Troubled Paradise

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Hardly a shot was fired in the 1893 overthrow of Queen Lili’uokalani that triggered Hawaii’s transition from a sovereign nation to a U.S. territory and eventually the 50th state.

But since then, various co­alitions in Hawaii’s melting-pot population have skirmished over the question of whether Native Hawaiians should be granted some measure of sovereignty that echoes, even faintly, their status before the overthrow.

Several programs will address these issues when the ABA holds its annual meeting Aug. 3-8 in Honolulu.

Proponents of sovereignty contend that Native Hawai­ians are entitled to some degree of self-determination as redress for the loss of political independence, lands and culture after the European “discovery” of Hawaii in 1778 by British explorer Capt. James Cook. Native Hawai­ian groups point to the sovereign status accorded Amer­i­can Indian tribes and Alaskan natives as precedent for the recognition they are seeking.

Sovereignty proponents maintain that existing programs and funding from the state and federal governments already acknowledge a special status for Native Hawaiians —generally defined by law as people who can trace some blood to inhabitants of the islands at the time of Cook’s arrival. They fear that legal challenges could result in the loss of those programs.

(The 2000 U.S. census puts the number of Native Ha­waiians living in the islands at just under 240,000, out of a total population of some 1.3 million.)

Recognition of Native Hawaiians has widespread support, says Robert G. Klein, a former justice of the Hawaii Supreme Court now in private practice in Honolulu. “Peo­­ple appreciate the plight of Hawaiians here and understand that, without government money, we will have problems that will persist.”

But recognizing sovereignty for Native Hawaiians would grant a single group special status on the basis of race in violation of the U.S. Constitution, say opponents.

Granting Native Hawaiians sovereignty “would sponsor the breakup of the state of Hawaii,” says H. William Burgess, a Honolulu attorney who has worked on cases challenging government programs serving Native Ha­waiian interests, such as the Office of Hawaiian Affairs.

“Hawaiians in Hawaii are sort of the darlings of the law,” says Burgess. “They have political clout that far outweighs their numbers.”


The outcome of the sovereignty debate will have dramatic consequences for all Hawaiians, says Randall W. Roth, a law professor at the University of Hawaii at Manoa. He is co-author (with Samuel P. King, a senior U.S. district court judge in Honolulu) of Broken Trust, a new book that dissects scandals over management of the Bishop trust.

The trust supports private schools that limit admissions to Native Hawaiian children.

Cutting programs for Native Hawaiians “would shake this state, for better or worse, to the core,” says Roth.

Sovereignty proponents suffered a setback in early June when the U.S. Senate voted against bringing the proposed Native Hawaiian Government Reorganization Act up for debate and a possible vote on adoption.

The bill, sponsored by Sen. Daniel K. Akaka, D-Ha­waii, would create a process of self-governance for Native Hawaiians. Proponents view the bill as a logical next step to the 1993 joint resolution by Congress that apologized for the U.S. role in the overthrow of the Hawaiian kingdom a century earlier.

Now, the outlook for the Akaka bill is uncertain, even though it has widespread bipartisan support in the House of Representatives. The ABA House of Delegates voted in February to endorse federal legislation leading to rec­ognition of a Native Hawaiian governing entity.

Meanwhile, en banc oral arguments were held in late June before the San Francisco-based 9th U.S. Circuit Court of Appeals in a case alleging that the admissions policy of the trust-supported schools amounts to racial discrimination. The case is widely expected to eventually reach the U.S. Supreme Court.

“I think it’s all going to work out eventually,” says Roth of the sovereignty debate. “But not quickly.”

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