Federal Recognition for Native Hawaiians

By Hubert Plummer posted 01-04-2019 04:20 PM

  

The United States Commission on Civil Rights has issued a report supporting the recognition of Native Hawaiian peoples and urging congress to pass legislation that would allow native Hawaiians to form a governing body similar to Native American tribes.

 Prior to 1871 Native American tribes were considered separate nations and treaties were signed at a government to government level. In 1871, Congress passed the Indian Appropriations Act of 1871.  That law ended recognition of independent native nations and started treating them as “domestic dependent nations” subject to federal law.

 The justification for granting Native American tribes recognition as independent nations comes from the idea that they pre-existed European settlement.  The early history of European expansion in North America is a tragic story for the Native Americans.  While some native tribes were conquered, many signed treaties with the United States which preserved their sovereign identity. 

 “The reality is that tribal sovereignty is not based on race, but is a recognition of the numerous sovereign nations that were in the land settled by the European colonists. Federal law and treaties recognize tribal sovereignty and obligations to Indian nations, not to Indians as a racial group. Those de jure obligations rest, first and foremost, on treaties with nations.” [i]

 Native Hawaiians, however, have never been considered Native Americans.  The islands of Hawaii are not part of North America and their early relationship with the United States is different from that of the Native Americans.

 In 2006 a bill sponsored by Senator Akaka from Hawaii that would provide Federal recognition for native Hawaiians came up for a vote.  It fell short by a vote of 56-41.[ii]  At that time the United States Commission on Civil Rights opposed the bill.[iii]  Their justification was that the native Hawaiians were a racial or ethnic minority, not a recognizable sovereign people.

 Now, the USCCR has reversed its position in a Briefing Report on Federal Funding Shortfalls for Native Americans it says:

“Congress can acknowledge a government-to-government relationship with Native Hawaiians to confirm its intent to provide Native Hawaiians at least all the same federal benefits that Native Americans have. Congress should pass legislation to provide a process for the reorganization of a Native Hawaiian governing entity and to confirm the special political and legal relationship between the United States and such Native Hawaiian governing entity.”[iv]


This is a significant statement and hopefully Congress will take it into consideration in the near future.

[i] Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule, Kalt and Singer, Harvard University, https://scholar.harvard.edu/files/jsinger/files/myths_realities.pdf.

 

[ii] http://www.hawaiinewsnow.com/story/5006119/akaka-bill-vote-blocked/

 

[iii] https://www.usccr.gov/pubs/docs/060531NatHawBriefReport.pdf

 

[iv] https://www.usccr.gov/pubs/2018/12-20-Broken-Promises.pdf

 

 

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.

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