Written by Williamson B. C Chang, Mark Lofstrom and Eric Young
Abstract
Differing views of property lie at the heart of conflicts between native Americans and Western legal concepts inherent in ownership of land, burial remains and objects of cultural patrimony. The authors explore the extent to which these differences persist and influence current debates between native Americans and the state and federal governments regarding land and burial remains in an endeavor to reveal some of the ironies of current property-based debates.
Historically, Hawaiian and native American cultures contained no concept of property ownership. Even the western concept of trusteeship inadequately describes the Hawaiian concept of "aina," a term much like others that existed in native American cultures and that reveals the profound spirituality inherent in physical existence during the pre-contact era. Contact with western culture introduced concepts of due process, reliance, and freedom of contract not to mention precision and a primary focus on individuals reflected in written language. "Aina" was translated as meaning "land." Accordingly, native Hawaiian culture found very limited protection through western concepts of trusteeship and collective ownership.
This conflict between western and Hawaiian notions of property law set the stage for the fundamental disputes embodied in the debates surrounding leasehold conversion and repatriation of burial remains. Ironically, in the debate over leasehold conversion, large land-owning estates--many of which represent Hawaiian interests--seek to prevent forced sales of their land by embracing western concepts of property. Similarly, native Americans and Hawaiians have successfully lobbied for passage of state and federal legislation governing repatriation of burial remains by accepting a western legal framework for settling claims to skeletal and cultural remains. Although selfdetermination still requres, a willingness to utilize imposed legal standards, traditional concerns are beginning to influence western concepts of property.
Replies