Between assimilation and revolt: A third option for Hawaii as a model for minorities world-wide
SUMMARY
I. INTRODUCTION
A glossy brochure touting Hawaiian vacations tempts would-be tourists with "traditional luaus" and "old-world" hospitality. On a shimmering beach
Hawaii's economy relies heavily on a tourist industry1 that trades upon the culture of the native Hawaiian people. Many "mainlanders" come to Hawaii for the carefree, barefoot Hawaiian life portrayed in a wide array of advertisements. Yet, beneath the slick brochures, many native Hawaiians do not smile. Many struggle-with their shoes on-to get jobs and to gain access to Hawaii's expanding economy.2 Native Hawaiians, after all, live at the bottom of the island's socioeconomic scale3-a fact that, despite the idyllic representations in advertisements, many Hawaiians hope to change.
Native Hawaiians, who call themselves "Kanaka Maoli,"4 inhabited Hawaii long before Europe discovered the eight small islands in 1778.(5) Many of these native Hawaiians, defined in the state's constitution as blood descendants of those inhabiting the island before 1778,(6) struggle to shake off the tourist's objectification while still preserving their culture. While Hawaiians battle to become modern against the grain of Hawaiian postcards, the brochures nonetheless lay bare a pivotal question for Hawaii and the United States. Are native Hawaiians as far removed from mainland Americans as the tourist industry portrays? What are the implications of the line drawn by the state constitution between the "Kanaka Maoli" and the rest of the Hawaiian residents?
Before 2000, this line had significant political meaning in Hawaii. In 1978, the state, by constitutional amendment, established the Office of Hawaiian Affairs (OHA).7 This office manages $300 million of Hawaii's assets8 and holds significant power. Many describe it as the fourth branch of the Hawaiian government.9 Until recently, Hawaii mandated that only native Hawaiians could vote in OHA elections.10 In defense of exclusive suffrage, state courts had considered the OHA as independent from the Hawaiian government. In 1989, the Supreme Court of Hawaii described the OHA as a "selfgoverning corporate body."11 The OHA seemed to capitalize on this autonomy; that same year, the OHA began officially and publicly portraying itself as a sovereign body independent from the United States.12 That Hawaiian woman standing on the shimmering beach suddenly becomes far less passive and benign.
The U.S. Supreme Court, however, dramatically softened that image. In early 2000, the Court struck down native Hawaiians' exclusive suffrage in OHA elections.13 According to the Court, such practice violated the Fourteenth and Fifteenth Amendments to the U.S. Constitution. 14 Rice v. Cayetano reversed the Ninth Circuit decision and renewed controversy over the troubled history between the United States and Hawaii.15 This case directly questions the status of native Hawaiians. While native Hawaiians are indeed the indigenous people of their islands, they apparently are not "Native Americans." The federal district and circuit courts, however, had held otherwise. They held that Native American law did apply to native Hawaiians.16 The courts held that, under Native American law, an exclusive voting regime like that of the OHA would be permissible.17 The Supreme Court, however, reversed and held that native Hawaiians are not Native Americans.18
Just how do the native Hawaiians fit into the U.S. Constitution? The Supreme Court found no difference between "ancestry," as used to separate native Hawaiians from nonnatives, and "race."19 Equal protection law, according to the Court, must stamp out the legal protections that the state grants native Hawaiians exclusively.20 Politicians have introduced bills in Congress that would legally classify native Hawaiians as Native Americans.21 This change would bring native Hawaiians within the "special relationship" that the United States affords Native Americans. Many lawmakers, however, have attacked these attempts as racebased affirmative action in violation of the Equal Protection Clause of the U.S. Constitution.22 And some native Hawaiians wonder if a Native American classification would benefit them.
On the other hand, some Hawaiians see the opinion in Rice as yet another "overthrow" of the Hawaiian government.23 These native Hawaiians, if not most, seek some level of separation from the United States. Many demand independence for their "nation" and call for international recognition for the Kingdom of Hawaii.24
This paper examines the difficult position of native Hawaiians within the United States. In many ways, they are the cultural outsiders of tourist advertisements and, like Native Americans, victims of a history that has appropriated their land and commercialized their culture. The native Hawaiians are perhaps national minorities very much like the Albanians in Macedonia or the Francophones in Canada. A discussion of native Hawaiians necessarily implicates the international right of all peoples to self-determination.25 Yet, the Supreme Court ignored these realities. The native Hawaiians, according to the Court, do not merit any protections as native Hawaiians;26 they have been reified as mere "Americans," stripped of their past and denied any group identity. I argue that effect must be given to the history of Hawaii and to the native Hawaiians' valid territorial claims-- claims- that extend beyond U.S. jurisdiction and trigger international claims that courts must consider. Native Hawaiians do not seek special privileges simply because of their blood quantum, but they do seek legal remuneration from specific legal trespasses.
Significant problems must be addressed. Do native Hawaiians belong within the Native American legal framework? Or, are there legitimate international transgressions that warrant a unique, extra-judicial solution, something akin to independence? Further, these legal infractions occurred against the ancestors of modem native Hawaiians and not against them individually-does this affect the contemporary rights of native Hawaiians? More broadly, how do minorities clamoring for independence and sovereignty based upon legitimate, historical claims fit within their parent country? While focusing on Hawaiians in the United States, this paper addresses similar, although often more violent, situations world-wide. It is not just in the state of Hawaii that a minority, mixed in with the majority,27 cries for independence.
Part II of this paper examines the history of Hawaii that has led to the creation of the OHA. Part III analyzes the legal reasoning of and reactions to Rice v. Cayetano. Part IV assembles these pieces and attempts to read international law into domestic law. Only with an awareness of international law can courts balance the Hawaiians' international and domestic interests with those of the parent sovereign-the United States. In short, native Hawaiians must be afforded significant autonomy and must be respected as a distinct group within the United States; ancestry should not equal "race" for native Hawaiians. While this paper focuses on native Hawaiians, the implications of this debate reach beyond native Hawaiians or Native Americans to affect all "aboriginal" or subordinate groups that seek an assessment of their status within both domestic and international law.
II. HISTORY OF HAWAII
A. From Sovereign Nation to U.S. State
In 1999, forty-two percent of all Hawaiians favored some degree of separation from the United States.28 In 1996, seventy-three percent of all native Hawaiians voted in a plebiscite to formally move Hawaii towards sovereignty.29 To understand these staggering statistics, one must understand the history of Hawaii.
When Captain James Cook sailed into Hawaii, anywhere from 200,000 to 1 million people30 lived in a highly organized social system based on communal land tenure-all land was held in trust by the king and the concept of fee simple did not exist.31 While the Hawaiians were governed by four separate chiefdoms, they had a uniform culture, language, and religion.32 In 1810, King Kamehameha unified the islands under the Kingdom of Hawaii with U.S. and European assistance.33 Western traders saw riches of fur, sandalwood, and whales, and King Kamehameha allowed wide access to these resources in exchange for western support of his monarchy.34 The United States, as well as most of the world, recognized the Kingdom of Hawaii as an independent sovereign by 1826.35
From 18 10 to 1893, Hawaii gravitated further into the hands of the West. Hawaiians introduced fee simple land ownership to satisfy western interests.36 The "Great Mahele," or "Great Division," ended the islands' communal land arrangement by apportioning one-third of the land to the crown, one-third to the government, and one-third to native Hawaiians.37 In actuality, native Hawaiians, although promised ownership in land they had cultivated, received less than one percent of the allotted land.38 And those who did receive land did not understand the nature of their title-in fact, many native Hawaiians sold their land without comprehending the legal ramifications.39
Further, the population of the islands changed dramatically. The burgeoning western-- owned sugar and pineapple plantations hungered for laborers, creating an infusion of labor from Asia, Germany, and Spain.40 By the mid-nineteenth century, native Hawaiians were poor, plagued by new diseases brought by foreigners, and landless.41 By 1900, native Hawaiians constituted only half of the islands' population.42 As the United States admitted in a 1993 public apology passed by Congress, the influences of the West had a "devastating" effect on the native Hawaiians' "health and well-being."43
The year 1893 marked the end of the Hawaiian Kingdom. The monarch of Hawaii, Queen Lili'uokalani, sought to re-establish native control. She had secretly written a new constitution for Hawaii to replace an earlier one, written by western business interests in 1887 and forced upon a previous king.44 The constitution that the Queen sought to replace guaranteed white landowners substantial control in Hawaiian government.45 Lili'uokalani's constitution, in contrast, would have eliminated western influence by granting voting rights exclusively to native Hawaiians. Further, her constitution would eliminate the many cabinet positions filled by Americans.46 Those with commercial interests in Hawaii panicked, and within days, the United States, through its military troops, retaliated with force.47
Queen Lili'uokalani, with a military force assembled near her palace, relinquished power to the United States.48 Immediately, a U.S.-controlled provisional government sprang to life and sought annexation. President Cleveland, however, demanded the restoration of the monarchy and declared the overthrow of Queen Lili'uokalani an "act of war."49 By 1898, however, President McKinley answered the call of Manifest Destiny and annexed Hawaii. Suddenly, 1.8 million acres became part of the United States without the payment of any compensation.50
The native Hawaiians, locked out of their lands, slid into desperate poverty. In 1920, they sought help from the federal government. Noting that native Hawaiians were "fast becoming a minority element,"51 Congress responded that year with an act to allow "native Hawaiians to return to their lands."52 The Hawaiian Homes Commission Act (HHCA) set aside roughly 200,000 acres for native Hawaiians from the 1.8 million acres that the United States had taken in 1893.53 The newly-created Hawaii Homelands Commission54 would hold this land in trust, leasing portions of it to successful applicants for periods of ninetynine years for one dollar per year.55 Ostensibly, this arrangement would prevent native Hawaiians from selling their land away, as most had done after the Great Mahele.
The HHCA, however, had significant weaknesses. Because native Hawaiians could only lease rather than own land, they were, in effect, mere tenant farmers.56 The Act applied only to those natives with one-half part of the blood of those inhabiting the islands before 1778;57 by 1920, many native Hawaiians found it difficult to prove their lineage. Most importantly, however, the few acres that were granted through HHCA were the leftovers-- the infertile land that had been rejected by the large sugar plantations.58 In fact, the sugar plantation owners endorsed the HHCA as a means to secure their title to Hawaii's most fertile land and protect against legal encroachment by native Hawaiians.59 In this light, the HHCA would extinguish any additional land claims that the native Hawaiians might have against them. From the perspective of the sugar plantations, the HHCA was hugely successful: In 1999, the eight largest private landowners in the state, including Dole Food Company, owned 981,844 acres60 while the HHCA has given 40,703 acres to only 7,000 homesteaders as of 1998.(61) In fact, the current waiting list has 20,000 names;62 most, and maybe all, will not receive any land.
The HHCA was, however, a substantial step forward for the native Hawaiians. It offered a symbolic acknowledgement that the native Hawaiians deserved "a high duty of care."63 As the legislative history indicates, lawmakers hoped to "rehabilitate" the native Hawaiians by giving them land, believing, as Senator Wise did, that the native Hawaiians are "out of door people" who cannot survive in cities.64 The federal government, in 1920, undertook "a trust obligation benefiting the aboriginal people."65 Modern commentators ignore the patronizing language, focusing instead on the special obligation that the HHCA legislation creates between the United States and native Hawaiians by analogizing it to the protections given to Native Americans.66
B. The Office of Hawaiian Affairs
In 1959, Hawaii was admitted as a state to the United States. As part of statehood, Congress required Hawaii to integrate the HHCA into the state's constitution.67 The program's authority no longer lay with the federal government, but rather with the state government. Congress also mandated that an additional 1.2 million acres be added to the trust for, among other reasons, "the betterment of the conditions of native Hawaiians."68 This land was used primarily for public education.69
In 1978, responding to substantial mismanagement by the state,70 the legislature amended the state constitution to create the OHA. The OHA was given a mandate to work for the betterment of Hawaiians and native Hawaiians.71 It was intended to fully satisfy the requirements demanded of Hawaii in Congress' Admission Act of 1959.72 All 1.2 million acres were then placed within the control of OHA. Subsequently in 1979, Chapter 10 was added to the Hawaiian Revised Statutes, making the OHA a "self-governing body" with significant autonomy.73 The OHA has also played a pivotal role in forcing the state to honor its trust obligations to the native Hawaiians,74 promoting awareness of native Hawaiian culture and even promoting sovereignty for native Hawaiians.75
However, only native Hawaiians were elected to the OHA, and only native Hawaiians were allowed to vote in OHA elections.76 This was explicitly part of the 1978 legislation, ratified by the vote of all Hawaiians, native or not.77 Nonetheless, this provision has afforded the OHA national scrutiny, bringing the status of native Hawaiians into question. It was this question that was taken to the Supreme Court in Rice v. Cayetano, underwritten by the Campaign for a Color-Blind America.78
III. RICE v. CAYETANO-THE BATTLE FOR INDIAN CLASSIFICATION
A. Rice v. Cayetano
Rice v. Cayetano directly confronted the status of the native Hawaiians. Harold Rice, a Caucasian rancher and fifth-generation Hawaiian, wanted to vote for the OHA board of trustees. As a non-native Hawaiian, however, he could not vote.79 Therefore, he brought an action against Governor Benjamin Cayetano for violations of the Equal Protection Clause and the Fifteenth Amendment.80 Rice argued that race kept him from voting in 1996.(81)
The case, as it worked its way towards the U.S. Supreme Court, turned on the statutory nature of the distinction between native Hawaiians and non-natives, such as Rice. Was this line political, and therefore allowed--or racial and therefore forbidden? Or from a different angle, could the Court consider native Hawaiians as Native Americans to be a permissible classification? The analyses of the district court, circuit court, and Supreme Court illustrate the disputed position of native Hawaiians in the U.S. judicial system.
Judge Ezra, in the United States District Court for the District of Hawaii, found the distinction between native Hawaiians and Hawaiians to be political.82 In granting Governor Cayetano's motion for summary judgment, Judge Ezra made three fundamental findings. First, because the division between natives and non-natives was political, the rational basis test applied.83 Second, a rational connection existed between Hawaii's trust obligation to Native Hawaiians and the requirement that electors be native Hawaiians.84 Third, the OHA did not exercise general governmental powers that invoked the strict, "one-person, onevote" demand of the Equal Protection Clause.85
Morton v. Mancari, a Supreme Court case from 1974,(86) prompted the district court's summary judgment.87 That case held that the Bureau of Indian Affairs did not violate the Constitution by extending employment preferences to Native Americans.88 The Court, in Mancari, noted that such preferences give Indians greater participation in their own selfgovernment, further the government's "trust obligation" towards Native Americans, and reduce the negative effects of non-Native Americans influencing tribal life.89 The Court gave strong effect to the legislative history of legal protections for Native Americans, particularly the Indian Reorganization Act of 1934.(90) Most important were the sections of the 1964 Civil Rights Act that explicitly excluded coverage for tribal employment and for employment practices that favor Native Americans on or near a reservation.91 Such preferences have been continued since 1964 and have, in fact, expanded.92 Refuting claims of invidious discrimination under the Fifth Amendment,93 the Mancari Court held that preferences given to Native Americans were not racial. "Rather," the Court wrote, "it is similar in kind to the constitutional requirement that a U.S. Senator, when elected, be an '[i]nhabitant of that [s]tate for which he will be chosen.94 Such preferences are political and need only be rational.
Even though Congress has not legislated that native Hawaiians fall within the legal category of "Native Americans," Judge Ezra analogized a connection, thereby allowing such protection.95 Mancari relied upon the "special status" of Native Americans, derived from the fact that, "the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence."96 Judge Ezra explained that the native Hawaiians were also overcome in 1893 with the overthrow of Queen Lili'uokalani.97 The native Hawaiians need similar protection, as demonstrated by the HHCA in 1921 and its inclusion in the Hawaiian constitution in 1959. As with Native Americans, such legislation demonstrates that the federal government owes a special duty to native Hawaiians.98 Because of this parallel special obligation, native Hawaiians can be considered within the legal sphere of Native Americans.
While the Ninth Circuit cautiously affirmed the district court's ruling,99 the U.S. Supreme Court reversed it by applying strict interpretations of the Fifteenth and Fourteenth Amendments.100 First, the Court concluded that because native Hawaiians constitute a "race," the "fundamental terms" of the Fifteenth Amendment do not allow any degree of voting discrimination.101 Second, the Court destroys the Mancari analogy by concluding that native Hawaiians are not Native Americans.102
The Supreme Court declared that the classification "native Hawaiian" described a race. The Court stated with forceful clarity: "Ancestry can be a proxy for race. It is that proxy here.103 For proof, the Court made two straightforward assertions. First, the Court stated that native Hawaiians must be a race because of (1) the islands' isolation from migration before 1787 and (2) the native Hawaiians' unique culture.104 Second, the Court triumphantly pounced upon the state's own language, noting that the state proposed to define native Hawaiians in 1978 as "any descendant of the races inhabiting the Hawaiian islands, previous to 1778."105 Even though this language was eventually rejected-and never officially used-the Court asserted that legislators meant the same thing as if they had used the word "race."106 In support, the Court off-handedly noted that the word "race" was occasionally used since 1978 to describe native Hawaiians. 107
Assuming native Hawaiians to be a "race," the Court declared any voting distinctions that even allude to racial discrimination to be unconstitutional. The Court cited cases that struggled to dismantle the many indirect means of discriminating against black voters, 108 demonstrating the reach of the Fifteenth Amendment. The voting structure for the OHA, the Court notes, is "neither subtle nor indirect."109 Based on race, it clearly violates the Fifteenth Amendment.110
B. Response to Rice v. Cayetano
The response to Rice v. Cayetano paralleled Justice Stevens's vigorous dissent in the case. Many charge that the Supreme Court ignored the particular history of Hawaii and the special obligations owed to native Hawaiians.111 Stevens notes that the federal government has concrete responsibilities to indigenous people, "a category that includes native Hawaiians."112
Hawaii's legislators in Washington, D.C., agreed. In the fall of 2000, Democratic Representative Neil Abercrombie introduced a bill that would give federal recognition to native Hawaiians.113 The measure would undermine Rice v. Cayetano on two grounds: it would establish native Hawaiians as an indigenous group with a right to self-determination, and it would allow native Hawaiians to form a governing body possessing government-togovernment relations with the United States.114 These are the same rights afforded to Native American governments.115 Hawaiian Representative Patsy Mink says that "[t]he bill `replaces what the Supreme Court struck down. [It] must pass.'"116 While passed by the House of Representatives, the bill failed in the Senate in 2000."117 Hawaii's two Democratic senators reintroduced the bill in the Senate in 2000 and again in 2001,(118)but it has not yet been passed. Many in Hawaii have gone further, seeing Rice v. Cayetano as a catalyst for independence. In fact, Anna Marie Kahunahana, an advocate of full independence, flew from Hawaii to Washington, D.C., recently to lobby against the bill.119 "This is not an Indian affair. It's in the wrong venue," she explains.120 John "Butch" Kekahu, an active supporter of Hawaiian independent sovereignty, explains Rice v. Cayetano: "In a way it's good because it woke us up."121 Paul Kealoha Blake, a native Hawaiian, says defiantly of Congress: "It's not their issue."122 Indeed, native Hawaiians have organized marches in Boston and Washington, D.C., demanding not only recognition of their status as native Hawaiians, but independence as well.123
On the other hand, many are using Rice v. Cayetano as a springboard to bring a "color blind Constitution" once and for all to Hawaii. In fact, the legality of the OHA has recently been challenged in the Hawaiian Supreme Court. Grass-root organizations have sprung to life in Hawaii, urging the dismantlement of "entitlement" programs for native Hawaiians. "Superior voting rights," says Ken Conklin, a founder of one such organization, "are just not appropriate in a democracy."124
IV. NATIVE AMERICAN LAW OFFERS ONLY A PARTIAL SOLUTION
The Supreme Court in Rice ignored the historical context of native Hawaiians.125 The history describes a Hawaii that is far removed from the mainland-a Hawaii forcefully conquered and still not completely assimilated into the Union. In 1999, for example, fortytwo percent of the entire Hawaiian population favored some degree of separation from the mainland. Congress officially lamented this history in a public apology that called upon the U.S. government to hold reconciliation talks with the native Hawaiians.126 Yet, the Supreme Court ignored this background entirely. The Court found that despite Hawaii's history, it is no different from Kansas or Massachusetts, and native Hawaiians are no different than native Texans or native Oregonians. Because native Hawaiians are not Native Americans, the classification as "native Hawaiian" is racial. According to the Court, therefore, the voting rights of native Hawaiians can be no different than those of Hawaiians.127
While the tourist industry places significant importance on the native Hawaiians' distinctive culture and traditions, the Supreme Court did not. All the courts involved with Rice v. Cayetano failed to consider the international validity of self-determination that the world has so eagerly given other colonized peoples. Both the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social and Cultural Rights (ICESCR) begin by stating that "all peoples have the right of selfdetermination."128 After all, the United States forcibly overthrew the Hawaiian government in 1893; arguably, their right to self-determination has been trampled ever since. One could argue that U.S. citizenship, and even the U.S. Constitution, have been involuntarily imposed on Hawaii and upon native Hawaiians. While perhaps difficult to see the hallmark of freedom-the U.S. Constitution-portrayed as an imposition rather than a gift, many native Hawaiians unmistakably seek independence and even autonomy from precisely that perspective. The Constitution, according to Rice v. Cayetano, restricts attempts by native Hawaiians to achieve self-governance or self-determination.129 It is, perhaps, another "overthrow"-though this time without munitions. Representative Neil Abercrombie's bill provides a focal point for a third approach not mentioned within the Rice v. Cayetano litigation. Representative Abercrombie hopes to extract native Hawaiians from the Supreme Court's description of "race" by officially proclaiming them to be Native Americans.130 He, along with the other Hawaiian senators and representatives, seeks a legal means to secure a degree of independence for native Hawaiians, recognizing their history and their continued communal identity.131 While Native American law provides a ready-made framework for self-governance within the jurisdiction of the United States, it comes with significant limitations and shortcomings. The real solution lies one step beyond.
The solution, however, begins with Native Americans because they do receive significant protection. Since the earliest days of our judicial system, "Indian"132 tribes have been viewed as sovereigns133 and courts have been clear that an Indian tribe retains the rights of self-government and control over internal affairs.134 Congress can also enact legislation singling out tribal Indians even if the Constitution otherwise prohibits such classification.135 Finally, Native Americans are allowed to discriminate against others in favor of Native Americans; Title VI of the 1964 Civil Rights Act explicitly excludes Indian tribes as employers.136
These protections of Native American law, however, have limitations that might prevent their application in Hawaii. First, there are technical, legal obstacles. Indian law applies to "Indian tribes," the definition of which denotes both a group of people and a definitive territory.137 The definition of "Indian tribes" presents two problems when trying to apply it to native Hawaiians: (A) "Indian tribes" is more narrowly defined than "Native Americans" and would be more narrowly defined than native Hawaiians; and (B) native Hawaiians lack the defined territory associated with an "Indian tribe" by definition. Second, there are psychological obstacles. Some native Hawaiians fear that becoming "Native Americans" within the laws of the United States would undermine the Hawaiian sovereignty movement.138 Some believe that obtaining the status as a "Native American" would not return the land "stolen from [them]."139 U.S. Indian law, some argue, would create "a puppet government that has to be acceptable to the Secretary of the Interior."140 Some view attempts by Hawaii's congressional representatives to bring native Hawaiians within Native American law as another attempt to subjugate native Hawaiians, despite the entitlements that such classification might preserve. Consequently, some native Hawaiians are actively working against legislation that would classify native Hawaiians as Native Americans.141
A. Native American Law as a Stepping Stone
Despite its shortcomings, Native American law offers a start toward a solution. Native American law operates by defining Indians as a "political" classification rather than a racial classification, thereby avoiding strict scrutiny.142 The Court in Mancari explains that employment preferences in favor of Native Americans can apply only to "federally recognized tribes" rather than to Native Americans at large.143 Although the Court never provides a definition of "tribe," it does make clear that a "tribe" is a narrower category than "Native American."144 Employment preferences, therefore, could not be extended to "Indians" generally because not every "Indian" would be a member of a "federally recognized" tribe; this approach places a limit on the definition of Native American. Federally recognized tribes are a more narrowly defined group than genetically or racially defined Native Americans. "[The] resolution of the instant issue," the Court writes, "turns on the unique legal status of Indian tribes under federal law"-not Indians.145 The native Hawaiians, without a federally recognized tribe, fail to qualify as a political group.146 They are defined exclusively by blood quantum, and therefore-even under Mancari-the classfication is racial.
One could, taking a cue from Mancari, argue that native Hawaiians are not a group based on "race," but rather a community sharing a common, historical injustice. The federal government might then recognize this community as a "tribe," thereby affording them the preferences allowed under Mancari. The lawyers representing Governor Cayetano in Rice argued this very point. The majority in the opinion, however, sidesteps the question and holds that because the OHA is a state agency, Native American law does not apply.147 Justices Breyer and Souter give the subject more thought and suggest in their concurrences that native Hawaiians might be a tribe if only the definition was not (1) so broad 148 and (2) given to them by the state.149 Finally, Justice Stevens argues that native Hawaiians are a tribe because Congress, which has plenary power over Indian affairs, said so.150 And he even suggests that Native Americans do not have to be organized into tribes."151 Surprisingly, Rice presents no clear definition of "tribe." Indeed, pinpointing a definition is difficult. 152 The Supreme Court case of Montoya v. United States probably offers the best definition of "tribe:"153 "[b]y a 'tribe' we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory."154 With little effort, native Hawaiians could create a definition of "native Hawaiian" that would meet the vague requirements of "tribe" rather than "race." Native American tribes, after all, have broad authority to define their tribal membership; this authority comprises the heart of their tribal sovereignty. 155
Native Hawaiians need to do little to become a "tribe." First, the tribe should be narrowly defined, thereby easing the concerns of Justices Breyer and Souter that the current definition in Hawaii's Constitution is overly broad.156 Some statutorily defined native Hawaiians157 may no longer identify with their Hawaiian background and may even be living on the mainland. Excluding these Hawaiians from the "tribe" would probably not obstruct the remedial purpose behind native Hawaiian preferences. And such an exclusion would further the argument that native Hawaiians constitute a political, rather than racial, group. Second, native Hawaiians should define the parameters of their tribe rather than rely upon the state's definition in the constitution. This definition could meet the criteria of Justices Breyer and Souter, as well as those of the majority in Rice.158 Native Hawaiians might then come within the Mancari definition of those deserving Native American protections. Preferences would then rely upon the parameters of this self-selected tribe. This group could include all native Hawaiians, but the definition would not rely on ancestry. It would not, therefore, be a racial classification.
This purpose is, perhaps, exactly what the Native Hawaiian Bill hopes to accomplish.159 The Bill, as approved by the House of Representatives, makes three separate declarations that taken together, achieve:
[a] process within the framework of Federal law for the Native Hawaiian people to exercise their inherent rights as a distinct aboriginal, indigenous, native community to reorganize a Native Hawaiian governing entity for the purpose of giving expression to their rights as native people to self-determination and selfgovernance.160
No bill has passed in the Senate, but this House-approved bill demonstrates an attempt by native Hawaiians to work within the confines of Rice. The Bill does refute the Court in Rice by declaring that the United States, and not the state of Hawaii, owes native Hawaiians Mancari protections. The Bill, however, does not address the first concern of Justice Breyer and Stevens in the concurrence, namely, that the current definition of native Hawaiians is too broad.
The Bill emphasizes that the United States, and not necessarily the state of Hawaii, owes a special responsibility to the native peoples of the United States, a group that includes the native people of Hawaii.161 The native Hawaiians constitute a "distinct indigenous group within the scope of [the Congress'] Indian affairs power."162 Congress, however, has "delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii."163 Therefore, while voting preferences appear to come from the State of
Hawaii, they really are coming from the federal government by way of Hawaii. This assertion addresses the Supreme Court's finding that the illegitimacy of OHA's voting provision lies partly in its existence as a state agency.164 If the majority in Rice had been forced to make this conclusion, they would probably have had to decide whether native Hawaiians constitute a "tribe" rather than avoid the issue. 165
The Native Hawaiian Bill comes close to working. The Bill, at least, demonstrates that Native American law provides a firm basis upon which to build. However, it fails to grasp the first argument of Justices Breyer and Stevens that "native Hawaiian" is an overly broad category. The legislation proposes, in essence, to give federal tribal recognition to those who have fifty percent of pre-1787 Hawaiian blood.166 This legislation sweeps too broadly. Mancari, one could argue, functions because not all genetic Indians were tribal Indians, making the classification not genetic but political. The Native Hawaiian Bill functions exclusively upon genetic lines, making it easy fodder for the Court.167 The Supreme Court in Rice, after all, demonstrated a willingness to read "race" more elastically to cover cultural groups, despite the Native American exception.168 On one hand, the Court focused on a genetic concept of race and, following the Bill, observes that because native Hawaiians were isolated since 1787, they must be a homogenous "race."169 Yet, the Court also notes that racial discrimination involves singling out "identifiable classes of persons"170 this more flexible definition seems to destroy the Mancari exception.
Finally and most importantly, although not raised by the Court in Rice, native Hawaiians lack the territorial basis that is so important to Native American protections. Indian law revolves around "Indian country," a term that includes, but reaches beyond, a reservation. As defined by Congress, it includes formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.171 In short, this involves federal recognition that the land is "Indian country." This term invokes substantial sovereignty. The Supreme Court has affirmed a "deeply rooted" policy of "leaving Indians free from state jurisdiction and control.172 This policy, however, operates only within a tribe's territorial boundaries-boundaries that have been federally recognized.173 Therefore, Native Americans outside those boundaries are subject to state law and cannot seek immunity by virtue of their status as Native Americans. The Supreme Court in Oklahoma Tax Commission v. Chickasaw Nation affirmed that a tribe's sovereignty exists only within federally recognized "Indian country."174 Even a treaty that guarantees an Indian tribe in Oklahoma freedom from Oklahoma law does not allow for a "super-sovereign authority to interfere with [Oklahoma's] sovereign right."175 In short, the rights of a state can be rigorously enforced upon anyone outside of Indian lands, including tribal members. Therefore, Indian law extends only to the bounds of Indian territory.
In Hawaii, it is difficult to determine what land constitutes "Indian country." OHA lands are scattered across the islands and only a small percentage of native Hawaiians live on those lands; therefore there is no territorial basis from which Native American protections can extend. For example, between 1990 and 1995, 3,882 applications were made to OHA by native Hawaiians for land under the Hawaiian Homestead Act.176 Of those, 25.41% were for residential use, 29.47% were for agricultural use, and 33.30% were for both residential and agricultural uses.177 Significantly, native Hawaiians do not live on much of the OHA land that might be recognized as Indian country;178 thus only a limited number of native Hawaiians would be gaining Native American privileges. Further, the OHA lands are spread out across Hawaii in a patchwork fashion and often contain nonnative Hawaiians.179 As Hawaii's Data Book reveals, native Hawaiians are scattered almost evenly across the state.180 Establishing a traditional territorial basis for Native American rights would be virtually impossible in Hawaii. Native Hawaiians, then, must devise a way to create Native American-like protections without the territorial and group restrictions of "Indian tribes."
It is difficult to fit native Hawaiians within Native American law because the Supreme Court does not accept flexibility in Native American law. Although not mentioned in Rice v. Cayetano, an organization similar to the OHA exists in Alaska for Native Americans. In the 1970s, Congress revoked all reservations in Alaska except for one in the southeast corner of the state181 and passed the Alaska Native Claims Settlement Act (ANSCA).182 Instead of reservations, the Native Americans in Alaska were given both $962.5 million and 44 million acres of land in fee simple.183 The land, according to statute, was transferred to state-chartered private business corporations with Native Americans as sole shareholders.184 The land would not be federally administered, and it could be sold to non-Indians in fee simple185-two perceived advantages compared to the reservation system. The ANSCA and the OHA are extremely similar. They both are designed as autonomous organizations administering large areas of land for their respective groups.186 Both are controlled by the native Alaskans and Hawaiians respectively.187 Yet even though the native Alaskans are federally recognized as Native Americans, the independent nature of the ANSCA seems to mitigate that classification. Specifically, the Supreme Court in Venetie found that because the Native American land in Alaska is administered by a non-federal agency, it is no longer "Indian country."188 While the case discusses native Alaskans' desire to remove themselves from Native American law, the legal argument turns on the nature of the ANSCA.189 The ANSCA, as an entity apart from the federal government, is not subject to Native American law; thus the state need not pay the native Alaskans the tax that is required for the use of Indian land.190 Likewise, if native Hawaiians were simply declared "Native Americans," the independent nature of the OHA, or at least the fact that it is separate from the federal government, would significantly restrict most of the benefits that the agency would receive as a result of such a classification. The OHA and its land, both centerpieces of the current native Hawaiian regime, would receive no benefit if native Hawaiians became Native Americans.
B. The Shortcomings of Native American Law
A psychological component of Native American law provides an even larger obstacle to its application to native Hawaiians. To apply Native American law to native Hawaiians, proponents must establish that a special trust relationship exists between native Hawaiians and the U.S. government.191 This trust relationship arises in two different ways. In one sense, this relationship recognizes the sovereignty of native groups.192 Traditionally, however, this trust relationship is remedial and paternalistic.193 It requires that native peoples be "uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence."194 Many seeking to bring native Hawaiians within the legal framework of Native American law, therefore, argue that native Hawaiians "need protection"195 often because native Hawaiians suffer "poverty"196 or have suffered the destruction of their lands.197 It is little wonder that some native Hawaiians find such a "Federal wardship... instinctively repulsive"198 or that others believe that Native American protections would "violate [their] right to self-determination."199
A tension between subordination and sovereignty plagued Native American law in the Court's earliest days.200 According to Chief Justice John Marshall, "Indian tribes" denote "domestic dependent nations."201 Justice Marshall capitalizes on Native Americans' "dependent" nature in Cherokee Nation v. Georgia to give ownership rights to the U.S. settlers from Europe.202 One year later, however, he admits that Native Americans were an independent nation prior to their discovery by Europeans.203 That same year, however, the Court described Indian nations as separate communities with separate natural rights.204
For most Europeans, however, Manifest Destiny settled the debate-as "representatives of a 'higher' form of civilization, (Europeans] were divinely intended to settle the continent from coast to coast."205 The westward march of civilization over savagery still reverberates in Mancari in that these "dependent people" are given protections because, one could argue, they are savage.
Manifest Destiny, however, may still linger today. In the 1970s, some native and nonnative Alaskans sought to avoid the "paternalism of the reservation system (and attendant continuing federal obligations) of the reservation system in the contiguous 48 states."206 Reservations, after all, are permanently administered by the federal government, and the land cannot be sold outside the Indian tribe.207 Subsequently, the reservations in Alaska were largely dissolved, and the Native Americans were given land under the ANSCA in fee simple.208 Congress and the Native Americans placed greater emphasis on avoiding "any permanent racially defined institutions, rights, privileges, or obligations" rather than maintaining privileges as an Indian tribe.209 The Indians particularly wanted to avoid "creating a reservation system or lengthy wardship or trusteeship."210
Native Hawaiians generally hope to capitalize on Chief Justice Marshall's idea that native inhabitants of this country are autonomous sovereigns.211 Hawaii was an independent country at the time of conquest, complete with a system of government and a constitution.212 Like the native Alaskans, many native Hawaiians actively resist the traditional Native American paradigm as a denial of their history.TM As National Geographic documented in February 2001, native Hawaiians have established their own three-mile-long village outside of Honolulu.214 The community speaks Hawaiian, immerses themselves in Hawaiian culture, and fights for nationhood; they are a "stronghold for the whole movement."215 Also in February, another group of native Hawaiians staged a protest at the international airport in Maui in an attempt to inform tourists of their fight for nationhood.216 Rice v. Cayetano has been, for many, a call to battle, intensifying separatist fervor. The OHA had, before Rice, kept many native Hawaiians content.217
Indian law, while containing technical difficulties when applied directly to native Hawaiians, provides at least a conceptual foundation for a system to keep native Hawaiians content within the Union. In truth, it is a framework similar to the protections offered by the OHA-an agency that generated complaints, but not hostility.218 In applying derivatives of Native American law upon native Hawaiians, one must be careful of the symbolic energy behind the word "Indian." In a strong critique of Mancari-type language, some commentators portray European settlers in the Americas as invoking "certain myths to legitimate and justify the colonization, displacement, and exploitation of aboriginal peoples in the name of evolutionary progress and national development."219 Of course, some native Hawaiians today utilize these "myths" to turn a profit in Hawaii, attracting visitors with brochures that advertise the carefree and barefoot life of native Hawaiians. They invoke the words "primitive" or even "savage."220 Even still, one must be careful not to force native Hawaiians into the myth of savagery against their will.
V. INTERNATIONAL APPROACH
The history of Hawaii and the position of native Hawaiians after Rice v. Cayetano, coupled with native Hawaiians' legitimate hesitation to become "Indian," demand the analysis of a third approach, specifically tailored for native Hawaiians. This approach must be something beyond the strict colorblindness of the Supreme Court or the application of Native American law. In probing this third approach, one must generally explore the realm of ethnic conflict. Any solutions that have application within the Hawaiian context will have much to offer not only native Hawaiians, but minorities across the globe. After all, many groups would have much to gain. While the situation in Hawaii might generate only the temporary inconvenience of a two-hour airport closure should an ethnic conflict arise,221 ethnic conflicts elsewhere, such as Turkey or the former Yugoslavia, can lead to substantial bloodshed.
While Hawaii is a state within the sovereignty of the United States, this third approach involves norms of international law. Native Hawaiians, after all, had international treaties with the United States prior to their conquest. For many native Hawaiians, the Kingdom of Hawaii still exists as an occupied territory.222 Because the United States violated international law back in 1893 when it originally took Hawaii,223 good reason exists to invoke international law today. Most importantly, however, this conflict or tension exists between the United States as a whole and native Hawaiians as a group. International law acts as a neutral third party-as an honest broker mediating an argument.224 It prevents, most basically, the United States from ignoring native Hawaiians completely, perhaps as the Supreme Court's Rice v. Cayetano majority did.225 Further, international law provides amplification of the claims of native Hawaiians, fortifying them within a globally recognized framework and thereby insuring that they are heard by the sovereign United States.226
More pragmatically, international law justifies the application of Native American law to native Hawaiians. First, international law makes clear that native Hawaiians deserve some level of self-determination. Second, international law builds upon Native American law by removing the obstacles that prevented its application to native Hawaiians. It could address the lack of a native Hawaiian "territory" or land area, and it would assuage the psychological burden that becoming federal wards under traditional Native American law would create for native Hawaiians.
A. International Law Justifies Self-determination for Native Hawaiians
While international human rights law once stressed the assimilation of indigenous people, the focus has shifted to the development of autonomy.227 The Working Group for Indigenous Populations of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities has drafted a Declaration on Indigenous Rights.228 The draft recognizes indigenous peoples' right to a "collective existence" and urges states to contribute to the maintenance of indigenous identity and self-management by the groups.229 Yet this stands in direct conflict with the still dominant theme of international law: the sovereignty of states.230 Many countries have already expressed strong reservations against the Declaration of Indigenous Rights.231 "For international lawyers, the challenge now is `to rethink the most fundamental norms of our craft' in order to devise appropriate legal responses to the competing claims of states, ethnic groups, and individuals."232
In recognizing autonomy and identity of indigenous groups, a state must prepare a structural response to the tensions of ethnicity, a force that, if unchecked, can violently rip apart a country.233 Like the native Hawaiians, many indigenous groups seek self determination and independence, directly confronting the right of states to preserve their territorial borders and sovereignty. International law, in fact, makes clear that "all peoples" have the right of self-determination-not only do the ICCPR and the ICESCR make this assertion,234 but so does the UN Charter.235 At the same time, "peoples" is largely undefined in international law,236 and it is difficult to know how far a group can legitimately go to achieve self-determination. For some groups, this has required a violent struggle to secede,237 but others, such as Native AMericans, are generally satisfied by an increased level of respect from the parent sovereign.238 In fact, the Draft Declaration on the Rights of Indigenous Peoples make the right self-determination most clear; it mandates that indigenous peoples "[f]reely determin their political status and freely pursue their economic, social and cultural development."239 Yet this does not necessarily mean a separate state and almost certainly does not endorse a violent struggle; rather, the preferred solution is internal self-determination.240
Recent history has witnessed incredible violence in the name of self-determination. Albanians and Macedonians continue to battle over the right of exclusive self-determination in Macedonia;241 Yugoslavia has been ripped apart by ethnic desires for self-governance.242 The same violence occurs throughout the world and provides bloody evidence against a group's secession from a parent state. Former U.S. Senator Daniel Moynihan describes the chaos and pandemonium that could result as self-identified nations around the world invoke self-determination to claim independence 243-many parts of the world have indeed witnessed intense pandemonium. Secession never receives much international legal support, and when it does, it is often limited to the context of traditional colonization, particularly where those colonized are oppressed.244 Nonetheless, native Hawaiians are driving for independence because they want self-determination.245 Some argue that the Hawaiian Islands are a colony of the United States, but native Hawaiians are neither oppressed nor actively discriminated against, thus making it difficult to justify secession.246
From the perspective of states that hope to retain their national territory, minority rights--often through internal self-determination--provide the better alteernative. WHile "peoples" are perhaps entitled to their own state.247 Often, this treatment diffuses a group's drvie towards independence and secession.248 Human rights law, however, has traditionally afforded individual protections and has only recently begun to embrace the group rights of minorities. The most important source of minority rights under international law exists in the ICCPR.249 Article 27 allows that "persons belonging" to ethnic, religious, or linguistic minorities "shall not be denied the right, in community with the other members of the group and, to enjoy their own culture."250 The protection afforded by Article 27, however, is narrow because it focuses on the protection given to individual members of the group and not necessarily to the group as a whole.251 The recent Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 252 adopted by the General Assembly in 1992, comes closer to establishing group rights by urging that states promote the identity of minorities.253
Yet minority rights pose inevitable threats of internal division-and even violence. Minority rights might fragment a country. Ignorance of minority rights, however, can fan the intense flames of nationalism among ethic groups and give greater reason to secede even in the face of violence and war. Rice v. Cayetano gives some sense of this is Hawaii-- the opinion has fueled support for secession in Hawaii.254 Far more tragic examples exist where failure to recodnize minorities had led to widespread bloodshed, such as Rwanda,255 the former Yugoslavia,256 and Chechnya.257
Native Hawaiians have nochance of secession from theUnited States. Their "Kingdom of Hawaii" has become a full U.S. state equal to all other states. Native Hawaiians, additionally, are full citizens of the United States. They do not need to be released from the "chains of colonialism" that most often generate international pressure for independence.258 Even though once a colony, Hawaii has moved well beyond the traditional paradigm of "colony." Additionally, 260,304 natives share the islands with 915,451 non-natives.259 If native Hawaiians were to secede, the displacement of non-natives would be enormous and, most likely, unjustified. The answer for native Hawaiians lies in securing minority rights through a consideration of both the history of Hawaii and the international law that that history invokes. In assessing the level of minority rights to be granted, the United States must look to international human rights law.
B. Native American Law Offers an Introduction to the International Approach
An international approach would not be entirely new. Rather, an international approach follows, in a loose fashion, the precedent set by Native American law. Professor Rebecca Tsosie argues that Indian treaties are "unique instruments" that are based on international treaties, but are unique because of the perceived "trust and protection" that were given to the Indians.260 These treaties were sui generis, and while often hedged, mitigated, or ignored, they sometimes were given significant weight. For example, United States v. Winans recognized in 1905 that a treaty with Native Americans was not a grant of rights to the Native Americans, but rather "a grant of rights from them."261 This case seems to envision Native Americans as a group with inherent sovereign rights that they can barter away rather than receive.262 This case de-emphasizes Native Americans as wards of the United States and envisions them as something closer to a nation.263 Of course, this opinion drowns in the sea of precedent that posits Native Americans within the plenary power of Congress, but it offers a brief reminder that the initial tension of Native American law revealed by Chief Justice Marshall-the conflict between sovereignty of a minority group and their subordination-still exists.
The constitutional placement of Native Americans reinforces the quasi-sovereignty of Native American tribes. In fact, over the last thirty years, courts have rediscovered the original tension of Chief Justice Marshall's Indian jurisprudence and have leaned more towards sovereignty and away from subordination. Many courts, in an attempt to characterize the relationship between the United States and Indian tribes, have described tribes with words that seem to describe the powers of a U.S. state.264 Native Americans are ultimately subject to U.S. sovereignty, but they maintain a similar position as states within U.S. federalism.265 The Supreme Court in 1991 declared that suits against Indian tribes, just like suits against states, are barred by sovereign immunity.266 In certain respects, one might argue that Indian tribes are given even more sovereignty than states. The Seventh Circuit found in 1993 that Indians are quasi-sovereigns entitled to comity afforded other sovereigns.267 Nonetheless, the courts have never sought to radically limit Congress's final authority over Indian tribes; the courts have traditionally described this authority as plenary.268 Still, the Court in 1980 proclaimed that Congress's power to control and manage a tribe's affairs is "not absolute" and is "subject to limitations inhering in ... a guardianship."269 While still a "dependent nation" or "guardianship," Indian nations have been given a level of respect in judicial opinions similar to that afforded to international soveregins.270
Courts could go even further in acknowledging sovereignty for Native Americans. Indians, as well as native Hawaiians, crafted and accepted state-to-state treaties with countries such as the United States. In fact, native Hawaiians, from 1849 until 1884, signed three treaties of friendship with the United States.271 While Native Americans today still rely on Congress to define the level of their sovereignty, one could argue that Native Americans have inherent powers regardless of Congress; such rights are derived through treasties and through the mechanics of international law.
The internal or domestic example of Native Americans in the United States, albeit plagued with technical and even psychological shortcomings, offers the proposed international approach a place from which to start. By looking to and acknowledging international law, the key chortcomings of Native AMerican law when applied to native Hawaiians can be addressed: (1) the native Hawaiians' lack of a territorial basis for protections272 and (2) their hesitation is becoming a federal ward.273 Native American law, in this way, provides a strong foundation upon which to build an international approach for addressing the legal status of native Hawaiians.
C. Building upon Indian Law
A legitimate minority must be defined, and the boundaries of that definition must be carefully drawn. Drawing the boundaries is by no means an easy task. Legal scholars have devised a "subjective" standard, requiring only that a group exhibit a desire to form a political entity.274 In Hawaii, this desire has been exhibited through various surveys and polls as well as a native Hawaiian plebiscite.275 Additionally, an objective standard exists that assesses a group's common characteristics, such as history or language.276 This standard still offers little to go on, but native Hawaiians, who share a common language and a common history, present an easy case. In fact, for native Hawaiians, many of whom still speak their native tongue, language offers an important starting point.
The international approach would address the native Hawaiian situation with greater flexibility than the precise "racial" classification of native Hawaiians upon which the OHA relies. While it would borrow from Native American law, in so doing the international approach would address three shortcomings: (1) lack of territorial boundaries, such as exclusive Indian reservations; (2) lack of a definition of group that does not hinge upon genetics or race; and (3) the subtle disdain for Native American law as potentially paternalistic. All these shortcomings, however, can be addressed by simply acknowledging the native Hawaiian language.
Indeed, native Hawaiians are spread across Hawaii and often live alongside nonnatives, making a "Hawaiian reservation" impractical. Instead, "territory" could be delineated along language lines in an abstract, fourth-dimensional sense, leaving real property unaffected. Sections of Hawaii could be deemed something similar to "Native Hawaiian Zones," and all state and federal signs could be in both English and Hawaiian, the traditional language of the native Hawaiian people. Language could mark off a "reservation" without displacing non-native Hawaiians and without mandating any land transactions.
This "Hawaiian language zone" could then be analogized to "Indian country" for purposes of U.S. law, allowing a canopy of Native American law to apply to native Hawaiians. Indian country, however, competes with state sovereignty in that-for traditional Indian reservations-states have only limited jurisdiction. This would be difficult in a "Hawaiian language zone" that might be shared equally by native and nonnative Hawaiians. Perhaps a power-sharing arrangement could be implemented or, more radically, a dual governmental system-federalism within a state. Regardless of the actual mechanics, such a "Hawaiian language zone" would at least give native Hawaiians a metaphorical territorial base in which to plant native Hawaiian rights.
While the actual sovereignty of a "Hawaiian language zone" would be complicated and undoubtedly controversial, such a zone could dramatically redefine "native Hawaiians." Currently, the definition depends solely on one's ancestry, a proxy for "race" according to the Supreme Court.277 But a "Hawaiian language zone" would operate like Indian country in providing a non-race qualifier for native Hawaiian status. Just like Native Americans, a native Hawaiian would need to be both "native" and living on (or perhaps near) a language zone to be fully protected. Since, as in Mancari, not all native Hawaiians will be given protection, the classification could be construed as "political," rather than racial, and therefore sustain constitutional scrutiny.
Language can provide a powerful tool of oppression-in many instances, a group is marginalized because its members cannot speak the language of the state.27. While these rights have begun to receive increased international attention since the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992,279 protection has been in place since the ICCPR. Most basically, Article 27 of the ICCPR provides that a group "shall not be denied the right... to use their own language."280 In Hawaii, native Hawaiians have always been allowed to freely speak the Hawaiian language; in fact, the language is officially protected in the state's constitution as, along with English, the official language.281 Regardless, most, if not all, native Hawaiians also speak English.282 Language is not creating barriers for native Hawaiians.
What a language zone offers, however, is a recognition that native Hawaiians still exist on the islands. Seeing the Hawaiian language on a street sign-rather than on a mere tourist brochure-reminds all Hawaiians that native Hawaiians are a vital part of modern Hawaii. A native Hawaiian might after all be a co-worker or even one's boss-not just the barefoot man on the beach with a ukulele. A similar recognition, in fact, lies behind the Canadian policy of recognizing two official languages: French and English.283 While the Francophones are a minority, they are never forgotten because Canada's laws require that all federal services be administered in both French and English.284 Canada, one could argue, demonstrates that language can signify "territory" in a non-traditional sense.
A recognition of the Hawaiian language avoids the perceived "subordination" of native Hawaiians as "helpless" or "dependent" and presents them simply as another group speaking a different language in addition to English. Further, native Hawaiians are not sealed off from society in Indian reservations, but rather are a part of society-something that does not happen with Native Americans living on reservations. This, then, alleviates the perceived "disdain" for Native American law. Paradoxically, as the identity of minority native Hawaiians becomes championed by Hawaii, that identity will become part of the state. Perhaps this could then assuage the pressure to secede.
D. The International Approach Fits Within American Law
Native Hawaiians do not have practical access to international courts. The Supreme Court must pay heed to international transgressions, particularly as annunciated by Congress in their public apology. International law, after all, is a part of U.S. federal law.285 This "unquestioned assertion"286 places the international approach within the grasp of U.S. judges. The Supremacy Clause makes all treaties signed "under the Authority of the United States . the supreme Law of the Land."287 This clause then makes international treaty law federal law. Article I of the Constitution, however, inferentially extends the scope of applicable international law by allowing Congress to "define and punish.. . Offenses against the Law of Nations."288 Under this power, Congress passed the Alien Tort Statute as part of the Judiciary Act of 1789, allowing courts to hear tort claims arising under either U.S. treaties or the more ambiguous law of nations.289 Courts have extended this to include the more amorphous customary international law.290
This international approach fits within U.S. law. The situation of native Hawaiians involves international law. Congress arguably identifies violations of international law in their 1993 apology.291 Yet, the Supreme Court ignores international law completely.292 The right of all people to self-determination, as a valid and well-accepted tenet of international law, deserves recognition within U.S. courts. This recognition of the right of all people to self-determination does not mean that the courts need to recognize either the right to independence or secession. However, it does mandate increased sensitivity, awareness of international law and norms, and a flexibility that the Court in Rice v. Cayetano did not exhibit.
While international law may not always be self-executing-making the application of international law in domestic courts infrequent and controversial-Congress explicitly annunciated the international violations against native Hawaiians in a public apology, 293 One could then give significant weight to Congress' declaration that the rights of native Hawaiians have been substantially violated. With annunciated international abuses proclaimed by Congress staring it in the face, the Supreme Court treads dangerously by ignoring international legal violations against native Hawaiians.
Native American law provides a springboard for this internationalist approach; it provides precedent, but it does not offer a solution for native Hawaiians. For one, they have no "reservation" and are rather intermingled with the now non-native majority. Second, the native Hawaiians, just like the native Alaskans, do not want to become another Native American ward of the state. And finally, Native American law simply carries too many limitations to adapt to the situation of the native Hawaiians. Within the framework of Indian law, however, is a framework for a more internationally conscious approach-one of respect for native Hawaiians not as dependants, not as poster-people for a "Hawaiian paradise," but as a people deserving of self-determination.
One might view the Native Hawaiian Bill as a step closer to native Hawaiians' accomplishing a degree of self-determination. Although inevitably grounded in Indian law, the Bill perhaps goes a step beyond Native American law. It urges increased respect for native Hawaiians as a people entitled to some degree of self-determination. The Bill would affirm for native Hawaiians the right of "autonomy in their internal affairs" and the right of self-governance and self-determination.294 Further, the U.S. government would be required to continue reconciliation talks with the native Hawaiian "people."295
The Bill is larger than what Native American law allows. Indian law maintains limitations, a hesitant grant of sovereignty, and is largely applicable only in federally recognized "Indian country." The Native Hawaiian Bill, while keeping with the spirit of Native American law, goes further. It urges courts to assess the full weight of native Hawaiian history, to consider the international violations against the Hawaiian people, and to take into account the continuing subordination of native Hawaiians both economically and socially as their islands become awash in resorts, high-rises, and tourists.296 The history of Hawaii cannot be reversed or paused, but the international rights of native Hawaiians need not be washed away within U.S. courts.
Through this international approach, the history of Hawaii can be given appropriate weight. Internationally, the rights of the Kingdom of Hawaii were violated. Yet Hawaii was conquered and defeated more than one hundred years ago as a U.S. state; independence will never come without intense fighting. A return to the Kingdom of Hawaii is highly unlikely. But Hawaii must be afforded increased autonomy through international principles.
VI. CONCLUSION
There are exceptions to the colorblindness of Rice v. Cayetano. Since Native American law lacks the necessary protections, the courts-and perhaps Congress-must make clear that Hawaii deserves a third option. Congress, perhaps, has already taken that step by passing the 1993 Apology Bill. The Supreme Court, however, unwisely ignored Congress's unabashed confession. It ignored the right of native Hawaiians to selfdetermination. Many native Hawaiians maintain a nationalistic desire for separation.297 Indeed, under most international standards, they comprise a group with a legitimate claim to self-determination: they both desire it and possess a strong group identity with a common history, culture, and language. Concrete legal violations were committed against the native Hawaiians, and, as such things as the protest at the Maui airport demonstrate, they have not been forgotten. A third option does exist that will take into consideration the international position of the native Hawaiians.
Today, a little over 280,000 native Hawaiians298 live amid roughly 900,000 nonnatives.299 Undoubtedly, many of the non-natives, like Harold Rice's family, have lived on the islands for generations. Hawaii today is not the Hawaii of 1787 or 1843. These realities work against the absolute rights of native Hawaiians as an independent sovereign people. Moreover these facts make the option of self-governing "native Hawaiian reservations" seem difficult. On a certain level, native Hawaiians must work with other resident Hawaiians on their small islands-this, after all, was the thinking behind the statewide vote that established the OHA in 1978.
The fact that native Hawaiians do have a claim to independence must inform cases such as Rice v. Cayetano. Native Hawaiians must be given a grant of autonomy, allowing them to manage the OHA lands without interference. This autonomy includes allowing native Hawaiians exclusive voting rights in OHA elections. Simply put, they must be given equal respect. Only this position can recognize the history of native Hawaiians that gives rise to legitimate international legal claims, and, only in this way, can native Hawaiians escape a symbolic conquest by classification as a "dependant domestic nation."
Such a position might seem soft or amorphous, but several hard legal positions come close to supporting this view. The Circuit Court, after all, found that on a pragmatic level, only native Hawaiians need vote in the OHA elections because the OHA benefited only native Hawaiians-it was construed as a "special interest" election.300 As the Supreme Court makes clear, however, the OHA's influence is not quite that narrow and has a substantial impact on non-native Hawaiians.301 Additionally, the lower courts point out that if Native Americans are not considered a "race" within equal protection jurisprudence, then native Hawaiians should not be either.302 This analysis comes close to working, but "Native Americans" are not defined in absolute terms. Rather, they constitute only "`federally recognized' tribes."303 Therefore, all Native Americans within racial terms need not be Native Americans within the eyes of the law. Finally, Native American law does grant significant protection to Indians, but those protections generally operate within federally recognized Indian tribes and cannot extend so far as to abrogate the Fifteenth Amendment, as was an issue in Rice v. Cayetano. 304
None of the existing legal structures solve the dilemma of native Hawaiians. Each of the above approaches provides shades of support but ultimately fails. A strong internationalist perspective, however, can assemble these pieces to achieve a working judicial framework. Ultimately, Representative Neil Abercrombie is on the right path: the rights that native Hawaiians deserve are not new or radical-they have been had by the Native Americans all along.305 Indian tribes do receive a level of comity similar to that afforded to sovereign nations and are, therefore, given greater respect than other litigants.306 And Congress may enact legislation singling out tribal Indians that would otherwise be constitutionally offensive.307 However, Congress must do more than declare native Hawaiians to be the indigenous peoples of Hawaii and thus deserving of these special protections. Because of the wrinkles in Native American law, and because of the specifics of the OHA, such legislation as Abercrombie's will do little to change the status quo.
Courts, however, must pick up on this theme and interpret it within this paradigm. Judges must realize the injustices that native Hawaiians have faced. These injustices are not the mere speculation of scholars and historians, but rather were enumerated by Congress in 1993. While judges may have to take a small step forward to seize upon this international perspective, it is a mode of reasoning that fits within the Constitution and mimics protections already given to Native Americans. And in a way, it echoes what the people, through their Congressional representatives, have already said about the native Hawaiians in the Public Apology Bill of 1993. Native Hawaiians have rights under international law that, although Congress still maintains ultimate sovereignty over them, cannot be ignored.
Native Hawaiians are not the quaint, barefoot primitives of the tourist brochures. They are a contemporary people striving to maintain a cohesive culture while also working to achieve economic success. The international perspective perhaps most importantly affords native Hawaiians recognition as a dynamic, contemporary people-a quasisovereign within the United States deserving of comity. Such a conception stresses their equality, rather than the paternalism of a "dependant domestic nation."
Native Hawaiians ask primarily for respect and recognition-not an extraordinary request for any ethnic group. Too often across the globe, they are ignored-their traditional lands have been plundered, their populations have dwindled, and their culture receives little real recognition outside the tourist industry.38 The result can be explosive, both for the parent nation and international order. While the native Hawaiians are not about to rise up in armed rebellion, too many other minorities across the world are forced into the role of armed liberators. Minorities must be respected and given autonomy; they cannot be ignored, and they cannot be relegated to their history. "Native Hawaiian" must mean more than just luaus and grass skirts.
FOOTNOTE1. Bruce Dunford, Hawaii's Economy Rises from Nine-Year Slump, THE DETROIT NEWS, May 31, 2000, 2000 WL 3479382 (noting the increasing importance of tourism in Hawaii).
2. See id.
FOOTNOTE3. Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 YALE L. & POLY REV. 95, 96 n. 12 (1998); see also Eric Steven O'Malley, Irreconcilable Rights and the Question of Hawaiian Statehood, 89 GEO. L.J. 501, 508 (2001).
4. Van Dyke, supra note 3, at 97.
5. Captain James Cook discovered the islands in 1778. LAWRENCE FuCHS, HAWAII PoNO: AN ETHNIC AND POLITICAL HISTORY 34 (1961) (stating that the Hawaiians sailed to the Hawaiian islands from Tahiti in 750 C.E., living largely in isolation until 1778).
6. HAW. CONST. art. XII, 7 (1993) ("The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights."); see also Hawaiian Homes Commission Act 201, 42 Stat. 108 (1920) (previously codified at 48 U.S.C. 691 but omitted upon Hawaii's admission to the Union).
7. RAW. CONST. art. XII, 5 (amended 1978). 8. O'Malley, supra note 3, at 532.
9. Id.
10. HAW. CONST. art. XI, , 5 ("There shall be aboard of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law."). The term "Hawaiian" includes native Hawaiians as defined in Article XII, Section 7 of the Hawaii Constitution; see also HAW. REV. STAT. 10-2 (2001) (defining "Hawaiian" as "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands in 1778, and which... peoples thereafter have continued to reside in Hawaii").
11. OHA v. Yamasaki, 737 P.2d 446,451 (Haw. 1987).
12. O'Malley, supra note 3, at 532 n.217 (citing NATIVE HAWAIIAN RIGHTS HANDBOOK 92 (Melody K. Mackenzie ed., 1991)).
13. Rice v. Cayetano, 528 U.S. 495 (2000).
14. Id. at 499 (citing U.S. CONST. amends. XIV, XV). 15. Id.
FOOTNOTE16. Rice v. Cayetano, 146 F.3d 1075, 1081 (9th Cir. 1998); Rice v. Cayetano, 963 F. Supp. 1547, 1550-54 (D. Haw. 1997).
17. Rice, 146 F.3d at 1080-81; Rice, 963 F. Supp. at 1554. 18. Rice, 528 U.S. at 511, 518-22.
19. Id. at 496. 20. Id. at 522.
21. See, e.g., A bill to express the policy of the United States regarding the United States' relationship with Native Hawaiians, and for other purposes, HR. 4904, 106th Cong. (2000); A bill to express the policy of the United States regarding the United States' relationship with Native Hawaiians, and for other purposes, S. 2899, 106th Cong. (2000).
22. See Susan Roth, Hawaiian Senators Reintroduce Native Recognition Bill, GANNETT NEWS SERV., Jan. 23, 2001, 2001 WL 5104218 (on file with author).
23. Staff Editorial, Gov. Cayetano Abuses Authority, U-WIRE, Feb. 25, 2000, 2000 WL 15359245.
24. In 1993, Congress formally apologized for the overthrow of the Hawaiian monarchy and urged reconciliation talks. Those talks concluded in 1999 with many wanting more than apologies. Said one participant: "All we want to hear from the federal government is, `You are restored to what you are, what you were [sic] a Hawaiian nation."' Jean Christensen, Hawaiians Mull Future in Wake of Apology, THE COLUMBIAN, Dec. 9, 1999, 1999 WL 30742296.
25. See, e.g., U.N. CHARTER arts. 1, 2, 55. 26. Rice, 528 U.S. at 523-24.
FOOTNOTE27. Of the 1,211,537 people living in Hawaii, only 282,667 are "native Hawaiians." 2000 Census Data, available at http://www.census.gov/prod/cen2000/dp 1/2kh15.pdf (last visited Apr. 15, 2002).
28. Office of Hawaiian Affairs, Public Opinion Survey, 1999, at http://www.oha.org/pdf/smsslides.pdf (last updated Aug. 11, 1999) (on file with author). Twenty-three percent favored sovereignty entirely; nineteen percent favored partial sovereignty.
29. Troy M. Yoshino, Ua Mau Ke Ea 0 Ka Aina I Ka Pono: Voting Rights and the Native Hawaiian Sovereignty Plebiscite, 3 MICH. J. RACE& L. 475, 478 n.10 (1998).
30. See O'Malley, supra note 3, at 505 n.19 (noting that the actual population of Hawaii before Captain Cook ranges from 200,000 to I million); Van Dyke, supra note 3, at 96 n.7 (suggesting a range between 300,000 and 800,000 people); see also DAVID E. STANNARD, BEFORE THE HORROR: THE POPULATION OF HAWAII ON THE EVE OF WESTERN CONTACT 50 (1989) (estimating 1 million inhabitants).
31. Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 YALE L.J. 537, 549 (1996). For a full history of pre-colonial Hawaii, see generally Fuchs, supra note 5.
32. O'Malley, supra note 3, at 505.
FOOTNOTE33. Id.
34. The level of control that westerners had in King Kamehameha's monarchy is subject to debate, but the fact that he received weapons and money from the West is not. See GAVAN DAws, SHOAL OF TiME: A HISTORY OF THE HAwAIIAN ISLANDs 32 (Hawaii Univ. Press 1974) (1968).
35. Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, and to offer an Apology to Native Hawaiians on Behalf of the United States for the Overthrow of the Kingdom of Hawaii, S.J. Res. 19, 103d Cong., 107 Stat. 1510 (1993) (passed by the U.S. Congress on the 100-year anniversary of the overthrow of Hawaii) [hereinafter Overthrow of Hawaii Resolution]. 36. O'Malley, supra note 3, at 506.
37. Benjamin, supra note 31, at 549-50.
38. "Commoners" got 30,000 acres while 1.5 million acres went to chiefs, about 1.5 million acres went to the government, and almost I million acres went to the crown. DAWS, supra note 34, at 127.
39. O'Malley, supra note 3, at 506; see DAWS, supra note 34, at 140. Daws, however, explains that many Hawaiians probably sold willingly. They had been the equivalent of serfs in medieval Europe; the freedom that most appealed to them was freedom from the taro fields. Id. at 128.
40. Benjamin, supra note 31, at 550.
41. DAWS, supra note 34, at 140. Daws describes a smallpox outbreak in 1853 and 1854 that ravaged the native Hawaiians. Within a several-month to one-year period, five to six thousand died. Id.
42. DAWS, supra note 34, at 382.
43. Overthrow of Hawaii Resolution, supra note 34, at 1512. 44. DAWS, supra note 34, at 246-49, 271.
45. Id. at 251. The 1887 Constitution granted suffrage to Hawaiians, Americans, and Europeans who owned $3,000 in property or earned at least $600 per year. HAw. CONST. of 1887, art. 59, available at http://planethawaii.com/hsec/constitution-1887.html (last visited Apr. 15, 2002). Most native Hawaiians did not have the property or income to vote. The "reformers" who imposed the 1887 Constitution on Hawaii admitted to "discrimination." "I have" said one, "an exalted idea of the destiny of the white man and of his power to control and govern both men and elements." Id. at 251.
FOOTNOTE46. See generally id. at 271.
47. See FUCHS, supra note 5, at 30; DAWS, supra note 34, at 271-80. 48. Draws, supra note 34, at 273-76.
49. Overthrow of Hawaii Resolution, supra note 35, at 1511.
50. Our Response to Internet Myths, at http://www.all4aloha.org/headingsaloha4.html (last visited Apr. 15, 2002).
51. Rice v. Cayetano, 963 F, Supp. 1547, 1551 (D. Haw. 1997) (quoting Hawaiian Homes Commission Act, H.R. REP. No. 66-839, at 2 (1920)).
52. See Michael Carroll, Everyman Has a Right to His Own Destiny: The Development of Native Hawaiian SelfDetermination Compared to Self-Determination Compared to Self-Determination of Native Alaskans and the People of Puerto Rico, 33 J. MARSHALL L. REv. 639, 647 n.49 (2000).
53. Van Dyke, supra note 3, at 102, 104. 54. O'Malley, supra note 3, at 520.
55. DAWS, supra note 34, at 298.
56. HAW. REv. STAT. 207, 208 (2001).
57. Hawaiian Homes Commission Act, H.R. REP. No. 66-839, at 2 (1920). 58. See Van Dyke, supra note 3, at 104.
59. Id. One could argue that this was an easy way to "quiet" the native Hawaiians. With their own land, they would have less of a complaint against wealthier land owners.
60. Land Owned in Fee Simple by Selected Large Landowners, STATE OF HAWAII DATA BOOK, at http://www.hawaii.gov/dbedt/db99/index.html (1999) (citing figures for the year 1999).
FOOTNOTE61. O'Malley, supra note 3, at 521.
62. Id. (citing Samuel P. King, Hawaiian Sovereignty, 3 HAW. B.J. 6, 6 (1999)).
63. See Ahuna v. Dept of Hawaiian Home Lands, 640 P.2d 1161, 1167 (Haw. 1982).
64. Id. at 1167 n.10 (quoting the statements of Senator Wise, an author of the Hawaiian Homes Commission Act of 1920, H.R. REP. No. 839, at 4 (1920)).
65. Id. at 1168.
66. See Rice, 963 F. Supp. at 1552-53; see also Keaukaha-Panaewa Cmty. Assn v. Hawaiian Homes Comm'n, 739 F.2d 1467, 1472 (9th Cir. 1984); Ahuna, 640 P.2d at 1168-69. In fact, the Office of Hawaiian Affairs points almost exclusively to this event to support its claim that native Hawaiians deserve the same "special relationship" afforded to Native Americans. See Gary T. Kubota, Thousands to Demonstrate for Hawaiian Entitlements, HONOLULU STAR-BULL., Jan. 31, 2001 http://www.starbulletin.com/2001/01/31/news/index.html. 67. Hawaii Admission Act, Pub. L. No. 86-3, 4, 73 Stat. 4 (1959).
68. Id. 5(f); Gavin Clarkson, Not Because They Are Brown, but Because of Ea: Rice v. Cayetano, 24 HARV. J.L. & PUB. POL'Y 921, 936 (2001). The act listed four other reasons, including support for public education, public improvement, provisional public lands, and development of farm and home ownership.
69. Robert J. Deichert, The Fifteenth Amendment at a Crossroads, 32 CONN. L. REV. 1075, 1093 (2000).
70. The Ninth Circuit noted that no benefits actually went to native Hawaiians until the constitutional amendment in 1978. Rice v. Cayetano, 146 F.3d 1075, 1077 (9th Cir. 1998).
71. See HAW. CONST. art. XII, 5 (amended 1978); Rice v. Cayetano, 528 U.S. 495, at 508 (2000). The majority quotes the Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, 1018 (1980): "Members foresaw that [the OHA] will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite the Hawaiians as a people."
72. See Rice, 963 F. Supp. at 1548. 73. HAW. REV. STAT. 104 (2001).
FOOTNOTE74. See Price v. Akaka, 3 F.3d 1220 (9th Cir. 1993); Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985); Hoohuli v. Ariyoshi, 631 F. Supp. 1153 (D. Haw. 1986); Trs. of the Office of Hawaiian Affairs v. Yamasaki, 737 P.2d 446 (Haw. 1987).
75. Their website includes the OHA's public appeal for native Hawaiian sovereignty. See http://www.all4aloha.org (last modified May 11, 2002).
76. HAw. CONST. art. XIL 5.
77. HAw. REV. STAT. 1313-3 (2001).
78. Campaign for a Color-Blind America Legal Defense and Educational Foundation, 1999 Year in Review, available at http://www.equalrights.com/release010300.html (last visited Apr. 15, 2002); Office of Hawaiian Affairs, The state of Hawaii's method for electing OHA trustees is challenged, at http://www.nativehawaiians.com/sup_court.html (last visited Apr. 15, 2002).
79. Mr. Rice's great-grandfather was governor of Kauai, one of the Hawaiian Islands, under Queen Lili'uokalani. See Bruce Dunford, Hawaii's Race Dilemma: Court to Rule on Native's Special Rights, CHARLESTON GAZETTE, Oct. 4, 1999, at 7A.
80. Id.
81. Rice v. Cayetano, 528 U.S. 495, 498 (2000).
82. Rice v. Cayetano, 963 F. Supp. 1547, 1550 (D. Haw. 1997). 83. Id. at 1554.
84. Id. at 1555.
FOOTNOTE85. Id. at 1547.
86. Morton v. Mancari, 417 U.S. 535 (1974). 87. Rice, 963 F. Supp. at 1550-54.
88. Id. at 1550.
89. Mancari, 417 U.S. at 541-42.
90. The Court notes that the purpose behind the Indian Reorganization Act of 1934 was to allow tribes to assume a greater degree of self-government, both politically and economically. Id. at 542.
91. Id. at 547-48.
92. These preferences were preserved in the 1972 amendments to the Civil Rights Act of 1964 and were also present in the Education Amendments of 1972. Id. at 548.
93. Id. at 535. 94. Id. at 554.
95. Rice, 963 F. Supp. at 1552-54.
96. Id. at 1551 (quoting Mancari, 417 U.S. at 552). 97. Td
FOOTNOTE98. The Court concedes that the OHA and HHCA are both state-run, but acknowledges that congressional approval must still be acquired for amendments to the HHCA. Id. at 1551-52.
99. The Circuit Court recognized that Mancari was not totally on-point: "We recognize that Mancari is distinguishable because Hawaiians are not exactly like Indians ..... Rice v. Cayetano, 146 F.3d 1075, 1081 (9th
FOOTNOTECir. 1998). The court notes that native Hawaiians are not organized into tribes, and there is no Hawaiian Commerce Clause in the Constitution. Id.
100. See Rice v. Cayetano, 528 U.S. 495, 495-97 (2000). 101. Id. at 514-17.
102. Id. at 518-22. 103. Id. at 514. 104. Id. at 514-15.
105. Id. at 515 (emphasis added) (quoting 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, 1018 (1980)).
106. Rice, 528 U.S. at 515-16 (quoting I Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, 1018 (1980)).
107. Id. at 516. 108. Id. at 513. 109. Id. at 514. 110. Id. at 517.
111. Id. at 546 (Stevens, J., dissenting); Wallace Coffey and Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 STAN. L. & POL'Y REV. 191, 195 (2001); Lori Tighe, Native Hawaiian Lawyer Downplays Rice Ruling, HONOLULU STAR-BULL., Mar. 30, 2000, available at http://starbulletin.com/2000/03/30/news/storyl.html (last visited Apr. 15, 2002).
112. Rice, 528 U.S. at 534.
FOOTNOTE113. See Susan Roth, House Approves Bill to Federally Recognize Native Hawaiians, GANNETT NEWS SERV., Sept. 27, 2000.
114. Id. 115. Id. 116. Id.
117. This was largely because it was introduced late in the term. A bill to express the policy of the United States regarding the United States relationship with Native Hawaiians, and for other purposes, H.R. 4904, 106th Cong. (passed the House on Sept. 26, 2000; placed on Senate calendar in Oct. 2000).
118. The bill failed in 2000 and was introduced again in early 2001, but nothing has happened since. See Senators Reintroduce the "Akaka Bill", HONOLULU STAR-BULL., Jan. 22, 2001, available at http://starbulletin.com/2001/01/22/news/briefs.html.
119. Susan Roth, Lobbyists May Affect Hawaiian Bill's Fate, HONOLULU ADVERTISER, Sept. 18, 2000, available at http://the.honoluluadvertiser.com/2000/Sep/18/918localnewsl4.html.
120. Id.
121. Pia Sarkar, Hawaiians to March Washington Event to Promote Culture of Native Islanders, Explore Various Sovereignty Efforts, S.F. ExAMINER, Aug. 11, 2000, at A3, available at 2000 WL 616696.
122. Id. 123. Id. 124. Id.
125. Rice v. Cayetano, 528 U.S. 495, 546 (2000) (Stevens, J., dissenting).
FOOTNOTE126. A bill to express the policy of the United States regarding the United States' relationship with Native Hawaiians, to provide a process for the reorganization of a Native Hawaiian government and the recognition by the United States of the native Hawaiian government, and for other purposes, H.R. 617, 107th Cong. (2001) [hereinafter Policy Regarding Native Hawaiians].
127. Rice, 528 U.S. at 523-24.
128. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1996, 999 U.N.T.S. 171 [hereinafter ICCPR]; International Covenant of Economic, Social and Cultural Rights, opened for signature Dec. 19, 1996, 993 U.N.T.S. 3 [hereinafter ICESCR].
129. Rice, 528 U.S. at 518-22.
130. Susan Roth, Native Bill Gains Clout in Congress, HONOLULU ADVERTISER, Feb. 15, 2001, available at http://the.honoluluadvertiser.com/2001/Feb/15/215 localnews33.html.
131. See Annmarie M. Liermann, Comment, Seeking Sovereignty: The Akaka Bill and the Case for the Inclusion of Hawaiians in Federal Native American Policy, 41 SANTA CLARA L. REV. 509 (2001); Susan Roth, Congressional Bill Would Define Political Status of Native Hawaiians, HONOLULU ADVERTISER, May 13, 2001, available at http://the.honolutuadvertiser.com/2000/May/13/localnewsl.html; Curtis Lum, Hawaiians Assess SelfRule Bill, HONOLULU ADVERTISER, July 8, 2000, available at http://the.honoluluadvertiser.com/ 2000/Jul/08/localnewsl6.html.
132. Native American law in the United States generally refers to Native Americans as "Indians."
FOOTNOTE133. Marshall described them as independent sovereigns, albeit domestic independent sovereigns. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16-20 (1831).
134. See Brendale v. Yakima Indian Nation, 492 U.S. 408 (1989); see also Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (stating that Indian tribes are sovereign only to the extent that sovereignty has not been withdrawn by federal statute or treaty).
135. Washington v. Yakima Indian Nation, 439 U.S. 463 (1979) (reversing the circuit court's holding that state legislation extending state jurisdiction to Indian lands that were not Indian trusts or reservations violated the Equal Protection Clause). "It is settled that `the unique legal status of Indian tribes under federal law' permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive." Id. at 500-01 (quoting Morton v. Mancari, 417 U.S. 535, 551-52 (1974)).
136. 42 U.S.C.A. 200e-2(i) (2001).
137. BLACK'S LAw DICTiONARY 775 (7th ed. 1999) (defining "Indian tribe" as "[a] group, band, nation or other organized group of indigenous American people, including any Alaskan native village, that is recognized as eligible for the special programs and services provided by the U.S. government because of Indian status (42 U.S.C.A. 9601(36)); esp., any such group having a federally recognized governing body that carries out substantial governmental duties and powers over an area (42 U.S.C.A. 300f(14); 40 C.F.R. 146.3). A tribe may be identified in various ways, esp. by past dealings with other tribes or with the federal, state, or local government, or by recognition in historical records").
138. Christine Donnelly & Mary Adamski, Hawaiian Rights Bill Introduced: It is Labeled both as Blessing, Curse, HONOLULU STAR-BuLL., July 21, 2000, available at http://starbulletin.com/2000/07/21/news/story2.html; Tanya Bricking, Akaka Bill Stirs Hawaiians is Intended to "Correct An Injustice", HONOLULU ADVERTiSER, July 21, 2000, available at http://the.honoluluadvertiser.com/2000/Jul/ 21/localnewsl.html.
139. Donnelly & Adamski, supra note 138.
140. Anne Keala Kelly, A Field Guide to the Akaka Bill(s), HONOLULU WEEKLY, Feb. 4, 2002, available at http://akaka.homestead.com/files/fieldguide.html (quoting Kekuni Blaisdell, coordinator of the Hawaiian sovereignty roundtable).
141. An example can be seen at the Stop Akaka website, at http://akaka.homestead.com/files/news.html.
FOOTNOTE142. Mancari, 417 U.S. at 535, 553 n.24. 143. Id.
144. See Benjamin, supra note 31, at 575. 145. Mancari, 417 U.S. at 551.
146. Stuart Benjamin mentions several cases since Mancari that might de-emphasize tribal membership. While the court in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), and United States v. John, 437 U.S. 634 (1978), did not emphasize tribal membership in their reasoning, the practical outcome applied almost entirely to those who were members of a tribe. See Benjamin, supra note 31, at 563-64.
147. Rice v. Cayetano, 528 U.S. 495, 524-25 (2000) (Breyer, J., concurring).
148. See id. at 526. Justice Breyer seems to suggest that a definition of "Hawaiian" should be more like the definition for native Alaskans. Native Alaskans are defined as "a person of one-fourth degree or more Alaska Indian." Id. (quoting 43 U.S.C. 1602(b)). Ironically, the definition of "Hawaiian" in the state's constitution is not racially specific enough-it "include[s] anyone with one ancestor who lived in Hawaii prior to 1778, thereby including individuals who are less than one five-hundredth original Hawaiian (assuming nine generations between 1778 and the present)." Id.
149. See Rice, 528 U.S. at 527. 150. See id. at 529-31.
151. Id. at 531.
152. See Benjamin, supra note 31, at 575-81.
153. Professor Benjamin suggests that this definition may still be problematic because the court was construing the word "tribe" from a statute-the meaning might be limited to the Congressional intent behind that particular statute. Id. at 575-76.
FOOTNOTE154. Montoya v. United States, 180 U.S. 261, 266 (1900). 155. See Santa Clam Pueblo v. Martinez, 436 U.S. 49 (1978). 156. See Rice, 528 U.S. at 526; HAw. CONST. art. XII, 7. 157. See HAW. CONST. art. XI, 7.
158. Rice, 528 U.S. at 514-17; id. at 524-25 (Breyer, J., concurring). 159. Policy Regarding Native Hawaiians, supra note 126, 1(19). 160. Id.
161. Id. 1(3). 162. Id. 1(20)(B). 163. Id. 1(20)(C).
FOOTNOTE164. See Rice v. Cayetano, 528 U.S. 495, 520 (2000). 165. Id. at 524-25.
166. Hawaiian Homes Commission Act 201(a)(7); see also Policy Regarding Native Hawaiians, supra note 126, 2(6XA).
167. See Policy Regarding Native Hawaiians, supra note 126, 2(4). 168. Rice, 528 U.S. at 516-17.
169. Id.
170. Id. at 515.
171. 18 U.S.C. 1151 (2001).
172. McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 168 (1973). 173. See id.
174. Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 466 (1995). 175. Id.
FOOTNOTE176. NATIVE HAWAIIAN DATA BOOK 1998: TABLE 3.13, at http://oha.org/databook/tab3-13.98.html. 177. Id.
178. NATIVE HAWAIIAN DATA BOOK 1998: TABLE 3.7, at http://oha.org/databook/tab3-07.98.html. 179. NATIVE HAWAIIAN DATA BOOK 1998: TABLE 3. 1, at http://oha.org/databook/tab3-01.98.html. 180. NATIVE HAWAIIAN DATA BOOK 1998: TABLE 3.7, supra note 178.
181. 43 U.S.C. 1618(a) (2001). All reservations were revoked except for the Metlakatla Indian community.
182. Id. 1601-42.
183. Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 524 (1998); 43 U.S.C. 1605, 1607, 1613 (2001). See generally 43 U.S.C. 1601-05 (2001).
184. Venetie, 522 U.S. at 524; 43 U.S.C. 1613 (2001). 185. Venetie, 522 U.S. at 523-24.
186. See HAw. CONST. art. XIL 5; 43 U.S.C. 1601(b), 1606. 187. See HAW. CONST. art. XII, 5; 43 U.S.C. 1605(c).
188. See Venetie, 522 U.S. at 527, 533-34. Indian country is defined in 18 U.S.C. 1151: "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government ... (b) all dependent Indian communities within the borders of the United States whether within or without the limits of the state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-ways running though the same."
189. Venetie, 522 U.S. at 526-34.
FOOTNOTE190. Id. at 525. The Neets'aii Gwich'in Indians in Northern Alaska demanded $161,000 from the state and the private contractor with whom the state was in a joint venture for the building of public schools for "conducting business activities on the Tribe's land." Id. See also 18 U.S.C. 1152 (2001) (stating that jurisdiction over land that is Indian country rests with the federal government and not the states).
191. See Morton v. Mancari, 417 U.S. 535, 555 (1974) (noting that Congress has a "unique obligation toward the Indians"). See generally Kimberly A. Costello, Rice v. Cayetano: Trouble in Paradise for Native Hawaiians Claiming Special Relationship Status, 79 N.C. L. REv. 812, 812-18 (2001).
192. See McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 172 (1973) ("[Indian tribes'] cla