A Strained Analogy
“Kamehameha’s Children,” January, refers to the ABA’s support for bills in Congress regarding “Native Hawaiian government reorganization” and compares granting “self-determination” to Native Hawaiians to recognizing American Indian tribes and Alaskan natives. However, the history of Indian tribes and U.S. tribal policy is very different from Hawaiian history, and American Indian self-government has its own problems as well as a strong geographic aspect that confines it to Indian reservations, dependent Indian communities and allotment lands.
Recognizing and respecting Native Hawaiian culture is one thing, but creating a Native Hawaiian government raises serious questions about where, how and over whom such a government would have authority (in addition to the legal and constitutional questions that are referred to in the article).
King Kamehameha united the islands at the end of the 18th century by waging a war of conquest against other chiefs using guns obtained by trading with Europeans and, in 1810, established a miniature empire that is alleged to have practiced genocide on the smaller islands of Lanai and Molokai and to have had a highly stratified social order. During the 18th and 19th centuries, Hawaiian society became increasingly diverse; and international politics significantly affected economic and political developments, including changes in the nature of the Hawaiian monarchy.
“Reorganizing” Native Hawaiian government is not a self-evident proposition and does not easily fit into the rationale of the Indian Reorganization Act of 1934 or the process administered by the Bureau of Indian Affairs for recognizing Indian tribes.
Furthermore, the governmental disruption of asserting sovereignty after a hiatus of a century or two can be extraordinarily severe, as was recognized recently by the U.S. Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005).
David M. Schraver
COSTLY DELAYS CAN SERVE A PURPOSE
Regarding “Tinkering with Lethal Injection,” January: I think Thomas Goldstein’s statement that the current round of litigation over the death penalty—dealing with the constitutionality of lethal injection as administered—“doesn’t advance the goal of abolition one inch,” is at best naive. One of the main arguments for doing away with the death penalty is the cost associated with it. The cost has nothing to do with the actual administration, i.e., serving the three-drug cocktail, and has everything to do with dragging the process out and therefore raising the cost of litigation. In that sense, this round has everything to do with abolishing the death penalty.
Furthermore, to those advancing this cause, every delay is seen as a victory. The ultimate goal is to frustrate the proponents of the death penalty into submission, declaring such nonsense that we “shall no longer tinker with the machinery of death.”
Thank you for printing Geri Dreiling’s “Retiring Mandatory Retirement,” January. This is the second article to appear recently in the ABA Journal concerning age discrimination at law firms with respect to mandatory retirement. I don’t recall, however, reading similar pieces concerning possible manifestations of age discrimination in the hiring or promotion processes at law firms, corporations, and even the government (federal, state and local). These latter practices may be unlawful under the federal Age Discrimination in Employment Act as well as numerous jurisdictions’ human rights statutes.
It seems that many law firms are increasingly taking on the practices of their corporate clients to the detriment of professionalism by “outsourcing” legal work abroad as well as making greater use of temps to maximize partners’ profits and pay the salaries for (usually young) associates who lack the knowledge and experience to justify their salaries. One might wonder as to the level of dedication such temps have to their clients and the law firms making use of their services. It would seem that ultimately the clients might suffer from such arrangements. Let the buyer beware.
Ethan S. Burger
In “The Garcetti Effect,” January, it was incorrectly stated, due to an editing error, that the U.S. Supreme Court decision in Garcetti v. Ceballos “overturned the long-standing balancing test for public employee free-speech cases.” In its decision, the court raised the threshold for protection of free speech by public employees under the so-called Pickering-Connick test, but did not overturn it.
The Journal regrets the error.