Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 2, 1 February 2017 — Mancari case offers insight into self-determination [ARTICLE]

Mancari case offers insight into self-determination

By Derek Kauanoe As Hawaiians consider organizing ourselves into a government, understanding relevant laws and policies ean be helpful. Here, we begin with a concise description of the current United States policy of Indigenous self-determination. Then, we briefly explore the U.S. Supreme Court's 1974 Morton v. Mancari case to understand how the Court distinguishes between political groups and racial groups. The "take-away" from the Mancari case is that federal policies giving preference to members of federally recognized Native nations are likely to be "reasonable and rationally designed to further [Indigenous] self-government" and are not racially discriminatory. We also encourage Hawaiians to consider how we ean best protect and

manage our assets and resources for our community. lndigenous Self-Determination Policy For nearly 50 years, the federal government's policy towards federally recognized Native Nations has been to support self-determination and self-governance. President Lyndon Johnson, in 1968, began articulating principles of Indigenous self-determination and self-governance in his speeches. In a message to Congress, Johnson stated, "I propose a new goal for our Indian programs: A goal that . . . stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership self-help." Subsequently, President Nixon advanced these foundational policies that eonhnue today. In his 1970 message to Congress, Nixon stated, "There is no reason why Indian communities should

be deprived of . . . self-determina-tion merely because they receive monetary support from the Federal government. Nor should they lose Federal money because they reject Federal control." In the United States, the govern-ment-to-govemment relationship is important to achieving Indigenous self-determination and self-gover-nanee. From this relationship, the federal government recognizes a Native nation's authority over its lands, resources and intemal matters. Morton v. Mancari (Mancari) Mancari involved the Bureau of Indian Affairs ("BIA"), the federal agency responsible for matters regarding recognized Native nations. The BIA implemented a preference policy for hiring and promoting members of federally recognized Native nations. NonIndians challenged the preference

as racially discriminatory. The Court explained, "The purpose of these preferences ... has been to give Indians a greater participation in their own self-govemment; to further the [U.S.] Government's trust obligation toward the Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian tribal life." This preference supported the federal government's broader policy of Indigenous self-determination. Mancari emphasized that the federal government deals with federally recognized Native entities on a government-to-government basis. The Court further explained, "The preference as applied, is granted to Indians ... as members of quasisovereign tribal entities. "The Court also noted, "the preference is poliheal, rather than racial in nature" when the federal government gave this preference to members of

Indigenous quasi-sovereign governments. In essence, a federally recognized group of people is a poliheal group rather than a racial group. The Court further indicated that not recognizing this crucial distinction in its case "ignores both the history and purposes of the preference and the unique legal relationship between the Federal Government and tribal Indians." Hawaiians, Mancari, and lndigenous Self-Determination Since federal courts have discussed Mancari when dealing with Hawaiian issues, Mancari may provide useful insight as Hawaiians consider moving forward. The Supreme Court's 2000 Rice v. Cayetano decision explained the constitutionality of the Indigenous preference in Mancari, "because SEE G0VERNANCE ON PAGE 7

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GOVERNANCE Continued from page 6 the BIA preference could be 'tied rationally to the fulfillment of Congress' unique obligation toward the Indians,' and was 'reasonable and rationally designed to further Indian self-government,' the . . . [preference] did not offend the Constitution." In 2004, the Ninth Circuit Court of Appeals also acknowledged Mancari's political distinction in Kahawaiolaa v. Norton and stated, "[h]istorically, the formal relationship between the United States and American Indian tribes has been political, rather than race-based." The relationship provides

legal protection. In 2008, in the Day v. Apoliona case, the federal district court acknowledged that a government-to-government relationship could protect Hawaiian-programs against legal attacks by lowering the level of judicial scrutiny. We encourage Hawaiians to imagine a future where Hawaiian programs are a vital part of both the federal government's obligations to Hawaiians and to a Hawaiian govemment managing its internal affairs. This envisioned future is consistent with the nearly 50-year-old policy of the federal govemment supporting Indigenous self-determination and self-govemance for Native nations. The broader Hawaiian community may decide to organize a Hawaiian entity (independent from

the State of Hawai'i and OHA) that ean help improve our conditions in ways that are not currently possible. One practical option is to consider whether to pursue a government-to-government relationship with the U.S. Hawaiians do not need to make a decision today or next month. Eventually, however, Hawaiians will decide whether to move forward with a better collective future by organizing ourselves. As a community, we may want first to imagine the future we want for our people and then, determine how laws andpolicies ean help us achieve that future. ■ Derek Kauanoe is the Governance Manager at the Office ofHawaiian Affairs.