Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 1, 1 January 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

Blood quantum — what does it mean for federal services?

It is only when federal programs, benefits, claims awards, or services are for "native people" that the issue of blood quantum — the amount of blood of particular ancestors — arises. In fact, if the federal government used blood quantum as a basis for services outside the area of Native People, the use of a degree of blood of any racial origin would no doubt be found to be un-constitutional racial discrimination. It is because the United States government has a trust relationship to Native People, that the United States ean provide special services to Natives. The United States Supreme Court has referred to this sp>ecial relationship as a "political relationship." Determining who is or who is not a native person for federal services ean raise the issue of blood quantum. Most federal laws relating to Native People, as Native Hawaiians are well aware, were developed primarily in the context of American Indian tribes. Generally speaking, for the first century of federal services to Natives, blood quantum standards and definitions were not mueh at issue. Identification by blood quantum was not the case. Federal statutes and treaties whether they related to land cessions, or services, or both, simply referred to a particular tribe or to Indians generally; phrases such as "the fish-eating Indians of Washington," or "Indians of California" were eommon in the statutes and treaties. None of the treaties with the Kingdom oi Hawai'i and the United States delineate Native Hawaiians by blood quantum. In effect it pretty mueh was the responsibility of relevant Native Government to decide who was Sioux, or Dakota, or Mohawk, or for that matter, Hawaiian. How quantum relates to benefits It the case of Native Hawaiians, with one notable exception, none of the program statutes eontain a blood quantum requirement. They simply provide that a Native Hawaiian is any individual whose ancestors were natives of the area whieh consisted of the Hawaiian Islands prior to 1778. (That is, before the arrival of Captain Cook in 1778.) The notable exception, of course, is the Hawaiian Homes Commission Act of 1921. The Act provides that 50 percent Native Hawaiian blood is the eligibility requirement for a homestead. As students of Native Hawaiian history are aware, the 50 percent standard was not a proposal of Native Hawaiians, and certainly not from Jonah Kuhio Kalanianaole or the Hawaiian Civic Clubs. Rather, it was a proposal of the various plantationpowers, in whose interest it was, to keep the demand for homesteads limited to the amount of land set aside in the Act. lf Native Hawaiians had been defined simply as descendants of either 1/15 or 1/32 Native Hawaiian blood as some Native Hawaiians were suggesting, it would have been apparent the Homestead Act lands were insufficient for the populahon of Native Hawaiians. At that point, the plantation-powers' valuab!e leaseholds (whieh, without Congressional action, were due to expire and be opened to general homesteading) would have become the logical lands for Hawaiian homesteading. Instead, the plantation-powers prevailed, and federal law defined Native Hawaiians as 50 perceriters for homesteading. The 1921 deferral to plantation-powers was compounded in 1959, when the blood quantum definition of Native Hawaiians contained in the Hawaiian Homes Commission Act wasadopted in the Statehood Act with respect to the eligible class

of beneficiaries for certain trusts attached to lands conveyed from the federal government to the state of Hawai'i. Historic factors in defining Native Three converging factors forced a change in the manner of defining who is a native person. One obviously has been that over decades and centuries there has been a fair amount of mixed parenting. Another factor, and a fairly pervasive one at that, has been the effort of the federal government, (begun in earnest in the latter half of the 19th century) to do away with native governments and assimilate native people as individuals into "melting pot" America. This effort did not officially terminate until the 1970s. Vestiges of this policy persist today. The other significant factor pushing a blood quantum definition of Native People has been the relative laek of federal resources. In actual infla-tion-adjusted dollars, the federal budget for Native Americans has declined significantly over the past decade. Along with this decline in federal dollars there have been periodic "studies", and legislative proposals by federal officials to impose a federal-service-delivery-definition linked to blood quantum. Tribes decide who is eligible The end result of these three converging factors has been that most Indian tribes have internalized some blood quantum requirement for tribal membership within individual tribal systems. Although quarter-blood is a fairly eommon standard, there is significant variation among the tribes. Indians have generally opposed using blood quantum as a program criteria and very few federal statutes eontain blood quantum program-requirements. Generally speaking, federal program statutes provide that membership in a federally recognized tribe is the eligibility standard and it is the indivi-

dual tribes who determine that membership. Where it stands today Today, there are essentially two different systems of defining Native Hawaiians. One — descendancy — was advocated by many Native Hawaiian organizations and descendancy is used in all federal programs developed in the last decade relating to native Hawaiians. The other — the blood quantum system — imposed by plantation-powers 70 years ago — is applicable only to the hybrid state-federal Hawaiian Homes Commission and the proceeds from certain land trusts. This historic anomaly is complicated by the dismal failure of the various bureaucracies that have managed Hawaiian Homes Commission lands to provide lands to all people eligible by the 50 percent blood quantum standard. The fact that the modern definition is simple descendancy has in no way /ega//y affected the rights of the homesteaders, or the homestead applicants, nor is it expected to affect those rights. It is probably poliheal reality that the blood quantum definition will not be changed in any way that would diminish the rights of existing homesteaders or homestead applicants. Any such changes would require both the state and the Congress to legislatively act and that is not a very likely occurrence as long as thousands of eligible Native Hawaiians have not received their homesteads. Paul Alexander is legislatiue 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 natiue Amenean 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 Federal-Natiue Hawaiian Relationship" whieh was used by eongress for the Natiue Hawaiian Education Amendment and the Naiiue Hawaiian Heahh Care Act.