Excerpted From: Mallorie Chiemi 'Aiwohi, Reconciling Maoli Interests in a Haole Forum: Limitations to the U.S. Department of the Interior's Consultation Policy That Undermine Native Hawaiian Self-determination, 46 University of Hawaii Law Review 93 (Winter 2023) (410 Footnotes) (Full Document)

MallorieChiemiAiwohiNearly one hundred thirty years after the United States illegally overthrew the Hawaiian Kingdom, the U.S. Department of the Interior (“DOI” or “the Department”) announced a unilateral draft of its first consultation policy with the “Native Hawaiian Community” (“NHC”). The DOI defines the NHC as the distinct Native Hawaiian Indigenous political community that Congress, exercising its plenary power over Native American affairs, has recognized and with which Congress has implemented a special political and trust relationship. Yet, because an independent Hawaiian government has not been allowed to organize since the 1893 overthrow of the Hawaiian Kingdom, no politically recognized Hawaiian government took part in drafting the policy. For the same reason, no politically recognized Hawaiian government participated in drafting the agency policy's associated procedures. As a result, the consultation rules omit certain provisions that would ensure meaningful consultation.

The DOI policy recognizes a “government-to-sovereign” relationship between the United States and the NHC, resembling in part--yet distinct from--existing “government-to-government” relationships with American Indian tribes and Alaska Native corporations. The federal courts, however, have treated Knaka Maoli differently from the recognized Indigenous peoples of the continental United States, notably in the existential matter of political identity.

As analyzed in this Article, the Court's decision in Rice v. Cayetano significantly limited the ability of Knaka Maoli to organize as a governing entity or assert political sovereignty. In Rice, the Court held that Native Hawaiian ancestry was a “proxy for race” and concluded that a state-run election for trustees of the Office of Hawaiian Affairs (“OHA”), a quasi-state agency responsible for the wellbeing of Native Hawaiians, violated the Fifteenth Amendment by recognizing votes of only Native Hawaiian citizens. By crucially mischaracterizing the caucasian plaintiff as “Hawaiian” merely on account of his residence in Hawai'i, the Court also cast ambiguity on what it means to be Hawaiian. Compared to other Indigenous peoples engaging in federal consultation through recognized tribal governments, Rice stunts meaningful consultation efforts because it continues to deny Native Hawaiians a means of electing individuals to represent Native Hawaiian interests within Hawai'i. This Article examines the post-Rice political status of Knaka Maoli to analyze potential impacts of the DOI's recent consultation policy and to recommended changes to the policy.

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The Department took a step in the right direction by initiating a consultation policy with the NHC. Its language, however, has revealed areas in the law that the federal government must address before any government-to-government relationship can be forged or adequately substituted by a meaningful “government-to-sovereign” relationship. Without such changes, the DOI policy inappropriately assumes an essential element of Native Hawaiian self-determination by unilaterally drafting consultation language that distances Knaka Maoli from the decision-making process. The history of governance in Hawai'i clearly depicts the establishment of a federal trust relationship between the United States and Native Hawaiians. Indeed, two of the three branches of the U.S. federal government have acknowledged the inherent sovereignty that underlies that trust relationship. But the Rice Court rejected the distinction of Knaka Maoli as anything but a racial class. While this Article does not attempt to suggest a model for Hawaiian governance, the ability to politically organize as a lhui--to follow whatever governance model it chooses--is an urgent and critically significant element of self-determination that Rice has, for over two decades now, prevented. Unless distinguished or overturned, Rice may similarly nullify “government-to-sovereign” consultation between the United States and the NHC.

J.D. 2023, University of Hawai'i at Manoa William S. Richardson School of Law with a Certificate in Native Hawaiian Law; B.A. in Philosophy, Boston University, 2019.