told the Congress at that time, she "surrendered, not absolutely
and permanently, but temporarily and conditionally...."6 At the time of annexation, the indigenous population was not asked to consent to Hawai'i's
becoming a Territory, nor on Hawai'i's admission as a state in 1959, were
3Quoted in Melody Kapilialoha MacKenzie, ed. Native Hawaiian Rights Handbook (Honolulu, HI:
Native Hawaiian Legal Corporation, 1991), p. 80.
4Mardfin, Examining theIdea of Nationhoodfor the Native Hawaiian People,pp. 10-11.
5"The Congress...apologizes to Native Hawaiians on behalf of the people of the United States for the
overthrow of the Kingdom of Hawai'i and the deprivation of the rights of Native Hawaiians to selfdetermination," Public Law 103-150, 103d Cong., 1993.
6JamesD. Richardson, A Compilationof theMessagesand Papersof the Presidents1789-1897 (Washington,
D.C.: U.S. Government Printing Office, 1898), p. 471, volume IX.
Hawaiian Sovereignty
169
indigeneous Hawaiians afforded an opportunity to register separately a
choice among the alternatives of independence, statehood, or status quo.
All of this supports the Hawaiians' claim that Hawaiian sovereignty was never
surrendered to the United States.
However, the roots of the sovereignty movement lie much deeper, and
are to be found in the deterioration of Hawaiians' customary ways, which
had commenced long before the termination of the monarchy. By that
time, due to the ending of traditional land tenure, most of the indigenous
population had been dispossessed from the lands they once occupied, and
many had become urban dwellers. Western ways had seriously eroded the
Hawaiian culture, much as the native Indian population had experienced
on the mainland. The Americans coming to Hawai'i had ignored the fact
that both Hawaiian and American Indian relationships with land and nature were steeped in the metaphysical,7 an important element in today's
indigenous political movements. "American residents believed that Native
Hawaiians would become civilized only when they adopted allodial (freehold) tenure, used the soil according to Christian principles of commerce,
and converted to Protestantism....."8 Once the oral Hawaiian language was
reduced to written form and Hawai'i became one of the most literate areas
of its time, this was followed by the promotion of English to the exclusion
of the use of Hawaiian. Similarly,Hawaiian practices were disparaged while
the adoption of Western ways was encouraged.
The growth of sugar plantations substituted a new form of economic
feudalism for that of old Hawai'i, which disappeared along with the
absolute powers of Hawaiian royalty.9 The plantation system required a
large supply of cheap and tractable labor, which could not be met from the
indigenous population. Although 200,000 to 400,000 Hawaiians resided
on the islands at the time of CaptainJames Cook's arrival,'1thereafter their
numbers continued to decline drastically until the U.S. Census for the year
1910 registered 38,547. The plantations, to satisfytheir need for manpower,
searched the world for contract laborers. Starting in 1852, and extending
for about a century, more than 400,000 men, women, and children (mostly
men) were brought to work on the island plantations, in the order of their
first importation, including Chinese, South Sea Islanders, Japanese, Portuguese, Scandinavians, Germans, Galicians, Puerto Ricans, Koreans, Russians,
Filipinos, and Spaniards. A number of these diverse peoples remained in
the islands and intermarried with Hawaiians. Of the 240,000 Hawaiians
7Linda S. Parker, Native AmericanEstate: The StruggleOverIndian and Hawaiian Lands (Honolulu, HI:
University of Hawai'i Press, 1989), p. 9.
8Ibid., 7.
'Andrew W. Lind, An Island Community(Chicago: University of Chicago Press, 1938), p. 210.
'"The size of the precontact Hawaiian population falls squarely within the rhetoric of the Hawaiian
sovereignty movement. Stannard places the range of population at 800,000 to 1 million, but his analysis
has prompted considerable controversy. David E. Stannard, Beforethe Horror,The Population of Hawai'i on
theEve of WesternContact(Honolulu, HI: University of Hawai'i, 1989).
170
Publius/Spring 1997
now estimated to reside in the state, less than 5,000 are full-blooded, and
those of half or more Hawaiian ancestry probably do not exceed 94,000.11
All persons of any Hawaiian ancestry resident in Hawai'i in 1992 comprised
only about one-fifth (19.4 percent) of the total population of the state, a
proportion exceeded by full-blooded Caucasians (23 percent) and
Japanese-Americans (19.7 percent).12
Just as the plantations and their attendant institutions materially contributed to destroying the traditional subsistence economy, so later was the
Hawaiian pattern of life further disrupted by the expansion of tourism. In
addition, the very physical changes of the Hawaiian landscape accompanying all of these cultural intrusions threatened to foreclose opportunity for
the practice of the remaining, albeit modified, traditional lifeways. A
minority in their own homeland, many Hawaiians ignored or neglected
their cultural heritage, and became ever more demoralized The indicators
of Hawaiian social disorganization are grim. "In general they cut a wretched
statistical profile. Of the state's 14,000 adults on Aid to Families with
Dependent Children (AFDC), one in three is Hawaiian, and 34 percent of
Hawaiians live in poverty....Hawaiians make up about 46 percent of adults
and 66 percent of youths in correctional facilities. They have a death rate
34 percent higher than the average American and the highest lung-cancer
rate in the nation."13
When Hawai'i became a territory, and with the removal by the Congress
of the constraints that had prevented many Hawaiians from political participation, their Home Rule party briefly captured both houses of the territorial legislature and sent a delegate to Washington, D.C., to sit in the House
of Representatives. However, any effort to introduce an indigenous note
into government policy quickly came to naught, notwithstanding that for
the territory's first two decades, more than one-half of the registered voters
were Hawaiians, and until the mid-1920s, they comprised a majority of those
elected to the territorial legislature. The potential influence of the Hawaiians as an ethnic bloc was minimized because of a "curious alliance between a large portion of the Hawaiian community, led by the native landed
elite, and the Big Five (an economic oligarchy) within the Republican party....
The alliance was held together through government patronage, secured
jobs on ranches and plantations, and anti-immigrant prejudices."14 The
rise of an entrepreneurial-political class among the resident citizens of Asian
"Lawrence Miike, "Who is 'Hawaiian' Today?" Honolulu Advertiser,14 February 1993, p. B3. Significantly in the 1990s U.S. Census, only 139,000 residents identified themselves as being primarily Hawaiian.
"State DBEDT, State of Hawai'i Data Book 1995 (Honolulu, HI: State DBEDT, 1995), p. 18. Note,
persons of mixed, non-Hawaiian ancestry constituted about 18.4 percent of the state's Department of
Health's estimate of the 1992 state population; therefore, persons of any mixed ethnicity constituted the
largest proportion of the population (37.0 percent).
"Viveca Novak, "Hawai'i's Dirty Secret," CommonCause 15 (November/December 1989): 12.
'4Davianna Pomaika McGregor, "Ho'omauke Ea 0 Lahui Hawai'i: The Perpetuation of the Hawaiian
People," Ethnicityand Nations-Buildingin thePacific,ed. Michael C. Howard (Tokyo:United Nations University,
1989), p. 83.
Hawaiian Sovereignty
171
ancestry after World War II challenged the Big Five for political control
and eroded this alliance. As a class, the Hawaiians found themselves being
eclipsed by the Asians who more easily than they had "assimilated the capitalist value system"'5 and who from 1936 outnumbered them on the
electoral rolls.16
Within a few years after the attainment of statehood, and accompanying
the euphoria it occasioned among most of the islands' diverse peoples, a
cultural revival began among Hawaiians in the form of a flowering of interest in traditional dance, music, and the arts, along with a renewal of attention to their indigenous roots. The Hawaiian Renaissance gradually
expanded into reviving the Hawaiian language and ultimately even to the
founding of immersion schools with students taught in the language from
pre-kindergarten, a far cry from the days when speaking Hawaiian in public
was not only demeaned but also banned on school premises. "Many in
Hawai'i came out of the 1960s with greater sensitivity for racial identity and
pride as well as a generalized distrust toward governments. There came a
greater willingness to challenge governments, either individually or in
organizations.'7 Here was provided the essential matrix for supporting the
growth of the Hawaiian Sovereignty Movement.
TheDecadeof the 1970s
If the 1960s be characterized as the decade of Hawaiian cultural rejuvenation, the decade of the 1970s marked the introduction of many-faceted,
Hawaiian activism. Integration into the Union as a state encouraged
major economic expansion and attracted many people to Hawai'i. The
land development that followed statehood inevitably disrupted established
living patterns. In 1970, in KalamaValleyon Oahu, pig farmers and adjoining
families resisted their eviction which had been ordered to make way for the
construction of upper-income housing, and were joined by other "locals."
Although originally not limited to Hawaiians, this type of civil disobedience soon assumed a Hawaiians-only character as demonstrations against
development multiplied in other parts of the state. From "Kokua
(support) Kalama"emerged "Kokua Hawai'i," a militant Hawaiian organization intended to protect Hawaiians statewide. This group was formed
along Black-Panther lines after the "Kokua"leaders visited the Panthers on
the mainland.'8 It was eventually dissolved, but the experience added an
on land as a crucial lynch-pin.
'SNoelJ. Kent, Hawai'i: Islands Underthe Influence (New York: Monthly Review Press, 1982), p. 128.
'6U.S. Congress, House, Subcommittee of the Committee on the Territories, Hearings, Statehoodfor
Hawai'i, pursuant to H. Res. 236, 79th Congress, 2d Sess., 1946, p. 721.
17Hawaiian Sovereignty Advisory Council, PreliminaryReportof the SovereigntyAdvisory Council Established byHawaiian Legislature1991 (Honolulu, HI: Hawaiian Sovereignty Advisory Council, 1992), p. xv.
'sHaunani-Kay Trask, "'Hawaiians, American Colonization, and the Quest for Independence," Social
Processin Hawai'i 31(1984/1985): 122.
172
Publius/Spring 1997
Long before statehood, in 1921, the Congress had set aside some 200,000
acres it had acquired from the republic upon annexation, to be used for
Hawaiian rehabilitation under the provisions of the Hawaiian Homes Commission Act (HHCA). For multiple reasons, including the poor quality of the
acreage identified for homesteading, the lack of funding to finance the
improvements necessary to utilize the land, administrative incompetence,
politics, and diversion of whole parcels for non-Hawaiian purposes, only a
limited number of qualified Hawaiians have obtained homesteads.
Because of this, great dissatisfaction developed during the territorial days
among Hawaiians, and it continued unabated after statehood. Under the
terms of admission, Hawai'i entered into a compact with the United States
to adopt the HHCA as part of the state constitution, with the federal government retaining significant oversight powers. Hawaiians have, to date,
unsuccessfully sought monetary recourse from the State of Hawai'i for
breaches of its obligations, and the federal government is regarded as reluctant to exercise its trust responsibilities under the HHCA, possibly seeing itself as constrained on equal protection grounds from doing so.'9
Only "Native Hawaiians"-those Hawaiians of at least 50 percent indigenous ancestry-are qualified to claim benefits under the Hawaiian Homes
Commission Act. By so classifying all Hawaiians on the basis of blood quantum into two groups, the Congress early introduced a divisive element into
the sovereignty movement. To those who decry the United States presence
in Hawai'i, this is seen as another manifestation of the divide-and-conquer
tactics of American colonialism.
In the same year as the Kalama Valley resistance, a statewide political
organization, "The Hawaiians," was formed to protest abuses in the
administration of the Hawaiian Homes lands.20 It was but a logical progression from this for the homesteaders to consider governing themselves; as a
result, the State Council of Hawaiian Homesteaders representing 27,000
Hawaiians of 50 percent Hawaiian blood was formed to facilitate discussion
of self-governance.21Here was evidenced another aspect of land as a component contributing to the complexity of the sovereignty movement.
A further development, which introduced a different dimension to the
drive for Hawaiian sovereignty, was the Prudhoe Bay oil discovery which
provided the impetus for congressional adoption of the Alaska Natives
Claims Settlement Act in 1971. It granted title to some 40 million acres of
land to Alaskan Natives, in return extinguishing all claims and revoking
existing Native reserves. It also provided for paying nearly $1 billion to
'9Hawai'i Advisory Committee to the United States Commission on Civil Rights, A BrokenTrust: The
Hawaiian HomelandsProgram(Honolulu, HI: Hawai'i Advisory Committee to the United States Commission, 1991), p. 15; note 40.
20Trask,"Hawaiians, American Colonization, and the Quest for Independence," p. 122.
21MacKenzie,Native Hawaiian RightsHandbook,90.
Hawaiian Sovereignty
173
individual Alaskan Natives and to regional and village corporations.22 This
suggested a new avenue for asserting Hawaiian land claims and seeking
reparations for Hawaiians from the United States.
The response was the founding in the following year of Aboriginal Lands
of Hawaiian Ancestry (ALOHA), and the raising of a sizable sum to lobby
the Congress. At ALOHA's instigation, legislation was introduced to provide a cash payment to the Hawaiian people "for losses of lands, resources,
rights, and revenues sustained as a result of the overthrow and subsequent
Annexation by the United States."23Eventually, the president appointed a
study commission, but much to the indignation of its minority Hawaiian
members, the majority of the commission recommended against reparations for Hawaiians.24 Although for a period thereafter, the issue of payments to Hawaiians appeared to languish, the sovereignty movement would
inevitably have to deal with the added element of restitution, complicated
by whether some Hawaiians were to be singled out to benefit by virtue of
their blood quantum.
In the same decade, from San Francisco Bay in California came a new
cue for Hawaiian activism, the occupation of Alcatraz Island by an American Indian group. In Hawai'i, the United States Navy since the start of
World War II had used the uninhabited island of Kaho'olawe for target
practice, much to the outrage of objecting Hawaiians. For them, the island
embodies religious, cultural, and historic values. Emboldened by the
Alcatraz example and responding to a call from ALOHA, a group of young
Hawaiians defiantly landed on Kaho'olawe, which was off bounds to civilians.
Although they were removed by force, further occupations followed
despite the risk posed by unexploded ordinance on the island. Finally, the
Navy, under pressure of court action, agreed in 1981 to allow limited civilian access. Ultimately, not only was all bombing ended but the federal
government also restored Kaho'olawe to statejurisdiction. The state legislature placed the island temporarily in trust under the administration of a
commission and directed that management and control of the island, and
its waters, be transferred to the "sovereign native Hawaiian entity upon its
recognition by the United States and the State of Hawai'i."25Now, for the
first time, an area of land was identified as available for use in the sovereignty cause, enabling its proponents to meet one of the essential requisites for establishing a sovereign nation, possession of a land base. In
addition, this reinforced the Hawaiians' metaphysical linkage with the aina
(land), providing spiritual buttressing for the sovereignty movement.
22GeraldA. McBeath and Thomas A. Morehouse, Alaskan Politics and Government(Lincoln: University
of Nebraska Press, 1994), p. 109; Francis P. Brucha, GreatFather (Lincoln: University of Nebraska Press,
1984), p. 1132, volume II.
23MichaelK. Dudley and Keoni K. Agard, A Callfor Hawaiian Sovereignty(Honolulu, HI: Na Kane O Ka
Malo Press, 1990), p. 109.
24Ibid, 110-113.
25Hawai'iRevised Statutes, Sec. 6K-9, 1993 Suppl.
174
Publius/Spring 1997
But Kaho'olawe is not the only real estate eyed by the advocates of
sovereignty. In 1959, the congressional act admitting Hawai'i into the Union
retransferred back to the state most of the public lands26which the United
States had acquired from the Hawaiian Republic on annexation. Some of
these ceded lands had been crown lands, set aside by the king at the time
private property in land was recognized, many years before the overthrow
of the monarchy. The rest was government land, in all, some 1.5 million
acres. It has become fairly popular among sovereignty advocates to refer to
these lands as "stolen," and as so characterized, to regard them as destined
to become part of the land base for a future Hawaiian nation.
The congressional admission act unusually interjected the federal government into the use of these ceded lands by prescribing that they be held
by the state as a public trust, with the income and proceeds to be used for
five public purposes, one of which is public education and another "betterment of the conditions of Native Hawaiians," the latter as defined by the
Hawaiian Homes Commission Act.27As a consequence, only a specific group
of Hawaiians-those with 50 percent or more indigenous ancestry-have
been federally targeted for receipt of benefits, and their numbers are
decreasing rapidly. Moreover, in stipulating that the state assume the trustee
role, the federal government took a step "withoutprecedent in United States
history and one wholly contrary to established Congressional public land
policy."28
"Until 1978, the state evidently considered that the Hawaiian homelands program satisfied its public land trust obligations to Native Hawaiians
[because] [a]ll the income and proceeds from the public lands
were...allocated to public education."29 By the time of the 1978 state constitutional convention, questions had arisen over the legitimacy of the state's
interpretation of its trust obligations. Hawaiian rights advocates succeeded
in having incorporated into the state constitution a provision for a new
agency, the Office of Hawaiian Affairs (OHA), to be run by Hawaiians for
their own benefit and empowered to administer allocated revenues from
ceded lands. With OHA's creation, and in line with the state's trust obligation imposed by the admissions act, the state legislature adopted an act
allocating 20 percent of all ceded lands revenues to OHA. Hawaiian
advocates maintain that the state's accountability is retroactive, and
vehement controversy over the legislation has led to recourse to the courts.
26Thefederal government retains almost 375,000 acres in Hawai'i, 228,000 in national parks and over
145,000 in military reservations and other federal uses. Melody Kapilialoha MacKenzie, "Overthrow,
Annexation, and Sovereignty," Hawai'i BarJournal 8 (January 1993): 11.
27Sec. 5(f) Admissions Act, Public Law 86-3 73 Stats. 4, 1959; Hawai'i RevisedStatutes,Vol. 1, p. 92,
1993.
28Comment, "Hawai'i's Ceded Lands," Universityof Hawai'i Law Review3 (1981): 102.
2Parker, Native AmericanEstate, 163. See also, Price v. State of Hawai'i 764 Fed. 2nd 623 (1985), cert.
denied under Hau Hawaiians v. Hawai'i, 404 U.S.105 (1986), holding Hawaiians had no standing to bring
suit against the State of Hawai'i for failing to expend public land funds for betterment of Native Hawaiian
conditions.
Hawaiian Sovereignty
175
Questions abound as whether the revenues received by public institutions,
such as hospitals and airports previously built on ceded lands, are included.
In effect, the state has assumed from the federal government the task of
providing compensation for the use of Hawaiian lands, but it seems certain
that this will not deter the Hawaiian sovereignty movement from seeking
reparations from the United States, as well.
One other development of the 1970s requires mention. Recognition of
the right of indigenous people to self-determination was late in arriving on
the world scene, and dates only from the end of World War II and its inclusion in the United Nations Charter.30 Thus, it was not until the 1970s that
the Hawaiian sovereignty movement took on an international dimension,
allowing it today to be viewed as but one small part of a broader world
movement. As an early illustration of this phase, the "Ohana O Hawai'i"
(Extended Family of Hawai'i) was formed in 1974 to take the claim of illegal
overthrow of the Hawaiian monarch to the World Court at the Hague.31
Though unsuccessful, the issue of Hawaiian self-determination has since
been brought by sovereignty supporters before various groups of the United
Nations such as the United Nations Subcommission on Human Rights and
the United Nations Working Group on Indigenous Populations. Lawyers
are now petitioning for Hawai'i to be placed again on the United Nations
decolonization list.32The Hawaiians'claim to the right of self-determination is
now based on law higher than just American principles ofjustice, and some
argue that the exercise of that right will only be satisfied when a full choice
of alternative future statuses has been afforded to them.
The sovereignty movement also gained strength through reference to
the experiences of the indigenous inhabitants in a number of South Pacific
polities that became independent nations following the example of Western
Samoa in 1962. For the more ideological, the Hawaiian movement is a
radical response to American colonization and, thus, similar to the other
indigenous movements in the Pacific.33 All Hawaiian advocates could empathize with their Polynesian brothers in New Zealand, the Maori, in their
challenging of that government's interpretation of the Treaty of Waitagi,
which had dispossessed them from their homelands. To date, some Maori
tribes have gained lands, traditional fishing rights, and multimillion dollar
settlements, while the claims of other tribes remain under negotiation. The
"0Forconsideration of the development of indigenous peoples' rights after World War II and the
programs to protect them, including awareness in Hawai'i of the international dimension, see
Hawaiian Sovereignty Advisory Council, Final Report of the Hawaiian SovereigntyAdvisory Commission
(Honolulu, HI: Hawaiian Sovereignty Advisory Council, 1994), pp. 53-64.
"Dudley and Agard, A Callfor Hawaiian Sovereignty,p. 115. The O'hana O Hawai'i was the first Hawaiian organization to call for the independence of Hawai'i from the United States. McGregor, Ethnicityand
Nation-Buildingin thePacific,p. 92.
"Mindy Pennybacker, "Should the Aloha State Say Goodby? Natives Wonder," The Nation 262
(12/19 August 1996): 23. While a territory, Hawai'i was on the United Nations decolonization list, but its
name was removed on becoming a state.
"Trask, "Hawaiians, American Colonization," p. 119.
176
Publius/Spring 1997
Maori experience in obtaining reparations has encouraged Hawaiian
sovereignty advocates by the promise it offers that their efforts will bring
them, at the very least, reparations from the United States, whether or not
they obtain a separate Hawaiian nation.
OFFICE OF HAWAIIAN AFFAIRS
The decade of the 1970s ended with the state legislature adopting enactments implementing the 1978 amendments to the state constitution creating the Office of Hawaiian Affairs (OHA) and the election of trustees to
OHA's governing board. In effect, a unique, semiautonomous fourth branch
was appended to the state government, one in a position to become an
active, if not eventually the dominant participant in the sovereignty movement.
According to the constitutional convention records, OHA is to have a
status independent from the executive and other branches of the state government. Significantly, the trustees on its controlling board are all ethnic
Hawaiians who are elected solely by voters of Hawaiian ancestry, raising the
federal question of violation of the Fifteenth Amendment to the U.S.
Constitution, which is now before the Courts.34The trustees took considerable time setting up OHA's administrative organization, agreeing on the
scope of their mission, and dealing with the fundamental problem raised
by the congressional constraint requiring that the portion of its income
derived from ceded lands be directed toward benefiting those Hawaiians
meeting the 50 percent blood-quantum requirement.
Representatives of some organizations promoting Hawaiian sovereignty
regard OHA as a device to legitimize the status quo, namely, retaining state
and federal control over Hawaiian lands. It is viewed by them as a suspect
extension of the state, designed only "ostensibly for representation of
Hawaiian rights by Hawaiians."35OHA trustees' evolving position over time
with respect to sovereignty contributes to this critical view. On its inception, among its various activities directed toward benefiting Hawaiians, OHA
focused on reaching a settlement with the state administration for the
monies due it from the ceded lands income, and on obtaining Hawaiian
reparations from the federal government. From the latter, it sought a large
congressional grant, the monies to be dispersed through its offices.36 With
the sovereignty movement gaining momentum, an OHA committee on status
and entitlements finally released a Draft Blueprint for Native Hawaiian
34Harold Morse, "Judge Rejects Rice's Challenge to OHA Elections," Honolulu Star-Bulletin,
7 May 1997; p. A4. On the independent status of OHA, see Anne Feder Lee, TheHawai'i State Constitution:
A ReferenceGuide (Westport, CT: Greenwood Press, 1993), p. 177.
35Haunani-KayTrask, "Kupa'a 'Aina: Native Hawaiian Nationalism in Hawai'i," Politicsand PublicPolice
in Hawai'i, eds. Zachary A. Smith and Richard C. Pratt (Albany: State University of NewYork Press, 1992),
p. 250.
36OHA'smost recent (1992) proposal for federal reparations was for $10 billion, its rationale being
that "it is large enough to recognize the loss of sovereignty and to provide the new Hawaiian government
with a sound economic foundation." MacKenzie, Native Hawaiian Rights Handbook,p. 11.
Hawaiian Sovereignty
177
Entitlements in 1989 which "contemplates that OHA itself would be named
as the self-governing entity or that a separate sovereign entity could be
created for Hawaiians."37 The same blueprint suggested that Hawaiians
elect delegates to draft a governing document for submission to Hawaiians
for their approval.
Subsequently, the state legislature through legislation attempted to bring
to closure the various positions being voiced on self-determination and
sovereignty; OHA supported the Hawai'i Sovereignty Elections Council
established by the legislature and its controversial position that a special
vote be held by Hawaiians with state funding to ascertain whether
Hawaiians favored the holding of a Hawai'i Sovereignty Constitutional
Convention for the drafting of a sovereignty governance document.
Some observers contend that since OHA is already in place as an official
state agency, if granted a federal charter, it could metamorphose into a
governing structure for all Hawaiians and be able to act on a governmentto-government basis with both state and federal authorities. "OHA's position is that given the appropriate federal legislation as well as amendments
to the state constitution [to protect OHA from the vagaries of state politics], it would be possible for OHA to evolve into the self-governing
entity."38This elevating of OHA to be the governing structure of a Hawaiian nation has been loudly opposed on the logic that "anylands or monies
transferred by the federal government to OHA go to the state, not to the
Hawaiian people, since OHA was a state agency; this would mean less not
more control by Hawaiians over their future...giving OHA nation status
would he akin to calling the Bureau of Indian Affairs (BIA) an
Indian nation."39
SovereigntyMovementToday
Limitations of space make it impossible to discuss fully the present status
of the gamut of groups and issues directly and indirectly related to
Hawaiian self-determination. Hui Na'auao, an association formerly funded
by the federal government and engaged in promoting an awareness of
Hawaiian sovereignty and self-determination, is alone composed of more
than forty diverse organizations representing the full spectrum of
Hawaiian political thought from conservative to self-proclaimed radical.4
The Sovereignty Advisory Council in its preliminary report submitted to
the state legislature in 1992 concluded that "[t]he visions of Hawaiian
Sovereignty can be placed in two general categories. The first category is
limited to the right of the indigenous people of Hawai'i and their elevation
37MacKenzie,Native Hawaiian Rights Handbook,p. 92.
"bid.
3'Trask,Politics and Public Policy in Hawai'i, p. 254, emphasis in original.
40H.K. Bruss Keppeler, "NativeHawaiian Claims," ThePriceofParadise,ed. Randall W. Roth (Honolulu, HI:
Mutual Publishing, 1992), p. 201.
178
Publius/Spring 1997
within the structure of the government of the United States as a nation.
Some have called this category a "nation within a nation" idea. The second
vision of Hawaiian sovereignty calls for decolonization to a point in which
Hawai'i will emerge as a sovereign independent nation. Within each
category there are variations."41To this should be added a third "vision,"
that of "those desirous of maintaining the political status quo while pressing for redress, reparations, and full control of Hawaiian trust assets by
Hawaiians."42
Nation Withina Nation
The concept of "nation within a nation" has reference to the relationship that exists between the federal government and more than 300 Indian
tribes and Alaskan Native nations by which the latter exercise a degree of
sovereignty over certain internal matters as well as control over specific
territory. "[M] any varieties of native sovereign governments exist, and...the
structure of the tribal governing entity is largely dependent upon cultural
and historical circumstances."43 One commentator opined in 1993 that
"most Hawaiian advocates now support a separate native Hawaiian government operating within the federal-state system."44A random sample telephone survey of 400 Hawaiian households (out of an estimated 50,000 in
the state) taken in 1995 found that 52 percent supported a "Hawaiian
sovereign nation" that would still be governed by state and federal laws.45
Ka Lahui Hawai'i (The Nation of Hawai'i) appears to be the oldest group
embracing the "nation-within-a-nation" approach as well as being in the
forefront in taking steps toward its implementation. It claims some 21,000
registered citizens.4 In 1987, 250 Ka Lahui supporters adopted a constitution, which, as subsequently amended, establishes a central government
with four branches (legislative, executive,judicial, and an Ali'i Nui branch
responsible for cultural, traditional, and protocol matters), and provides
for local island governments, thereby laying "the groundwork for a democratically elected nation of Hawai'i within the American federal and state
system."47 The constitution also highlights one of the divisions among
Hawaiians by giving recognition as a symbolic monarch to a grandson of
Kalokuokamile II, thus representing continuity with the Hawaiian monarchial tradition.
4'Hawaiian Sovereignty Advisory Council, PreliminaryReport (Honolulu, HI: Hawaiian Sovereignty
Advisory Council, 1994), p. xx.
42Mahealani Kamau'u and H. K. Bruss Keppeler, "What Might Sovereignty Look Like?" The Price of
Paradise,ed. Randall W. Roth (Honolulu, HI: Mutual Publishing, 1993), p. 295, volume II.
4SNoelle M. Kahanu and Jon M. Van Dyke, "Native Hawaiian Entitlement to Sovereignty: An
Overview," Universityof Hawai'i Law Review17 (Fall 1995): 461.
44MacKenzie, Overthrow,Annexation, and Sovereignty,p. 11.
45Evidencing the ambiguity of the concept of "Hawaiian Sovereign Nation," in response to a separate
question, 52 percent of the households favored the sovereign nation of Hawai'i being part of the United
States only for defense and foreign affairs. Mark Matsunga, "Most Hawaiians Want to Retain Ties with
United States," Honolulu Advertiser,24 November 1995, p. Al.
46Pennybacker,"Should the Aloha State Say Goodby? Natives Wonder," 21.
47MacKenzie,Native Hawaiian RightsHandbook,p. 93.
Hawaiian Sovereignty
179
Next to be achieved is recognition by the Congress of the Ka Lahui
constitution as a Hawaiian government with sovereign authority over a land
base consisting of all the "200,000 acres of Hawaiian Homes lands, half of
the 1.4 million acres of ceded lands, and additional lands provided in
restitution for the overthrow."48Negotiations will later determine the full
reparations due Hawaiians. A commentary considering the various appearances which sovereignty might assume in Hawai'i concluded, "Despite the
rhetoric of some of its leaders, the approach Ka Lahui has taken toward
sovereignty is actually quite conservative."49
Hawaiian Nation Separatists
Distinguished from the "nation within a nation" proponents are groups
supporting a separate and independent Hawai'i. Important differences
divide these separatists, particularly with respect to such matters as the area
to be included within the jurisdiction of the new nation and how independent nationhood is to be achieved.
One view is represented by the spokesman for The Institute for the
Advancement of Hawaiian Affairs, Hayden Burgess (who uses the Hawaiian
name of Poka Laenui). Burgess early argued that "the overthrow of the
Hawaiian monarchy was an illegal act of the United States, and that the way
for the United States to right that wrong is to withdraw from the Islands
and restore them to the rule of a Hawaiian nation."50The Congress would
provide for removing the United States; "the governmental form [for the
new nation] would be a matter for its citizens to decide."5'
Kekuni Blaisdell of the organization Ka Pakaukau, does not cavil with
Burgess over his characterization of the American actions as illegal; indeed,
he believes there is an official United States policy of colonialism, exploitation, coercive assimilation, and aggression.52 Blaisdell differs from Burgess
on the course to be pursued in achieving independent nationhood. "Asa
minimal, interim, first step, but not as a final step,53 Ka Pakaukau would
proceed through the nation-to-nation approach, "leading to independent
nationhood along a path fixed by a series of treaties to be negotiated by
representatives of the two nations as equals."54 Currently, it proposes
legally to pursue recognition of the right to decolonization under Article 73 of
the United Nations Charter and politically to resist the despoiling of
natural resources and archeological sites in the Islands.
48Trask,Politics and Public Policy in Hawai'i, p. 255.
49Kamau'uand Keppeler, The Priceof Paradise, p. 299.
50Dudleyand Agard, A Callfor Hawaiian Sovereignty,p. 137.
51Kamau'uand Keppeler, The Price of Paradise, p. 296.
52Ibid.,p. 297.
5SKaPakaukau, Definition, Mission &Declaration (Honolulu, HI: Mutual Publishing, 1992).
5Kamau'u and Keppeler, The Priceof Paradise, p. 297.
180
Publius/Spring 1997
In contrast to both, Michael Kioni Dudley of the group Na Kane O Ka
Malo calls for an initial division of the Hawaiian Islands into three separate
temporaryjurisdictions: (1) a new Hawaiian nation; (2) a U.S. state jurisdiction; and (3) a cooperative zone in the Honolulu area. "The continuing
existence of the State and the establishment of a Cooperative Zone both
allow for a gradual evolution to full nationhood for the entire island chain.
But the ultimate goal is full decolonization."55
The Ohana Council of the Hawaiian Kingdom adheres to the precept
that "those who maintain and assert their self-government, their freedom
from outside domination, and their own economic, social and cultural
development are most likely to gain international recognition..." and,
accordingly, has been manifesting its inherent right to self-governance by
occupying and utilizing Hawaiian trust lands.56 In the 1995 survey of
Hawaiian households, 54 percent did not favor a completely sovereign nation; only 27 percent did so.57
Status Quo Plus Redress
Not all Hawaiians agree with the sovereignty visions outlined above, but
their positions remain ill-defined and their numbers uncertain. In the 1995
survey, a full 80 percent expressed concern with existing federal and state
benefits being lost by sovereignty. If this were to occur, opposition to
sovereignty-apparently in its various forms-increased to 58 percent.58
However, it is certain that among them are those dissatisfied with the way
Hawaiians were treated in the past and with the marginalized position many
occupy in today's Hawai'i. While they might agree with former Hawai'i
Supreme Court Justice William Richardson, a Hawaiian, that "We're
Americans now, and American civilization is not destroying Hawaiian culture; it's giving it a chance to revive, progress and grow," they would also
probably concur with him that redress for Hawaiians is overdue.59
These are individuals and groups focusing their attention not on the
establishment of a Hawaiian "nation" but primarily on obtaining satisfactory amends and reparations, such as monetary benefits, enhanced Hawaiian control of the islands' land assets, reaffirmation of water rights, and
access to land and ocean for traditional purposes. Undoubtedly, they and
their dissatisfaction lend aid to the furtherance of the "Hawaiian nation"
and "nation within a nation" causes, but they lack the religious fervor and
dedicated sense of commitment to restoring Hawaiian culture and exercising self-determination as Hawaiians which characterize the supporters of
55Ibid.,p. 297.
56Ibid.,p. 298.
5'Matsunaga, "Most Hawaiians Want to Retain Ties with United States," p. Al.
58MarkMatsunaga, "Sovereignty Views Vary with What's to be Gained, Lost," Honolulu Advertiser,
25 November 1995, p. Al.
5John Heckathorn, "The Native Hawaiian Nation," Honolulu Magazine, December 1988, p. 58.
Hawaiian Sovereignty
181
those causes. The status quo component thus can be considered as both
part of and apart from the sovereignty movement, but irretrievably linked
so long as the distribution of entitlements waits upon first gaining Hawaiian nationhood.60
UnderlyingMatters
Within these several approaches will be found a skein of interrelated
matters that complicates discussion of the similarities and differences
between them. Clearly, land is an essential issue, but is a sovereign Hawai'i
to include some or all of the lands now within the state, or in addition, also
encompass Palymra,Johnson, and the other islands that were once part of
the Kingdom? For the "nation-within-a-nation" position is a designated
geographical portion to be set aside, paralleling the American Indian reservation, or is it sufficient to dedicate some or all of the ceded lands-or
possibly just the income from them-for this purpose? Should there be
added the extensive holdings of the large eleemosynary trusts now dedicated to the welfare of the Hawaiians?61
Another basic issue involves the blood quantum requisite for Hawaiians
to participate, directly traceable back to the introduction by the Hawaiian
Homes Commission Act of a minimum 50 percent Hawaiian blood
("Native Hawaiian") to obtain a homestead. The original language of the
1988 Ka Lahui Constitution would have perpetuated this cleavage by
requiring the Kai'aina (governor) to be a Native Hawaiian, but the blood
quantum element was dropped by the 1993 version of their Constitution
(Article VII, Section 1). A similar amendment removed Native Hawaiians'
exclusive right to determine "any and all legislation and or benefits pertaining to Native Hawaiian Land Trusts," (Article II, Section 3 of original
constitution).
On a related matter, should citizenship of the Hawaiian nation be limited only to those of Hawaiian descent, with at best provision for a nominal
honorary citizenship for those of other ancestry? Or should full citizenship
and political participation be open to everyone irrespective of ancestry because under the Hawaiian monarchy, they would have been eligible to become citizens and hold office? Logically tied to this is the issue of whether
residence in Hawai'i is to be a requisite for Hawaiians to benefit from reparations. On the last, the arrangements recently made for holding a Hawaiian sovereignty election may well provide the definitive answer.
6?"KaLahui believes that the nation should be created before native entitlements are negotiated."
Mililani K. Trask, "Hawaiians and Sovereignty," Hawaiian Sovereignty:Mythsand Realities,ed. Marion Kelly
(Honolulu, HI: Center for Hawaiian Studies, 1992), p. 14.
6"Pennybacker,"Should the Aloha State Say Goodby? Natives Wonder," p. 22.
Publius/Spring 1997
182
RECENT DEVELOPMENTS
The pace of developments in Hawai'i bearing on the sovereignty
movement has markedly quickened in the last decade. In June 1990, the
Hawai'i Democratic party recognized the inherent right of Hawaiians to
self-determined governance. The United Church of Christ of Hawai'i did
the same in 1990, and the national United Church made $1 million available
by way of reparations. Opinions of the Hawai'i Supreme Court have established a more favorable judicial climate for Hawaiians and their traditional
rights.62With the acknowledgment by the Congress that agents of the United
States had played a part in an illegal overthrow of the monarchy, the questioning of land titles to property acquired thereafter has thrown a pall over
commercial transactions, and Hawaiians arrested for trespassing on public
properties have challenged the authority over them of the state laws under
which they were charged.63 Before the twentieth century closes, a convention
of Hawaiian delegates may meet to draft a constitution for a Hawaiian nation.
In 1993, the Hawai'i legislature established the Hawaiian Sovereignty
Advisory Commission (HSAC) to advise it on special elections to choose
delegates to a Hawaiian convention, including the machinery necessary for
achieving it.64 The following year,65after renaming the commission to be
the Hawaiian Sovereignty Elections Council (HSEC), the legislature "gave
it authority to oversee a plebiscite...on self-determination, and upon approval of the plebiscite, to provide for a fair and impartial process to resolve issues relating to the form, structure, and status of a Hawaiian
nation."66 Some of the sovereignty groups vehemently protested and boycotted the election on the ground that Hawaiians were being deprived of
their inherent right to propose their own government free from all state
intervention, and that the elections should have been held under United
Nations auspices.
DuringJuly and August 1996, the Elections Council mailed out a carefully phrased election question: "Shall the Hawaiian people elect delegates
to propose a native Hawaiian government?"67 All Hawaiians, at least eighteen years of age,6 resident or nonresident, and whether or not United
62PeleDefenseFund v. Paty, 73 Haw. 578 (1992); AgedHawaiians v. Hawaiian Homes Commission,78 Haw.
192 (1995); Public AccessShorelineHawai'i v. Hawai'i CountyPlanning Commission,79 Haw. 425 (1995).
6Hawai'i courts have not recognized these challenges to state authority, State v. Lorenzo,77 Haw. 219
(1994); State v. French,77 Haw. 223 (1994).
64Act359, Session Laws of Hawai'i 1993. Act 301, Session Laws of Hawai'i 1992 had created a Sovereignty Advisory Council charged with developing a plan to discuss and study the sovereignty issue.
6Act 200, Session Laws of Hawai'i 1994.
6Mardfin, Examining theIdea of Nationhoodfor the Native Hawai'i People,p. 34.
6As proposed in the Hawaiian Sovereignty Advisory Commission, Final Report,the Hawaiian vote question read: "Shall a process begin to restore the sovereign Hawaiian nation?" p. 22.
'Including those still serving prison sentences. See Hawaiian Sovereignty Advisory Commission,
Final Report,p. 25.
183
Hawaiian Sovereignty
States citizens69 were eligible to receive ballots. Those Hawaiians not
already registered to vote for OHA trustees could apply to receive a ballot.
In all, ballots were distributed to a list of 81,507 registered voters. All
returned envelopes enclosing ballots contained a statement which the voters signed affirming they were of Hawaiian ancestry.
Both the proponents and opponents of the Hawaiian vote claimed
victory. Approximately 33,000 (40 percent) of the registered voters returned
ballot envelopes. After discarding invalid ballots, 30,423 ballots were
counted, of which 73.3 percent voted "yes"and 26.7 percent recorded "no."
To the Elections Council, this demonstrated both a high voter response to
a mail-ballot election and a majority of the Hawaiians favoring the holding
of a convention. Not so contended the opponents of the election. They
claimed that majority Hawaiian approval had not been obtained because
the total of ballots not returned exceeded those tallied, and when supplemented by the over 8,000 voting in the negative, it was obvious that a majority of Hawaiians had rejected holding a sovereignty convention. The dispute
remains to be resolved, with the life of the Hawaiian Sovereignty Elections
Council terminated, and without further appropriation of public funds to
finance either an election for constitutional delegates or the holding of a
constitutional convention. Meanwhile, sovereignty groups continue to meet
in an attempt to work out an informal modusoperandifor establishing the
machinery necessary to hold a sovereignty convention.
CONCLUSION
Since statehood, the Congress has included Hawaiians in programs enacted
for the benefit of Indians, and has passed legislation specifically for
Hawaiians.70Although Congress has not expressly denominated Hawaiians
as a tribe, "ithas consistently treated them as such in both general legislation
for the benefit of Indians and in legislation solely for....Hawaiians as a
group." "Similarly, while no executive order has ever expressly
designated....Hawaiians as a tribe, the executive branch has consistently
treated ....Hawaiiansin the same manner as other Indian tribes."7'However,
when federal funds were sought for the Hawaiian Homes Commission, the
Reagan and Bush administrations refused, on the grounds that the
Hawaiian "race-based classification cannot be derived from constitutional
6To accommodate "Hawaiians who may have been born outside of the United States as well as Hawaiians who do not consider themselves to be United States citizens, but only citizens of Hawai'i," Final
Report,p. 44. Note that there may be more persons of Hawaiian ancestry living outside of Hawai'i, and
even the United States, than today reside in the Hawaiian Islands. See Norman Meller, "Hawaiians and
the Sovereignty Issue," Pacific Magazine 21 (November/December 1996): 41. A higher percentage of the
registered Hawaiians outside of Hawai'i (mainland 1,394, international 30) voted (mainland
69.9 percent, international 50.7) than did those in Hawai'i (40 percent). Hawaiian Sovereignty Elections
Council, Final ReportHawaiian SovereigntyElectionsCouncil (Honolulu, HI: Hawaiian Sovereignty Elections
Council, 1996), p. 28.
7'Richard H. Houghton, III, "An Argument for Indian Status for Native Hawaiians-The Discovery of
a Lost Tribe," TheAmericanIndian Law Review14 (1989): 21-23.
'Ibid, p. 23.
184
Publius/Spring 1997
authority granted to the Congress and the executive branch to benefit native
Americans as members of tribes"72and that separate treatment of Hawaiians as such is racial and in violation of the equal protection provision of
the U.S. Constitution.73 To date, federal education, health, and other benefits for Hawaiians have not been interrupted, but it is argued that if there
is merit to the claim, there is no alternative but that Hawaiians must decide
on some form of sovereignty in order at least to assure continued receipt of
federal funds.74
Even where the federal government has not applied the doctrine of native sovereignty to Indian tribes, states have furnished assistance to them
and played a role in their self-determination.75 However, it is clear that the
State of Hawai'i cannot confer or recognize Hawaiian sovereignty, at least
tantamount to executing a treaty with a Hawaiian sovereign nation. For
this, action by the federal government is necessary.
The state has already created OHA, and its scope could be expanded by
statute, or the state constitution amended, so as to make further provision
for the self-governance of the Hawaiian population. If recourse is to constitutional amendment, success at the polls will have to rely heavily on the
desire to right past wrongs shared by many non-Hawaiians as well as on the
public relations skills of the Hawaiian organizations which give them political impact disproportionate to the size of their memberships. However,
such success is not an assurity,as Hawaiian self-governance holds the threat
of reducing the major influence in the economic and political life of the
state exerted by the Haole76 and Japanese-American components of the
population. The latent anti-Haole, anti-Japanese element found in parts of
the sovereignty movement77may encourage the resistance of these components to further change. In addition, other ethnic groups may consider
their advance up the socioeconomic ladder in the islands challenged by
any such major restructuring. Hawaiians recognize that sovereignty may
cause conflicts with other ethnic groups, and if this were to happen, the
opposition of even Hawaiians to sovereignty increases.78
The Congress has already expressed "its commitment to acknowledge
the ramifications of the overthrow of the Kingdom of Hawai'i, in order to
provide a proper foundation for reconciliation between the United States
'2PreliminaryReport,pp. xxii, xxiii.
"3Forextended consideration of separate treatment of Hawaiians being violation of the U.S. Constitution, see Stuart Minor Benjamin, "Equal Protection and the Special Relationship: The Case of Native
Hawaiians," YaleLaw Review106 (December 1996): 537-612.
74Keppeler,"Native Hawaiian Claims," p. 201.
75Kahanuand Van Dyke, "Native Hawaiian Entitlement," 453-455.
'6Asused in Hawai'i, while "Haole" is normally synonymous with Caucasian, it sometimes is limited to
Caucasians of North-European ancestry, distinguishing them from those of Portuguese ancestry.
"See Trask, Politics, and Public Policyin Hawai'i, p. 257.
78In the 1995 telephone survey, 68 percent of the Hawaiian households responded affirmatively to the
question of whether they felt sovereignty might cause conflicts with other ethnic groups. If this were to
happen, opposition to sovereignty increased to 57 percent. Matsunaga, "Sovereignty Views Vary with
Whats to be Gained, Lost," p. Al.
Hawaiian Sovereignty
185
and the....Hawaiian people...."79 One way might be for the Congress to
make restitution in the form of monetary payment, but this would probably
only placate the status quo element within the sovereignty movement.
Another, or in addition, would be for the Congress to pass legislation
denominating the Hawaiians as an Indian tribe, such as it has passed for
other Indian groups, on the basis of the Hawaiians' status as an indigenous
people,80 or to recognize that Hawaiians should enjoy powers of
self-government equivalent to those exercised by American Indians under
treaties with the United States. Any acknowledgment would not unduly tax
the present status of federalism in the United States. As an advocate for the
American Indian tersely noted, "people fail to recognize there are three
forms of government [in the US]: federal, state, and tribal,"8' a position
impliedly accepted in a recent article by Clinton administration officials.82
The taking of any such action by the Congress would go far to meet the
nation-within-a-nation objectives as well as chart a course by which Hawai'i
might engraft appropriate modifications onto its present government.
There yet remains to be accommodated those advocates of Hawaiian
sovereignty who will not be satisfied with anything short of an independent
Hawai'i assuming a coequal place among the sovereign nations of the world.
How the American federal system will permit its accomplishment remains
problematical. Article IV, Section 3, of the U.S. Constitution makes
provision for part of a state becoming another state, but is silent on state
secession. Short of accepting that Hawai'i has never legally been part of
the Union-so technically it would not be seceding83-or the Congress
acknowledging the precedence over the U.S. Constitution of those international commitments of the United States that recognize the self-determination
rights of indigenous peoples, the Congress appears incapable of responding
to the satisfaction of the Hawaiian Separatists.
79PublicLaw 103-150, 193d Cong. 1993.
"8Houghton, "An Argument for Indian Status for Native Hawaiians," 53. Also see Benjamin, "Equal
Protection and the Special Relationship."
8'Coleman McCarthy,"A Spokeswoman for Tribal Government," LiberalOpinion Week,28 October 1996,
p. 22.
82WilliamA. Galston and Geoffrey L. Tibbetts, "Reinventing Federalism: The Clinton/Gore Program
for a New Partnership Among the Federal, State, Local, and Tribal Governments," Publius: TheJournal of
Federalism24 (Summer 1994): 2348. Local governments are creatures of the states; tribal governments
are sui generic.
"8See Morse and Hamid, "American Annexation of Hawai'i: An Example of the Unequal Treaty
Doctrine," pp. 407-456.