Protection of the Human Rights of the Hawaiian People

125 Years of Hewa: Achieving Justice for Hawaiians in the United States Federal Court System

"Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests."

- United Nations Declaration on the Rights of Indigenous Peoples, U.N. ESCOR, SubComm. on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1994/56 (1994)

Introduction

2018 marks the 125th anniversary of the illegal overthrow of the Kingdom of Hawaiʻi. The Hawaiian people have seen our share of ups and downs. However, since becoming the 50th state, the Hawaiian people have been dealt very disconcerting cards at the hands of the Supreme Court of the United States. The Supreme Court does not have a history of honoring the rights if indigenous peoples. The expansive and taciturn history of Federal Indian jurisprudence is a perfect example of that. However, there have been huge strides in the realm of international law pertaining to the rights of indigenous peoples.[1] Countries such as Aotearoa have included the rights if indigenous peoples within their judiciary system. Furthermore, the United Nations has seen the fruit of a 25-year initiative come to fruition, the Declaration of the Rights of Indigenous Peoples (UNDRIP).

The Hawaiian Renaissance movement has come a long way from the landmark battles of the 60s and 70s.[2] However, Hawaiians have yet to achieve any semblance of reparations for the injustices that have been done to the Hawaiian people stemming from the overthrow of the Hawaiian Kingdom in 1893.[3] This year marks the 40th Anniversary of the last State Constitutional Convention and there are talks of potentially having another Constitutional Convention. We have seen provisions of the last Constitutional Convention go up to the Supreme Court of the United States and be struck down on Constitutional grounds.[4] Native Hawaiians have reached a judicial ceiling. Working within the confines of the current federal judicial system has proved dismal at its best.

“Hawaiʻi’s political future is full of uncertainty. There are both demands for independence from the United States and calls for the formation of a political entity within the United States. Many in the Hawaiʻi ʻōiwi community may consider it less fruitful to discuss the functions of individual branches of a potential government entity, or nation before first establishing our political status.”

- K. Kaʻanoʻi Walk, He Waʻa Hou: An Alter-Native Court for Hawaiʻi

Native Hawaiians are in an especially unique situation because we do not have the same protections that are afforded to Native Americans. Because our story has been pushed to the wayside as a dirty little secret of American history, it is increasingly difficult for Native Hawaiians to get the justice that we justly deserve. The Hawaiian people have fought for the most basic of human rights within the court system of the conquering settler-state that is America. However, we still face the same challenges that are not an issue to even the most severely colonized peoples such as the right to speak your own language within the court system.

The Constitution of the State of Hawaiʻi is a direct result from the original constitution of the Kingdom of Hawaiʻi and has thus, included many of the provisions protecting the rights of the Hawaiian people that were originally enshrined within the first Constitution.[5] Although these rights were preserved within the state constitution, they were not necessarily recognized on the Federal level of government.

The only history that the federal government has is its relationship to Native American tribes. The Federal Indian Law jurisprudence has produced mixed results for Native Americans. Furthermore, Native Hawaiian history is a unique and complex matter that can be easily distinguished from Native Americans. However, historically, the Supreme Court of the United States has clumped issues of all native peoples together into one unrecognizable ball of indigeneity. This has provided especially problematic for Native Hawaiian cases in the sense that we have been rolled up into Federal Indian Law jurisprudence when it is convenient for the Supreme Court to make compare us to Indians as fellow native peoples. But, we are still not afforded the same rights as Native Americans because we are not “federally recognized” as Native Americans are in the eyes of the federal government.

The history of Hawaiʻi has given way to a unique set of federal court cases that have been severely detrimental to the fundamental human rights of Native Hawaiians. To remedy this situation, the Hawaiian people are in a unique situation where we have a few different avenues to pursue, such as secession from the United States and/or Federal Recognition by the United States as Native Americans have achieved.

The federal government should adopt international legal frameworks that have successfully incorporated indigenous cultures into their judiciary system because the rights of indigenous peoples have been severely diminished and inconsistently protected within the current court system as it is today. Countries around the world have been successfully incorporating indigenous cultures and rights into their judiciary systems for years. This is enshrined within the United Nations Declaration of the Rights of Indigenous Peoples.

This paper will examine the legal framework of courts in Aotearoa and how the courts there utilize specific portions of the United Nations Declaration of the Rights of Indigenous Peoples to further solidify the humanitarian rights of the Māori as an example of how the rights of indigenous peoples, specifically the Hawaiian people, can be fairly represented and protected within the judicial system of the colonized settler-state. This paper will then look at how the United States has treated the rights of Native Americans and how that treatment measures up to the standards of international law, specifically the UNDRIP. Furthermore, it will analyze the most important Supreme Court decisions on Native Hawaiian issues through an international law lens and determine if, using the UNDRIP, there may have been a different outcome to each of the Supreme Court cases. This paper will highlight the most important sections of the UNDRIP for Native Hawaiian purposes within each of the cases highlighted and will also give a recommendation as to whether or not the UNDRIP should be given Congressional recognition as binding precedent for the Court.

PART I. International Law and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

“There is no stronger legal foundation for a legal argument in court than the basic, fundamental rights everyone is entitled to as human beings.”

- Walter Echo-Hawk, In The Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples

Genesis of the UNDRIP

Rules of conduct are self-imposed by nations because it is something that limits the free will of the nation concerned.[6] In the international forum, rules of conduct are created “from two principal sources: (1) treaties or conventions, and (2) customary international law derived from the usages and practices of nations.”[7] In the United States, the courts apply the rules of conduct created by international law through treaties ratified by Congress or customary international law (via federal common law).[8] The international law can also be used as guidance when creating statutes.[9]

The UNDRIP is a product that was developed over a 25 year period, beginning with the formation of the UN Working Group on Indigenous populations.[10] It was created using the open and established procedures of the United Nations that included full and fair opportunities for each country to debate over the provisions included within the Declaration.[11] The Declaration was created in response to the original international body of law that addressed indigenous peoples’ rights, the law of colonialism.[12] However, because the Declaration is non-self-executing, Congress must formally ratify the Declaration in order for it to become binding on the courts.[13] If the principles within the declaration are adopted and implemented on a broad enough scale around the world, it may be declared an international norm/standard that would then be binding on the courts of the United States.[14]

Applicability and Uses for the UNDRIP in the United States Court System

“A race of people can only go so far in their aspirations under an unjust legal framework. In order to go further, they must turn on the unjust features of their legal framework.”

- Walter Echo-Hawk

All the standards of the UNDRIP are “minimum standards” for the welfare of indigenous peoples worldwide to combat the lingering negative effects of colonialism.[15] The rights that are encompassed within these standards are referred to as inherent indigenous rights that are inalienable and indefeasible.[16] The UNDRIP is a comprehensive, standalone framework for defining indigenous rights.[17] As the human rights movement gains momentum in the international arena, the provisions in the UNDRIP gain more and more weight and relevance. Eventually, in the near future, the provisions of the UNDRIP will likely be adopted by such a large contingency of UN countries that it becomes customary international law. If that does happen, then it will become binding on the courts and will need to be heeded and internalized as federal common law.

Although the Declaration is a persuasive document that encourages the nation-states to follow the indigenous human rights within, there is a web of many treaties that complements the UNDRIP. Many provisions within the UNDRIP have a corresponding treaty that the United States has signed. These treaties, however, are not self-executing and would, thus, require Congress to ratify them before they become the law of the land. The treaties provide substantial weight to the UNDRIP and makes it much more likely to be given deference and authority when used in the courts. Furthermore, the treaties along with the UNDRIP show a substantial commitment by the United States to these indigenous human rights that are laid out in the UNDRIP. Therefore, it only makes sense that the UNDRIP be used, consulted, and followed when Congress decides to make laws that affect all the indigenous peoples that have been colonized by the United States.

The UNDRIP is the current international human rights standard for indigenous peoples. Therefore, the various articles of the UNDRIP will serve as the analytical framework for this paper. Comparing the political/judicial actions of the Aotearoa government with the UNDRIP will provide a comprehensive analysis as to the true measure of whether or not the Maori are given the basic human rights that they are entitled to as a colonized indigenous people. Furthermore, using the articles of the UNDRIP to analyze court cases pertaining to Native Hawaiian rights in the Supreme Court of the United States will provide an insight into the injustice that is still currently occurring within the federal court system in the United States for the rights of the indigenous peoples who have been colonized by the United States. As mentioned above, the UNDRIP represents the minimum standard in basic human rights that should be afforded to indigenous peoples. Therefore, it should be considered a starting point benchmark to be built upon with time.

PART II. A Case Study – Indigenous Human Rights in Aotearoa

How Have Indigenous Human Rights Been Acknowledged by the Colonizing Government in Aotearoa?

The Ministry of Māori Development (Te Puni Kōkiri) and The Māori Party

The Treaty of Waitangi and the Waitangi Tribunal

Due to the mounting number of British settlers in Aotearoa, the British Crown began to consider establishing a government in Aotearoa. Under instruction by the British Crown, Captain William Hobston began negotiations with the Māori in order to gain consent to form a British government in Aotearoa. On February 6, 1840, the Treaty of Waitangi/Te Tiriti o Waitangi was signed. The Treaty was initially signed by over 40 Māori chiefs and was later taken around Aotearoa where it was eventually signed by over 500 chiefs. The original Treaty was created in English and was translated into Māori by an English missionary.[18] However, some aspects of the translation into Māori were not quite an accurate representation of what was contained in the English original. Nonetheless, the British government continued to setup a British government in Aotearoa.[19]

The Treaty consists of a Preamble, three Articles, and an Epilogue. The Preamble outlines the intentions of the British as they pertain to the Treaty. The English version of Article 1 of the Treaty of Waitangi states that the Queen has sovereignty over the land, whereas the Māori translation states that the Queen has governance over the land; two very separate and distinct terms. This has been a point of contention between the Māori and the British because sovereignty has much stronger implications than governance. Article 2 of the Treaty ensures that the Māori will continue to have complete, undisturbed possession of their property for as long as they choose. However, all land sales go through the British Crown and therefore the Crown reserved preemption rights to all land sales. Article 3 promises protection for the Māori under the British Crown and the Epilogue contains the signatories.

Despite the lengths the British government went through to create a seemingly fair Treaty and to get the consent of the Māori, once the Treaty was signed, the provisions of the Treaty were ignored for the most part and the British did as they pleased with the land in Aotearoa. It wasn’t until after World War II that awareness of the Treaty became more widespread throughout the Māori community. In the 70s, the community began protesting and advocating for Māori rights under the Treaty of Waitangi, which led to the Treaty of Waitangi Act of 1975. The Treaty of Waitangi Act established the Waitangi Tribunal, a government committee setup to “consider claims that the government had breached the treaty, and make recommendations to the government.”[20]

The Tribunal approaches each claim as its own unique claim because each claim has its own set of circumstances. However, there have emerged a prominent set of principles that the Tribunal has used in majority of the claims it has reviewed and settled. These principles include that the Treaty:

1. Established a partnership between the British and the māori peoples that included all the obligations that come with that partnership;
2. Provides for “fundamental exchanges for mutual advantage and benefits;”
3. Allows for Māori autonomy and self-governance;
4. Requires active protection by the British Crown for the Māori;
5. Allows the Māori have the option to either continue their way of life as it was before British rule, assimilate into the “new society,” or combine aspects of both as they see fit;
6. Provides that “[t]he colonisation of [Aotearoa] was. . . to be for the mutual benefit of both Māori and settlers, and the retention of sufficient Māori land and resources was acknowledged as a critical factor in achieving that;”
7. Requires “that active measures be taken to restore the balance” when Māori interests are disadvantaged by the interests of the settler;
8. Requires the Crown to treat all Māori groups equally without giving an unfair advantage to one Māori group over another; and
9. Provides a clear and direct course of redress should the Tribunal find that the Māori have been disadvantaged from a breach of the Treaty of Waitangi by the British Crown.

The Māori Land Court and the Māori Appellate Court

The Māori Land Court was created on October 30, 1865 “by the General Assembly of the New Zealand Colony under the Native Lands Act 1865.”[21] However, the Land Court did not have the widespread jurisdiction that it does today. Since its inception, the Land Court’s jurisdiction has been altered and restricted by the colonizing British settlers until the passage of Te Ture Whenua Māori Act 1993/The Māori Land Act 1993. Furthermore, the Māori Appellate Court was created, and it hears appeals from decisions made in Māori Land Court.

The Three main goals of the Land Court as outlined by the Government is as follows:

1. To promote the retention of Māori land in the hands of its owners, whānau and hapū,
2. To facilitate the occupation, development and use of Māori land, and
3. To ensure that decisions made about Māori land are fair and balanced taking into account the needs of all the owners and their beneficiaries.

As mentioned above, Te Ture Whenua Māori Act 1993 is the primary piece of legislation that governs the Land Court’s full jurisdiction, power, and limitations.[22] Other legislation that governs the Land Court includes:

• The Protected Objects Act 1975
  • Gives the Land Court the power to “determine ownership of any taonga tūturu found anywhere in [Aotearoa] or within the territorial waters of [Aotearoa].”[23]
• The Māori Purposes Act 1983 and 1991
• The Fisheries Act 1996
  • Enables the Land Court to “hear applications and make recommendations for the establishment of a Taiapure – local fishery.”[24]
• The Local Government Act 2002
• The Māori Fisheries Act 2004
  • Enables the Land Court to “give advice about or determine disputes regarding entitlements.”[25]
• The Māori Commercial Aquaculture Claims Settlement Act 2004

To What Extent Has Aotearoa’s Colonizing Government Met the International Standards of Indigenous Human Rights as Set Forth Within the UNDRIP?

[This section is pending interview with Justice Joe Williams. I will discuss with him how the courts in Aotearoa actually treat issues involving Māori indigenous human rights, the ratification of the UNDRIP and its incorporation into the laws of Aotearoa, and the interpretations by the courts.]

PART III. United States’ Historical Mistreatment of Native Americans and the Development of Federal Indian Law

Brief History of the Colonization of America and the Evolution of Federal Indian Law

The taciturn history of American Indians and Alaska Natives from treaty-making, assimilation, reorganization, termination, and self-determination, has given rise to a body of Federal Indian jurisprudence that has severely diminished the rights of the native peoples of the United States.[26] Johnson v. M’Intosh is one such case. Johnson v. M’Intosh is prolific because it is considered one of the keystone cases that helped shape modern day Federal Indian Law jurisprudence. To this day, Johnson v. M’Intosh is still cited. However, Johnson v. M’Intosh is also seen as one of the most detrimental cases for the indigenous peoples of America.

Johnson v. M’intosh and Its Implications Under the UNDRIP

Johnson and M’Intosh both claimed title to the same land. Johnson received two land grants (1773 and 1775) from chiefs from the Illinois and Piankeshaw tribes. M’Intosh received the land through a direct conveyance by the Federal Government. The Court ruled that the land was not the tribes’ land to sell. The Court relied on the established legal fiction that is the Doctrine of Discovery. According to the Doctrine of Discovery, once the land was “discovered” by European explorers (British), the fee simple title was automatically transferred to the Crown. Then, the Court applied the Doctrine of Conquest to come to the determination that after the United States gained its independence, the lands were unilaterally transferred from the British Crown to the United States Government. The Court established that the only rights that the tribes retained after applying the Doctrines of Discovery and Conquest was the right of occupancy and even the tribes’ right of occupancy could be revoked at any time by Congress. Therefore, the Court reached its ruling that M’Intosh had superior title due to the conveyance from the Federal Government.

The Court in Johnson v. M’Intosh established foundational principles that have defined the entire body of Federal Indian Law jurisprudence.[27] The doctrine of discovery was established and stated that when European travelers “discovered” America, the title to the land was immediately given to them.[28] Furthermore, when Americans separated from the crown and achieved independence, the title that was originally held by the crown was immediately transferred to the conquering  government.[29] Therefore, Marshall used these two doctrines to validate land claims and, at the same time, diminish the fee-simple rights of indigenous peoples to their land down to a right of occupancy that the Government was free to extinguish at any time.[30]

The doctrines set forth in Johnson v. M’Intosh do not comport with the following articles of the UNDRIP because the right of occupancy that was established was and is freely extinguishable by the Federal Government. Therefore, the right of occupancy and use of resources is not inherent with the doctrines of discovery and conquest. However, the rights enshrined within the UNDRIP are recognized as inherent rights that cannot be taken from indigenous peoples.

Article 10: “Indigenous peoples shall not be forcibly removed from their lands or territories.”

The doctrines do not follow this article because, for example, many tribes were forced to relocate off their traditional lands by the government. The government used the privileges instilled by the doctrines to compel the tribes to relocate.

Article 25: “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources to uphold their responsibilities to future generations in this regard.”

The doctrines do not allow for indigenous ownership of their traditional lands. However, indigenous peoples are allowed to the right of occupancy. With that right, comes full access to the resources on the land. This, arguably would include using the land to “maintain and strengthen their distinctive spiritual relationship with the land.

Article 26: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

Article 27: “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their land, territories and resources, including those which were traditionally owned or otherwise occupied or used.”

The doctrines of discovery and conquest do not follow with this article because it leaves tribes to fend for themselves and adjudicate in the “courts of the conqueror,” a court system that has been less than hospitable, empathetic, and understanding of indigenous peoples’ laws, traditions, customs and land tenure systems.

Article 28: “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

The doctrines allowed for the treaty-making process to “fairly” bargain the land rights of American Indians. However, it is evident, looking at the past 200+ years of Federal Indian Law jurisprudence that the treaties were anything but fair.

Article 29: “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.”

Article 30: “Military activities shall not take place in the lands or territories of indigenous peoples unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. States shall undertake effective consultations with the indigenous peoples concerned through appropriate procedures and in particular through their representative institutions prior to using their lands or territories for military activities.”

Article 32: “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

The three articles above, articles 29, 30, and 32, all relate to the use of indigenous lands. Overall, the doctrines allow for the occupancy and use of the lands to be governed by the tribe itself (as long as it comports with federal laws of land use). However, the Doctrines still do not comply with these articles because the right of occupancy that tribes have can be taken away at any time by Congress, especially for purposes of national security (military use).

PART IV. Native Hawaiian Rights and the Supreme Court of the United States

“It is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government – – a possibility of which history and the actions of this Nation have deprived them.”

- Justice John Paul Stevens, Dissenting Opinion, Rice v. Cayetano, 528 U.S. 495 (2000)

Brief Ethnographic History of Hawaiʻi

There are many mele koʻi honua (creation stories) that have been passed down orally through the generations. Each mele koʻi honua tells a different story of how the Hawaiian people came to be. However, although each story is different, each are accepted as an true by the Hawaiian people. That is to say that the Hawaiian people are an open minded people that understand there is no right or wrong answer. Each story must be analyzed for the lessons captured within each story are what are important. One story establishes the important scientific method of long-distance navigation the Hawaiian people used to arrive to these islands. Using a complex, systematic method of navigation requiring intensive study and observation of the stars, sun, moon, wind, clouds, ocean currents, and birds.

Another story speaks of the birth of the islands by Papa (Earth Mother) and Wākea (Sky Father).[31] Then the first humans were born of Papa and Wākea as well as the first plant life. This story establishes the important familial connection that is seen throughout Hawaiian culture between Hawaiians and all aspects of the surrounding natural environment. These histories are important because they directly shape the cultural beliefs and governmental system that became the traditional Hawaiian monarchy that lasted for hundreds to thousands of years before the arrival of the first European explorers. Over generations, the first Hawaiians developed a cultural and social hierarchy in tune with the balance of the natural world around them. The traditional Hawaiian monarchy consisted generally of aliʻi (chiefs), kahuna (upper middle class, experts in any profession), makaʻāinana (working class), and kauā (outcasts and exiles).[32] However, in spite of this tyrannical-seeming hierarchy, everyone generally worked together for the betterment of the kingdom.

The Hawaiian people were and are a progressive people that thrived on political and technological advances while keeping the long-standing traditions and culture of Hawaiʻi intact. The arrival of the first European explorers brought the first guns and cannons to Hawaiʻi. This played a great deal in how King Kamehameha I was able to unite the eight largest, inhabited Hawaiian Islands under the rule of one king. The arrival of Christian missionaries brought the first uniform, printed alphabet to the Hawaiian language. Hawaiians immediately recognized the benefit of the written word and Hawaiʻi quickly became the most literate nation in the world. Many of the oral traditions such as the mele koʻi honua were preserved in the Hawaiian language newspapers that were established after the arrival of the missionaries.

The influence of foreigners on the kingdom of Hawaiʻi quickly grew, beginning with the creation of the first Constitution of the Kingdom of Hawaiʻi in 1840. The Constitution established a governmental system similar to that of our western counterparts with a House of Representatives and Governors of the various islands. It also established voting rights of the people as well as places in office for aliʻi nui (high chiefs). As Hawaiʻi began to understand its place within the international realm of politics, our aliʻi began to focus on creating relationships with other countries. However, American businessmen continued to assert themselves into the Hawaiian government for their own benefit. This eventually led to the illegal overthrow of the Hawaiian Kingdom 1893. Hawaiʻi became the Republic of Hawaiʻi run by white businessmen many of who were descendants of the original missionaries in Hawaiʻi. Then, Hawaiʻi was annexed by the United States as a territory before becoming the 50th State of the United States of America in 1959.

Indigenous Human Rights and the Colonizing Government

“ʻUa lehulehu a manomano ka ʻikena a ka Hawaiʻi. Great and numerous is the knowledge of the [Hawaiʻi ʻōiwi].’ This ʻōlelo noʻeau does not simply mean that Hawaiʻi ʻōiwi were great and knowledgeable in their past [it is also applicable in today’s society].”

- K. Kaʻanoʻi Walk, He Waʻa Hou: An Alter-Native Court for Hawaiʻi

The rights of Native Hawaiians have a complex and dynamic history. As an advanced native people, Hawaiians utilized a sophisticated language and culture, as well as an extensive hierarchy of government since time immemorial. Once foreigners began to arrive at our shores, our aliʻi, the forward-thinking leaders that they were, quickly realized the need to adapt to a changing society. This lead to the establishment and recognition of the Hawaiian Kingdom on an international level. Due to many social and economic factors, the Hawaiian Kingdom would eventually be illegally taken by Queen Liliʻuokalani by a handful of armed white businessmen who called themselves the Committee of Safety. The new government would be called the Republic of Hawaiʻi and would act as the interim government until Hawaiʻi was annexed to the United States, officially becoming the 50^th state on August 21, 1959. Throughout the various transitions of governmental power, Native Hawaiians have continued to persist. Two very important government actions that were taken for the benefit of native Hawaiians are the passing of the Hawaiian Homes Commission Act of 1920 and the various provisions of the 1978 State Constitutional Convention that, among other things, led to the creation of the Office of Hawaiian Affairs.

Hawaiian Land Claims and The Hawaiian Homes Commission Act

Traditional Hawaiian land tenure was communal. All lands technically belonged to the king, however, the various aliʻi of each island, moku, and ahupuaʻa had authority over lands specified by the reigning monarch. As western pressure grew to privatize land ownership in Hawaiʻi, a series of laws were passed in order to allow the Hawaiian people to claim their lands under a hybrid land tenure system consisting of both western, fee simple ownership and Hawaiian communal land tenure values. This later became known as the Great Māhele. In the Māhele, lands from the Hawaiian Kingdom were divided into the Crown, Government, Konohiki, and Kuleana lands. Following the confusing and misleading process of the Māhele, many Hawaiians were left without the land claims that the Māhele process was intended to preserve. When the Hawaiian Kingdom was overthrown, the Republic of Hawaiʻi absorbed the Crown lands as part of the “public lands.”[33] After an amendment to the Organic Act, the lands were opened up to the public for homesteading.[34]

Many who opposed the homesteading amendment to the Organic Act did so on the grounds that the lands should be used for economic purposes.[35] Plantation owners especially did not approve of utilizing these prime public lands for non-sugar purposes.[36] However, Hawaiians at the time were ravaged by disease and general unhealthiness due, in part, to the dislocation of Hawaiians from their traditional, cultural, subsistence lifestyle of growing and catching their own food.[37] A Hawaiian homesteading scheme was viewed as a way for Native Hawaiians to return to their traditional, healthy, self-sustaining lifestyle.[38] Furthermore, plantation owners and cattle ranchers were threatened by the amendment to the Organic Act and viewed it as a mechanism that could potentially take away the leases they have been taking advantage of for decades.[39] The Hawaiian Homes Commission Act (HHCA) was a way for them to keep their leases and so they put their support behind the HHCA.[40]

In 1920, an amendment to the Organic Act was drafted to allow for Native Hawaiian homesteading[41]. This would be referred to as the Hawaiian Homes Commission Act. The final version of the HHCA that was approved by Congress in 1921 and provided for 203,500 acres of ceded (crown) lands to be opened up for homesteading for Native Hawaiians of 50% or more Hawaiian ancestry in order to rehabilitate the Native Hawaiian population and return Native Hawaiians to their ancestral lands.[42] Originally, Prince Jonah Kūhiō, Hawaiʻi’s non-voting delegate to Congress, advocated for the a Native Hawaiian blood quantum requirement of 1/32 or more.[43] However, the requirement was increased to ½ in the final version of the bill.[44]

Hawaiian Renaissance and the 1978 State Constitutional Convention

In the early and mid 1970s, the Hawaiian renaissance movement was in full swing with Hawaiians fighting landmark land struggles in Kalama Valley, Kahoʻolawe, and Waiāhole and Waikāne, as well as with the resurgence of Polynesian navigation through the founding of the Polynesian Voyaging Society and the building of the Hōkūleʻa. Then, in 1978, Hawaiʻi held a Constitutional Convention in light of a renewed sense of cultural enlightenment resulting from the Hawaiian Cultural Renaissance movement.

The 1978 Hawaiʻi Constitutional Convention saw some very significant changes to the state constitution such as:

Article X, Section 4: “The State shall provide for a Hawaiian education program consisting of language, culture, and history in the public schools.”

Article XII, Section 1: “The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm, and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects ot include but not limited to, educational economic political social and culture processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the Department of Hawaiian Home Lands. . .”

Article XII, Section 4: “The lands granted to the State of Hawaiʻi by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution. . . shall be held by the State as a public trust for native Hawaiians and the general public.”

Article XII, Section 5: “There is hereby established an Office of Hawaiian Affairs. The office of Hawaiian Affairs shall hold title to all real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians.”

Article XII, Section 7: The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupuaʻa tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778. . .”

These Constitutional provisions directly support the provisions of the UNDRIP. Therefore, it can be concluded that these Constitutional provisions align with international standards for indigenous human rights.

The Creation of the Office of Hawaiian Affairs

One of them most prominent results of the 1978 Constitutional Convention was the establishment of the Office of Hawaiian Affairs. The main objectives of the establishment of the Office of Hawaiian Affairs was to (1) gain access to the public trust land revenue for the betterment of native Hawaiians and Hawaiians and (2) to provide a governmental agency that consisted of Native Hawaiians, whose trustees were voted on by Native Hawaiians, that governed Native Hawaiian affairs. Essentially, the Office of Hawaiian Affairs was viewed as the next step for the Hawaiian people to self-governance and independence.

The public lands trust stems from the original crown and government lands that were absorbed by the Republic of Hawaiʻi in the illegal overthrow of the Hawaiian Kingdom, transferred to the United States in the annexation of Hawaiʻi as a Territory, and then ceded to the State of Hawaiʻi through the Admission Act of 1959. Section 5(b) of the Admission Act gives the Department of Land and Natural Resources the responsibility to manage the lands of the public trust, not including the approximately 200,000 acres that were set aside for the HHCA.

Article XII of the Hawaiʻi State Constitution is the provision that provides for the creation of the Office of Hawaiian Affairs. Under Article XII, sections 6 of the Constitution allows for OHA to manage and administer “all income and proceeds from [the] pro rata portion of the [public land] trust” that is not held under the HHCA. The exact percentage was left to the state legislature to decide and in 1980, the state legislature set the amount that would go to OHA at 20 percent. OHA has asserted that the pro rata share of 20 percent of revenue of the public trust lands should only apply to those lands set forth in section 5(b) and 5(e) of the Admission Act.

The money, however, that was received from revenue of these lands were minimal since most of the lands under DLNR’s management included parks and public areas that generally do not generate any revenue as they are for the use of the general public or for conservation purposes. Therefore, OHA tried to exercise its right to 20 percent of the section of the public trust lands that was leased to the Federal Government, specifically the Department of Transportation (DOT). However, the attorney general distinguished the transfer of land to a governmental agency from the “sale, lease, or disposition” of public trust lands. Therefore, with that interpretation, those lands that were “transferred to the DOT would not be applicable under Article XII of the Hawaiʻi State Constitution.

Rice v. Cayetano

Pursuant to Article XII, Section 5 of the Hawaiʻi Constitution, the state created the Office of Hawaiian Affairs. Also pursuant to the same section, the Board of Trustees for OHA consisted of members of Hawaiian ancestry who were voted in by registered voters of Hawaiian ancestry. Harold Rice was a cattle rancher from the island of Hawaiʻi. His family had lived in Hawaiʻi since the 1800s however, he was not of Hawaiian ancestry and was therefore unable to vote for OHA trustees. In 1996, Rice attempted to register to vote in the OHA trustee election but was subsequently denied because he crossed out the section that self-identified, “I am also Hawaiian,” and left the section that stated, “desire to register to vote in OHA elections.” Consequently, Rice brought suit in federal district court asserting that his Constitutional rights were being denied, specifically under the 14th and 15th Amendments of the Constitution.[45] The suit was brought against Governor Benjamin Cayetano under his duties as the representative of the State of Hawaiʻi. Governor Cayetano was represented by John Roberts, who is currently the Chief Justice of the United States.

Majority Opinion by Justice Kennedy

The court first went into detail regarding the long history of the Hawaiian people including acknowledging the illegal overthrow. This was done by referencing the Apology Resolution. Signed in 1993 and passed by Congress, the Apology Resolution acknowledges many of the wrongs that the United States was complicit in against the Kingdom of Hawaiʻi at the time of the illegal overthrow. However, there is a clause at the end of the Resolution that states that nothing within the resolution may be interpreted as a settlement of any claims for the Native Hawaiian people. Therefore, rendering the Apology Resolution a mere utterance and acknowledgement of wrongs without any compelling strength to make a change other than mere persuasive authority in the courts.

After reviewing the unavoidably glaring misdeeds of the United States Government, the Court began to explain why it would eventually rule against the Native Hawaiians. First, the Court likened the situation of Native Hawaiians to that of Native Americans. In many ways, we are similar because we are colonized by the United States and we both seek a form of self-governance. However, the Court had to distinguish this case from the corpus of Federal Indian Law jurisprudence in order to ensure that ruling against Native Hawaiians would not interfere with the well-established trust relationship that the United States has with Native Americans. The Court achieved this by calling the OHA elections a public election that was administered by the state.[46] Whereas, elections within the tribal community are strictly within the quasi-sovereign of the tribe and is therefore handled completely internally within the tribe itself. The court conceded that had OHA been a separate entity from the State and, instead, been a part of a quasi-sovereign Native Hawaiian nation, the outcome of Rice v. Cayetano would have turned out differently.

The implications of the Court’s decision in Rice v. Cayetano violate many of the indigenous human rights standards that are provided within the UNDRIP both directly and indirectly. The most relevant Articles of the UNDRIP that are directly violated by the Rice v. Cayetano decision are as follows:

Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

The Office of Hawaiian Affairs was established to allow for a mechanism within the state to begin the establishment of a Hawaiian government entity. The state recognized its fiduciary duty to the Native Hawaiian population and, thus, created the Office of Hawaiian Affairs. Articles 3 and 4 of the UNDRIP pertain to the indigenous peoples’ right to self-governance. The Court in Rice v. Cayetano tried to reconcile its decision by saying that had the Office of Hawaiian Affairs been a separate entity belonging to a quasi-sovereign Hawaiian nation, then the outcome of the case would have been different. However, as mentioned in the dissenting opinion, Hawaiʻi’s history stemming from the illegal overthrow and oppression by the federal government has kept the Hawaiian people from being able to establish their own quasi-sovereign. Therefore, the state had to become the governing entity for Hawaiian rights until the Hawaiian people are able to establish our own government.

If Congress had ratified the UNDRIP and made its provisions binding on the courts of the United States, it is unclear whether or not Rice v. Cayetano would have turned out differently. Although Native Hawaiians have not achieved full Federal recognition like that of Native Americans, under the UNDRIP, Hawaiians fall within the definition of an indigenous peoples. Therefore, if the UNDRIP were to be implemented in the United States, Native Americans and Hawaiians alike would be afforded all the same protections within the UNDRIP. Therefore, the UNDRIP may be a workaround for going through the lengthy and expensive process of federal recognition. Opening up the Office of Hawaiian Affairs to non-Hawaiians, takes away the rights of Hawaiians to self-governance. However, the Court may still justify their decision on the fact that the Office of Hawaiian Affairs is a State entity and, thus, must be open to all members of the State. Either way, the UNDRIP would put tremendous pressure on the Court to recognize the indigenous human rights of indigenous peoples rather than relying on the terrible precedent that the Court has amassed through Federal Indian Law.

Hawaiʻi v. Office of Hawaiian Affairs

As mentioned above, the Office of Hawaiian Affairs is to receive twenty percent of all revenues earned from the lands held in trust by the state, which were formerly called the crown and government lands before they were ceded to the United States and then given to the State of Hawaiʻi upon admission into the United States. In 1987, the State of Hawaiʻi created the Housing Finance and Development Corporation (HFDC) in order to create more affordable and sanitary living facilities in the State. Two parcels that were part of the public lands trust were then rezoned from agriculture to residential use and a private developer began development on the lands which would eventually be handed over to HFDC upon completion of the development.

In 1993, on the 100th anniversary of the illegal overthrow of the Hawaiian Kingdom, the United States Congress passed the Apology Resolution, in which the United States “apologized” for its role in the overthrow. The Office of Hawaiian Affairs, in response to the Apology Resolution, then petitioned HFDC to include in the deeds to the properties a disclaimer that the Native Hawaiian people still have a right to the land because it is part of the public lands trust that was the ceded lands. However, this would put a cloud on the title and, therefore, HFDC refused to include the disclaimer that the Office of Hawaiian Affairs petitioned for. Subsequently, the two parcels that were part of the public lands trust were transferred to HFDC for $1.00 and, pursuant to State law, HFDC gave OHA a check for its twenty percent of the fair market value of the land parcels ($5,573,604.40). The Office of Hawaiian Affairs refused the check and instead took the State of Hawaiʻi to Court. The Hawaiʻi Supreme Court overturned the District Court’s ruling for the state. The Hawaiʻi Supreme Court ruled that the Apology Resolution “altered the relationship of the parties.” Subsequently, the Hawaiʻi Supreme Court granted an injunction on the sale of the property.

The case was granted certiorari by the Supreme Court of the United States. This case was the first time the Apology Resolution had come into the Court as the basis for a legal argument. Unfortunately, the Supreme Court ruled in favor of the state. The Supreme Court ruled that the states have the unequivocal right to sell the ceded lands provided that they comport with the necessary State laws. Furthermore, the Supreme Court called the Whereas clauses of the Apology Resolution as concilliatory words with no binding obligation to the State of Hawaiʻi or the Federal Government. It is also clear in the opinion that the Supreme Court was looking out for the interests of the United States because of the potential ramifications a ruling for the Office of Hawaiian Affairs would have for lands being leased by the Department of Defense from the State of Hawaiʻi, lands that also fall under the umbrella of ceded lands.

The ruling of the Supreme Court violates many of the same Articles of the UNDRIP that were violated in Johnson v. M’Intosh decided 200 years earlier.

Article 10: “Indigenous peoples shall not be forcibly removed from their lands or territories.”

Article 26: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

Hawaiʻi v. Office of Hawaiian Affairs does not comport with Article 10 and 26 of the UNDRIP because although the Hawaiian people are not being forcibly removed from their land, they are being forced to part ways with this land that they may potentially have a future claim to. Once the land is sold, the Hawaiian people will no longer be able to assert any rights over the lands.

Article 27: “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their land, territories and resources, including those which were traditionally owned or otherwise occupied or used.”

Article 28: “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Hawaiʻi v. Office of Hawaiian Affairs does arguably comport with Articles 27 and 28 because the courts are supposed to be a “fair, independent, impartial, open and transparent process” that also provides for redress. However, the result in the case did not provide any redress for the Hawaiian people.

Article 30: “Military activities shall not take place in the lands or territories of indigenous peoples unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. States shall undertake effective consultations with the indigenous peoples concerned through appropriate procedures and in particular through their representative institutions prior to using their lands or territories for military activities.”

Article 32: “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

Articles 30, and 32 are specifically important to Hawaiʻi v. Office of Hawaiian Affairs because there Hawaiians had no say in the sale and development of the two parcels in the case (Article 32). Furthermore, when the Court found for the State and reconciled that if it found for the Office of Hawaiian Affairs, the ceded lands leased by the military would be affected, it implicated Article 30. If the ceded lands are to be considered lands or territories that Native Hawaiians may have a future claim to, then the use of those lands for military purposes without the consent of Native Hawaiians is in direct violation of Article 30.

PART V. Conclusion and Looking into the Future

Overall, the State of Hawaiʻi has produced a lot of legislation and case law for the protection of the human rights of the Hawaiian people. It is when these issues are brought to the Supreme Court of the United States that these rights are not recognized such as we saw in the majority opinion of Rice v. Cayetano and Hawaiʻi v. Office of Hawaiian Affairs. These unfair outcomes in the Supreme Court of the United States stem from a long, convoluted history of neglect for indigenous rights of American Indians as seen in the disheartening body of Federal Indian Law jurisprudence. It is evident that the outcomes of the two cases dealing with Hawaiian rights do not comport with the international minimums for indigenous human rights as set forth in the UNDRIP. Even though the UNDRIP has not been ratified by Congress and, thus, is not binding on the courts of the United States, the fact the United States is a signatory on the declaration should provide strong persuasive authority for the courts in their rulings pertaining to the indigenous peoples that have been colonized by the United States government.

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[1]

[2]

[3]

[4]

[5]

[6] Walter Echo-Hawk, In the Light of Justice, at 71

[7] Walter Echo-Hawk, In the Light of Justice, at 71

[8] Id.

[9] Id.

[10] Id at 30.

[11] Id at 32.

[12] Personal notes, lecture by Prof. Walter Echo-Hawk, 01/23/18

[13] Walter Echo-Hawk, In the Light of Justice, at 73

[14] Id at 78.

[15] Personal notes, lecture by Prof. Walter Echo-Hawk, 01/23/18

[16] Id.

[17] Id.

[18] https://www.waitangitribunal.govt.nz/treaty-of-waitangi/signing-of-the-treaty/

[19] Claudia Orange, ‘Treaty of Waitangi’, Te Ara – the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/treaty-of-waitangi

[20] Claudia Orange, ‘Treaty of Waitangi’, Te Ara – the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/treaty-of-waitangi

[21] https://www.maorilandcourt.govt.nz/about-mlc/our-history/. See also He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero: 150 Years of the Māori Land Court

[22] https://www.maorilandcourt.govt.nz/legislation-decisions/legislation-and-practice-notes/. See also He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero: 150 Years of the Māori Land Court

[23] Id.

[24] https://www.maorilandcourt.govt.nz/legislation-decisions/legislation-and-practice-notes/. See also He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero: 150 Years of the Māori Land Court

[25] Id.

[26] https://www.maorilandcourt.govt.nz/legislation-decisions/legislation-and-practice-notes/. See also He Pou Herenga Tangata, He Pou Herenga Whenua, He Pou Whare Kōrero: 150 Years of the Māori Land Court.

[27] Walter Echo-Hawk, In the Courts of the Conqueror, at 77-82

[28] Id at 72-77.

[29] Id.

[30] Id.

[31] Martha Beckwith, Hawaiian Mythology at 293-294

[32] E.S. Craighill Handy and Mary Kawena Pukui, The Polynesian Family System in Kaʻū, Hawaiʻi at XX

[33] Treatise at 181.

[34] Id.

[35] Id.

[36] Id at 182.

[37] Treatise at 181-182.

[38] Id at 186.

[39] Id at 183.

[40] Id.

[41] Treatise at 184.

[42] Id at 186.

[43] Id.

[44] Id.

[45] The 14th Amendment contains that Equal Protection Clause and prohibits discrimination based on race. The 15th Amendment protects the peoples’ right to vote.

[46] Van Dyke, Who Owns the Crown Lands at 278