Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 8, 1 August 1993 — News from Washington D.C. [ARTICLE+ILLUSTRATION]

News from Washington D.C.

Mai Wakinekona Mai

by Paul Alexander Washington, D.C. Counsel for OHA

lngredients of a constitution - Part 3

This is the third of a series of columns that discuss the elements of a modern constitution for native govemment. The previous eolumn reviewed these elements: jurisdiction; membership, division of powers; election procedures and the powers of goveming bodies. This

month's eolumn discusses special provisions such as land use or cultural rights; a bill of rights, and procedures for adoption and amendment. Eaeh native govemment has its own distinct geography, history, culture and

traditions, and often special provisions are used to reflect this uniqueness. For example, the Hopi Naūon is made up of traditional villages whose primary eeonomie activity for centuries has been farming. Not surprisingly, the Hopi constitution says that farm lands within traditional villages will be assigned according to eaeh village's established customs. In northern California, where traditional religious practices require that a wilderness area be kept unspoiled, the proposed Yurok constitution makes its government actively protect this value.

In Hawai'i, the uniqueness of the island geography, the land base of the people, and Hawaiian cultural values may find many constitutional expressions. One of the ways in whieh native governments differ from state and loeal governments is in how land use and

"ownership" are treated. In the United States, a private property land system is the norm. Thus there are eonstitutional restrictions on the government taking private property without just compensa-

ūon. Although private property is recognized in native eommunities, many of them prefer a land system based on trust lands with leases, assignments or individual allotments. This protects their lands from use or purchase by non-natives. The native Hawaiian constituūon will need to reflect whatever land system or systems are established. At a minimum, assuming that the Hawaiian Home Lands trust is transferred to the native Hawaiian govemment, the constitution would need to reflect the trust obligation, as well as ensure the protection of the existing

rights of the intended beneficiaries. "Bill of Rights" is a shorthand phrase to describe the first 10 amendments to the United States Constitution. These amendments provide a cluster of restrictions or prohibitions against the government violating rights held by the people. For example, part of the first amendment provides that "the state (government) shall not make or enforce any law prohibiting the free exercise of religion ..." When the constitution was being considered in 1789, many states were unwilling to adopt it without a commitment to protect people from the abuses of power that the colonists had suffered under Great Britain. This reluctance led to the adoption of the Bill of Rights. Protected "rights" include: free exercise of religion; freedom of speech, press, assembly, and petition; freedom from unreas.onable search and seizure, from unlawful detention, self-incrimination, and double jeopardy; just compensation for the seizure of private property; various rights in criminal proceedings; and the right to due process in the actions of government. Later amendments have added additional protections, particularly the 14th amendment's equal protection of laws provisions.

Although widely hailed as a significant turning point in human rights protection, the Bill of Rights reflects a distinct Anglo-American experience that is sometimes awkward or inappropriate for native governments. For example, many native eultures do not separate religious authority from political authority, as would be required by the Bill of Rights.

Court judgements have held that tribal governments were not bound by the B i 1 1 of Rights because they were pre-existing governments and not parties to the U.S. Constitution. By statute, however, restrictions similar to the Bill of Rights have been placed on tribal goverments, and today most tribal constitutions contain language akin to the Bill of Rights. Sometimes it is the tribal members who insist on a bill of rights to protect themselves against potential abuses of

tribal govemment. In any event, a "bill of rights" that is culturally appropriate will no doubt be one of the elements considered in drafting a native Hawaiian eonstitution. A constitution must be "adopted" to go into effect. When the required number of states by law approved the United States Constitution, it became effective. Most native constitutions are adopted by a vote of members of the native group, usually in an election supervised or approved by the United States. This form of federal recognition of the native group may be important to give weight to the powers claimed by the native government over people and assets. As noted in my first eolumn in this series, the ease or difficulty with whieh a constitution may be amended is often a reflection of whether the constitution is so specific that the only way for it to grow or change with circumstances is by amendment. Where a constitution is a broad statement of principles, with a strong independent judicial system available to interpret, the amendment process is often difficult. Usually native constitutions are amended by vote of their memberships, a vote that often requires more than a simple majority for adoption.

The native Hawaiian constitution will neeel to reflect whatever land system or systems are established.