Akaka vs. Ka-naka
Hawaiians look at two approaches to sovereignty

by Alan D. McNarie

If you build a government, will they come?
Henry Noa is the elected Prime Minister of the Reinstated Hawaiian Government. He's spent the last eight years building an organization that he hopes will be recognized as legitimate successor to the royal Hawaiian government overthrown with the help of the U.S. armed forces in 1893.
"You need to believe that this government does exist," he told a rally here in January. This year the RHG plans to hold elections for every seat of its Mana Kau Kanawai ("body that makes the laws"). Anyone of Kanaka Maoli (native Hawaiian) ancestry can register to vote; non-Kanaka may vote also by completing an "application for naturalization," proving their identity, and taking a "citizenship test" on Hawaiian history and "a little bit about the overthrow and international law," Noa says.
He and his colleagues claim they have meticulously followed international law, starting with a proclamation in 1999 that the reinstated government existed. They established a "pro-tem government," patterned after the old royal government, with a House of Representatives and a House of Nobles; they held a constitutional convention under rules of the kingdom's last constitution of 1887. The pro-tem government has passed what the group calls the Kanaka Bill, which declares the right of the Hawaiian people to have their own government and reclaim the kingdom's lands, and sets up the machinery to elect such a government.
The pro-tem government holds its next session on Maui on June 16-17-the day after Noa and others go on trial for trespassing, because they went to Kaho'olawe to claim it for their government.
But the group knows it is racing with a rival: the Akaka Bill, currently making another run in the U.S. Congress. The bill, would set up a native Hawaiian "governmental entity" similar to those of Indian tribes, which could then bargain with the government on Hawaiian issues, including the return of Hawaiian lands.
"The bill makes clear that the bill authorizes the recognition of a single Native Hawaiian governing entity," states Sen. Daniel Akaka's Web site. If the federal government recognizes an Akaka-bill-spawned "governing entity," another barrier will be erected against the recognition of any other Hawaiian government.
The measure was repeatedly introduced and defeated in previous, Republican-dominated Congresses. This year, with the Democrats in charge, it has a good chance of passing.
Affable ineffectuality
One thing that the Reinstated Government's Kanaka Bill has for it, ironically, is Akaka (D-HI), who in 31 years in Congress has earned a reputation for affable ineffectuality (Akaka's Web site on the bill still disparages its chances because of "Republican majorities" in Congress, even though the Democrats have been in charge for six months).
Akaka has never successfully spearheaded a major piece of legislation. But that may provide octogenarian senator with an incentive to make the Akaka Bill work - it may be his last chance to carve out some sort of legislative legacy. And the bill has two other, much more effective supporters: Sen. Daniel Inouye and Governor Linda Lingle.
Standing in their way are President Bush and the still-powerful Republican congressional minority, who generally view the Akaka Bill as another case of "reverse discrimination."
"The Administration strongly opposes [the Akaka Bill] because we think it wrong to balkanize the governing institutions of this country along racial and ancestral lines, and because doing so would give rise to constitutional questions recently described by the Supreme Court as 'difficult' and 'considerable,'" testified Principal Deputy Associate General Gregory Katsas before the Senate's Indian Affairs Committee. Among other arguments, Katsas claimed that the Akaka Bill could provide a legal precedent for other non-American Indian minorities, such as Tejanos of Texas and Acadians of Louisiana, to declare themselves "Indian tribes" and make land and compensation claims.
Some Native Hawaiians might welcome that outcome, because they feel the bill gives away their chance at true sovereignty.
No casinos, but....
The Akaka Bill's supporters claim that it would finally open the door for reparations and lands claims that have been festering ever since the 1893 overthrow. In doing so, they would be joining other native peoples in a nationwide trend, according to Prof. Jon Van Dyke, who teaches constitutional law at the University of Hawai'i-Manoa.
"In 1970 the United States formally announced that it was the position of the U.S. that the native people to have a separate legal and political status under U.S. constitutional system," he says. "Since then, we've had a number of settlements and court decisions that have allowed native people to get back on their feet."
Penobscot and Pasamaquoddy Indians now control huge tracts of forest in Maine. West Coast tribes have regained control over valuable coastal and river fishing rights. Indians and Aleuts (Eskimos) in Alaska have at least theoretical control over enormously valuable timberlands and mineral and oil deposits in Alaska (though some have complained that large corporations have taken de facto control of the non-profit that administers those rights-a recurrent problem with weak tribal governments.) And then, of course, there are the casinos.
Under the Akaka Bill, the Kanaka Maoli could not operate casinos. Nor could they prevent the U.S. military using ceded lands that it is already using.
Prior to the Overthrow, the U.S. Navy leased Pearl Harbor from the Hawaiian Kingdom. "We could possibly get close to maybe $5 billion in rent for Pearl Harbor if we decide to put our nation back together," Noa believes.
There are also millions of acres of land: land ceded to the U.S. government when the Republic of Hawai'i was annexed, then to the state of Hawai'i. Activists maintain that observatories on Mauna Kea, should pay rent to the Hawaiian people. And DHHL lands-often leased at what activists call sweetheart prices.
Hawaiians have been trying to get those lands back for a long time.
"I'm one of the oldest Hawaiian activists; I've been around since the sixties," says Kahu Charles Kauluwehi Maxwell, Sr. "We've tried everything. I was the first president of the Aloha Association way back in 1972 …. We asked for one billion dollars and two million acres of land, especially 1.8 million acres that were being held for us in trust. That was not successful."
Akaka Bill supporters maintain that it would create an entity that would finally be recognized as representing the Kanaka Maoli interests, and that could sit down at the bargaining table to get at least some of those resources back.
Subservient or equal?
But for some Hawaiian activists, that would be sitting down with robbers.
"The Akaka Bill will have the Hawaiian people destroy their inherent right to their nation by agreeing to participate in a U.S.-controlled election," maintains one RHG flyer, which claims the resultant "governing entity" would be "subject to all U.S., State of Hawaii, and County government laws.... The Akaka Bill guarantees the Hawaiian people nothing, except a process to keep begging the thief to give something back for the crime the U.S. government committed."
"International law says the conqueror must return the conquered to its original status," Noa maintains. "Japan surrendered to the United States-unconditional surrender. Japan is still Japan. It's not the United States."
RHG leaders the Akaka bill gives up far too much-including true sovereignty.
Would an Akaka Bill government be subservient to the federal and state governments?
"Actually, it should be independent of both," believes Alan Murakami of the Native Hawaiian Legal Corporation. Murakami notes that "The Indian nations on the mainland are pretty much on their own," although some federal laws do apply on the reservations.
But Murakami says that an Akaka Bill entity "could be anything along a spectrum from total dependency to almost independent nationhood."
Van Dyke notes that an 1830 Supreme Court ruling said that Georgia couldn't enforce its laws on the Cherokee reservation. But he also notes that in the 1959 Hawaii Admission Act delegates federal authority to the state to administer some Hawaiian affairs, resulting in agencies such as OHA and DHHL. And, he says, "if Congress's intent is clear, Congress can override any law."
If you believe....
In Noa's mind, that the Reinstated Hawaiian Government is equal with the United States because Queen Liliuokalani never conceded her overthrower's legitimacy. Because the RHG is following the process prescribed by international law, that government is born again-without, as the Kanaka Bill puts it, "the aid or interference of the United States government, State of Hawaii Government, City & County governments or any of their corporate state agencies such as OHA."
"They are correct that the overthrow of the kingdom was illegal," says Van Dyke. "They are correct that the annexation of the Hawaii was unorthodox, as it was done by a joint resolution with a simple majority of the House and Senate, rather than by treaty which would have required a two thirds majority of the Senate.... But we've had a hundred and nine years pass, whereby the United States has exercised sovereignty over the territory of Hawai'i. Perhaps more importantly, in 1959 the people voted overwhelmingly to become a state. Many native Hawaiian leaders were very active in the statehood movement, and therefore it becomes difficult to argue that Hawai'i is not now part of the United States."
Van Dyke adds, "Nothing in the Akaka bill interferes in any way with efforts to gain independence and secession from the United States."
Noa and his followers have to get a large portion of the Kanaka Maoli to believe that their government is legitimate and stands a chance of recognition. (Organizers told the Journal that voter registration efforts were going "very well," but the NHG's Office of Communication said they had about 2,500 voters so far, out of a possible pool of 60,000). Next, they have to convince someone else: the U.S. government, preferably; if not, then some other sovereign government that could recognize them-or perhaps the World Court. Or the circuit court in Maui, where Noa and others face trespassing charges for their Kaho'olawe foray.
Noa doesn't think his group is going to get recognized as a government overnight. He believes it may take a whole generation for Hawaiians to get "educated" about sovereignty. But he has patience.
After all, he notes, it took 1,840 years for Israel to reappear.

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