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April 01, 2006

Ever Loyal to the Land: The Story of the Native Hawaiian People

by Melody Kapilialoha MacKenzie

Kaulana na¯ pua a’o Hawai’i
Ku¯pa’a mahope o ka ’a¯ina

Famous are the children of Hawai’i
Ever loyal to the land

These lyrics are from a song by Ellen Keho’ohiwaokalani Wright Prendergast, written shortly after the overthrow of the Hawaiian Kingdom in 1893. They express the sorrow of the Native Hawaiian people and their determination to oppose annexation to the United States. The song further declares, “No one will fix a signature / To the paper of the enemy / With its sin of annexation / And sale of native civil rights . . . / We are satisfied with the stones / The astonishing food of the land,” and concludes with the lines, “We back Lili’ulani / Who has won the rights of the land / Tell the story / Of the people who love their land.”

The story of the Native Hawaiian people, a people who love their land, is a complicated and difficult one. But when told in broad strokes, it is a familiar one: a story of an indigenous people and of greed, racism, and imperialism.

Foundation of the Kingdom

The Polynesian ancestors of the Hawaiian people undertook the long ocean voyage from the Marquesas Islands to Hawai’i at least 1,700 years ago. At European contact in 1778, an estimated 400,000 to 800,000 Hawaiians lived in a society with highly complex political and social systems. Separate high chiefs governed the major islands, with subordinate chiefs managing ahupua’a, self-sustaining land units encompassing broad plains near the sea running up valley ridges to the mountains. Within the ahupua’a , the people had use rights to the resources necessary to sustain life—access to offshore fishing and shoreline gathering; plots of land and sufficient water for growing taro, banana, breadfruit, or sweet potatoes; the right of way to the uplands for timber and fuel; and the right to hunt and gather wild plants and herbs.

After European contact, Hawaiians quickly adopted foreign technology, and by 1810, Kamehameha I united the islands under one rule, aided first by can­nons and firearms and then by diplomacy. By 1840, Kamehameha’s successors had established a constitutional monarchy, recognized as a fully independent and sovereign nation, entering into treaties with the United States, Great Britain, France, and other nations.

Although private property did not exist in traditional Hawaiian society, in the late 1840s Kamehameha III, upon the advice of western advisors and under pressure from foreign governments—who frequently used gunboat diplomacy to enforce the claims of their citizens living in Hawai’i—instituted private land ownership. Through the Ma¯hele (division) process, the intertwining interests of king, government, chiefs, and common people were separated. Of Hawai’i’s four million acres, roughly, the king received 24 percent, the government 36 percent, and the chiefs 39 percent. The common people received less than 1 percent, only 28,658 acres, albeit the most fertile and productive lands. Even though the king and chiefs received vast acreages during the Ma¯hele, they lacked the capital or skills to operate in a cash economy. Subsequent laws allowed any resident, regardless of citizenship, to own land; adopted the adverse possession doctrine; and permitted nonjudicial mortgage foreclosures, there ­ by leading to loss of lands by king, government, chiefs, and commoners alike.

Hawaiians as a race also appeared to be dying out. In 1832, the Native census showed a population of 130,000. By 1870, it had dropped to between 40,000 and 50,000. By 1890, it had decreased to only 35,000, although the part-Hawaii­an population was slowly growing.

In the years after the Ma¯hele, the kingdom’s economy became dependent on large agricultural crops, especially sugar, grown on plantations owned by American and British interests. By the 1880s, dependence on the American market caused business interests to favor annexation to the United States to ensure that Hawaiian sugar and other produce could enter the United States free of tariffs. In 1887, these business interests forced King Kala ¯kaua to adopt a new constitution, known as the Bayonet Constitution, limiting the crown’s authority, effectively increasing the influence of the nonnative merchant faction and disenfranchising most natives. Not surprisingly, Kala ¯kaua’s successor, Queen Lili’uokalani, chafed under the constraints of this constitution. In January 1893, the queen sought to promulgate a new constitution returning authority to the throne and the native people.

Overthrow and Annexation

Using the queen’s actions as the rationale, a small group of businessmen, including Americans, and other annexationists conspired to overthrow the government of Hawai’i. They immediately called for the aid of John L. Stevens, U.S. minister to the Hawaiian kingdom. Stevens caused U.S. armed forces to invade the Hawaiian nation on January 16, 1893, and to position themselves near the Hawaiian government buildings and the palace. On the afternoon of January 17, a Committee of Safety representing American commercial interests deposed the Hawaiian monarchy and announced the establishment of a provisional government. Minister Stevens quickly extended diplomatic recognition to that government. Soon thereafter, the queen, seeking to avoid blood­shed, relinquished her authority under protest, fully expecting that the United States would repudiate Stevens’s actions.

On February 1, Stevens raised the American flag and proclaimed Hawai’i to be a protectorate of the United States. The provisional government immediately sought annexation to the United States. However, after an investigation, newly inaugurated President Grover Cleveland refused to recognize the legitimacy of the provisional government and called for restoration of the monarchy. Instead, the Republic of Hawaii was established on July 4, 1894.

In 1897, President William McKinley took office on a platform advocating “control” of Hawai’i. The new administration negotiated an annexation treaty, which was ratified by the Hawaiian Republic’s Senate on September 8, 1897. When an annexation treaty with the United States appeared imminent, Native Hawaiians presented petitions to the U.S. Congress—over 21,000 signatures—protesting annexation and calling for the restoration of the Hawaiian government. The annexation treaty failed.

But, during the next year, pro-an­nexation forces introduced a joint resolution of annexation. The annexation of Hawai’i by joint resolution was hotly debated in the U.S. Senate. Many argued that the United States could acquire territory only under the treatymaking power of the U.S. Constitution, requiring ratification by two­-thirds of the Senate. Nevertheless, with the advent of the Spanish-American War, the islands became strategically significant; annexation was accomplished through a joint resolution, requiring only a simple majority in each house.

The Joint Resolution of Annexation, 30 Stat. 750 (1898), made no provision for a vote by Native Hawaiians or other citizens, assuming instead that ratification of a treaty by the Hawaiian Republic’s Senate almost a year earlier showed sufficient assent. Under the joint resolution, the republic ceded 1.8 million acres of crown, government, and public lands to the United States. In the Organic Act of 1900, 31 Stat. 141 (1900), Congress established the Territory of Hawaii, placed these ceded lands under its control, and directed that proceeds from the ceded lands be used for the benefit of the inhabitants of Hawai’i for education and other public purposes.

Recognition by Hawaiian leaders, and eventually by Congress, of the rapidly deteriorating social and economic conditions of the Hawaiian people led to the passage in 1921 of the Hawaiian Homes Commission Act (HHCA), 42 Stat. 108 (1921). The HHCA set aside approximately 200,000 acres of ceded land for a home­steading program for native Hawaiians, defined as “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” In hearings leading to the HHCA’s passage, the relationship between the United States and Native Hawaiians was deemed analogous to the trust relationship between the United States and other Native Americans.

Statehood and Litigation

When Hawai’i became a state in 1959, Congress turned over administration of the HHCA to the state. The state, in turn, accepted a trust responsibility for the program. In addition, Congress transferred another 1.2 million acres of ceded lands to the state, creating a public land trust for five specified purposes, including “the betterment of the conditions of native Hawaiians, as defined in the [HHCA].” Admission Act, 73 Stat. 4, §§ 4 & 5 (1959). It was not until 1978, however, with amendments to the state constitution, that proceeds from the ceded land trust were finally designated for the benefit of Native Hawaiians. The amend­ments established the Office of Hawaiian Affairs (OHA), to be governed by a nine-member Native Hawaiian board of trustees elected by Native Hawaiian voters, to administer those funds. Haw. Const., art. XII, §§ 5 & 6.

Providing Native Hawaiians with a measure of self-governance was a second important objective in OHA’s creation. For a twenty-year period, all Native Hawaiians, regardless of blood quantum, elected OHA trustees to administer trust proceeds and other funds and to establish programs benefiting Hawaiians.

In 2000, the U.S. Supreme Court in Rice v. Cayetano, 528 U.S. 495 (2000), rejected entirely the idea of self-governance. The Court held that restricting the electorate for OHA trustees solely to those of Hawaiian ancestry was race-based and violated the Fifteenth Amendment. The Court distinguished OHA elections from those of Indian tribes, which are “the internal affair[s] of a quasi-sovereign.” In contrast, the Court said, the OHA elections “are the affair[s] of the State of Hawaii, OHA is a state agency, established by the State Constitution, responsible for the administration of State laws and obligations.” Id. at 520. Subsequently, the Hawai’i state laws limiting OHA trustee candidates to those of Hawaiian ancestry were also overturned as violating the Fifteenth Amendment and the Voting Rights Act. Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir. 2002).

The Court’s decision in Rice was narrow, based solely on the Fifteenth Amendment and not on Fourteenth Amendment equal protection grounds. The Court also declined to decide whether Congress has the power to treat Native Hawaiians as it does the Indian tribes. That question, and the legality of existing programs for Native Hawaiians, is now being actively litigated in the courts. Several of these suits have been dismissed for lack of standing. See, e.g., Carroll v. Nakatani, 342 F.3d 934 (9th Cir. 2003). In another lawsuit, Arakaki v. Lingle, 423 F.3d 954 (9th Cir. 2005), challenging the constitutionality of both the Hawaiian Homes program and OHA, all claims against Hawaiian Homes and most claims against OHA were dismissed on standing grounds. A single claim challenging the use of state tax funds for OHA’s programs benefiting all Hawaiians was remanded for a determination on the merits. All proceedings have been stayed in that case while a petition for writ of certiorari is pending in the Supreme Court.

In a related case, individual Native Hawaiians filed suit against the secretary of the Interior, claiming that regulations limiting the administrative federal recognition process to groups “indigenous to the continental United States” violated Fifth Amendment equal protection guarantees. In Kahawaiolaa v. Norton, 386 F.3d 1271 (9th Cir. 2004), the Ninth Circuit Court of Appeals, applying rational basis review, determined that the regulations were constitutional, stating, “It is rational for Congress to provide different sets of entitlements—one governing native Hawaiians and another governing members of American Indian tribes.” Id. at 1282–83.

Finally, another suit filed under 42 U.S.C. § 1981 has challenged the Kamehameha Schools admissions policy of giving preference to children with Hawaiian ancestry. This case represents a unique set of facts. The Kamehameha Schools is a private educational institution funded from the lands of the Kamehameha chiefs and established under the 1884 will of Princess Bernice Pauahi Bishop, the last direct descendant of Kamehameha I. The Hawaiian ancestry preference and Kamehameha’s educational programs are designed to address and remedy the severe educational problems experienced by Hawai’i’s native children. The fate of the admissions policy remains in the balance; an adverse ruling by a panel of the Ninth Circuit has been vacated and an en banc rehearing granted. Doe v. Kamehameha Schools, 2006 U.S. App. LEXIS 4167 (2006).

Ironically, in the 2002 Native Hawaiian Education Act, Congress made specific findings about the educational needs of Native Hawaiian children, looking to data and information compiled by Kamehameha Schools, and established programs specifically to address those needs. Since the 1970s, Congress has passed numerous laws benefiting Native Hawaiians, most using an expansive definition of Native Hawaiian, with no blood quantum requirement. Some laws—such as the Native American Languages Act and the Native American Graves Protection and Repatriation Act—include Native Hawaiians in programs along with other Native Americans. Others—such as the Native Hawaiian Healthcare Improvement Act of 1988 and the Hawaiian Home Lands Homeownership Act of 2000—are directed solely at Native Hawaiians.

Partially in response to the Rice decision and other litigation, legislation is now pending in the U.S. Congress to clarify the legal status of Native Hawaiians and to allow reorganization of a government that would be recognized by the United States. See S. 147 and H.R. 309, The Native Hawaiian Government Reorganization Act. More­over, in 2004, Congress established the Office of Native Hawaiian Relations in the secretary of the Interior’s office.

Sovereign Claims

Native Hawaiian claims have often been compared to those of other Native American groups. Although there are similarities, there is one significant difference: early in the development of U.S. law, the Supreme Court in Cherokee Nation v. Georgia , 30 U.S. 1, 18 (1831), characterized Indian nations as “domestic dependent nations” having some, but not all, of the attributes of sovereignty. Chief Justice John Marshall defined that limited sovereignty. Tribes were not nation states under the Law of Nations and thus lost their traditional territories based on the doctrine of discovery. While the Indian tribes did not have complete title to their lands, Marshall recognized that they had “aboriginal title” based on long possession.

Unlike Indian nations, Hawai’i was an independent sovereign recognized by the world community of nations. Native Hawaiians were citizens of a constitutional monarchy—an organized, autonomous, sovereign state—whose independence was recognized by other nations, including the United States.

One hundred years after the overthrow of the Hawaiian kingdom, the United States finally acknowledged its complicity. Apology Resolution, Pub. L. No. 103-150 (1993). It also recognized that Native Hawaiians never directly relinquished their inherent sovereignty as a people or over their national lands. From these admissions, it is clear that Native Hawaiians have valid claims for the loss of their lands and suppression of their inherent sovereignty.

In the 1993 resolution, the United States made a commitment to “acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.” In an article examining Native Hawaiian rights to self-determination, Professor James Anaya of the University of Arizona concluded:

The United States must take effective measures to remedy the historical and continuing wrongs suffered by Native Hawaiians, measures that are in accordance with the choices of Native Hawaiians themselves and that, at a minimum, implement corresponding international human rights norms. Under international law, all peoples have the right to self-determination—and no less among them, the Native Hawaiian people.

The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs , 28 Ga. L. Rev. 309, 363 (1994).

Almost fifteen years after acknowledging its actions, the United States has yet to live up to its call for reconciliation or to provide a forum in which the claims of Native Hawaiians­—a people who love their land—can be fully heard and resolved.

As published in Human Rights, Spring 2006, Vol. 33, No. 2, pp.15-17, 25.

Melody Kapilialoha MacKenzie

Melody Kapilialoha MacKenzie is an assistant professor and director of the Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law at the University of Hawai’i–Ma¯noa.