Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 9, 1 September 2003 — The Indian Commerce Clause sheds light on question of federal authority over Hawaiians [ARTICLE+ILLUSTRATION]

The Indian Commerce Clause sheds light on question of federal authority over Hawaiians

This month's community perspective pieee is offered by respected independence advocate and historian Keanu Sai. Sai is a graduate student in Political Science at the University of Hawai'i at Mānoa specializing in International Relations. He also argued a legal case (Lanee Larsen vs. the Hawaiian Kingdom) at the Permanent Court of Arbitration in The Hague, Netherlands, eoneeming the continued legal existence of Hawai'i as an independent State. By Keanu Sai On July 25, the Honolulu Star-Bulletin reported that the Akaka Bill has been stalled in the Senate by the Department of Justice for legal reasons. The article quoted Governor Lingle as stating, "My understanding now is, it's an issue of whether or not Congress has the authority under the Indian Commerce Clause of the Constitution to grant this type of recognition to native Hawaiians." This quote sheds some light on a very important pieee of the Akaka puzzle that I think has not been properly addressed. This being Congressional authority under the Commerce Clause as defined by the U.S. Constitution. Article I, sec. 8(3) of the constitution empowers Congress "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Professor Rice, author of "The Position of the American Indian in the Law ofthe United States" (1934), p. 80, answers the question as to the eonstitutional basis of Congressional authority over the Indians. He states, "The chief foundation appears to have been the treaty making power of the President and Senate with its corollary of Congressional power to implement by legislation the treaties made." What this means is that the U.S. Congress cannot be empowered under the Indian Commerce Clause unless it is authorized to do so by treaty. Regarding the 1971 Alaska Native Claims Settlement Act, Congress obtained authority under the Indian Commerce Clause by the 1867 Russian-American Treaty. Russia held the Alaskan territory since 1741 and agreed to sell it to the U.S. for $7.2 million. The terms of the treaty were settled between eaeh of the governments on March 30, 1867, and the U.S. Senate ratified the treaty on April 9, 1867. On May 17, 1884, the U.S. Congress acted upon its acquired authority by enacting an Organic Act called "An Act Providing a Civil Government for Alaska." The Organic Act's preamble acknowledges the 1867 Treaty, whieh vested Congress the authority to legislate. Similar treaties that vested Congress to legislate under the Indian Commerce Clause over other Native American tribes were the 1848 MexicanAmerican Treaty transferring all lands Mexico formerly held north of the Rio Grande river; and the 1803 French-American Treaty, also known as the Louisiana Purchase, whieh transferred 820,000 square miles west of the Mississippi river from the Gulf of Mexico to the Canadian border. In Hawai'i's case, there is no authority Congress ean point to that authorizes legislation for native Hawaiians, let alone over the Hawaiian Islands as a whole. Genealogy of Congressional Actions concerning Hawai'i: 1898 — Congress enacted a joint resolution purporting to annex the Hawaiian Islands as a foreign country.

1900 — Congress enacted the Organic Act creating a government for the Territory of Hawai'i. 1921 — Congress amended the 1900 Organic Act creating a Hawaiian Homes Commission. 1959 — Congress enacted Puhlie Law 86-3 creating the State of Hawai'i. 1993 — Congress enacted another joint

resolution apologizing for the illegal overthrow. Nowhere in this genealogy of events ean you find anything like the 1803 French-American Treaty, the 1848 Mexican-American Treaty, or the 1867 Russian-American Treaty, that granted the Congress any authority to legislate over the Hawaiian Islands. Adding to this quagmire is that Hawai'i was not an Indian tribe, but rather a recognized independent state and bona fide member of the international community of nations with over 90 legations and consulates throughout the world. On Oct. 4, 1988, the same Department of Justice, in a legal opinion, seriously questioned the legality of the annexation of the Hawaiian Islands in 1898. It concluded, "It is therefore unclear whieh constitutional power Congress exercised when it acquired Hawai'i by joint resolution. Accordingly, it is doubtful that the acquisition of Hawai'i ean serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea." Just like a microwave oven can't heat food without someone hitting the timer, nor ean Congress legislate over foreign territory without a treaty. For more information, you ean visit www.HawaiianKingdom.org. The views expressed above are those of the author and do not necessarily reflect the views of the Office of Hawaiian Affairs. ■

KPKĀKŪKĀ V f miHHIIH

Keanu Sai presenting legal arguments before the Tribunal at the Permanent Court of Arbitration in The Hague, Netherlands, in December 2000. videocapture taken from a documentary made by Aotearoa filmmaker Merata Mita.