Monday, July 23, 2018

Derek H. Kauanoe and Breann Swann Nu'uhiwa

Permission pending: Derek H. Kauanoe and Breann Swann Nu'uhiwa, We Are Who We Thought We Were: Congress' Authority to Recognize a Native Hawaiian Polity United by Common Descent, 13 Asian-Pacific Law and Policy Journal 117 (2012) (222 Footnotes Omitted)

 

During a floor debate in the United States House of Representatives, Congressman Eni Faleomavaega of American Samoa explained that, of the three distinct indigenous groups living within the United States proper, only Native Americans and Alaska Natives possess formal government-to-government relationships with the United States federal government. Native Hawaiians, on the other hand, have yet to be afforded the same treatment as our other first Americans. As Congressman Faleomavaega subsequently pointed out, the responsibility to rectify this disparity is a moral imperative on the part of our government.

[Native Hawaiians] deserve this. They are not begging for anything. Just give them proper recognition .... [T]he status of the indigenous Native Hawaiians was never properly addressed by the United States Congress. And it is within Congress' constitutional authority to do so.

In an attempt to fulfill the federal government's moral imperative, the United States Congress has spent more than a decade considering several proposed versions of the Native Hawaiian Government Reorganization Act (colloquially referred to as the Akaka Bill), which seeks to restore a small measure of Native Hawaiian self-governing authority by providing a process for the formal federal acknowledgment of a reorganized Native Hawaiian governing entity. The proposed Act changes significantly with each new Congress, but from its initial introduction in 2000 to the present, the Act has consistently required that the initial reorganization of the Native Hawaiian polity be carried out by the Native Hawaiian community, united by common Native Hawaiian descent without regard to blood quantum.

Ryan Garcia, a 2010 graduate of the California Western School of Law who describes himself as a citizen of the United States of America and an Ethnic Hawaiian, takes issue with the proposed Act's use of Native Hawaiian descent as a criterion for participation in the initial reorganization of the Native Hawaiian polity. Using a standard anti-discrimination analysis that is inapplicable in the context of Native governance issues, Garcia mischaracterizes the Native Hawaiian people as an ethnic group without a shared political history, and proceeds to challenge the federal government's authority to acknowledge such a group as self-governing. Garcia further argues that, to the extent Native Hawaiian descent is treated as a permissible membership criterion, it must be accompanied by a high blood quantum requirement to ensure that the members of the initial Native Hawaiian polity are asserting a legitimate racial identity, as opposed to a mere ideological self-identification. Dehumanizingly comparing Native Hawaiian people to cups of Kona coffee, Garcia contends that [a]n ethnic blood quantum of 50.01% ... is logically necessary to establish a legitimate racial identity, but ultimately suggests that a fifty percent blood quantum may be more practicable, given the quandary posed by persons with fifty percent Native Hawaiian blood.

Opponents of Native Hawaiian self-governance who seek to maintain the current imbalance of material wealth and political power in Hawai'i will likely attempt to promote Garcia's comment as an authoritative historical and legal analysis in furtherance of their own agendas. Therefore, the comment's errors and omissions must be exposed in order to prevent undue interference with the already protracted and difficult struggle of the Native Hawaiian community to repatriate its self-governing authority.

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