[hawaii-nation] The Dangers of Federal Recognition

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>hawaii-nation >[hawaii-nation] The Dangers of

Federal Recognition >Mon, 16 Feb 2004 19:48:04 -1000 > > >Hawaii Island

Journal, Feb. 16-29, 2004 > >The Dangers of Federal Recognition >By J.

Kehaulani Kauanui, Ph.D. > >In evaluating the dangers of federal recognition,

Hawaiians should >look to cases from Indian Country, Native Alaska, and the

U.S. >Territories of the Pacific, which all shed light on the problems and

>pitfalls of domestic dependent nationhood. The proposal for Hawaiians >found

in the Akaka-Stevens bill is modeled on similar legal >precedents for more than

three hundred federally recognized American >Indian tribal nations. But it seems

more likely that this limited >proposal would pave the way for an arrangement

similar to the kind >had by more than 229 Alaska Native villages, a position

which is far >more degraded than that of federally recognized American Indian

>tribes. > >Alaska Natives' federal recognition status has shifted radically

just >between the Clinton and Bush administrations. Under Clinton, in 1993,

>the Secretary of the Interior published a list of federally >recognized tribes

and included Alaska Native villages as tribal >entities on this list, where the

preamble reads: "the villages and >regional tribes listed as distinctly Native

communities and have the >same status as tribes in the contiguous 48 states."

But their status >as federally recognized entities was recently challenged by

George W. >Bush's administration. And there is currently a debate over Alaska

>Natives' legal status that is being spearheaded by Senator Ted >Stevens

(R-AK), the same Stevens co-sponsoring the Hawaiian federal >recognition bill

with Akaka. > >Recently, Stevens pushed to consolidate funding for these Alaska

>Native entities into regional organizations without their input or >consent.

And now there is a legal challenge against the Department of >the Interior for

even putting the villages on the federal list in the >first place. Their status

was disputed in the 1998 US Supreme Court >case of Alaska v. Native Village of

Venetie Tribal Government when >the court ruled that Venetie's land base did

not count as Indian >Country in the legal sense. Because Indian Country is

legally defined >to include all dependent Indian communities in the United

States, the >Venetie Village did not qualify because their lands are not held

in >trust by the US federal government. Hence, they cannot assess tax, >enforce

their own laws, or assert their jurisdiction over these lands >as do American

Indian governments do on reservations. Moreover, the >Alaska Native Villages

are subjected to Alaska state laws. > >Even if Hawaiians were to monitor the

federal recognition process and >ensure that their status was more like

American Indian tribal nations >than Alaska Native villages, at the very most,

the Hawaiian >self-governing model would still allow for no more than a

domestic >dependent entity under the full and exclusive plenary power of

>Congress. While U.S. federal policy on Native Americans states that >the

federal government must consult with tribal governments regarding >decisions

about tribal lands, resources and people to honor the

>"government-to-government relationship," the U.S. Congress has a long >history

of abusing its plenary power to subordinate tribal >governments. Domestic

dependent nations are treated as wards of the >federal government while it

poses as guardian. Even worse, the U.S. >Congress most often delegates it

executive power to the Bureau of >Indian Affairs within the Department of the

Interior, which is >directed by presidential appointees. Moreover, the exercise

of >federal plenary power not only comes from the Congress, the >President, and

the Department of the Interior. It also comes from the >U.S. Supreme Court,

which has notoriously been ruling against tribal >power for Indian nations and

increasing the power of the states over >them. > >The U.S. Supreme Court

construes the powers granted by the U.S. >constitution to the Congress through

its interpretation of the Indian >Commerce Clause of the constitution. Through

a series of precedents >set by the rulings in Indian cases, the U.S. Supreme

Court has ruled >time and time again that the federal government has exclusive

power >over Indian affairs. > >In addition to these cases for American Indians

and Alaska Natives, >there are also lessons from the Pacific Islands. Two

examples are >that are instructive are the U.S. Pacific Territories of Guam and

>American Samoa, both of which are unincorporated territories, one >organized

and the other unorganized, respectively. Their histories >reveal the political

limitations of domestic governing entities >within the U.S. nation-state. These

two islands are also subject to >U.S. congressional plenary power under the

authority of the >Territorial Clause of the U.S. constitution, as interpreted

by the >U.S. Supreme Court. As such, legal cases move beyond the federal

>district courts anytime there is a question about their sovereign >power. Then

they are adjudicated by the U.S. Supreme Court under >territorial case law,

which upholds the doctrine that they are, along >with Puerto Rico and the U.S.

Virgin Islands, "foreign in a domestic >sense," which is hardly any different

than the status of American >Indian tribal nations. Even the Commonwealth of

the Northern Marianas >Islands is subject to exclusive congressional power by

the United >States. > >The only island-nations that have managed to release

themselves from >the grip of U.S. plenary power are those of the former Trust

>Territory of the Pacific Islands under the United Nations: the >Republic of

the Marshall Islands, the Federated States of Micronesia, >and the Republic of

Belau. For example, as the United States >Government entered into political

status negotiations with >representatives of the peoples of the Federated

States of Micronesia, >and the Marshall islands, the Compact of Free

Association was signed >on October 1, 1982 and June 25, 1983, respectively.

Under Public Law >99-239, January 14, 1986, a Compact of Free Association was

>negotiated between the United States and the reorganized Federated >States of

Micronesia and the Marshall Islands. > >In accordance with the Trusteeship

Agreement, the Charter of the >United Nations and the stated objective of the

Trust Territory >system, the United States promoted the development of the

peoples >there toward self-government and independence according to the freely

>expressed wishes of the peoples themselves. The Compact was approved >by

majorities of the peoples of the Federated States of Micronesia >and the

Marshall Islands in United Nations-observed plebiscites, >conducted on June 21,

1983 and September 7, 1983, respectively. >Furthermore, the newly formed

governments of the Federated States of >Micronesia and the Marshall Islands

were formed on-island prior to >any negotiation with the United States. The

Compact of Free >Association was also approved by the Governments of the

Federated >States of Micronesia and the Marshall Islands in accordance with

>their respective constitutional processes. > >The Compact also delineated a

section to protect the un-adjudicated >claims of the people of the Marshall

Islands. For example, with >regard to the lands on Ejit, the Compact stated

that the President of >the United States would negotiate with the Government of

the Marshall >Islands an agreement, without prejudice as to any claims which

have >been or may be asserted by any party as to rightful title and >ownership

of any lands on Ejit. > >If Hawaiians were to consider demanding a mutual

consent decree, to >ensure bilateral agreements, a section could also be

included which >would preserve their title to the so-called ceded lands-- 1.8

million >acres of former Crown and Government Lands of the Kingdom of Hawai`i.

>A request for a mutual consent decree along would certainly be >telling for

Hawaiian pro-federal recognition forces, since it is >unlikely that the U.S

..government would agree. Then they would see >the real deal. We can learn from

Chamorro activists in Guam who >worked for the inclusion of a mutual consent

decree in their draft >proposal for Commonwealth status in the early 1990s. The

United >States, through the Department of the Interior, rejected it entirely.

>That rejection indicates that the U.S. government will continue to >assert its

plenary power over any model other than independence. > >Now more than ever, it

seems, Hawaiians and others wishing to protect >Hawaii's national claims under

international law must voice a >resounding statement of refusal to consent. As

many people know, >those advocating for independence are divided between two

central >legal strategies: decolonization from the United States through UN

>protocols and U.S. deoccupation through protocols mandated by the >Laws of

Occupation. In the case of unifying for the purposes of >stopping federal

recognition, the legacy of the Ku`e Petitions from >1897 are instructive. There

were two different Hawaiian nationalist >groups--Hui Aloha `Aina and Hui Kalai

`Aina-- that widely opposed >annexation. Hui Aloha `Aina's petition

unequivocally stated their >resistance to U.S. incorporation. The petition by

Hui Kalai `Aina >went a step further by not only articulating their refusal of

>incorporation, but also demanded the restoration of the Kingdom. >Although

their goals differed, together they successfully defeated >the Treaty of

Annexation in 1897 by demonstrating their lack of >consent to become part of

the United States. > >Perhaps a similar strategy of working across political

differences, >for the purposes of stopping federal recognition, could

indefinitely >defer the proposal for a Hawaiian nation within U.S. policy for

>Native Americans. The petition could specifically be signed by Native

>Hawaiians and non-Hawaiian descendants of those who were citizens of >the

Kingdom of Hawai`i. That sort of alliance would surely go far in >demonstrating

to pro-federal recognition forces how many of us refuse >to consent to the

signing away of our nation. > >J. Kehaulani Kauanui, Ph.D. is an Assistant

Professor of American >Studies and Anthropology at Wesleyan University in

Connecticut where >she teaches at the Center for the Americas. For the

2003-2004 >academic year, she is based at the School of American Research in

>Santa Fe, New Mexico, as a postdoctoral research fellow, where she is

>completing her first book tentatively titled: The Politics of >Hawaiian Blood

and the Question of Sovereignty. > > >

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