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CONTESTED INDIGENEITY Between Kingdom and "Tribe"
That is what we are talking about here in this context — what's called Native sovereignty in the United States. ... This is a very special little semi-autonomous sovereignty that was devised by the Founding Fathers of the United States of America. They treat the Natives that they found on the Eastern seaboard of the United States in a special way and as we've mentioned already over 560 organizations have taken advantage and it is an advantage of this special kind of sovereignty. Well, you know, the way I see it is it is an American thing. It's their ballgame, it's their ballpark, they own the gloves, they own the bats, they own the balls, they own the uniforms! And if we wanna play in this ballpark, we have to follow these rules and they're not onerous. Read the bill. They're not onerous. But we need to follow their rules.
This loaded quotation is an excerpt from a TV segment featuring Bruss Keppeler (1937–2014), a Native Hawaiian attorney who served as a leader within the Association of Hawaiian Civic Clubs. The show aired on major network television in Hawai'i on January 14, 2009, and was produced by the Office of Hawaiian Affairs, a state agency. The purpose of the show was to "inform the public on legal implications of the Native Hawaiian Government Reorganization Act." The legislative proposal called the "Akaka bill" — named for its sponsor, Senator Daniel Akaka (D-HI) — was then before the House and the Senate and had been reintroduced multiple times since its defeat. Throughout its lifespan, from this federal legislation's emergence in 2000 until 2012, Akaka had asserted that he introduced it in order to secure the recognition of Native Hawaiians as an Indigenous People who have a "special relationship" with the United States and thus a right to self-determination. Passage of the bill would have laid the foundation for a nation-within-a-nation model of self-governance defined by U.S. federal law as "domestic dependent nations" to exercise limited self-governance.
Notice that Keppeler qualifies the term "sovereignty" with "Native." This "Native sovereignty" is nonthreatening to the U.S. government — "a very special little semi-autonomous sovereignty" that provides no ground to challenge the power of settler colonialism or occupation. Keppeler credits "the Founding Fathers of the United States of America" with creating it and does not acknowledge that the sovereignty of tribal nations is inherent and preexisted the formation of the United States. Yet in a sense he is right in that the U.S. Supreme Court crafted the concept of "domestic dependent nationhood" that subordinates tribal nations to U.S. governmental power, even though that same government acknowledges tribal sovereignty as inherent (and not delegated). Keppeler's suggestion that "they treat the Natives that they found on the Eastern seaboard of the United States in a special way" denies and erases the settler colonial violence used to found the U.S. settler state and subsequently incorporate tribal nations within the bounds of it. While he is correct in admitting that Native sovereignty is "an American thing" (a domestic dependent sovereignty) and that the U.S. government owns the playing field, he suggests that the rules are not onerous, without admitting that the United States asserts plenary power over Native nations and thus switches the rules whenever it suits the federal government's interests.
This is not to demean tribal sovereignty. As David E. Wilkins and Heidi Kiiwetinepinesiik Stark define it, tribal sovereignty is "the intangible and dynamic cultural force inherent in a given Indigenous community, empowering that body toward the sustenance and enhancement of political, economic, and cultural integrity. It undergirds the way tribal governments relate to their own citizens, to non-Indian residents, to local government, to the state government, to the federal government, to the corporate world, and to the global community."
Still, these same scholars have carefully documented and theorized about the limits to the exercise of tribal sovereignty, especially given how the U.S. Supreme Court has ruled in ways that have downgraded its power. The court has moved away from the concept of intrinsic tribal sovereignty that predated the arrival of Europeans and has adopted the view that tribal sovereignty, and the attendant freedom of the tribes from encroachments by the states, exists because Congress has chosen to confer select protections on Native nations. As such, some Native Americans have warned Kanaka Maoli against buying into this model of governance.
The state-driven push for federal recognition is problematic for outstanding Hawaiian sovereignty claims. Hence the legislation deeply divided Native Hawaiian communities throughout the archipelago and the continental United States. Although there was widespread support for the legislation among Kanaka Maoli, many opposed it in favor of the restoration of the independent state of Hawai'i under international law. In any case, state officials seem driven to go another route to try to contain the independence claim.
As noted in the introduction, the U.S. Department of the Interior held public meetings in July 2014 on the question of Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community. The DOI explained that "the purpose of such a relationship would be to more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community." This suggests that the department considered the shift for administrative convenience, not for political purposes. Yet the subject of the hearings suggests otherwise: how is it possible to have a government-to-government relationship with a "community"? Dictated and confined by the structures of U.S. federal law, the concept of "reorganization" itself is a misnomer. It was unclear what prompted the DOI meetings, especially with so little warning (the press release announcing them gave just a few days' notice). To many, this seemed to be a last-ditch effort driven by the trustees of the Office of Hawaiian Affairs (OHA) and the Council for Native Hawaiian Advancement to take the executive route to securing the federal recognition of a Native Hawaiian governing entity (NHGE) because the legislative path had long failed. With the subsequent retirement of Senator Daniel Akaka, along with the death of Senator Daniel K. Inouye (who held seniority in the Senate), it seemed that officials of the 50th state along with their affiliates were to take this alternative route through the DOI. Given the federal criteria used from 1978 to 2015 to recognize Indian tribes, however, which the Hawaiian people would not meet, this alternative route acknowledgment could be facilitated only by changes to the federal regulations at the time.
In August 2015 the press secretary for the DOI confirmed that the department would "propose a rule that establishes an administrative procedure that the secretary would use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States." The formation of that governing entity has been developing in a concerted way will — with the Native Hawaiian Roll Commission (created by state legislation) working with the Office of Hawaiian Affairs and a vendor called Na'i Aupuni (created in 2014 specifically to oversee the elections process of some estimated 95,690 Kanaka Maoli, as of 2015). Na'i Aupuni had been certified to participate in the formation of a Native Hawaiian government as of 2015.7 But as many Kanaka Maoli noted during the public hearings, political relations between the U.S. government and the Hawaiian people should be a matter for the U.S. Department of State, not the Department of the Interior.
Indeed, even then Office of Hawaiian Affairs chief executive officer (CEO) Kamana'opono M. Crabbe, who was said to be more responsive to kingdom nationalists than the OHA trustees were, made an effort to confer with the U.S. secretary of state. On May 5, 2014, Crabbe submitted a letter of formal request to John F. Kerry "Re: Inquiry into the Legal Status of the Hawaiian Kingdom as an Independent Sovereign State." The memo specifically asked the U.S. Department of State for a legal opinion on the current status of Hawai'i under international law, outlining four specific questions:
First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?
Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?
Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai'i Statehood Act, 73 Stat. 4, and Act 195?
Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?
No response to Crabbe's letter was ever reported. However, many kingdom nationalists and other independence advocates applauded his effort and witnessed the backlash by some of the OHA trustees, who called for his resignation. These events provided immediate context for the DOI's visit to the islands in the summer of 2014.
The public record (revealed by the video of each of the fifteen meetings held in Hawai'i) reveals that over 95 percent of all the people who spoke at these public consultations opposed the procedures being considered by the DOI. The vast majority who spoke out are Kanaka Maoli. The Council for Native Hawaiian Advancement and the Office of Hawaiian Affairs together attempted to advance the narrative that opponents were merely a loud minority of independence supporters who showed up at these meetings and that the vast majority of Hawaiians really support federal recognition. In a brief report on the proposed DOI procedures, OHA trustees also asserted: "The proposed administrative rule should not prospectively attempt to limit the inherent sovereign rights of the reorganized Native Hawaiian government that insure it under U.S. domestic law. Likewise, the rule should open a path for reestablishment of a domestic government to government relationship that will not, as a legal matter, affect paths for international redress." On the face of it, this may seem to be a caveat in the service of the national claims under international law; but the ill-defined concept of "international redress" certainly is different for states than it is for Indigenous Peoples and colonies. Here we see the OHA representatives attempting to graft the U.S. government's recognition of an independent state to a people's Indigenous status. Nonetheless, many Native Hawaiians support this effort because they have been told that it is the only politically realistic thing that they can expect to achieve to restore some form of self-governance.
This chapter examines the contestation over indigeneity in both the controversy over the federal recognition legislation (which was debated off and on at the congressional level from 2000 to 2012) and the sector of the independence movement that insists that the kingdom already exists (or aims to reinstate the monarchy). I explore the complications involved in privileging Hawaiian indigeneity, given the fraught situation of Kanaka Maoli and Hawai'i's current political status — as a people and a place — in the midst of what is right now a full-fledged nationalist movement currently threatened by the federal attempt to sidestep the independence claim. I then delineate the politics of the Akaka Bill legislative proposal in order to account for the debates surrounding the U.S. recognition of delegated versus inherent "Native sovereignty," which reveal the state's interest in containing the Hawaiian claim.
Next I focus on the ways in which kingdom nationalists who are opposed to this form of federal recognition of a Native Hawaiian governing entity based in the concept of "Native sovereignty" have also demeaned the standing of Kanaka Maoli indigeneity in their articulations of the Hawaiian independence claim. I trace the emergence of the term "Indigenous" as a political and legal category. The United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007, is a key site for examining the limits put upon Indigenous Peoples with regard to self-determination. Focusing on the specifics of the Hawaiian case, the chapter attempts to account for the political incentives that may explain why independence activists advocate that Kanaka Maoli disidentify as Indigenous in order to reclaim the kingdom. I suggest that some Kanaka Maoli reject Indigenous identity as a means of relief from the political condition of Indigenous status, where they also read claims to Hawaiian indigeneity as a simultaneous admission of U.S. colonial subjugation of Hawai'i and a yielding to that subordination.
In this case, the power of Indigenous (premonarchical) sovereignty is obscured precisely because it was the distancing from the prior form of governance that enabled the Kanaka Maoli people to assert sovereignty to secure recognition in the form of an independent state. In the 1840s Kamehameha III advanced the kingdom in ways that protected Hawaiian sovereignty by countering the imperial forces of the U.S. and European governments that claimed racial and religious supremacy. Considering the ways in which colonialism shaped the internal bifurcations within European societies, the race war that Foucault theorized emerged from modern European states as these states created the law of nations to justify their own imperialism. As a response, Hawaiian elites adopted this paradigm of self-governance to assert their own sovereignty and resist Western encroachment, but it was in effect colonialism by proxy (or a preemptive form). Western norms of sovereignty that emerged from the European Peace Treaty of Westphalia of 1648 which created a new system in central Europe based upon the concept of coexisting sovereign states, became central to international law — and continue to dominate international politics, theory, and practice. Moreover, these norms are still regarded as the legitimate basis for international political domination of independent states over peoples. Yet the state system is arguably obsolete — at least for the survival of Indigenous Peoples and customary lifeways.
Today the project of asserting (or restoring) the kingdom is in competition with the U.S. attempt to subordinate Native Hawaiians by confining governance to internal self-determination within the bounds of federal law. Yet the state-centered Hawaiian nationalist challenges to U.S. domination entail a problematic and profound disavowal of indigeneity. There are dual models of sovereignty in place here: on the one hand, the kingdom; on the other, a Hawaiian "U.S. domestic dependent nation." These are the two dominant responses to U.S. colonial occupation, yet both are problematic. Thus I argue for the need to reconceptualize Indigenous status — but not the sort demeaned by the kingdom project or subordinated by the U.S. government in its domestic dependent framework. Assertion/restoration of the kingdom and the bid for federal recognition (whether through the Akaka bill or the DOI process) are two responses to U.S. empire that are lodged in normative frameworks — even though controversial for different reasons. But each also entails a paradox for Hawaiian sovereignty: the contemporary kingdom as anti-Indigenous monarchy on the one hand and the Indigenous-specific Native Hawaiian governing entity limited by federal policy on the other. Although one is Hawaiian and one is American, both are Western state models. What are the cultural logics that undergird them? Here the structure of settler colonialism complicates the terrain — both the kingdom and the United States want to respond to this political question internally and through their own respective legalities. Herein I challenge both their presuppositions.
Although the Hawaiian Kingdom (1810–1893) cannot be characterized as a settler state, Kanaka Maoli (and allies) who assert independent Hawaiian state sovereignty in order to counter the U.S. settler state still manage to elide (prestate) Indigenous sovereignty. Under the U.S. settler state, most Kanaka Maoli have been subordinated by the Hawai'i state government since it became the "50th state" (1959). The U.S. colonial government ruled Hawai'i as an organized territory from 1900 to 1959. Before that Hawai'i was an unorganized territory from 1898 to 1900. Prior to the 1898 annexation by the United States, the Republic of Hawai'i governed the islands from 1894, after reconstituting the "provisional government" largely composed of American business leaders involved in the 1893 overthrow of Queen Lili'uokalani.(Continues…)
Excerpted from "Paradoxes of Hawaiian Sovereignty"
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Table of ContentsAbbreviations ix
Introduction. Contradictory Sovereignty 1
1. Contested Indigeneity: Between Kingdom and "Tribe" 43
2. Properties of Land: That Which Feeds 76
3. Gender, Marriage, and Coverture: A New Proprietary Relationship 113
4. "Savage: Sexualities 153
Conclusion. Decolonial Challenges to the Legacies of Occupation and Settler Colonialism 194
Glossary of Hawaiian Words and Phrases 235
What People are Saying About This
“Paradoxes of Hawaiian Sovereignty is at once devastating and gentle in its tough-minded critique of Indigenous political movements that avoid hard questions that arise from their own histories of exclusion, compromise, and elitism. Intrepid books like these are the ones that not only point us toward the future, but show us what it will take to build it.”
“Paradoxes of Hawaiian Sovereignty offers a careful delineation of the centrality of heteropatriarchy to both imperial-colonial and nation-state structures. Using the concepts of biopower and biopolitics, J. Kēhaulani Kauanui powerfully recounts the history of the (incomplete) subjugation of women and suppression of Native sexual practices as inherent parts of the establishment of the Hawaiian monarchy, revealing the paradox of ali‘i (chiefly elites) having to eradicate indigenous ways of life in order to gain recognition of Hawaiian sovereignty. She shows how this paradox continues today, as Christian evangelical ideology undergirds the discourse of restoring the Hawaiian Kingdom.”