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Overthrow redux?

An American Indian scholar asks if the lure of federal benefits is worth Hawaiians' cession to the U.S. of Hawaiian political and territorial claims.

At the height of the oil boom of the 1920s, William K. Hale devised a plan to acquire the wealth of the Osage Nation. Originally from Greenville, Texas, Hale acquired extensive business interests in Osage County, Oklahoma. Eventually, he gained political power in the internal affairs of the Osage. How did Hale mastermind and execute a plan to murder some 24 Osage Indians all in the effort to acquire thousands of acres of Osage land? 

Under the Osage Allotment Act of 1906, the Osage owned the territory and natural resources of the Osage Nation Reservation. There were stipulations. The Osage had to enroll 2,228 members of their population so that “surplus,” unceded land could be divided into parcels of 657 acres each, and then allotted to individual Osage Indians. The United States also held in trust the territory of the reservation proper, and, on behalf of the Osage, negotiated mineral leases that earned royalties for the Osage as a whole. Under the terms of the Act, Osage “allotees” received “headrights” to the oil that seemed to gush forth from endless numbers of wells. Headrights were hereditary. With the death of an allottee, headrights passed to the allottee’s legal heirs. Bill Hale quickly saw the means by which he could gain access to the wealth of the Osage. It was not necessary to be Osage in order to claim a headright. One had only to be the legal heir to an Osage’s headright.

What can Hawaiians learn from this story of contested power and uncontested greed? A lot when one considers that it is the U.S. Department of the Interior (DOI), and the state of Hawaii, not Hawaiians, who are initiating procedures for the reestablishment of government-to-government relations between Hawaii and the U.S. In soliciting public comments as to “whether and how the [DOI] should facilitate the reestablishment of a government-to-government with the Native Hawaiian community,” one would do well to ask, why is the U.S. initiating this process of federal recognition and enrollment?  Who is the “Native Hawaiian community,” who defines it, and to what purpose? What will Hawai’i and the U.S. gain or lose if the settlement of unceded Hawaiian lands are at stake—claims to which the U.S. hopes to become Hawai’i’s heir? 

Federal recognition is a familiar process for American Indians, so much so that it has a nickname—“fed rec.” Yet it is generally unfamiliar to many Hawaiians. “Fed rec” Indians enjoy a severely limited sovereignty. By no means do they have entire jurisdiction within their own territories. Indeed, in “recognizing” American Indian claims to territory, the U.S. holds in trust whatever remains of such claims. In turn, trust lands generate revenue from which tribal nations may benefit. It is here where Hawaiians should ask themselves, just how much money is at issue, keeping in mind that federal recognition cannot guarantee against the loss of such funds.  In other words, is the promise of federal benefits worth the cession to the U.S. of Hawaiian political and territorial claims?

Even so, in every case in the past half century, the push for federal recognition has come from American Indian tribal nations, not the state, and not the federal government. Why? American Indians usually seek recognition in the effort to protect what formal or legal title to land remains, as well as receive compensation for the loss of ancestral claims to land and resources. The hope is that federal recognition will also put an end to, or at the very least, frustrate the depredations of present-day non-Native neighbors, from local individuals and businesses, to municipalities and states.  However, American Indians are also aware that even in the effort to protect Native claims to land, entering into a trust relationship with the federal government also means giving up some, and oftentimes much of the original claim. In other words, with enrollment as a first step, federal recognition initiates the process of divestment, not the investment of Native claims to land.

If we consider Hawaii within the larger arena of international law, and in light of the U.S. effort to “reestablish” a government-to-government relationship with the “Native Hawaiian community,” how might the international community consider such a development?

In 1934, nations throughout the Caribbean, North, South, and Central America cobbled together the Montevideo Convention on the Rights and Duties of States and laid out the four criteria that establish statehood. Namely, a state should possess, 1) a permanent population, 2) a defined territory, 3) a government, and, last, 4) the ability to enter into government-to-government relations with another state.

Hawai’i possesses a permanent population. However, it is unclear as to whether this population is the same as the “Native Hawaiian community” cited in the DOI’s proposal. Moreover, the legitimacy of the proposal is questionable since a foreign entity—the U.S.—is seeking to enumerate and enroll the population of another State—Hawai’i.  After all, when was the last time that the U.S. sought to oversee the enumeration of the population of, say, France?  If this seems strange, why then does it make sense in the U.S. - Hawaiian context?

We should also consider Territory and government. Established at the end of the eighteenth century, the Hawaiian kingdom had a clearly defined territory.  Despite its overthrow and annexation by the U.S., there is no evidence that the U.S., in any legal sense, extinguished the Hawaiian Kingdom as an independent State under international law. Legally, the Hawaiian Kingdom still exists—at least according to U.S. Public Law 103-150 (107 Stat. 1510)). Passed by both the U.S. congress and the senate, and better known as the “Apology Resolution,” U.S. Public Law 103-150 “acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum.” In other words, even the U.S. acknowledges that it has illegally occupied the Hawaiian Islands for more than one hundred years.

Annexation of Hawai’i by the U.S. compromised Hawai’i’s territorial borders, but this does not preclude the recognition of Hawai’i as an independent State by the international community of nations. International recognition as a State suggests the possibility that Hawai’i could once more assert exclusive control over what remains of its territory. U.S. federal recognition forever disables the full sovereignty that other States, including the U.S. enjoy.  Instead, U.S. federal recognition requires the acceptance by Hawaiians of Hawai’i’s status as a “domestic dependent nation”— a status by which federally recognized American Indian tribal nations are now defined. Rather than retaining its legal if not active status as a “foreign independent nation,” Hawai’i would agree to retain forever, a severely reduced, local sovereignty within an occupying State that holds, “in trust,” claims to Hawaiian territories. 

The greatest obstacle to the establishment of a government-to-government relationship is the lack of an internationally recognized, independently established Hawaiian government.  Just who represents the interests of the “Native Hawaiian community”? The great risk here is the creation of what many nations, including the U.S. claim to abhor—the establishment of a puppet government by an occupying power.  There is of course, a presumption against the legitimacy of such a State.  Is the federal government proposing that once the Native Hawaiian community is enrolled, that it would then be able to assert its independence from the U.S., and institute its own government, if only to clearly establish the DOI’s sought-after government-to-government relationship?  This seems unlikely, at least in the Hawaiian context.

International law accords the greatest importance to the realization of the right to self-determination. Even so, the ability of Hawaii to achieve its independence is limited—at least for now. The clear, present danger to Hawai’i is any further compromise to what remains of Hawaii’s claims to Statehood and land. One way to address these issues is to look across the water, to American Indian histories. Perhaps they can help to better contextualize the dilemma that Hawaiians now face.

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