The press for Native Hawaiian federal recognition is presumptuous

There are efforts by the Governor of the State of Hawaii, the Hawaii State Congressional Delegation, State of Hawaii Legislators and the Office of Hawaiian Affairs to seek State and Federal recognition for Native Hawaiians. Over the next few weeks, the US Department of Interior will hold public meetings in Hawaii and Indian country to solicit input on how this should proceed.

The press for recognition became a State of Hawaii endeavor after the US Supreme Court Case Rice v. Cayetano was decided in 2000. That decision made it clear that Native Hawaiians, at least to the US Supreme court, were not a distinct political group. As a result, the Office of Hawaiian Affairs, State of Hawaii officials and the Hawaii State Congressional representatives became very quick converts in seeking Federal recognition for Native Hawaiians. The specter of a looming dismantling of the OHA trust and/or other Federal government entitlements for Native Hawaiians created the impetus for this quick conversion. State officials who had been previously loathe to acknowledge Native Hawaiian sovereignty activists and organizations quickly took their ideas and drafted legislation for the US Congress. Those efforts have been a resounding (and expensive) failure which wasted countless millions of dollars on expensive Congressional lobbying, advertising campaigns and television programs.

The push for Federal recognition had previously been a grass-roots effort led by a number of Native Hawaiian community and political organizations over the 1970s, 1980s and 1990s. Ka Lahui Hawaii is an example of one grass-roots group that organized and amassed a membership in the tens of thousands. Grass-roots, community-led efforts are the standard method by which Federal or State recognition occurs for other indigenous peoples in the US. However, the grass-roots groups focused on Federal recognition for Native Hawaiians were eclipsed by the State of Hawaii juggernaut for Federal recognition over the course of the 2000s. Fearing that US Federal funds and programs for Native Hawaiians might disappear, the Office of Hawaiian Affairs and the State of Hawaii Congressional delegation helped to craft and market the Native Hawaiian Recognition Bill also known as the “Akaka Bill” in its various iterations.

In the current decade, the State of Hawaii legislature and the Governor of Hawaii have pushed through a process of establishing State recognition of Native Hawaiians as is done with some American Indian tribes who are not Federally-recognized. In addition there has been strong support by at least the last two Governors of the State of Hawaii for Federal recognition of Native Hawaiians. These actions are curious, as it is not at all common for State officials to drive the recognition process for American Indian nations. I am aware of only one case where the State actively supported an American Indian tribe seeking Federal recognition and, importantly, in this case, the State did not drive the push for recognition. The Alaska Native Land Claims Settlement Act (ANCSA) of 1971 was driven by officials of the State of Alaska, in a concerted effort that achieved the extinguishment of Alaska Native land claims and hunting and gathering rights for a cash settlement. ANCSA cleared the way for the Alaska oil pipeline construction across indigenous peoples’ lands and allowed for further oil exploration. These efforts clearly benefited the State of Alaska and its economic development prospects.

The extinguishment of Native Hawaiian and/or Hawaiian Kingdom land claims to the ceded lands which are held and administered by the State of Hawaii would clearly be in the best interests of the State of Hawaii. Is the current push for Federal recognition of Native Hawaiians by State of Hawaii officials motivated by similar interests? While we don’t have a definitive answer to this question, it is clear that the establishment of a roll commission (Kanaiolowalu) appointed by the Governor of Hawaii, nicely stacks the cards in favor of the State of Hawaii interests.

Of course, State of Hawaii government officials would cite other, loftier goals as the motivation for driving this State and Federal recognition process. They would claim that it is morally appropriate and that they are also seeking to preserve the Office of Hawaiian Affairs trust assets and Native Hawaiian Federal entitlement programs. We now have direct empirical proof, however, that in the 14 years since Rice v. Cayetano the OHA trust has not only survived but it has increased in size and scope and Native Hawaiian entitlement programs have not been eliminated. Current OHA trust and land assets are in the hundreds of millions of dollars.

In moving forward, what should be done? The process for Federal recognition was a knee-jerk reaction to the Rice v. Cayetano decision. Surely there are other legal strategies and plans that the Office of Hawaiian Affairs and State officials can undertake to protect the OHA trust assets and Native Hawaiian entitlement programs. In the 14 years since the decision, the trust and programs have survived without a serious attack. It should be noted that political winds change all the time and there is no absolute certainty with Federal recognition either. For instance, during the 1940s, 1950s and 1960s the US Federal government’s policy was to terminate the legal and political existence of some Federally recognized American Indian tribes in California, Oregon and a number of other US States. During the Civil Rights era of the 1960s and 1970s, the US Federal government made a significant change in that policy and worked to empower tribal governments. However, it is impossible to guarantee that future US Federal policies will not shift back in that direction again. 

Federal recognition has been thrust upon Native Hawaiians for the benefit of the Office of Hawaiian Affairs and perhaps the State of Hawaii interests. The claim that without Federal recognition Native Hawaiian trust assets and programs are vulnerable to elimination are not true. These programs and assets will always be vulnerable – even with Federal recognition as evidenced by the dozens of terminated American Indian tribes.

In order to move forward, we need to establish a process driven by the people—not State of Hawaii (or Federal) officials. A concerted effort must be made to design educational opportunities for the vast Native Hawaiian population in Hawaii and elsewhere about the numerous options and possibilities. The plan must be comprehensive and provide a means for providing information to and receiving information from the community. The options and possibilities for Native Hawaiians must be developed collaboratively and incorporate the diversity of ideas, experiences and most importantly – desires – of Native Hawaiians. Previous attempts by the Office of Hawaiian Affairs have only sought to inform the public on the pre-selected outcome of Federal recognition, not to solicit input from the public. The Native Hawaiian community is half a million strong and extremely diverse. The education and community input process must create venues and options for the active participation of all facets of the Native Hawaiian people. Anything short of this would be illegitimate and would never be supported by Native Hawaiians. That is why the current push by the State of Hawaii is a colossal waste of time, money and political capital. The Native Hawaiian Roll (Kanaiolowalu) has had tremendous difficulty in getting individuals to participate in their process; this can be directly attributed to a lack of authenticity and legitimacy of that process within the Native Hawaiian community.

The second step, once this education and input process is completed, would require addressing the issue of who should participate in the consensus-building process. Do Native Hawaiians want to use the antiquated roll system originally designed in the 19th Century by the US Federal government as a means to constrain the “authentic” American Indian population? Do Native Hawaiians want to use the foreign and divisive blood quantum system already imposed on some existing Native Hawaiians programs? Do Native Hawaiians want a return to traditional measures of community inclusion based on genealogical relationships? Or do Native Hawaiians want a return to the Kingdom of Hawaii processes of citizenship and naturalization?

Finally, it would be necessary to establish a mechanism for Native Hawaiians to vote on the next steps. What is the consensus of the Native Hawaiian people? Do they want to maintain the status quo, receive State of Hawaii and/or Federal Recognition, a return to the Kingdom of Hawaii, or establish some other currently unarticulated form of independence? We must be vigilant in assessing the entire spectrum of potential options and weigh their potential costs and potential benefits. Embarking upon a path without this information is irresponsible to current and future generations.

We have many questions to answer and many steps to take before deciding to press for Federal recognition (or any other option). The current press for Native Hawaiian Federal recognition is presumptuous.