Bar talk
Contrary to occasions where the lawyerly lexicon tends to complicate things for the general public, the discussion on ‘The legal status of native Hawaiians,’ the designated Presidential Plenary Session at the American Bar Association’s convention last week, rendered the Akaka Bill accessible in a single two-hour session. A panel of six specialists on native affairs engaged in the debate on whether and how laws governing tribal self-determination should apply to native Hawaiians.
Center for Excellence in Native Hawaiian Law director Melody Kapilialoha Mackenzie presented a brief history of the Hawaiian monarchy and its abolition. She questioned the legality of the 1898 annexation that required no vote in Hawai’i and only a majority of both houses. Addressing the legal status of native Hawaiians, she pointed out that unlike Indian tribes, which were not nation-states, native Hawaiians were part of a nation recognized in the world community.
Mary Smith, a former associate counsel to President Bill Clinton, went on to add that native American law views Indian tribes as governmental entities, not racial groups or foreign nations but domestic dependent nations. The ongoing debate, of course, remains: Is this the status native Hawaiians seek?
Office of Hawaiian Affairs attorney William Meheula distilled what Native Hawaiians hope to achieve: one, how can you regain the ceded land, and two, how do you not go backward and further lose rights. He explained how the Akaka Bill would have affected the federal status of native Hawaiians: It would require Congress to treat native Hawaiians as a federally recognized tribe, assign a clear legal designation and open the door for a native Hawaiian government.
‘The U.S. did such a great job of destroying the Hawaiian nation that there is no government left,’ Meheula said. Later, in response to a question about OHA’s efforts toward forming a government, he explained, ‘If you’re looking for federal recognition, you might want to have a government to be recognized first.’
Jonathan Osorio, director of the Kamakakuokalani Center for Hawaiian Studies at University of Hawai’i-Manoa, reminded the attorneys that the promise of the law is to provide justice. He was quick to emphasize, however, that ‘Vitality comes from outside the government,’ pointing to the Hawaiian strength behind the anti-urbanization efforts in the ’70s, the reclamation of Kaho’olawe, and continued lo’i and fishpond restoration. ‘People are exercising sovereignty on their own. Our people are not helpless.’
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