B. CONGRESS HAS NO COMPELLING
INTEREST TO DEAL SPECIALLY WITH
NATIVE HAWAIIANS.
None of the factors that this Court has considered
critical for Congress to deal specially with American
Indian tribes and their members—factors that have
provided Congress arguably with a “compelling interest”
for enacting such special legislation—exists as to
Native Hawaiians:
• Native Hawaiians have not been the
exclusive subjects or members of any
84 See generally, Hawaiian Kingdom Constitution of 1887;
available at http://www.hawaii-nation.org/constitution-1887.html.
31
sovereign nation since 1810; rather, they
have been subjects of a King in a diplomatically
recognized Kingdom, as were
the many non-Hawaiian subjects of that
Kingdom.
• Native Hawaiians have never been subjected
to the authority of any occupying
foreign power, including the United
States, that claimed ownership of their
land, leaving them with only possessory
rights.
• Native Hawaiians have not ceded vast
portions of their land to the United
States or any other foreign power, nor in
any way have been removed from their
lands by treaty or by force of arms. In
fact, the United States has never taken
land from Native Hawaiians, by force, by
treaty, or otherwise, nor did the Hawaiian
Revolution take lands from Native
Hawaiians.
• Native Hawaiians have never been
promised, as a result of a treaty with the
United States, protection from incursions
by other foreign powers or from
other non-Native groups of people in
Hawaii.
• Native Hawaiians have never been
warred against by the United States, nor
has the United States fired a single shot
at Native Hawaiians.
• Native Hawaiians have not been victimized
by actions of the United States in
32
which the United States, through occupation
of the territory of Native Hawaiians,
destroyed the ecology of their land,
took their means of sustenance, or removed
them to enclaves and reservations,
and thus reduced them to a state
of total pupilage and dependency. Therefore,
Native Hawaiians have not needed
protection against the selfishness of others
and their own improvidence.
• Native Hawaiians were never the exclusive
members of a sovereign entity, nor
were they ever dependent on the United
States for the supply of their essential
wants. Indeed, since 1810, Native Hawaiians,
as an identifiable group, have
not had any sovereignty of any sort.
• Native Hawaiians are not now nor have
they ever been in a guardian-ward relationship
with the United States that
grew out of their historical relationship
with the United States.
• Native Hawaiians have never been recognized
by the United States as a separate
sovereign people or government, nor
may Congress constitutionally recognize
Native Hawaiians as a sovereign, politically
distinct community.
• Native Hawaiians have never entered
into a treaty with the United States; in
fact, the treaties into which the United
States entered—pursuant to the Foreign
Nation Clause of the Commerce Clause,
33
not the Indian Commerce Clause—were
with the Hawaiian Kingdom and were
applicable with equal force to the Kingdom’s
subjects, who were persons of
many national origins and ethnicities,
including Native Hawaiian.
• Native Hawaiians can point to no enumerated
constitutional power provided
to Congress by which it may deal specially
with Native Hawaiians.
• Native Hawaiians have never been subjected
to any plenary authority by Congress,
nor does Congress have such
constitutional authority.
• Native Hawaiians have not been a distinct
political community since before
1810.
Thus, the requisite basis for Congress to claim a
compelling interest to act specially with regard to
Native Hawaiians, even in the limited fashion allowed
by Mancari, does not exist with respect to
Native Hawaiians. That they are indigenous peoples
to the Hawaiian Islands, and that their numbers
have been reduced over the years, or that they may
otherwise be in need of special aid and assistance
fails to provide Congress with a compelling interest to
act specially toward the racial group to which they
belong, any more than it does for any other disadvantaged
racial or ethnic group.
You need to be a member of maoliworld to add comments!
Replies