Not because they are brown, but because of Ea.

• Author: Clarkson, Gavin
• Position: Hawaiian word for sovereignty - Native Hawaiians

1. INTRODUCTION

   During its 1999 Term the Supreme Court heard a case directly involving the status of Native Hawaiians for the first time in its history.(2) At issue was participation in the election of the board of trustees of the Office of Hawaiian Affairs (OHA), an agency that administers programs benefiting two subclasses of Hawaiian citizenry, "Hawaiians" and "Native Hawaiians."(3) The Hawaiian State Constitution limited the right to vote for the nine OHA trustees and the right to run in the statewide election for the position of OHA trustee to those two subclasses.(4) The Court held that because the definitions of these subclasses were racial rather than political in nature, the voting restrictions violated the Fifteenth Amendment.

   At first glance it appears that the rights of yet another group of indigenous inhabitants of this nation were trampled upon. A closer inspection of the case reveals, however, that the Native Hawaiians were instead victims of a constitutionally faulty remedial infrastructure that was based on their race rather than their inherent sovereignty as indigenous people. The crux of the majority opinion was that the voting restrictions were both racially defined and imposed by the State, and thus were constitutionally impermissible.(5) Although the majority opinion does not elucidate acceptable alternatives, it implies that had the voting restrictions been based on membership in a Native Hawaiian political entity, and had that entity, rather than the State of Hawaii, been the administrator of the resources controlled by OHA, it is likely that the outcome would have been favorable to the Native Hawaiians. The constitutional defect identified by the majority was not an attempt to provide a measure of self-determination for Native Hawaiians but rather a faulty infrastructure that attempted to promote such self-determination as a function of race under the auspices of the State.

   How this faulty infrastructure arose is in large part a function of history. Writing in dissent, Justice Stevens correctly admonished the majority that a proper decision required an understanding of the history of Native Hawaiians.(6) As Professor Frickey notes, "in federal Indian law, lawyerly analysis that is devoid of broader historical and theoretical perspectives leads to misleading conclusions about the determinacy and substance of what the law `is' [or `was'] at any given moment."(7) Part II of this Note therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law,(8) focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians.

2. CONTEXTUAL PERSPECTIVE ON RELEVANT HISTORY

   Although Justice Kennedy allocates more than half of the majority opinion to the history of Hawaii,(9) he does not place that history in the broader context of the history of federal Indian law. Much of the argument from both sides centers on whether Native Hawaiians can legally be treated as Indians by way of the jurisprudence that identifies Indian status as a political rather than a racial classification,(10) It is thus necessary to understand the legal history of Indian policy. Numerous parallels exist between the treatment of Native Hawaiians on the islands and the treatment of Indians on the mainland. In several instances, however, the timing of major developments in Hawaiian history worked to the detriment of Native Hawaiians because of the character of Indian policy at the time. Like most renditions of the history of Indian law, this Part is organized according to the different eras of federal Indian law and policy.(11)

   1. Pre-contact

      Under the doctrine of discovery(12) aboriginal peoples were typically viewed as heathen savages who, upon discovery, retained only limited "native title" to the lands they occupied, subject to the will of the sovereign that funded the discovery. Unlike the North American mainland, however, the Hawaiian Islands were isolated from Western European contact for centuries until 1778 when Captain James Cook arrived. Each high chief, or ali'i nui,(13) controlled a district of an island or an entire island.(14) Local chiefs, the ali'i or konohiki,(15) controlled specific lands, and commoners, or maka'ainana,(16) worked them. Typically, lands were divided into parcels defined by boundaries radiating from a point high on a mountaintop down to the sea level, so as to enclose a drainage area. The parcel was known as an ahupua'a,(17) an economically self-sufficient tract of land that usually included forest resources, farmland, fresh water, and access to the sea.

      Operation of the Hawaiian land tenure system somewhat resembled the feudal arrangements that prevailed in medieval Europe in that a portion of all that was produced went to the chiefs.(18) There were, however, significant differences.(19) Hawaiians considered land to be held for the common benefit.(20) If the maka'ainana believed that they were being treated unfairly, they could simply move to another ahupua'a, as they were not tied to the land.(21)

   2. Treaty Making and Removal (1789-1871)

      As the newly-formed United States began its inexorable march westward, it developed a nearly insatiable appetite for more land. Unfortunately,(22) the land was already occupied by Indians. To satisfy western expansion goals, the Indian lands usually were not taken by force but were instead ceded(23) to the United States by treaty in return for, among other things, the establishment of a trust relationship.(24) The federal government thus assumed a guardian-ward relationship with the Indians, not only because of prevailing racist notions of Indian societal inferiority(25) but also because the trust relationship was often consideration for the Indians' relinquishment of land.(26) It is important to note that these treaties were always entered into as government-to-government relationships between the tribes as collective political entities and the United States.(27) The United States "from the beginning of its political existence recognized a measure of autonomy in the Indian bands and tribes. Treaties rested upon a concept of Indian sovereignty ... and in turn greatly contributed to that concept."(28)

      In Hawaii, the situation was somewhat different. Perhaps "because of their geographic isolation and close proximity to one another, Native Hawaiians were able to unify to form a monarchy under King Kamehameha."(29) Political unification proved instrumental in dealing with the onslaught of foreigners who came to trade beginning in the nineteenth century. In addition to preserving the "feudal" land tenure system,(30) the Hawaiian Kingdom furnished governmental leadership with which foreigners could deal and thereby encouraged foreign governments to enter into diplomatic relationships with Hawaii.(31)

      Before long, however, the Hawaiian government began to encounter substantial foreign influence in its domestic affairs. Westerners gave advice to the government, "often unsought and often in the shadow of a foreign military presence."(32) The land tenure system came under pressure as foreigners wanted land for themselves.(33) Originally, no formalized land titles existed because the property interests of the king, the chiefs, and the commoners were intertwined.(34) Pressure from Westerners who wanted to own land in fee simple, however, resulted in a series of developments that forever transformed Hawaiian land tenure relationships.

      In 1840, on the advice of Westerners, King Kamehameha III promulgated a written constitution declaring that the monarchy controlled the land of the kingdom for the benefit of the chiefs and the people who owned the land collectively.(35) This initial formal declaration clarifying land ownership in the kingdom was followed by the "Great Mahele"(36) of 1848, which effected a division of the lands so that clear title could be determined and transferred. The mahele required that the king quitclaim his interest in about 1.5 million acres of ahupua'a and other lands to 245 chiefs, designate another 1.5 million acres of government lands for "the chiefs and people of my Kingdom,"(37) and set aside one million acres of crown lands "for me and for my heirs and successors forever, as my own property exclusively."(38) The mahele thus vested title in the king and the chiefs and imposed descendancy requirements on the crown lands, essentially creating an estate in fee tail.(39) Although the mahele did not accomplish many of its intended objectives,(40) it did lay the groundwork for the establishment of a trust relationship between Native Hawaiians and the United States in the future.(41)

      Throughout the nineteenth century the Kingdom of Hawaii was acknowledged to be a sovereign and independent state within the international community. As such, it entered into numerous treaties with various foreign governments,(42) including the United States, which viewed Hawaii as part of the American continental system.(43) The Rice Court noted that a number of treaties were signed between the United States and the Kingdom of Hawaii during this period: "The first `articles of arrangement' between the United States and the Kingdom of Hawaii were signed in 1826 ... and additional treaties and conventions between the two countries were signed in 1849, 1875, and 1887."(44) It is important to note that all of the treaties between the United States and the Kingdom of Hawaii treated Native Hawaiians as a collective political entity, not as an ethnic group.

   3. Allotment and Assimilation (1871-1928)

      During this next period...