Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 8, 1 August 1988 — Native Hawaiian Legal Corporation [ARTICLE]

Native Hawaiian Legal Corporation

N H L C Report By NHLC Attorneys Charles E.N. Dickson and MeIody K. MacKenzie

Self-Determination: Choosing a Moāel

The Native Hawaiian Legal Corporation will be coordinating a Native Hawaiian Rights Conferenee Aug. 5 and 6 sponsored by the Office of Hawaiian Affairs on the Kamehameha Schools campus. One of the fundamental purposes of the conferenee is to educate Hawaiians about various models of self-determination and sovereignty. Selfdetermination is the most important issue that Hawaiians will face in the coming years. Thus, we must understand the options available to us so that our ehoiee is an informed one, a representative one and a viable one. The issue of self-determination presents many different options. However, for the most part, these options ean be narrowed down to three primary models. In examining eaeh of the models, we need to consider several factors: First, what the model means in terms of a land base or territorial control; second, what kind of economies aeeompany the model; third, what kind of culturalpreferences the model reflects; and fourth, the viability of the model. One model ean be referred to as the "beneficiary model". Under this model, self-determination means management of restitution resources as well as trust lands and the resources from those lands. In effect, the only self-determination that Hawaiians obtain through this model is authority or control over resources granted them by federal and/or state governments. The nature of those resources could range from direct monetary awards and/or use of land, to indirect benefits such as educational, health, business and employment programs and opportunities, and management of these resources by a trust entity. This model causes the least disturbance because it does not dislocate Hawaiians from Ameriean culture andeconomyyetpermitsHawaiiansto receive benefits because of their native status. This will be seen by some as a benefit. However, adopting this model means that Hawciiians remain under the dictates of American law and society. Hawaiians remain exposed to the cultural requirements and preferences of American culture. Most importantly, Hawaiians remain subject to the decisional power of Amenean legal, political and eeonomie institutions whieh will control the flow of resources to Hawaiians. Is this truly self-deter-mination? We don't have to look very far afield to see that many trusts have significant problems. These problems stem from limitations placed upon allocation of resources by institutions outside the network of Hawaiian organizations, restrictions upon the enforcement of beneficiary rights, and the inability of various trusts to protect the cultural identity of Hawaiians. A second model is that of a "nation within a nation", similar to the status of Indian tribes. T ribal status entails sovereignty over members of a native group and control of an identified territory. Under this model, sovereignty is limited by the federal government and the restraints of working within the American political and governmental system. This type of sovereignty would include power to establish a preferred form of govern-

ment, power to determine membership of the group, poliee power within native territory, power to administer justice with some limitations with respect to criminal jurisdiction and sentencing, power to exclude persons from native territory, power to charter business organizations, and sovereign immunity. Under this type of model, Hawaiians would not only have an identified land base, but they would have primary determination as to the development and management of the resources of such territory and the laws governing the territory and native members. The tribalmodel also creates a basis for preserving cultural practices and values. Nevertheless, some distinguished features of the tribal model advise caution. Under such a model, Hawaiians would still be subject to the laws of the county, state and federal govemments. Moreover, this kind of sovereignty is a creature of the federal govemment. Recognition of the native group, as well as allocation of federal resources based on a trust relationship, is in the hands of the federal government. Thus, while in many respects tribes have a greater degree of self-determination, the well-being of a given native community ean very mueh depend upon the political philosophy of a particular federal administration. Moreover, the native community also may become dependent upon lobbying various federal agencies and bodies for allocation of resources. For many tribes, dependency upon federal resources is vital to their survival, since many tribes do not have their own internal resources. Thus, while some see the tribal model as ideal, many existing native communities stand as examples of isolated enclaves of eeonomie, educational and social depression due to the laek of adequate funds and resources. The third primary model is that of independence from the American govemment. This model obviously offers the greatest degree of self-deter-mination in terms of ehoiee of govemment, cultural preference and determination of economies. However, it would be the most difficult model to bring to reality because of the logistics of securing a land base, relocating native and nonnative people and separating from the federal and state govemments. It requires that Hawaiians take on the responsibility of govemment and development of their economies independent of an Ameriean system. Hawaiians need only look to examples of various African nations that have chosen absolute independence from eolonial governments, especially eeonomie independence, and whieh have since experienced tremendous eeonomie depression and political instability, as examples of the risks that go with independence. The other consideration is the tremendous resistance that would arise from the dominant and controlling American community here in Hawaii. Of all the models, however, this one gives Hawaiians greatest control over resources, and the greatest ability to reshape the character of Hawaii's economy and culture to one more in accordance with Hawaiian cultural preferences. In the end, the question is what kind of lifestyle do Hawaiians want for themselves and their children? The answer to this question will determine whieh model or variation thereof Hawaiians will pursue. We need to ask ourselves how important our cultural practices and values are to us. For if they are very important to us, their continued vitality require a lifestyle whieh entails a very different approach to development and management of economies. It requires localized communities as compared to urban communities, environmentally compatible economies, and a less frantic eeonomie atmosphere. The benefit is that Hawaiiah cultural values and lifestyle would be revived, maintained and developed. Self-deter-mination would become a reality rather than a distant goal.