Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 1, 1 January 1993 — The Trust Relationship [ARTICLE]

The Trust Relationship

U.S. Constitution Provides Basis for Trust Relationship

The Office of Hawaiian Affairs is leading efforts to obtain legislation that will re-establish the Native Hawaiian Government and gain restitution for the theft of sovereignty and land. The Constitutional basis for this legislation derives from the unique legal status of Hawaiians as Native Americans. Article III. Section 3 of the federal Constitution empowers Congress to ratify treaties with Indians. By extension. it also permits Congress to enact special legislation for their benefit. The U.S. Supreme Court has ruled repeatedly that use of "Indians" in the Constitution is not a racial classification limited to continental tribes. On the contrary. it is a generic political description whieh may be applied to all peoples nati ve to what is now the United States, without violating the 14th Amendment. Native groups have this special status because the people in these groups have had a distinct historical relationship with the United States, and have

specific poliheal claims against the federal government. Three reasons help explain these preferences: FIRST, all ethnic groups except for native peoples (and blacks), agreed voluntarily to participate in the multiethnic society of the U.S. Every other immigrant group eame to the U.S. understanding that this country consisted of a multi-ethnic community and implicitly agreeing to participate in such a culture. Native peoples were never asked if they wanted to participate and they have never specifically agreed to do so. They were largely conquered by other ethnic groups and have generally beenexcludedfrom many oftheiroriginal land areas. Legislatures and courts have felt that in view of this history, native peoples should be given a speeial status under our legal system. SECOND, and equally important, native peoples have no "mother eulture" elsewhere to whieh they may tie themselves. Every other ethnic group in the U.S. ean look to some other location where their historicaI and eultural traditions are maintained. They do not face total loss of their historicaI roots if they heeome assimilated into the dominant multi-ethnic culture. Nati ve peoples, on the other hand, have no plaee to look for this protection of their culture and heritage except their

plaee of origin in the U.S. If they are not permitted to maintain some unique and special status here, their culture and traditions will be lost forever. In that sense, therefore, native peop!es are something like an endangered species deserving of special protection. FINALLY, native peoples frequently have strong claims to reparations and land, based on treaties and

Native peoples. ..have generally been excluded from many of their original land areas. Legislatures and courts have felt that in view ofthis history, native peoples should he given a special status.

other early dealings with the federal government. Preferences granted to native Americans are, therefore, sometimes viewed as partial responses based on obligations owed to these peoples. This special provision creates a trust relationship between Native Americans and the U.S . govemment wheneverCongress chooses to establish special laws for their benefit. The Constitutionality of legislating specifically for Native Hawaiians was first raised in 1920 when Congress deliberated the Hawaiian Homes Commission Act. At that time, Congress was assured by the departments of Justice and Interior that to create a public trust and set aside certain public ceded lands for nati ve rehabilitation was Constitutionally permissible. When the Alaskan Nati ve Settlement Claims Act was passed in 1 97 1 , similar questions about the federal relationship with non-Indian natives were posed. Again. there was a clear determination regarding the Constitutional and Congressional authority to act on behalf of Native Americans.

Congress was assured... that to create a puhlie trust and set aside certain puhlie ceded lands for native rehabilitation was Constitutionally permissible.

Spurred by that settlement, and a resurgence in Native Hawaiian assertions for land claims against the federal govemment, a series of Native Hawaiian entitlement programs was initiated. The first was a special provision in the Comprehensive Employment Training Act and the charter of Alu Like. This action to interpret and expand the trust relationship for Nati ve Hawaiians also occurred at the state level in 1978, when state Constitutional amendments regarding the administration of Hawaiian Homes and establishment of the OHA were ratified. ®

The U.S. Supreme Court has ruled repeatedly that use of "lndians " in the Constitution is...a generic polineal description whieh may be applied to all peoples native to what is now the United States, without violating the 14th Amendment.