Court of the Conqueror Writes Another Legal Fiction

By J. Kēhaulani Kauanui, Ph.D.

On March 31, 2009, the Supreme Court of the United States (S.C.O.T.U.S.) issued its ruling in the case of State of Hawaii v. Office of Hawaiian Affairs, et al. The state of Hawai‘i asked the high court whether or not the state has the authority to sell, exchange, or transfer 1.2 million acres of land formerly held by the Hawaiian monarchy as Crown and Government Lands. Prior to the state’s appeal to the S.C.O.T.U.S., the State Supreme Court unanimously ruled that the state should keep the land trust intact until Kanaka Maoli (indigenous Hawaiian) claims to these lands are settled, and prohibited the state from selling or otherwise disposing of the properties to private parties; it did so based on a 1993 Apology Resolution issued by Congress to the Hawaiian people. The S.C.O.T.U.S. reversed the judgment of the Hawai‘i Supreme Court and remanded the case for further proceedings with the stipulation that the outcome not be inconsistent with the U.S. Supreme Court’s opinion.

The contested land base constitutes 29 percent of the total land area of what is now known as the State of Hawaii and almost all the land claimed by the State as “public lands.” These lands were unilaterally claimed by the U.S. federal government when it unilaterally annexed the Hawaiian Islands through a Joint Resolution by the U.S. Congress in 1898, after they had been “ceded” by the Republic of Hawai‘i, which had established itself a year after the armed and unlawful overthrow of the Hawaiian monarchy under Queen Lili‘uokalani in 1893. These are the same lands mentioned in the 1993 Apology Resolution in which Congress acknowledged and apologized for the United States’ complicity in the overthrow in violation of bilateral treaties with the Hawaiian Kingdom and international law. The Apology also affirmed, “the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

The S.C.O.T.U.S. ruled as they did to legitimize the theft of the Hawaiian Islands through the 1893 Overthrow of the Hawaiian Kingdom and the unilateral annexation of 1898 through the Newlands Resolution passed by Congress. The Court claims that Pursuant to the Newlands Resolution, the Republic of Hawaii “ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and provided that provided that all “property and rights” in the so-called ceded lands are “vested in the United States of America.” This is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom. The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.

The ruling serves to shore up the U.S. government’s rampant criminality and to tie up all loose threads that could implicate the USA in an international case. In other words, this is a preemptive move to foreclose the possibility of restoring the Hawaiian nation under international law. The Court insists that the Apology does not change the legal landscape or restructure the rights and obligations of the State. The ruling states, the Apology would “raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the union.” The Court further opined that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.”

If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawai`i does? The court could not dismiss the Apology on grounds that it was a joint resolution of Congress (rather than a treaty of annexation, or even an act of Congress) because it would have to declare the Newlands Resolution impotent. Instead, the justices did some grammatical back flips and focused instead on six verbs in the preambular “whereas” clauses that made various observations about Hawaii’s history, which they found have no legal bite: acknowledges, recognizes, commends, apologizes, expresses, and urges. Of course, the Court also cited the disclaimer at the end of the Resolution—no surprise there since the U.S. government’s apology is like a “no fault” apology—carefully crafted in order to preclude restitution of the Hawaiian nation and appropriate reparations after recognizing Hawaii’s full sovereignty.

Unfortunately the trustees of the Office of Hawaiian Affairs—elected by all of Hawaii’s registered voters, not just Kanaka Maoli — were in on it. It’s important to note what is hidden in the name of the case that went before the S.C.O.T.U.S., State of Hawaii v. Office of Hawaiian Affairs, et al., since the “et al” (meaning “and others”) includes four individual Kānaka Maoli. One of them is Dr. Jonathan Kamakawiwo‘ole Osorio—associate professor at the Kamakakūokalani Center for Hawaiian Studies, University of Hawai‘i at Mānoa, and author of Dismembering Lāhui: A History of the Hawaiian Nation to 1887. He is an original plaintiff in the case who sued the state to prevent the sale of these lands and was a defendant in the appeal to the Supreme Court. When I interviewed Osorio for my public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” he specified how his stake in the case is vastly different from the interests of the Office of Hawaiian Affairs, which is a state agency. Had the four individuals not been party to the lawsuit, one could have more easily surmised that this case involved collusion between the executive branch of the state government, and the Office of Hawaiian Affairs, which draws revenues from these lands. Indeed, when I heard part of the oral arguments before the S.C.O.T.U.S., the attorney chosen by the Office of Hawaiian Affairs, like the state attorney general, argued that the state of Hawai‘i has “perfect title” to the Hawaiian lands. Osorio’s argument, however, is clearly very different, “the United States has absolutely no title over these lands…they have no legal foundation.”

What lurks in the background of all of this is the question of a political settlement with Native Hawaiians. Currently, there is a federally driven bill before Congress that would reconstitute a “Native Hawaiian Government” under U.S. policy on Native Americans—The Hawaiian Reorganization Act of 2009, commonly referred to as the “Akaka bill” after its author U.S. Senator Daniel Akaka (D-HI). The U.S. government knows it does not have any legitimate title to these stolen lands. Hence, the only way the United States will ever be able to secure its claim is by constituting a Hawaiian governing entity to give up the claim to them in exchange for some sort of cash settlement. It is telling that Robin Puanani Danner, CEO and president of the Council for Native Hawaiian Advancement & Native Hawaiian Economic Alliance—a major driving force for passage of the Akaka bill—issued a statement right after the ruling and mentioned how the case relates to their proposal for a land claims settlement. Settlement is a sell-out, and the Akaka bill provides the legislative framework for that resolution.

Adopting this law would be yet another assault against the sovereignty of the Hawaiian Nation, which is why over a dozen grassroots Hawaiian organizations oppose it, including Hui Pu, and those that constitute the Hawaiian Independence Action Alliance: the Pro-Kanaka Maoli Independence Working Group, Ka Pakaukau, Komike Tribunal, H.O.N.I.(Hui o Na Ike), Ka Lei Maile Ali‘i Hawaiian Civic Club, Koani Foundation, ‘Ohana Koa, N.F.I.P. – Hawai‘i, Spiritual Nation of Kū – Hui Ea Council of Sovereigns, Living Nation, Settlers for Hawaiian Independence, M.A.N.A. (Movement For Aloha No Ka ‘Aina), as well as the Hawai`i Institute for Human Rights.

The crimes against the Hawaiian nation in 1893 and the ramifications of which continue to this day deserve careful scrutiny by an international court, not the court of the conqueror. Indeed, many Kanaka Maoli and other Kingdom heirs insist that the U.S. government submit its legal position to the Permanent Court of Arbitration for a fair and just resolution.

J. Kēhaulani Kauanui, Ph.D. is an Associate Professor of American Studies and Anthropology at Wesleyan University. She is the author of Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty(Duke University Press, 2008). She is the producer and host of a public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” which airs on WESU, Middletown, CT and is syndicated on select Pacifica-affiliate stations. An audio archive of all the programs can be accessed online: http://www.indigenouspolitics.com.

Where are Native Hawaiians and Other Pacific Islanders in Higher Education?

By Dr. J. Kehaulani Kauanui

How does your university or college classify Native Hawaiian or other Pacific Islander students and faculty? Most continue to misclassify Pacific peoples within the Asian category, despite the fact that over a decade ago, the federal government issued a policy directive to create the racial category of “Native Hawaiian or Other Pacific Islander.” The implications of this misclassification are detrimental to the recruitment and retention of Native Hawaiians and other Pacific Islanders in higher education. For example, at Wesleyan University, where I teach, the profile of the class of 2012 does not even list this category under its “students of color” category (it also leaves out the category American Indians and Alaska Natives), which only includes: “Black/African American,” “Asian/Asian American,” and “Latino/Hispanics.”

The addition of the “Native Hawaiian and Other Pacific Islander” category was made in 1997, when the U.S. Office of Management and Budget (OMB) issued Directive 15: Race and Ethnic Standards for Federal Statistics and Administrative required by Congress since 1977. These standards are required by Congress and have guided the collection of racial and ethnic data by federal agencies, researchers, business and industry.

The impetus for this action was to disaggregate Pacific Islanders from Asian Americans. Native Hawaiians led the fight for this change because the widely accepted administrative term “Asian Pacific American” —coined during the Reagan era and used by social agencies for their administrative convenience—like “Asian-Pacific Islander” conflate two distinct pan-ethnic groups, to the continuing disadvantage of Pacific Islanders whose histories, ongoing struggles for sovereignty, and political futures diverge significantly from those of Asian Americans. Historically, this mis-categorization has proved especially difficulty for Native Hawaiians who have alternately been grouped with American Indians in numerous legislative acts pertaining to health, housing, and education. Yet despite being treated as indigenous on the one hand, Native Hawaiians continue to be classified as immigrant descendants on the other.

The problematic terms “Asian-Pacific American” (APA) and “Asian Pacific Islander” (API) not only offer no recognition that Pacific Islanders already constitute a pan-ethnic group that is distinct from Asian Americans, they also efface Pacific political claims based on indigeneity. For example, indigenous Pacific Islanders who have ties to islands that were forcibly incorporated into the United States (Hawai`i, Guam, American Samoa) have outstanding sovereignty and land claims, based on international principles of self-determination, which get erased by the categorization with Asians. Hence the frameworks for understanding the ills affecting Pacific peoples and their political claims are shaped by imperialism and settler colonialism, not simply civil rights.

We need to uncouple “Asian” and “Pacific” in order to examine these concerns, especially in higher education, where the socio-economic profiles of Native Hawaiians and other Pacific Islanders are severely distorted due to the continued problematic lumping with Asian Americans. The UCLA Asian American Studies Center recently sent out a press release, under the auspices of the AAPI Nexus: Asian American Pacific Islander Policy, Practice, and Community, titled: “Beyond the ‘Whiz Kid’ Stereotype: New Research on Asian American and Pacific Islander Youth.” Since when have Native Hawaiians, Samoans, Tongans, Chamorros, or any other Pacific Islander youth been portrayed or stereotyped as “whiz kids”? The model minority has never been a stereotype put upon Pacific Islander peoples; instead, we have stereotypes of the dumb, lazy, and simple-minded.

Pacific Islanders as a whole are too easily disappeared in terms of social, cultural and political profiles, not only because of the continued aggregation with Asian Americans, but also because we are too often seen as inconsequential by virtue of our small numbers. This is illustrated by the fact that most of the general public still has no conception of Pacific Islanders as a pan-ethnic grouping.

Fortunately, as an official U.S. Census Information Center, the UCLA Asian American Studies Center has provided a 2008 statistical portrait of these communities in two parts. The first section provides information on “Asians,” while the second part highlights “Native Hawaiians and Other Pacific Islanders.” These data sets reveal the disparity between the two pan-ethnic groups that gets obfuscated whenever the terms “AAPI,” “API” and “APA” are used in reporting socio-economic profiles for Asian Americans while purporting to include Pacific Islanders in those same reports. For example, according to the Center’s website, only 14 percent of those who identified as single-race Native Hawaiians and Other Pacific Islanders 25 years of age and older have at least a bachelor’s degree in comparison with 27 percent for the total population and 49 percent of the Asian American population. Only 4 percent of Native Hawaiians and Other Pacific Islanders 25 and older have obtained a graduate or professional degree, compared with 10 percent for the total population and 20 percent of Asian Americans. Yet, despite the sharp contrast between how Asian Americans and Pacific Islanders are faring in terms of obtaining higher education, there are numerous studies misreporting that Pacific Islanders are doing better than whites in obtaining higher education, when that is far from the case, because of the lumping of Pacific people with Asians.

In detailing how the federal government should better serve Pacific Islander communities, we need disaggregated statistics, research, and data. The implications for not doing so are deeply disingenuous; moreover, they are unethical. Only then will we be able to get a clearer picture of the status of Pacific peoples in the United States and increase the socio-economic status of these communities. This must begin with the compliance of institutions of higher learning with the federal directive of 1997. All colleges and universities should institutionalize the category “Native Hawaiian and Other Pacific Islander” in their recruitment programs, administrative applications, summary profiles, and all data for admissions, matriculation, attrition, and retention. Otherwise, potential students from these backgrounds are effectively erased as targets for recruitment while subsumed and lumped under a category where they are said to be among the most educated when they are actually severely underrepresented.

Dr. J. Kehaulani Kauanui is an associate professor of American studies and anthropology at Wesleyan University, Her first book, Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty, is forthcoming from Duke University Press in October 2008. She is also the host and producer of a weekly public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” at WESU, Middletown, CT.

Native American Studies Making Strides

By Dr. J. Kehaulani Kauanui

Many administrators are reticent to inaugurate Native American studies where no program currently exists because of concerns about programs and departments having a “universal” appeal. The problem with this line of thinking is that many of these same administrators still see the field of Native American studies (NAS) generating a curriculum aimed at narrow constituencies, and therefore narrow arguments, that they then compare to the so-called “general” curriculum that is seen as benefiting everyone without acknowledging its own epistemological, racial and social confines. One colleague recently told me that when she urged her college’s administrators to consider establishing a program in NAS, one of them replied, “But, we have to be careful not to have programs that over-indulge our students’ identities,” as though that were the primary concern of Native American studies. She retorted, “Well, that shouldn’t be a problem since we have no Native American students!” Now, while Native American student recruitment is a serious issue, and this school only has approximately three American Indian students out of nearly 3,000, this is not the same issue as recognizing the intellectual contributions of the interdisciplinary field of NAS and its historical transformation as an area of critical inquiry.

NAS centers the political and cultural agency of indigenous peoples and is foundational to the critical study of American history, culture, society and politics vis-à-vis the original inhabitants of this continent, especially with regard to settler colonialism, slavery and imperialism. Developments in NAS have moved it from a subfield of ethnic studies, to a field in its own right. NAS was institutionalized in the 1970s alongside African-American, Asian American and Chicano studies, by historians and sociologists who aimed to wrestle the study of American Indians away from the sole province of anthropologists and folklorists. Ethnic studies, however, emphasized models of inclusion, civil rights and the intellectual paradigm of the nation-state, while NAS has increasingly distinguished itself as a field that privileges the categories of indigeneity and sovereignty over those of race and democracy. The field has also expanded to examine the history and politics of Native Alaskans and Native Hawaiians, while also looking further beyond the machinations of the U.S.-nation state to Indigenous studies in Canada, Australia and Aotearoa/New Zealand, as well as in Latin America and beyond. There is now a growing awareness of the critical importance of taking Native American studies more seriously on epistemological grounds.

Just this year, a group of Native scholars I am part of co-founded the Native American and Indigenous Studies Association (NAISA). At a meeting, “Native American and Indigenous Studies: Who Are We? Where Are We Going?,” on April,10-12, 2008, registered attendees voted to ratify a constitution and bylaws for the new association. This was the second meeting called by a six member steering committee and was hosted by the Institute of Native American Studies at the University of Georgia. The event drew more than 450 scholars and graduate students and included 95 sessions from scholars from more than 165 institutions from 18 countries. Members of the founding steering committee (now the acting council of NAISA) are: Inés Hernández-Ávila, professor of Native American studies, University of California at Davis; K. Tsianina Lomawaima, professor of American Indian studies, University of Arizona, Tucson; Jace Weaver, director of the Institute for Native American Studies, professor of religion, University of Georgia; Robert Warrior, director of American Indian studies at the University of Illinois at Urbana-Champaign; Jean O’Brien, associate professor, Department of History and Chair, Department of American Indian Studies; and J. Kehaulani Kauanui, associate professor of American Studies and Anthropology at Wesleyan University. The aims of the steering committee have been to gather a critical mass of scholars to help shape a new association that is scholarly, is interdisciplinary, is governed by individual members, has annual meetings that rotate among institutional hosts or other locations, is open to anyone who does work in Native American and Indigenous studies, and has a program committee that takes primary responsibility for sending out an open call for papers and setting the agenda for annual meetings.

In May 2009, the Department of American Indian Studies at the University of Minnesota will host the first annual meeting of the new association. A nominations committee made up six scholars elected at the meeting in Georgia will conduct an election of a council that will take office next May in Minnesota. The nominating committee members are: Aileen Moreton-Robinson, chair (Queensland University of Technology, Australia); Victoria Bomberry (University of California, Riverside); Daniel Heath Justice (University of Toronto); Brenda Child (University of Minnesota); Gabrielle Tayac (National Museum of the American Indian); Paul Meredith (Victoria University of Wellington, Aotearoa/New Zealand). The composition of the nominating committee reflects the international research scope of those in attendance and includes those working in First Nations studies, Aboriginal studies, and Maori studies.

It is apropos that the first annual meeting of NAISA will be held at the University of Minnesota and hosted by American Indian Studies, given that 2009 marks the 40th anniversary of the department’s founding, which is the oldest such program in the United States with departmental status — one that has been central to the emergence of the field as a whole. Indeed, there they have managed to be at the forefront in several areas as the department has worked to establish links with the tribal nations of that territory — the Dakota and Ojibwe — teach the native languages of the region, recruit Native American and other students, recruit top Native scholars as faculty members, and develop a rich curriculum that covers a range of studies from oral traditions and indigenous philosophy, history and education, to American Indians in Minnesota, American Indian peoples in the United States, and Indigenous peoples in a global perspective. The program is a model for its ongoing commitment to community as it honors its political origins as a program back in the day.

New developments across the country include undergraduate minors in Native American studies being institutionalized at Vassar College and Indiana University. Other exciting initiatives include: the University of North Carolina at Chapel Hill and its recently established American Indian Center, which is still expanding; Columbia University’s consideration of a new program of study and/or center, the University of Massachusetts at Amherst expanding its certificate program Native American studies into a possible major; and the University of Illinois at Urbana-Champaign, where the Native American House and American Indian studies program has just founded an undergraduate minor that begins Fall 2008, and submitted a proposal for a graduate minor now under consideration. Certainly these developments indicate that administrators across the United States are not confused about the field as an intellectual project deserving of institutionalization and its distinction from identity indulgence. It’s high time for all scholars and administrators to recognize these critical projects and their respective and related intellectual legacies.

For more information on the first annual meeting of the Native American and Indigenous Studies Association on May 21-23, 2009 to be hosted by the Department of American Indian Studies at the University of Minnesota see: http://amin.umn.edu/naisa2009/

— Dr. J. Kehaulani Kauanui is an associate professor of American studies and anthropology at Wesleyan University, where she teaches courses on Native American sovereignty issues, U.S. colonialism in the Pacific Islands, and U.S. racial formations, and critical race methodologies. Her first book, Hawaiian Blood: Colonialism and the Politics of Indigeneity and Sovereignty, is forthcoming from Duke University Press in October 2008. She is also the host and producer of a weekly public affairs radio program, “Indigenous Politics: From Native New England and Beyond,” at WESU, Middletown, Conn., which is syndicated through the Pacifica radio-network.