Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 10, 1 October 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alexander Washington, D.C. CounseI for OHA

The extraordinary power of Congress in Native affairs

Of the three branches of nahonal government only Congress demonstrates interest and effort in tack!ing the many issues faced by Native Hawaiians. Part of the reason for the dominant position of Congress lies in the institutional role that the Constitution provided within its commerce clause to the Congress in Native Affairs. As the role has developed primarily with respect to lndian tribes, it has become known as the "plenary" power of Congress, in effect Congress is recognized as having extraordinary power in Native Affairs. Another and perhaps more practical reason for Congress's dominant role in Native Hawaiian issues is that neither of the other branches of government (the executive or the courts) have show a particularly positive interest in Native Hawaiian affairs. lt is well known that all efforts to address the overthrow of the Kingdom of Hawai'i in the federal courts have been fruitless. Similarly, efforts in federal court to address concerns with the administration of the Hawaiian Homestead Commission or any of the other trusts associated with the Hawai'i Statehood Act have not been successful. Although there are many "legal" reasons, mostly relating to plaintiffs lacking the standing to

sue, whieh explain the relative laek of a strong role of the federal courts in providing redress for Native Hawaiians, the absence of the Federal courts is in marked contrast to the significant and at times dominant role that the federal judiciary has played in vindicating Indian rights. The executive branch, at least for the past decade, has taken positions on Native Hawaiian issues that are in marked contrast to positions taken by the Congress. Mueh of the legislation that provides federal financia! resources to Native Hawaiians, because of their status as Native Hawaiians, is premised on a legal/politicalanalysis that maintains that the United States has a trust relationship to Native Hawaiians. As most Native Hawaiians are well aware, administration-induced changes in the Native Hawaiian Study Commission resulted in a Maiority Report that neither supports Native Hawaiian claims against the United States for the illegal participation in the overthrow of the Hawaiian Monarchy and subsequent taking without eompensation of the Native Hawaiian land base, nor aggressive!y supports the full concept of a FederalNative Hawaiian trust relationship. Following the study commission, the executive

branch's views have only gotten worse. Apparently, evolving administration policy is to view Native Hawaiians as a racial minority. If Native Hawaiians are simply viewed as a racial minority, special legislation or programs run the risk of being determined to be unconstitutional racial discrimination. In fact, the executive branch has objected to special Native Hawaiian legislation. Most observers believe that because of periodic comments on legislative proposals made by administration representatives, free-standing special Native Hawaiian benefits legislation would be vulnerable to presidential veto. Because of this fact of executive branch opposition, Congressional advocates for Native Hawaiians have had to package Native Hawaiian legislation carefully within other legislative measures that are vetoproof. An exception to this narrow view of Native Hawaiians as a racial minority, is the residual federal statutory role with respect to the Native Hawaiian Homestead Commission. And even here administration officials have indicated in hearings on State legislative amendments to the operation of the Homestead Commission, that although the federal government has a residual trustee role, since the State of Hawai'i is the operational trustee, it (the federal govemment) would defer to State judgements with respect to any changes in the Homestead Commission trust. In order to overcome administration opposition, the advocacy of the Congressional delegation and its members' positions on key eommittees has been critical in achieving the range of Native Hawaiian programs that have been put in plaee in the !ast decade. The critical committees with delegation membership are appropriations in both the House (formerly Akaka) and Senate (Inouye), and the authorizing committees, particularly the Senate Select Committee on lndian Affairs (Inouye); the Senate Energy and Natural Resources Committee [trust issues] (Akaka); and to lesser extent the Senate Labor and Human Resources Committee (formerly Matsunaga) and the House Committee on Banking, Finance and Urban Affairs [housing issues] (Saiki).