Native Hawaiians have a unique relationship with the federal government which differs from the relationship between the government and American Indians. Unlike many American Indian tribes and Alaskan Natives, Native Hawaiians are not federally recognized. Native Hawaiian refers to the indigenous Polynesian people of the Hawaiian Islands. Native Hawaiians trace their ancestry back to prehistoric Marquesan, Tahitian, Samoan (potentially Tongan) settlers of Hawaii.
In 1810 the Kingdom of Hawaii, a unified monarchal government of the Hawaiian Islands, was established by Kamehameha I. In 1893, the sovereign government of Hawaii was overthrown by a small group of non-Hawaiians, including United States citizens, who were assisted in their efforts by the United States Minister and military forces. (In 1993, the US Congress adopted the Apology Resolution, extending an apology to Native Hawaiians on behalf of the citizens of the US for the US role in the overthrow of the Kingdom of Hawaii.) A joint resolution in 1898 annexed the Hawaiian Islands to the United States, ceding absolute title of all lands to the U.S. Hawaii was officially admitted into the union as the 50th state on August 21, 1959. The lack of political status as well as a lack of land and social services are the main issues facing Native Hawaiians today.
Today Native Hawaiians are severely disadvantaged relative to other groups. Studies reveal that in terms of health, education, crime, and employment, Native Hawaiians are worse off than any other ethnic group in the state. This disadvantage, however, is not as large as that experienced by American Indians. Federal legislation has been developed to address problems concerning Native Hawaiian health and education, such as the Native Hawaiian Education Act of 1988. The Act defines Native Hawaiian as a person who is a US citizen and a “descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii…”
Native Hawaiians are also greatly affected by the issue of affordable housing units in the state. This problem is caused in large part by the accumulation of large amounts of land in relatively few hands. The State and Federal Governments control around forty percent of the land while less than ten private land owners control another twenty percent. Native Hawaiians are overrepresented among the homeless population at thirty percent.
An Act of Congress created the Native Hawaiians Study Commission in 1980 to “conduct a study of the culture, needs and concerns of the Native Hawaiians.” The Commission issued its final report in June of 1983.
Due to the fact there is high rate of intermarriage between Native Hawaiians and others, as well as varied methods of classification, the issue of who is Native Hawaiian continues to be a topic of debate. Native Hawaiians who can prove they have at least fifty percent blood quantum are eligible for homesteads reserved for Native Hawaiians by the Hawaiian Home Commission Act of 1920. This Act defines Native Hawaiian as “ any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” However, the Department of Hawaiian Home Lands, which is in charge of overseeing the use of the homelands created by the Act, reported in 2009 around 20,000 residential applications were submitted with close to 98% placed on the waiting list. Issues of land also include access to traditional sacred places, water for taro crop production, and beaches where fish and other resources can be gathered. Often times these resources and sacred places lie on private or state land making it difficult for Native Hawaiians to gain access.
The State of Hawaii assumed responsibility for the administration of programs for Native Hawaiians when it was admitted as the fiftieth state. Today between 400,000 and 500,000 people identify themselves as "Native Hawaiian"; sixty percent of those live in the state of Hawaii. In 1979, the Office of Hawaiian Affairs (OHA) was created by constitutional amendment. OHA is responsible for managing funds from the Ceded Lands Trust for the benefit of Native Hawaiians. It is managed by a Native Hawaiian board of trustees. However, the decision in Rice v. Cayetano, threw the constitutionality of OHA and other Native Hawaiian programs into doubt. In Rice v. Cayetano, the Supreme Court held that the requirement that an individual must be of Hawaiian ancestry in order to vote for trustees of the Office of Hawaiian Affairs was unconstitutional. The Court found that, while this voting requirement was based on ancestry, “ancestry can be a proxy for race and in this case the voting requirement was blatantly racial in fact.” Since a racial category was involved the Court invoked the strict scrutiny standard of review, finding the legislation violated the Fifteenth Amendment.
The decision in Rice v. Cayetano highlights the importance of Native Hawaiians gaining federal recognition. A report released by the Department of Interior identified the number one concern of Native Hawaiians surveyed as sovereignty -- the desire to have greater control over their present lives and destinies as well as the lives and destinies of their children. Proposed federal legislation, sponsored by Hawaii Senator Akaka, would formally recognize Native Hawaiian as a distinct indigenous native community, with the right to self-determination and self-governance and a special political and legal relationship between the federal government and the newly-organized Native Hawaiian government. This proposed bill has been introduced in Congress a number of times and has yet to pass.
Federal recognition is important in part because it determines how the Supreme Court will interpret statutes, legislation, or programs specifically designed to give aid or preferential treatment to Native Hawaiians. It also results in a nation-to-nation relationship between recognized tribes and the United States government, exemption from a number of state and local laws and access to funds and programs specifically set aside for tribes. Any program or statute which gives preferential treatment to (federally-recognized) Native Hawaiians would be reviewed by the courts applying the rational basis standard. The rationale for that standard of review is that because the Native American tribe is federally recognized, the preferential treatment is based on a political classification – i.e. the tribe’s status as a political entity -- rather than a suspect, racial classification.