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Excerpted From: Donna S. Salcedo, Hawaiian Land Disputes: How the Uncertainty of the Native Hawaiian Indigenous Tribal Status Exacerbates the Need for Mediation, 14 Cardozo Journal of Conflict Resolution 557 (Winter 2013) (Student Notes) (278 Footnotes) (Full Document)


DonnaSalcedoMany people see the Hawaiian Islands as a paradise in the Pacific Ocean. However, most are unaware that history has left an unpleasant and permanent scar on the original inhabitants of the islands, the Native Hawaiians. It is often forgotten that the islands were once ruled by its monarchy. In fact, the Hawaiian Kingdom was not overthrown until 1893, and the islands did not reach statehood until 1959. Despite this however, Native Hawaiians have never officially been considered an indigenous tribe. This lack of recognition from the federal government has caused a strong sense of injustice that is prevalent throughout the Native Hawaiian community.

Because Native Hawaiians are not federally recognized as an indigenous tribe, they have little say about their ancestral land. Although Native Hawaiians technically have rights to ceded land, these rights are often complicated or severely limited due to a long history of convoluted legislation and case law. In many cases, it is unclear whether Native Hawaiians, the State of Hawaii, or the federal government holds superior title over the ceded lands. While some supporters of Native Hawaiian sovereignty are extreme, others promote valid and justifiable desires to gain the same rights afforded to other indigenous tribes in the United States. There has been much debate as to whether Native Hawaiians should be federally recognized as independent sovereigns. What might be an even more productive discussion, however, is the potential to use Alternative Dispute Resolution (“ADR”) to mitigate existing conflicts with the United States government, regardless of federal status. The Native Hawaiian struggle to obtain federal recognition only exacerbates the need for mediation in land disputes.

Though there are systems of ADR in place in some parts of Hawaii, this Note will focus specifically on the need for ADR in Native Hawaiian land disputes. This Note will begin with a general discussion about ADR and the benefits of implementing meditation as opposed to arbitration, then describe the growing problem of Native Hawaiian land disputes. This will be followed by a summary of the current status of Native Hawaiians, and why they seek federal recognition. The lack of a federally recognized indigenous tribal status exacerbates the need for mediation in Native Hawaiian l and disputes. Next, this Note will explore mediation methods previously and currently used in Federally recognized indigenous tribes like the Native Americans and the Alaskan Natives. Finally, it will discuss the implications of The Native Hawaiian Government Reorganization Act of 2011, a controversial piece of legislation currently waiting to be decided on by Congress, which would grant Native Hawaiians federal recognition as an indigenous tribe. Ultimately, the issue is not whether Native Hawaiians should be officially recognized as an indigenous tribe, but how we can deal with current land use problems. If the Act is passed, land disputes may still be a prevalent problem throughout Hawaii, and having a mediation system in place will help to facilitate speedier resolution. If the Act does not pass, and Native Hawaiians are denied federal recognition, they still have a valid and important interest in the Hawaiian Islands. Thus, regardless of tribal status, a system of mediation should be implemented as soon as possible in order to maintain peace and respect with the Native Hawaiians.

[. . .]

Given the heated opposition to the Native Hawaiian Government Reorganization Act of 2011, Native Hawaiians are likely to remain federally unrecognized as an indigenous tribe. Because of this, it is even more important that the U.S. implement a mediation program. It is essential to protect the interests of the Native Hawaiians who may not have the same political clout as other indigenous tribes in the United States, but who clearly have vested interests in the land of Hawaii. These interests must be addressed and respected by the federal government in order to achieve a peaceful society within the Hawaiian Islands. Neglecting to utilize mediation in Hawaiian land disputes will only fuel hatred and animosity between Native Hawaiians and the state.

The “possibilities are unlimited for the continued and expanded use of mediation between a tribe and the 'outside world,’ including federal and state agencies.” It may take some time to tailor a system of mediation to efficiently meet the needs of the Native Hawaiian land disputes. At least in regards to Native Americans, legal reformers suggest that “dispute resolution methods should be rediscovered and tailored to the more multi-faceted cultural processes and complex social arrangements that characterize each distinct reservation setting.” This holds true for Native Hawaiians as well. Despite its reformative contributions, traditional, culturally neutral modes of mediation may be ineffective when forced upon tribal societies like the Native Hawaiians. Instead, mediation models that consider the specific needs of the community should be implemented.

Adopting successful methods already used in Native American and Alaskan Native Tribes will be the best place to start. In addition, methods already used by Native Hawaiians on a smaller scale (in family and community disputes) may be a great foundation to build upon in order to address more complex land dispute cases with the federal government.

Ultimately, the most important thing is that a method, any method, is used. Regardless of federal indigenous tribal status, a system of mediating land disputes will be beneficial for both the Native Hawaiian community and the federal government.

Notes Editor, Cardozo Journal of Conflict Resolution; B.A., Political Science, 2009, The University of Southern California; J.D. Candidate, 2013, Benjamin N. Cardozo School of Law.

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