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excerpted from: R. H K Lei Lindsey, Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual , 24 University of Hawaii Law Review 693-727, 693-696 (Summer, 2002) (240 Footnotes)

Preface

It is important to acknowledge, at the outset, a significant legal paradox of the Native Hawaiian situation. Hawai'i became a U.S. territory by unilateral act of Congress. See Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, ch. 55, 30 Stat. 750 (1898) [hereinafter Joint Resolution]. No treaty. No purchase. No conquest. No consent. Based, in part, on this historical fact, many Native Hawaiians advocate for independence from the United States. However, independence from the United States is, in significant ways, an unfashionable remedy for U.S. courts and one that politics dictate cannot be enforced by an international forum. In a climate of increasing settler racism, Native Hawaiians are left with a choice to hold steadfast to independence and traditional notions of justice, or to race to the federal government for recognition of the political relationship available to Native peoples under domestic law that will protect Native Hawaiians

This land is ours, our Hawai'i. Shall we be deprived of our nationality?"

More than 104 years have passed since Native Hawaiians united in protest to support their nation-the Hawaiian Kingdom-and to oppose annexation to the United States. The century since has witnessed significant changes that have had a detrimental impact on the Native Hawaiian peoples and their culture. The United States annexed Hawai'i against the will of the Native people. When Hawai'i became the "Fiftieth State," the Native Hawaiian peoples were deprived of their right of self-determination. The Hawaiian culture has become the erotic symbol for the tourist industry. In their homeland, Native Hawaiians suffer from the worst statistics on social indicators. For example, Native Hawaiians have the highest rates of breast cancer, the highest rates of adult and juvenile incarceration, and one of the lowest rates for attaining college degrees. And now the Native Hawaiian peoples face a potential onslaught of constitutional challenges to their inherent rights.

Spurred by a sense of urgency following the U.S. Supreme Court decision in Rice v. Cayetano, the Akaka Bill (S. 746) was introduced in Congress to establish a government-to-government relationship between the "Native Hawaiian governing entity" and the United States. Using the context of federal Indian law, the Akaka Bill is intended to recognize the Native Hawaiian peoples' right of self-determination within the United States. Several important goals will be achievedby creating a government-to-government relationship. Foremost among these goals is to enable the Native Hawaiian peoples to exercise self-determination within the confines of U.S. law. Additionally, federal recognition of the Native Hawaiian peoples will create parity among Native peoples of the United States. The Native Hawaiian peoples will have increased authority over certain ancestral lands and control over the administration of trust assets. Moreover, Native Hawaiian rights will have greater protection from constitutional challenges in the wake of Rice.

Meanwhile, many Native Hawaiians advocate for an international resolution of Native Hawaiian claims and against any dealings with the United States. The international arena is an important forum for the Native Hawaiian peoples on two levels. One level involves standard-setting activities at the United Nations as an indigenous peoples. The other level involves claims to independence rooted in the United States' participation in the overthrow of the Hawaiian Kingdom and encompasses subsequent milestones in United States-Hawai'i relations.

This paper analyzes the relationship the Akaka Bill will create between the Native Hawaiian peoples and the United States. First, this paper argues that a government-to-government relationship with the United States will benefit the Native Hawaiian peoples. Second, this paper maintains that the creation of a government-to-government relationship will not settle the Native Hawaiian peoples' international claims against the United States.

Part II provides an overview of history in Hawai'i, from pre-contact to the changes brought by the U.S. Supreme Court decision in Rice, against the backdrop of Native resistance and calls for sovereignty.

Part III analyzes the effect of the Akaka Bill-the kind of relationship it creates with the United States, the importance of recognizing a government-to-government relationship for the Native Hawaiian peoples, and the changes to the bill that have caused concern throughout the Native Hawaiian community.

Part IV explores what effect the creation of a government-to-government relationship with the United States will have on the Native Hawaiian peoples' international claims.

Part V concludes that while the current version of the Akaka Bill creates a government-to-government relationship, which increases the exercise of Native Hawaiian self-determination, creation of the government-to-government relationship with the United States does not settle international claims. The Native Hawaiian peoples must therefore continue to pursue federal recognition and international avenues to maximize the exercise and protection of their rights.

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