Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 9, 1 Kepakemapa 1989 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA

Rare role for the state in native Hawaiian affairs

Paul Alexander Washington, D.C. Counsel to OHA Stathood has meant a distinct legal relationship between Native Hawaiians and the state of Hawai'i. With other Native Americans, the primary relationship is between the Native people and the federal government, not the state government. The dominant role of the state of Hawai'i in Native Hawaiian affairs is probably because Hawai'i achieved statehood in 1959 when selfdetermination for Native Hawaiians was out of the question. The heyday of the now discredited and repudiated "termination era" (when the federal government sought to end the Federal Indian relationship and turn lndians over to the states) was during 1959. Just how rare the role of the state of Hawai'i is in Native Hawaiian affairs is highlighted by a comparison of the role of most states in native affairs. In Indian affairs, states and tribes are distinct and separate governments. They are governments that cooperate when their interests coincide; but more often they compete over control of people, land and resources. Historically, the question of the proper role of the states in lndian Affairs has been an important issue. At the time of the Articles of Confederation, and later the Constitution, the key debate was who would have the authority — the state or the federal government — to negotiate with Indian tribes for their lands. Individuals were not permitted to purchase lands directly from Indian tribes. Only governments could negotiate with Indian tribes for land. Land transfers were by treaties. Onee Indian land was obtained, the government would decide how to make such land available to its citizens. The issue of whieh government — the states or the federal government — would have the legal authority to deal with Indian tribes was hotly debated. The issue was squarely settled in favor of the federal government with the adoption of the Constitution. The authority of federalgovernment in Indian affairs was exclusive. The states had virtually no legal relationship to Indian tribes. The nature of the federal Indian relationship was explained in a series of landmark Supreme Court decisions in the 1830s. Essentially, Indian tribes were defined as "dependent domestic sovereign(s)" for whom the federal government had a trust responsibility "not unlike a guardian to a ward." A critical aspect of the federation and Indian relationship is that Indian tribes had and have sovereignty that is — powers of self-governance. The tribal powers of self-governance over people and territory, although subject to the superior and often abusive power of the federal government, excluded states from any role over Indian territory. In fact, in the 19th century, state constitutions were required to disclaim any power and - or authority over Indian tribes and their territories. A U.S. Supreme Court decision in 1886 went so far as to describe state-tribal relations as follows: "(Tribes) owe no allegiance to the states and reeeiue from them no protection. Because of the loeal ill feeling, the people of the states where they are found are often their deadliest enemies. " The federal government, however, was less than an admirable trustee; it undertook a series of actions designed to erode if not destroy Indian selfgovernment and Indian culture. Among other things, it had restricted Indians to reservations; it replaced traditional native economies with a welfare subsistence economy; it placed tyrannical

federal agents over tribal authority; it gave missionaries and church groups direct assistance in converting Indians; i.e., to remove them from their traditional native religions. Ferhaps worst of all were the allotment statutes, begun in 1887, whieh took vast areasof eommunal or tribally held Iand and divided them up into individual ownership parcels. Eaeh Indian family was to receive 160 acres, a single person 80 acres. Land was to be held in trust for the Indians, until they were "civilized." Lands left over on reservations after the Indians were "allotted" were sold to the United States for minimal amounts and thereafter opened up to non-Indians for homesteading. A prominent theory behind allotment was that the individualization of land holdings would turn Indians into farmers, eventually assimilating them into mainstream Ameiiea. Tribes were expected to simply disappear. lt is interesting that this aggressive period of anti-tribalism coincides with the United States' participation in the overthrow of the Native Hawaiian monarchy and the seizure of millions of acres of Native Hawaiian lands. Although tribes suffered greatly under allotment most did not disappear. Millions of acres of Indian lands were turned over to federal government and subsequently non-Indian settlers. This provided what would be a fundamental change in the nature of the tribal-state relations. Indian reservations were no longer exclusively for Indians. Non-Indians settled in great numbers and established towns, cities and counties within reservations. These governments, all subunits of state governments, would exercise state power within reservation boundaries, ultimately eompeting with tribal governments. In the early part of the 20th century reformers evaluated what had happened to Native peoples and this evaluation led to some reform. In the Territory of Hawai'i, Hawaiian homelands were set aside, in part, to stem what some feared was a possible extinction of the race of Native Hawaiians. In Indian country, the fear of extinction produced the end of a!lotment and the establish-

ment of federal policies fostering and supporting tribal government. The erratic federal trusteeship entered into dismal phase in the 1950s. A three-pronged "termination" po!icy called for legally ending tribal existenee, relocating vast numbers of Indians from reservations to urban employment centers, and transferring federal jurisdiction over Indian lands and people to states. As noted earlier, it was during this "termination" period that Hawai'i became a state; a state with significant power over Native Hawaiian Affairs. In the 30 years since Hawaii's statehood, termination has been repudiated. TTie current era of Native American affairs is known as self-determination. Tribal governments are being strengthened and are controlling more and more of their own affairs. As such they are constantly in conflict with states. It is important to note that these are not conflicts of personality-so-called good people versus bad people- these are conflicts over very substantive issues: zoning, land control, water allocation, fishing rights and adoption of children. In effect, the nuts-and-bolts of being governments. Although Indian tribes do not prevail on every issue litigated or brought before Congress, they do have a significant "voice" in the lives of the native people they represent. In the 30 years since Hawai'i became a state, the legal relationship of Native Hawaiians to the federal government, to the state of Hawai'i, and to themselves, has changed little. Native Hawaiians, unlike other Native Americans, are not yet part of the era of self-determination. Paul Alexander is legislative counsel to OHA in Washington, D.C. He is a partner in Alexander& Karshmer of California and the District of Colombia, a law firm specializing in native Ameiiean rights. He is former staff director of the U.S. Senate Select Committee on Indian Affairs. He is the author of "The Nature of the FederalNative Hawaiian Relationship" whieh was used by Congress for the Native Hawaiian Education Amendment and the Native Hawaiian Health Care Act.