Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 2, 1 February 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

Sovereignty—what does it mean?

Sovereignty — What does it mean? The question of what sovereignty means, and particularly what it may mean in the context of Native Hawaiians, was raised with some frequency by speakers at last summer's congressional hearings on the Hawaiian Home Lands. Full understanding of the range of answers to this question is viewed as being so crucial to the ultimate resolution of Native Hawaiian status issues, that various entities including the Senate Select Committee on Indian Affairs, have indicated their intention to hold workshops or seminars on sovereignty. There are a variety of ways to define sovereignty. A standard dictionary uses "the supreme power over a body politic." A legal dictionary says sovereignty is "the supreme, absolute and uncontrollable power by whieh any independent state (nation) is governed." A shorthand or lay definition would be that "sovereignty" is a legal concept that means the legitimate and recognized governmental power over

people and territory. Sovereignty, in reality, is often something that is short of the abstract or pure concept exemplified by definitions. In a world of competing and overlapping sovereigns, almost no one had supreme, absolute, or uncontrollable power. Military power, eeonomie power, international law, world opinion, treaties and agreements between sovereigns, and internal constitutions, all serve to limit sovereignty. In effect, sovereignty means different things in relation to different entities. Cities, towns, and counties, are usually subject to the greater power of the states. States are usually subject to the power of the nation that they are within. Nations are limited by the powers of other nations. Sometimes a nation is so dependent on another nation that it loses its independent international status and that relationship is then known as a suzerainty. A modern day example of suzerianty wouid be Monaco's relationship with France. At the time of the overthrow of Queen Lili'uokalani, the United States' relationship to the

Kingdom of Hawai'i has been characterized by some as a suzerainty. Suzerainty is one of the international law eoncepts that Chief Justice John Marshall relied upon in the series of U.S. Supreme Court cases in the 1830s. Those cases defined the status of Indian tribes (and their indigenous entities)-within the eonstitutional system of the United States. Chief Justice Marshall held that tribes were "domestic dependent nations." In other words. entities that govered their territories and members but had no external power with respect to the other nations; that power resided in the United States. Tribes were viewed as having inherent sovereignty — that is the power of self-governance — that preceded their relationship with the United States. Intertwined with dependent status has been another concept — the trust re!ationship by whieh the United States is supposed to protect the assets of the dependent sovereign. As trustee, the United States holds technical legal title to Indian lands and resources. As trustees, the United States exercises significant control over such lands and resources. The United States, in its view of dependent sovereignty, also has power by operation of acts of Congress to limit,delineate, or otherwise affect the internal governing powers of the tribes. Upon this foundation of domestic sovereignty, a 200-year-old crazy quilt of statutes, court decisions, and administrative regulations have created a situation where the exercise of real sovereignty by native people has been limited. However, the last several decades have seen Irdian tribes make significant strides at exercising power of selfgovernment. Since it is the primary domestic sovereignty experience in the United States, the tribal experienee forms a backdrop, both legally and politically, that will influence the scope and the nature of whatever domestic sovereignty status for Native Hawaiians that the United States and Native Hawaiians eventually negotiate and agree upon. Future columns will give more detail on important aspects of this tribal experience. The United States relationship with Indian tribes is not the only experience and for Native Hawaiians it may not be the best relationship model. Internationally, there are other models of domestic sovereignty within Canada, New Zealand and the U.S. Pacific Trust territories. Future columns will explore those models. Such exploration should be part of the effort to understand, design, and negotiate whatever model of domestic sovereignty native Hawaiians deem appropriate to themselves. Paul Alexander is legislative counsel to OHA in Washington, D.C. He is a partner in Alexander& Karshmer of California and the District of Columbia, a law firm specializing in natiue American rights.