Common questions: citizenship and land

Peter Kay has an interesting podcast at VoteHawaii.com dedicated to the "the current Native Hawaiian movements."

I respect the fact that Peter acknowledges that the podcast "is a reflection of my own confusion" because it certainly can be a perplexing set of issues, and the types of questions he ponders are being asked by many people in Hawaii today. I think it is quite common here to believe a wrong was done and have a "desire to set things right" but not know what that really means or how to go about it. And even after being directly involved in the "movement" for over ten years, there are still plenty of things that are confusing or perplexing to me, because it is a huge issue with a long, complex history that affects every aspect of life in the islands and has global implications.

I certainly agree with him that it is healthy that the Akaka bill is stimulating a national dialog about the subject.

I would like to offer a few thoughts in response to some questions that Peter raises, to contribute to that dialog, based on my own efforts to understand the issues.

Citizenship

I see a common confusion or misunderstanding about the relation between the "Native Hawaiian" aspect of the Akaka bill, and independence.

It is very important to keep in mind that the Hawaiian kingdom was a multiracial country, with naturalized citizens from all over the world, and children born in Hawaii were automatically citizens. While the quasi-political definition of "Native Hawaiian" within the Akaka bill is a creation of the United States.

Akaka's recent statement especially has given the impression that somehow "Native Hawaiians" as recognized as a domestic dependent nation under the Akaka bill could "secede" and separate entirely from the United States. (Malia Z says the Akaka bill "could lead to an independent nation within the state.") But to me this is really confusing two separate things.

I certainly believe that it is possible that Hawaii can regain effective independence, but the only way that will be successful is if it is consistent with Hawaii's history and with the practice of all modern countries, and that is with a citizenship not limited by "race" (it's not really race anyway - if anything aboriginal Hawaiians are part of the Polynesian race, but the whole concept of race is more of a socially constructed illusion than a valid biological fact).

The exact definition of the initial national population or citizenry and the process for naturalization are not yet known, although we can propose some possibilities and look at other models, such as the Baltic states. I would suggest that perhaps descendants of all Hawaiian citizens have the strongest position to be the initial Hawaiian citizenry today, but that they would be wise to have a fairly liberal naturalization policy, which would help to win broad support among Hawaii's population as a whole.

But as the framework for even discussing these options, it is crucial to keep in mind this distinction: if discussing a "Native Hawaiian" nation, we're talking about a domestic dependent nation under the Indian Commerce Clause of the U.S. Constitution, whose members would also be American citizens; if discussing independence, we're talking about multi-racial citizens of the country of Hawaii.

Land

Of course perhaps the crucial issue is land, and the notion of "giving the land back to the Hawaiians" (to paraphrase Peter and many others).

I don't presume to be an expert in Hawaiian land issues, and don't even really trust myself to speak accurately in any detail about the nature of land ownership under the Hawaiian kingdom, but you can find a very helpful summary in A Brief History of Land Titles In The Hawaiian Kingdom by W.D. Alexander, Superintendent of Government Survey, 1891.

But I would to draw your attention to another important distinction to keep in mind as a framework for discussion of land issues: that is to differentiate between dominion and domain. Dominion meaning a government's sovereign authority, jurisdiction or control over territory; and domain in the sense of ownership, an estate held in legal possession by a person or persons. If you own land, it is your domain, but government still has dominion (even though you "own" it, your title derives from the laws enacted by the government, and it may exercise taxation, condemnation, eminent domain, etc.).

When discussing the Akaka bill, it seems to me we're talking about a domestic dependent nation either having direct ownership/title of land or having it held in trust, and having a limited exercise of dominion, but the federal government still maintaining (or claiming) ultimate dominion. But when discussing independence, we're talking about which government has ultimate dominion over the territory.

Now, looking at the continuity of Hawaiian dominion over the territory of the Hawaiian Islands certainly has implications for land domain/title/ownership, because the legality of title transfers may be affected by the legitimacy of the government which laws enabled those transfers, and this is certainly not a simple matter to sort out. But land was held privately under the Hawaiian kingdom, and with at least some land, the title or ownership would not be directly affected by a change or reversion in dominion with independence.

So it is just important to keep in mind when discussing land and the notion of "giving land back to the Hawaiians," that there is a difference between which government has sovereignty over the territory as a whole, versus the title or ownership of individual parcels of land within that territory. The former has implications for the latter, but it is primarily the former that we're talking about in the realm of sovereignty and independence.

So anyway, mahalo, Peter, for stimulating some dialog. I hope these thoughts are at least useful to help define a framework and some terms for a constructive dialog, to help us sort through these perplexing questions.

I also have to say, you make me want to do a podcast of my own to express some of my thoughts on this in my own voice!

Posted: Sat - August 20, 2005 at 05:05 AM

getBlogName(); > getCategoryName("C1126750129"); >

Common questions: citizenship and land

> >