Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 7, 1 July 2009 — Making a case for the Akaka Bill in one word: indigenous [ARTICLE+ILLUSTRATION]

Making a case for the Akaka Bill in one word: indigenous

Legal arguments often revolve around eompeting analogies. The parties elaim the case is more like known case A or known case B and whoever wins the war of analogy wins the lawsuit. If the Cherokee freedmen case is about the right of a tribe to determine citizenship, the racists win. If it is about

the sanctity of treaties, the freedmen win. Framing the issue floats outside "right and wrong" because it's the law that tribes determine their own citizenship standards and that treaties should be honored. If you are a Native Hawaiian, is your status more like Ameriean Indians or more like an ethnic minority? Addressing this question inevitably requires drawing eonelusions about the legal status of Aneriean Indians, and this has not escaped the notice of people who oppose Hawaiian sovereignty. Indeed, they are often the same people who

opposed Indian sovereignty on the ground that it is a racial special privilege that disadvantages white people. Onee more, the bill to recognize Native Hawaiians as having the same sovereign status as Indian nations is pending in Congress. In the world of right and wrong, the only opponents with a

leg to stand on are the minority of Native Hawaiians who oppose the bill because they want their full sovereignty back. Should a majority of Native Hawaiians adopt that position, the bill should be opposed simply because the politics of the Hawaiian relationship with the United States is Hawaiian business. As long as the argument of the status of Native Hawaiians persists in Congress or in the courts, Indians have a dog in the fight. If Native Hawaiians win, the legal sovereignty of American Indian tribes is more secure. David Yeagley, the right-wing

Comanche activist, recognized this when he wrote an op-ed opposing the Hawaiians. Indians who think the current understanding of tribal sovereignty is not worth maintaining should oppose the Hawaiians just like the white people who consider tribal sovereignty to be "race privilege" that disadvantages them. An Associated Press report on the Native Hawaiian bill quotes Gail Heriot, a member of the U.S. Commission on Civil Rights, as saying that granting sovereign status to Native Hawaiians would be like doing the same for Cajuns in Louisiana or Chicanos in the Southwest. This appears to be the Republican Party line. Sound familiar? Nothing I am about to say should be construed as opposing civil rights for any ethnic group. I have nothing but respect for the mainstream civil rights movement by and for AfricanAmericans, and the same for the civil rights of the people I am about to discuss. All I'm saying is that Aneriean Indians and Native Hawaiians (and Native Alaskans) are indigenous peoples, and that makes all the difference. Cajuns, or Acadians, were predominantly French colonists who were in a fight with British colonists called, in this country, the French and Indian War, and in Europe, the Seven Years' War. They emigrated from Canada to Louisiana thinking that they were staying on French soil when, in fact, France had secretly ceded Louisiana to Spain. All of this is quite tragic if you don't take into account that at the time, Louisiana was and had been from time immemorial occupied by American Indians to whom the French and Spanish and British and - in 1 803, Americans - were just different sets of colonizers, trespassers on Indian land. Yes, the Cajuns did intennarry with Indians, but so did all the colonists. The Cajun culture is what it is, whieh is delightful, but it is not indigenous. Yes, the Cajuns were and sometimes are abused, but not because they originally owned Louisiana. Chicanos in the Southwest are a little harder because their blood is primarily indigenous. How do we

know this? Because the Spanish kept very good records and Mexican society was quite racist. A higher degree of indigenous blood meant lower social status. Having Spanish ancestors was very important, and the Spanish ruthlessly suppressed tribalism. Chicanos have in the past and do to this day in some places suffer from outrageous discrimination. There were the "No dogs or Mexicans" signs on restaurants in the '50s. There was the attempt to "desegregate" the puhlie schools in Corpus Christi by mixing brown kids and hlaek kids so as not to contaminate the white kids. Nowadays, there is a political tendency that infests both major politieal parties but practically runs the Republican Party that could be called, in shorthand, "hate the Mexicans." Economy in the toilet? Hate the Mexicans! Lousy schools? Hate the Mexicans! Heahh care too expensive? Hate the Mexicans! The spokesmen for this movement are Tom Tancredo, who compared the National Council of La Raza to the KKK and Lou Dobbs, who warns of the Brown Peril nightly on CNN. The policy prescriptions these bozos push are aimed at Hispanics but they almost always cause eollateral damage among American Indians. They want to give loeal poliee authority to make brown people prove their citizenship, and that means Indians get rousted. They want to make the puhlie use of any language but English illegal. They target Spanish but they hit tribal languages. When they attack hilingual education, they force tribal language preservation programs away from puhlie funding. And if a puhlie worker can't be paid to interpret Spanish, she can't be paid to interpret Navajo. Sociologists eall this politics "nativist," whieh provides Indians a bit of eomie relief, since all the people pushing it are descendants of colonists. The "nativists" want persons of Mexican descent to "go back where they eame from." Apparently, the nativist history books don't teach about the Mexican War, because lots of those Mexican-Americans were in

Mexico when the border moved and put them in the United States. At the end of that war, the Treaty of Guadalupe Hidalgo (loc.gov/rr/ hispanic/ghtreaty) said: "Mexicans now established in territories previously belonging to Mexico, and whieh remain for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to remove at any time to the Mexican Republic, retaining the property whieh they possess in the said territories. . . "Those who shall prefer to remain in the said territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States." If this treaty means anything, Mexican-Americans living in the Southwest have the full civil rights of American citizens. Like in the case of the Cajuns, these people are abused because they are caught in a struggle between two eolonial governments, in this case the U.S. and Mexico. Abusing them is wrong, but abuse does not make them indigenous and neither does intermarriage unless it is coupled with maintaining tribal relations. Most Native Hawaiians are living where they have lived from time immemorial. Like us, they struggle to preserve their language and customs but their language and customs are not "foreign" - they run with the land. Like us, they have been dispossessed by the colonists. They had an indigenous government that was overthrown by the U.S. government. Native Hawaiians have in eommon with us that the trespassers seek to treat them as trespassers. That practically defines indigenous, and that is the basis for claims that, like Indian claims, go far beyond equal treatment as citizens. I Steve Russell, a citizen of the Cherok.ee Nation of Oklahoma, is a Texas trial courtjudge by assignment and an associate professor of cri.mi.nal justi.ee at Ināiana University. This eolumn originally appeared in Indian Country Today, for whieh he is a columni.st. Contact hi.m at swrussei@indiana.edu.

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By Steve Russell