Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 9, 1 September 1991 — Trust relationship between U.S. and Hawaiians a serious matter [ARTICLE+ILLUSTRATION]

Trust relationship between U.S. and Hawaiians a serious matter

On July 23 the Energy and Natural Resources Committee of the U.S. Senate held a hearing concerning some important but relatively non-controversial amendments to the Hawaiian Homes Commission Act.

Congressional approval of state-enacted amendments is required in order tor the amendments to be effective. Although all witnesses supported the amendments before the committee, of particular importance were the statements, testimony, and questions and answers concerning the federal govemment's obligation or relationship to Hawaiian Natives. Sen. Daniel Akaka, a member of the Energy and Natural Resource Committee, explained that senate joint resolution 22, whieh would provide approval to the so-called "purpose clause" amendment was not being considered at the July 23 hearing. However, it will be the subject of separate hearings to consider the "broader issue of the federal government's trust responsibility to Native Hawaiians ..." He went on to explain that actions of the executive branch, particularly President Bush's statement that preferential treatment for Native Hawaiians violates the equal protection clause of the federal constitution, demonstrate the need to provide a clear understanding of the trust relationship between the United Statesand Native Hawaiians. Although the potential controversy concerning Housing and Urban Development (HUD) funding appears on its way to an appropriate resolution, the issue has very serious implications. President Bush and his administration have assertively opposed quotas and other devices that they perceive provide benefits to people because of, their race or sex. If Native Hawaiians were to be defined as a race for constitutional analysis, neither a state nor the federal government would be able to provide services or funding for Native Hawaiians simply because they are Native Hawaiians. Such an analysis if it prevailed could even challenge the constitutionality of the Hawaiian Homes Commission. For constitutional purposes, the key reason Native Hawaiians should not be defined as a racial grouping would be the trust relationship between the United States and Native Hawaiians. Under existing Supreme Court decisions, Indians are not defined as a racial group for the provision of preferential services because of the trust relationship between them and the United States. Indians are defined as a poliheal grouping for constitutional purposes. Native Hawaiians are similarly defined by the state courts in Hawai'i. Given this context it is not surprising that mueh of the hearing focused on the federal government's role and relationship to Native Hawaiians. Sen. Daniel Inouye, the chairman of the Select Committee on lndian Affairs, testified in support of approving the assorted Hawaiian Homes Commission amendments and sketched out his analysis that Native Hawaiians have the same constitutional status as other Native People of the United States. Essentially the analysis indicates that when the constitution was drafted to provide the United States Congress the authority "to regulate commerce with foreign nations, and among the several states, and with Indian Tribes" the only Native People the framers of the Constitution

were aware of were Indians. (The term "Indians" in this context should be understood to mean Native People.) When Alaska, with its various and diverse Native groups, joined the United States, these Indians, Eskimos, and Aleuts were provided the same constitutional status as had been the case with Indians. The Native People of Hawai'i should similarly have the same constitutional status. Questions at the hearing directed to representatives of the Department of the Interior reflected eoneem over the federal reiationship with Native Hawaiians. Although the department still expressed eoneem for state rights and its view of federalism, the department backed off its previous position of ending the federal review role for amendments to the Homestead Act. In senate hearings last year, OHA had been critical of the department's suggestion that it end its responsibility. , Testimony from OHA and former Hawai'i law professor WiIhamson Chang supported the concept of the federal responsibility. OHA was particularly critical of the interior's narrow view of the trust relationship when existing state and federal case

i law, although not definite, supports the trust relationship analysis. Other witnesses at the hearing included Norma Wong, of the Office of State Planning, who j represented Gov. John Waihee. She pointed out the need for Congress to address Native Hawaiian claims against the federal govemment related to Homelands. Hawaiian Homes Commission chairwoman Hoaliku Drake presented the views of the Department of Hawaiian Homes Lands, supporting approval of the amendments and indicating her substantial plans for the | department. i Kamaki Kanahele, chairman of the State Council of Hawaiian Homestead Associations, submitted written testimony indicating that the eouneil had had the opportunity to testify and make recommendations in Hawai.'i, and recommended committee approval of the amendments. Professor Chang also testified in general support of the amendments, recommending some clarification of intent concerning water rights in the committee report.

Mai Wakinekona

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