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Loa: Bush administration upholds Hawaiian tribal law

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Leadership of the Hou Band of native Hawaiians is now and has for several decades been the primary advocate of reaffirming United States tribal policy in Hawai'i; not an easy task. At stake are some two million acres of wrongfully taken Aboriginal land and hundreds of millions of dollars in revenue derived from that land. Although Hawai'i joined the federal system of the United States rather late in the history of America, in 1959, our former tribal nation had been a territory of the United States since 1898. In 1920, our federal-tribal relationship was established by Congress through the Hawaiian Homes Commission Act, which created federal reservations for us and recognized the nearest kinship group of the Aboriginal inhabitants of the Nation of Hawai'i.

Employing the plenary powers of Congress under the clause of the Constitution covering federal commerce with Indians, our blood quantum percentage was set at 50 percent and more to qualify for a reservation homestead or farm.

Significantly, "Indians" was the term British explorer Captain James Cook had used to describe us in his 1778 journal when he "discovered" Hawai'i. Congress in the Hawaii Admissions Act (statehood) of 1959 mandated that revenues from our former lands, now the state's so-called public lands, be used by the state for betterment of the conditions of "native Hawaiians" (note lower case "n" in native). Although no state can dilute tribal blood quantum rules, the state of Hawai'i mistakenly believed it had jurisdictional authority to do so.

'Native Hawaiians' v. 'native Hawaiians'

In 1978, the State tried to unilaterally alter our 50 percent and more blood quantum rule, seeking to dilute it to include lineal descendants with any drop of blood. Lineal descendants became known as "Hawaiians" in state law. The State thereby exposed itself to the currently controversial issue of government racial preference. This issue was reviewed in Rice v. Cayetano in the U.S. Supreme Court. An effect of the ruling in Rice is to separate the state's "Hawaiians" (any percent) from federal native Hawaiians (50 percent and more). "Hawaiians" lack legally sufficient federal standing.

They are monarchists, we are tribal.

The Akaka Bill

Hawai'i and the "Hawaiians" (who were not recognized in the 1920 and 1959 federal Acts) have failed for several years to use Congress to pass a bill drafted by Senator Akaka to codify their unique situation. The doomed bill sought to confer some type of hybrid federal recognition on Hawaiians in an effort to confer Constitutional protection on Hawaii's now unconstitutional ability to continue to receive federal treasury funds intended by Congress for native Hawaiians.

Language Games: the State fails to substitute 'Hawaiians' for native Hawaiian

The Akaka bill is spun by some as a "sovereignty" bill for "Native Hawaiians." Congress understands Hawaii's posturing is designed to cloak the state's own self-serving objectives in misappropriated tribal law, language and symbols. When state law created "Hawaiian" (any percent), it began to use capital "N" "Native Hawaiian" in Washington, intended to encompass their "Hawaiians" and actual, original, federally recognized small "n" native Hawaiians.

Hawaii's motivation to encroach on native Hawaiian sovereign jurisdiction

Congress, in 1959, as a condition of statehood, directed the State to "adopt" the 1920 HHCA for the purpose of using revenues from Aboriginal lands ceded to the new state for betterment of the conditions of native Hawaiians. The State (1) never gave us any revenues until we sued - and the State then gave these revenues to itself via the substitute it fabricated to replace us, the "Hawaiians," doing business as the Office of Hawaiian Affairs (OHA). And (2) instead of "adopting" the HHCA 1920 as agreed, the State altered it to serve its own purposes. In the ruling in Rice v. Cayetano, the High Court admonished Hawai'i, recognizing the State erred when it failed to "preserve" our identity by altering the 1920 HHCA and by attempting in State law to change our blood quantum rule in Hawaii's constitution. As the doubtful surrogate for the native Hawaiian, the State also wrongly claims surplus federal land where the original owner is actually the native Hawaiian.

Bush Administration upholds the Tribal Law position

On the positive side, based upon recent United States Supreme Court findings that have turned the spotlight on Hawaii's wrongful practices, the U.S. Department of Justice, Secretary Gale Norton and the White House are paying attention to what goes on in the middle of the Pacific Ocean insofar as the public lands, native Hawaiian reservations, self-government and self-determined economic development are involved. We are grateful that the Bush Administration is doing the right thing for the 50th state's Native Americans, clearly showing by its actions support for adjusting the native Hawaiian situation so as to realign it with U.S. tribal policy, law and practice and removing the State from our sovereign tribal jurisdiction.

State's discriminatory practices against native Hawaiians

The most disturbing and destructive aspect of Hawaii's policy and practice is the fact the State and its cities and counties have a longstanding policy and practice of discriminating against actual native Hawaiian self-determined economic development. At the same time, by misrepresenting themselves as our "delegated authority," Hawai'i uses this presumed "authority" to grant to state entities, in their wrongly assumed identity as us, the very same exemptions from restrictive land use they impose on us! Legal action by the native Hawaiian with state and city and county defendants is headed to federal court should Hawaii persist in its wrongful policy and practice of ignoring our existence and legal entitlements as tribal Native Americans.

The remedy already exists. Our existing means of clearing up any confusion by reaffirming our government-to-government relationships with the other two sovereigns is found in state law and federal tribal law. Now that their establishing state laws has been exposed as unconstitutional, an eventual remedy for Hawaiians could be found in international law models like that of the New Zealand Maoris, or in emulating Alaskan Village Corporations. This is what U.S. Senator Daniel Inouye is really after and will have our support. Because of their predominantly Asian ethnicity, Hawaii's lineal descendants are actually classified by the United States as "Asian Pacific Islander." We are "Native Americans." We number only around 3,500. Asian Pacific Islanders, courted by politicians, are a much larger voting bloc in Hawai'i.

Aboriginal lands taken by provable fraud

State laws and regulations codifying land use and other policies of the state of Hawaii are inherently discriminatory as they merely codify the patterns that evolved as a result of the fraudulent maheles when the Aboriginal lands of the nation of Hawai'i were converted to Western ownership based on the false promise that redistribution was necessary and that the taken lands would be redistributed - one third to the chiefs and one third to the people. The British style monarchy and then the subsequent western governments took all our land and never distributed it, retaining three thirds. The monarchy clans through inheritance obtained some of it and these became the missionary era land trusts. The rest of it became public lands. Our original federal reservations established by Congress were taken from the so-called public lands.

Maui Loa is Hereditary Chief of Hou Lahuiohana (band) of native Hawaiians of the Blood.