Akaka Bill a step towards independence?

Poka Laenui has a letter in the Maui News today in response to my earlier letter, agreeing on the multiracial nature of the kingdom and support for restored independence, but differing in his position that the Akaka bill is not an "either/or" proposition to independence. If and when the bill passes, I do hope he's right. And even if it does pass, I agree that it will not legally affect the independence of Hawaii, being just another domestic law imposed illegally on an occupied country. However, I believe the intent and possible practical consequence of the law is not a stepping stone, but a trap they're hoping to trick Hawaiians to put their foot in.

UPDATE: Extensive response to Poka from David Ingham in the extended entry, on why he sees many reasons that the Akaka bill is an "either/or" proposition, and nothing to support the idea that it is not an "either/or."

Aloha Poka and others interested;

I see the Akaka bill as an "either/ or" for many reasons and I find nothing to support the Idea that it is not an "either/or." I hope you will take the time to share your views on this and consider those expressed here.

Because the process offered in the Akaka billrequires the Hawaiian constitution to be:

"..consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

it is important to examine and understand federal law in considering whether or not the process offered in the bill is an "either/or" and whether or not the process in the bill allows for Hawaiians to opt out of their decision to create a government under the process offered in the bill should they later discover that the process led to an unforeseen situation not to Hawaiian benefit or liking, or worse, to their detriment.

United States policy and law with respect to Indigenous Native Governments within the claimed boundaries of the United States is well established.

The Akaka bill provides a process for Hawaiians to reorganize the Kingdom of Hawaii from a government on the Foreign Nation side into a government on the Domestic Dependent Nation side of the commerce clause of the United States Constitution.

Because the process offered in the Akaka bill requires the Hawaiian constitution to be:

"..consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

it is important to understand the United States Congress authority under the commerce clause in considering whether or not the bill is an "either/or."

Where does the process in the Akaka bill provide for the conversion of the Kingdom of Hawaii from a foreign nation into a domestic dependent nation? and what will this mean for Hawaiians?

Report 108-85 that accompanied S344 to the floor of the Senate provides the following:

" The purpose of S. 344 is to authorize a process for the reorganization of the Native Hawaiian government and to provide for the recognition of the Native Hawaiian government by the United States for purposes of carrying on a government-to-government relationship."

How do we know the Native Hawaiian government reorganized by the process above is the Kingdom of Hawaii?

Report 108-85 provides the following:

"On January 17, 1893, the government of the Kingdom of Hawai'i was overthrown by a group of American citizens and others....., One hundred years later, a resolution extending an apology on behalf of the United States to Native Hawaiians for the illegal overthrow of the Native Hawaiian government ......."

Even though the Apology Resolution did not apologize for the overthrow of the "Native Hawaiian government " as report 108-85 incorrectly states, ( the apology resolution offers "... an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii." ) ,Report 108-85 clarifies that the Kingdom of Hawaii is the "Native Hawaiian government " that the Akaka bill provides a process to reorganize regardless of how inaccurate the report is otherwise.

If a question remains in your mind as to whether or not it is the Kingdom of Hawaii that the bill is aimed at reorganizing I would like to know what it is myself or the authors of S147 have overlooked or failed to consider.

In answering the either/or question it is important to understand the difference between a Foreign Nation and a Domestic Dependent Nation in United States law. This would not be an important consideration except that the process in the bill provides that in order for the United States to recognize the Hawaiian government the constitution of the native Hawaiian government must be:

"..consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

Congress relies on the commerce clause of the United States Constitution for its authority over indigenous native governments.

Interpretation of the commerce clause by the Supreme Court of the United States  in Cherokee Nation v Georgia explained the difference between domestic dependent nations and foreign Nations . It is important for Hawaiians to familiarize themselves with this case since the process offered in the Akaka Bill requires the Hawaiian constitution to be :

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

Cherokee nation v Georgia reads in part:

"Though the Indians are acknowledged to have an unquestionable and, heretofore, unquestioned right to the

lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility.

These considerations go far to support the opinion that the framers of our Constitution had not the Indian tribes in view when they opened the courts of the Union to controversies between a state or the citizens thereof and foreign states.

In considering this subject, the habits and usages of the Indians in their intercourse with their white neighbors ought not to be entirely disregarded. At the time the Constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong had perhaps never entered the mind of an Indian or of his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the Constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the Union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such that we should feel much difficulty in considering them as designated by the term foreign state were there no other part of the Constitution which might shed light on the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the 8th Section of the 3rd Article, which empowers Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

In this clause they are as clearly contradistinguished by a name appropriate to themselves from foreign nations as from the several states composing the Union. They are designated by a distinct appellation; and as this appellation can be applied to neither of the others, neither can the appellation distinguishing either of the others be in fair construction applied to them. The objects to which the power of regulating commerce might be directed are divided into three distinct classes: foreign nations, the several states, and Indian tribes. When forming this article, the Convention considered them as entirely distinct. We cannot assume that the distinction was lost in framing a subsequent article, unless there be something in its language to authorize the assumption.

Foreign nations is a general term, the application of which to Indian tribes, when used in the American Constitution, is at best extremely questionable. In one article in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contradistinguishing them from each other. We perceive plainly that the Constitution in this article does not comprehend Indian tribes in the general term foreign nations; not, we presume, because a tribe may not be a nation but because it is not foreign to the United States. When, afterward, the term foreign state is introduced, we cannot impute to the Convention the intention to desert its former meaning and to comprehend Indian tribes within it, unless the context force that construction on us. We find nothing in the context and nothing in the subject of the article which leads to it.

The Court has bestowed its best attention on this question and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the courts of the United States."

Because the Hawaiian constitution, under the process provided under the Akaka bill must be:

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

It is important to consider now, since the question is likely to arise in the future, whether or not a Hawaiian government established pursuant to the process provided in the Akaka bill will be considered a domestic dependent nation, as the Cherokee Nation was, with respect to the commerce clause and the Supreme Courts interpretation of it in Cherokee Nation v Georgia .

In answering this question, it is important to understand that no comprehensive definition of domestic dependent nation exists in United States law. In a future claim that a Hawaiian government established pursuant to the process provided in the Akaka bill is not a domestic dependent nation with respect to the commerce clause, the Supreme Court is certain to look to its decision in Cherokee Nation v Georgia as the test as to whether or not the Hawaiian government formed pursuant to the process provided in the Akaka bill is a domestic dependent nation or a foreign nation .

Does the Government established pursuant to the process provided by the bill meet any or all of the following describing an domestic dependent nation in Cherokee Nation v Georgia? :

Were Hawaiians:

"acknowledged to have an unquestionable and, heretofore, unquestioned right to the lands they occupy" as with the Indians described in Cherokee?

Consider treaties between the United States and the Kingdom of Hawaii and the acknowledgement in the apology resolution that " the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum"

as the likely source of the courts answer to the preceding question.

Are Hawaiians' rights to the lands they occupy acknowledged :

" until that right shall be extinguished by a voluntary cession to our government."  as with domestic dependent nations described in Cherokee?

Look to the acknowledgement in the apology that:

" the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum"

and that part of the process in the bill that provides for negotiations regarding :

"... the protection of existing rights related to such lands or resources..."

as the likely source of the courts answer to the preceding question.

Do Hawaiians:

"occupy a territory to which (the United States )assert a title independent of their will" as with domestic dependent nations described by the court?

Look to The Ku'e Petitions and Liliuokalani's letter of protest as the likely source of the courts answer to this question.

Does Hawaiians'

"relation to the United States resembles that of a ward to his guardian? as with domestic dependent nations described by the court?

Look the Hawaiian Homes commission act, the 5f trust and that congress " has enacted scores of statutes on their behalf" as the likely sources of the court's answer to the preceding question.

Do Hawaiians:

" look to our government ( the United States) for protection" as with domestic dependent nations described by the court?

Look to Hawaiians use of the United States courts since the Hewa as the likely source of the court's answer to this question.

Do Hawaiians

"...rely upon (the United States kindness and its power; appeal to the United States for relief to their wants;" as with domestic dependent nations described by the court?

Look to the appeals of OHA and others to Congress and 150+ pieces of U.S. legislation for the benefit of Hawaiians as the likely source of the court's answer to this question.

Are Hawaiians

"and their country ....considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility."

Look to the events of December 7, 1941 as the likely source of the court's answer to this question.

The answer to the question whether or not a Hawaiian nation formed pursuant to the process provided in the Akaka bill will be considered a domestic dependent nation by the Supreme Court  as the Cherokee Nation was in Cherokee Nation v Georgia is important because under the process provided in the Akaka bill, the Hawaiian constitution must be:

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

If you are aware of reasons to doubt ,or better yet, reasons that prove, that the Hawaiian government formed under the process provided in the Akaka bill will not be considered  a domestic dependent government for the same reasons the court determined the Cherokee nation is a domestic dependent government with respect to the commerce clause, I would appreciate the opportunity to consider your reasoning.

Why should Hawaiians be concerned with which side of the commerce clause their government falls on in U.S. law?

Several reasons, the answer to the either/or question with respect to land title, jurisdiction, and the rights of Hawaiians being the most prolific among them.

Because under the process in the Akaka bill the Hawaiian constitution must be:

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

it is important to consider the reversibility of Hawaiians decision to follow the process with respect to land title.

The Supreme Court provided the most compelling reason I am aware of for Hawaiians to concern themselves with title to the Hawaiian islands in general and the Crown and government lands specifically in Johnson v Mcintosh:

"An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians."

"The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers."

"However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. ∑"

None of the foregoing would be cause for alarm if it was certain that the Akaka bill is an either/or  if there was some assurance in federal law that once Hawaiians choice to establish a government with a constitution that is

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

that the decision could be reversed and Hawaiians absolute title to the Hawaiian islands that was once secured by the establishment of the Kingdom of Hawaii on the foreign nation side of the commerce clause could be restored. But this is not the case. Federal law provides the following at Title 25 Chapter 3 subchapter 1 section 71:

"No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power..."

Certainly Hawaiians could reject recognition by the United States at some future date and assert that they are once again an independent nation. The United States could not prevent this for the same reason the United States cannot prevent Hawaiians from asserting now or at any time that they are an independent nation. It is important however to consider what will have transpired during the time Hawaiians accepted a government established under the process provided in the Akaka bill. Hawaiians will have elected to accept federal law that vests absolute title to the Hawaiian Islands in the United States by adopting a constitution that is:

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

If the bill is an either/or with respect to land title, I would like the opportunity to consider your reasoning as to mechanisms by which absolute title to the Hawaiian Islands will be returned to Hawaiians once Hawaiians have acknowledged that title is vested in the United States in the Hawaiian constitution.

Because the process provided in the Akaka bill requires the Hawaiian constitution be:

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

it is important to consider the power that congress vests itself over Indigenous native governments and their people and whether a decision to accept that congressional power is reversible.

Congress vests itself with plenary power over Indians, their governments, and their assets.

U S v. SANDOVAL, 231 U.S. 28 (1913)

'The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.'

UNITED STATES v. WHEELER, 435 U.S. 313 (1978)

"...Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government..."

"The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status..."

But there is more , Hawaiians will have acknowledged the following as legitimate in their constitution if they accept a government that follows the process spelled out in the bill:

United States law provides at title 25 USC Chapter 3 subchapter 1 section 71:

"No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power..."

If Hawaiians choose to pursue the process offered in the Akaka Bill will they have subjected their government to the classification of "Indian tribe" or "Indian Nation" with respect to 25 USC section 71 cited above?
The Supreme Court of the United States will make the final determination when push comes to shove. Hawaiians, if they follow the process provided in the Akaka bill , will have agreed to this. Under the process provided in the Akaka bill the Hawaiian Constitution must contain language that ensures the Hawaiians constitution is

"consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States..."

This to is the law of the United States that the Hawaiian constitution must be consistent with under the process in the bill:

"Whereas the Government of the Republic of Hawaii having, in due form, signified its consent in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining; Therefore

    Resolved by the Senate and House of Representatives of the United States of America in Congress Assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the territory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America. "

I am really interested in understanding how you plan to get out from under all this once you have written it into a Hawaiian Constitution because I plan to be a part of the fight to get out from under it should Hawaiians come to believe the Akaka bill was not a good move. Your thoughts are appreciated..

david

Posted: Tue - March 15, 2005 at 06:08 PM

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Akaka Bill a step towards independence?

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