Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 3, 1 Malaki 1993 — News from Washington D.C. [ARTICLE+ILLUSTRATION]

News from Washington D.C.

Mai Wakinekona Mai

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

Federal memo acts against native Hawaiians

In the waning hours of the Bush Administration, officials at the Department of the Interior acted to the detriment of native people. In two separate documents, deceptively labeled "legal opinions," the then-Interior Department's solicitor sought to provide legal justifications for the controversial political positions that the Reagan-Bush administrations had advanced, whieh are: Native Alaskans are viewed as having little sovereignty remaining after the Alaskan Native Claims Settlement Act; and the United States denies it has a tmst responsibility under the Hawaiian Homes Commission Act, or otherwise, to native Hawaiians.

The existence of the memorandum entitled "The Scope of Federal Responsibility for Native Hawaiians Under the Hawaiian Homes Commission Act," although dated Jan. 19, 1993 (the day before President Clinton's inauguration), did not become known until Feb. 2, and then only by happenstance. This opinion, whieh relied heavily on the majority report of the Native Hawaiians Study Commission, has been roundly criticized, and the Congressional delegation has requested that Bruce Babbit, the new Secretary of the Interior, withdraw it. Similar requests also have been

made to Babbit with respect to other Alaska native opinion. As noted in my previous columns, assertions that the United States does not have a polhieal or trust relationship to, and for, native Hawaiians ean create major constitutional barriers to providing special programs and benefits for native Hawaiians. In this the centennial year of the overthrow of Queen Lili'uokalani, this "legal" opinion undermines the status of native Hawaiian claims against the United States, as well as the effort to re-establish federallyrecognized native Hawaiian selfgovemment.

This opinion essentially argues that native Hawaiians have no special rights, and that their heritage is but one of the many varied and diverse elements that make up the "melting pot" America; native Hawaiian status as indigenous people is ignored. There is no discussion of the United States' role in the overthrow, or the responsibilities under Hawaiian land laws (trust) the United States took on under the Newlands Resolution of Annexation, when native Hawaiian public and royal lands were ceded without compensation. The opinion asserts that the United States had little responsibility for the Hawaiian Homes

Commission prior to statehood, asserting the responsibility was that of the territorial govemment. The fact that the territorial government was a creature of the United States apparently carried little weight with the solicitor. Instead, mueh is made of the solicitor's view that neither the terms of the Hawaiian Homes Commission Act or its legislative history demonstrate a congressional intention to create a federal tmst. The use of the term "trust" by the then-Secretary of the Interior in 1920 at a congressional hearing considering the legislation is dismissed as "too weak a reed on whieh to constmct a fiduciary relationship." The opinion ignores the other portion of the legislative history whieh make it clear that Congress knew it was acting under its plenary power to provide benefits to native people and that it was indeed undertaking obligations.

The solicitor placed great reliance on Price v. Hawai'i, a 1986 federal appeals court decision that affirmed a lower court determination that the Hou Hawaiians did not fit the federal definition of an Indian tribe. To leap upon this case, as a basis for asserting that native Hawaiians could not be the beneficiaries of as trust because they were not a tribe, is disingenuous.

The other major basis for assertion that there was no federal trust prior to statehood is what is known as Mitchell II, a U.S. Supreme Court case concerning the financial liability of the United States for the mismanagement of the forests of the Quinault Indian reservation. The court determined in Mitchell II that in order for the U.S. to incur financial liability in the absence of clear statutory responsibility, there needs to be demonstrated the existence of a eommon law tmsteeship. For example, the fed-

eral govemment controls assets through a comprehensive management scheme. This was demonstrated in Mitchell II by a combination of federal statutes and an extensive regulatory scheme. The opinion asserts that the Hawai'i Homes Commission Act bears none of the requisites of Mitchell II — federal control of the assets of the commission. As noted earlier, this is an assertion that requires the federallyappointed and controlled territory to be viewed as a non-federal entity. Post-statehood, the solicitor asserts that a trust was created with respect to the Hawaiian Home Lands. However, that trust was between the State of Hawai'i and the native Hawaiian beneficiaries. From this view, the

United States is limited to a few ministerial duties and off the hook. Curiously, the solicitor cites a Hawai'i Supreme Court decision, Ahuna v Department of Hawaiian Home Lands (64 Haw. 329,1982), in support of the state trust. The solicitor, however, ignores Chief Justice Richardson's view in Ahuna that a federal trust responsibility exists. In fact, the solicitor's opinion summarily dismisses the legal view of the Attorney General of Hawai'i, several eongressional reports, the findings in the enacted Native Hawaiian HeaUh Care amendments, several Congressional Research Service opinions, and the 1979 Interior Department's position to the U.S. Commission on Civil Rights, all of whieh support the existence of a federal trust responsibility.

The opinion is really a legal brief for a political view that wants native American rights as narrowly defmed as is possible. It is simply a political document, that should be promptly withdrawn, so that the long delayed process of determining how to proceed is the focus rather than simply trying to rationalize the status quo. -fi >