Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 6, 1 June 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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

The complex case for sovereignty and its applieaiion to Native Hawaiians

A key element makes sovereignty unique in the context of indigenous or Native peoples. That is that Native people are often geographically and politically encompassed within the sphere of a larger and usually more powerful free-standing sovereign entity. In the case of Native Hawaiians that sovereign is the United States, and to some extent the State of Hawai'i. The legal concepts that govern the legal relahonship between these entities ean largely determine how mueh actual power of self-govern-ment (sovereignty) Native people exercise. In the United States, the two key concepts are the Trust Relationship and the Plenary Powers Doctrine. The Trust Relationship resists specific definition. It is a fluid concept that is supposed to evolve with changing circumstances. At minimum it is the obligation of the more powerful to protect the weaker. The Supreme Court of the United States onee said the relationship is that of a guardian to a ward. In the context of American Indians it has meant the United States' holding legal title to the lands and eeonomie resources of Indian tribes and their members as well as having the legal obligation to manage those lands and resources for the benefit of the Indians. Most commentators agree that the United States has a trust relationship to Native Hawaiians. It is a relationship that is based on the course of dealings of the United States and its citizens with Native Hawaiians and their government, the explicit recognition of the relationship by the United States Congress in establishing the Native Hawaiian Land Commission, the recognization of the special status of Native Hawaiians in the Hawai'i Statehood Act, and the recognition by federal and State of Hawai'i courts of the relationship. Even though the trust concept is not well de-

fined, it is the critical concept that differentiates Native Americans from minority Americans. Minority Americans may be distinct racial, ethnic, religious or other groupings that the United States Constitution protects against discriminatory treatment. Native Americans, although they are often distinct races and religions, have a different status than minorities. They are recognized as having a poliheal relationship with the United States. That political relationship — the trust relationship — allows the United States to recognize special rights with respect to the Native group. In effect the United States is constitutionally allowed to discriminate with respect to the Native Americans. The United States recognizes the governmental power of Tribes and the United States ean provide a whole series of services that may only benefit the Native group. On the other hand, with respect to American Indians, this special relationship — this trust relationship — has produced pervasive regulation over many aspects of daily life and an oppressive and extensive bureaucracy. Indian Tribes today are exploring ways of maintaining their special status under the trust relationship without the extensive paternalism that has characterized the relationship thus far. One of these experiments known as the TribalSelf Governance Demonstration Froject (specifically authorized by Congress) will shortly attempt to negotiate Tribal-Federal Compacts with the Department of the Interior. These eompacts will provide that a Tribe may receive the funds that the United States previously spent on Indian programs for that tribe and the tribe will have the authority to design and manage its own budgets and programs. The federal bureaucracy that previously provided services is to be reduced. The Compact will also specifically delineate how

trust resources are to be managed and spell out whatever limited residual supervision the United States will exercise over the operations of the tribal government. This will be an important experiment to monitor. Another important concept with respect to "dependent" native governments is the "plenary powers doctrine". Simply put it means that the Courts of the United States view the United States Congress as the ultimate authority in determining federal-Indian policy. Federal law has terminated tribes, restored tribes, provided forums to hear land claims against the United States, removed lands from tribes, restored lands to tribes, recognized jurisdiction, transferred jurisdiction over tribes to states, etc. To date, the major constitutional barrier to completely unfettered federal power is the requirement that just compensation be provided for any taking of a recognized property right. In the Native Hawaiian context, the power of Congress is in part evidenced by the transfer of the administration of the Hawaiian Homelands from the United States to State of Hawai'i. How extensive the power of Congress is with respect to Native Hawaiians has not been fully tested. It is however, probable that Congress ean provide special programs for Native Hawaiians, create forums to hear claims, and provide a system(s) for Native Hawaiian self-govern-anee with an appropriate land and resource base.