Posted on: Sunday, January 16, 2005

COMMENTARY

By William Meheula

The 1993 federal Apology Resolution admitted that the 1893 overthrow was illegal, and that Hawaiians have a claim to the 1.8 million acres of land that were taken from the Hawaiian kingdom.

Yet no lands have been returned because only a government that is recognized by the United States has the legal standing to resolve the claim to the so-called ceded lands.

Over the past 30 years, many groups have unsuccessfully tried to establish a government that represents the majority of the Hawaiians. My conclusion is that most Hawaiians would participate in a government formation process if the U.S. Congress tells them that it is their right to do so.

Fortunately, the Akaka bill sets up a process for Hawaiians to form a government to engage in government-to-government negotiations with the United States and the state of Hawai'i regarding jurisdiction and title to ceded lands.

There is another reason for Hawaiians to form a government. In 2000, the U.S. Supreme Court, in Rice v. Cayetano, held that special treatment accorded American Indian tribes may not be constitutionally available to the Office of Hawaiian Affairs because OHA was established by the state of Hawai'i, as opposed to a Hawaiian sovereignty initiative.

Since that decision, anti-affirmative-action groups have filed lawsuits asserting 14th Amendment equal-protection challenges to Hawaiians-only programs and institutions, such as OHA, Hawaiian Home Lands and the Kamehameha Schools.

Formation of a government would aid in defeating those cases.

After five years of working its way through Congress, the Akaka bill is likely to be argued on the floor of the U.S. Senate this summer.

William Meheula is a Honolulu attorney.