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The Honolulu Advertiser
Posted on: Monday, January 6, 2003

Hawaiians forge uneasy alliance

By Derrick DePledge
Advertiser Washington Bureau

The small white-and-green house on Nalu Street was built in Waimanalo in the late 1960s, when Tony Sang, a young Honolulu firefighter eager to find a place for his growing family, took his machete to the wild brush that filled the forlorn property.

Sang's home, like his neighbor's next door or the community center down the road, would probably not exist if not for a federal law that reserved land in the Islands for Native Hawaiians.

Still conscious of the U.S. government's role in the overthrow of the kingdom of Hawai'i and concerned about the plight of the native people, Congress in 1921 set aside more than 200,000 acres across the Islands for those with at least 50 percent Hawaiian blood.

The law has given about 30,000 Hawaiians a chance to live or farm on land their ancestors once ruled but, like other concessions intended to preserve the Hawaiian culture, it may not withstand legal challenge because it is a privilege based on race.

So Sang and other Native Hawaiians, some with great reluctance, are looking to the federal government to shield them from the courts, the same government many still resent for taking over the Islands in the first place.

"It's a race to the Supreme Court," said Sang, the chairman of the State Council of Hawaiian Homestead Associations. "We need this protection."

Federal legislation that would recognize Native Hawaiians as indigenous people — much like American Indians or Native Alaskans — has lingered in Congress for years, mainly because of qualms over racial preferences.

Although it has taken different forms, the legislation would create a process for Native Hawaiians to choose their own government and eventually establish government-to-government relations with the United States. The state's congressional delegation and new Gov. Linda Lingle have made federal recognition a priority for Hawai'i in Congress this year, but it remains unclear whether the political landscape has improved for a bill that raises uncomfortable questions about race and justice.

Conservative Republicans have opposed the bill in the past, and with Republicans now in control of both Congress and the White House, it will take great skill and patience from Hawai'i Democrats like Sen. Daniel Inouye and Sen. Daniel Akaka to steer it into law.

In the House, Rep. Neil Abercrombie said he could probably get the bill through committee but will not get a vote on the House floor without the backing of the White House. The Bush administration has not taken an official stand, but Interior Secretary Gale Norton said in September that Native Hawaiians need to better define the type of government they desire.

Some in Hawai'i viewed Norton's comments as an acknowledgement that Native Hawaiians, not the federal government or select lawmakers, should decide how sovereignty would work. But Norton's comments could just as easily be interpreted as a warning that the administration would not support federal recognition without much greater detail about its scope.

Akaka and the delegation may introduce an updated version of the bill or divide the contents into separate bills, hoping to minimize opposition. For example, one bill could create an office of Hawaiian issues within the U.S. Department of Interior or an interagency group that focuses on Hawaiian concerns, ideas that are not likely to generate strong objections. Another bill would deal exclusively with sovereignty.

Lingle said she has already reached out to the administration and, as a Republican, the governor may provide the missing ingredient at the White House and on Capitol Hill. Meanwhile, a network of Native Hawaiians from around the country, including alumni associations of Hawaiian schools, are working with American Indian and Native Alaskan activists to educate and lobby federal lawmakers.

"If something opens up, we'll be there," Akaka said. "We're going to use whatever we can to get it passed."

In a landmark case, the Supreme Court ruled in 2000 that it was unconstitutional for the state Office of Hawaiian Affairs to exclude non-Hawaiians from voting in its trustee elections. The court's decision prompted longtime critics to challenge the validity of Native Hawaiian programs.

Earl Arakaki and a group of plaintiffs from several racial and ethnic backgrounds filed suit last March against the Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands as unconstitutional race-based programs that discriminate against non-Hawaiians.

U.S. District Judge Susan Oki Mollway removed the United States as a defendant in the lawsuit in September, finding that the plaintiffs had legal standing as state taxpayers and could only challenge state money for the programs.

At the center of the conflict, though, is who ultimately will control about 2 million acres of former crown and government land given to Hawai'i in public trust when it became a state in 1959. Native Hawaiians want a greater share of revenue from the land, while non-Hawaiians maintain that the land should benefit everyone who lives in the Islands.

Patrick Hanifin, an attorney for the Arakaki plaintiffs, argues that the Akaka bill is also unconstitutional and would provide little protection for flawed race-based preferences.

"Congress has no more power to create a racial class than the state of Hawai'i does," he said.

Previous attempts among Native Hawaiians to reach a consensus on sovereignty have failed, mostly because different factions could not agree on an approach.

Comparisons have been made with American Indians — who have autonomous tribes — and Native Alaskans — with regional corporations. But most Native Hawaiians who favor sovereignty envision something uniquely Hawaiian.

Charles Rose, of the Association of Hawaiian Civic Clubs, said Native Hawaiians must have the opportunity to choose — either through a vote or through the voice of locally elected delegates — what type of government they want in the future.

"When we talk about Hawaiian issues, we are not race based. We're talking about the preservation and protection of our culture," Rose said. "If we say we don't want sovereignty, OK. But we have to have a chance to say 'yes' or 'no.' I believe in our people."

But even the threat posed by the lawsuits is not enough for Native Hawaiians, who see federal recognition as yet another surrender to an invading force. For those who dream of true sovereignty, independence is not something that can simply be awarded like a gift from the federal government.

"Remember, we didn't choose America. America invaded our country," said Lilikala Kame'eleihiwa, director of the Center for Hawaiian Studies at the University of Hawai'i-Manoa, who has been working toward consensus.

"It's caused some real disagreements between us," she said. "But it's not good for the state of Hawai'i to have this unsettled."

Ray Soon, the former director of the Department of Hawaiian Home Lands, said it is unfair to expect all Hawaiians to agree on exactly what sovereignty will look like before going forward. The federal government, he said, never asked all Japanese Americans if they favored reparations for their treatment in internment camps during World War II, or asked African Americans whether they were united on affirmative action.

"Why ask Hawaiians to agree?" Soon said. "It's an unreasonable burden to place on any people."

For many Native Hawaiians, even the history of such measures as the Hawaiian Homes Commission Act is uneven and bittersweet. The act became a state program when Hawai'i was admitted into the union.

Native Hawaiians are eligible for homestead leases at $1 a year for up to 199 years, but the waiting list for land has reached about 20,000 people. Much of the original land was remote, without access to water or infrastructure, property that Soon describes as leftovers no one else wanted. Only 3 percent of the land is on O'ahu, the most populated and economically stable of the islands. Valuable property near the inviting, blue waters of Waimanalo Beach somehow found its way into private hands, while Native Hawaiians were left with land near the base of jagged cliffs. The beautiful but utterly useless cliffs also were set aside as homestead land.

"There was a lot of hanky-panky going on in the early years," Sang said, his eyes moving slowly from the fancy homes off the beach to the cliffs above. "I don't know why they gave us that. What are we supposed to do with it?"

Correction: Patrick Hanifin is the attorney representing a group of plaintiffs who have sued the Office of Hawaiian Affairs and the Department of Hawaiian Home lands alleging race-based programs discriminate against non-Hawaiians. His name was misspelled in a previous version of this story.