Keliʻi Akina misrepresented Hawaiian Kingdom legal history in his recent Community Voice piece, “Silent Majority of Hawaiians Gain Voice.” Akina wrote, “We seek to live by the words of the 1840 Constitution of the Hawaiian Kingdom that welcomes all, stating: ‘God hath made of one blood (koko) all nations of men to dwell on this earth in unity and blessedness.’ ”

In the context of the entire column, Akina’s use of this language ignores the Hawaiian Kingdom’s actual interpretation of those same words. He also disregards the fact that Native Hawaiians historically were, and continue to be, recognized as an indigenous people with special rights, which is distinct from being just a minority group.

Civil Beat’s readers should know that a 152-year-old Hawaiian Kingdom Supreme Court decision instructs us precisely to interpret the “constitutional” language differently than Akina suggests we should. Although the kingdom had a multi-ethnic citizenry, it had several laws that applied only to indigenous Native Hawaiians that were also deemed constitutional by its own Supreme Court.

Portrait of Native Hawaiian family, 1907.
Native Hawaiians such as these were covered under laws that, according to the Hawaiian Kingdom Supreme Court, applied only to indigenous Native Hawaiians. California Historical Society

Rex v. Booth

In 1863, the Court was asked in Rex v. Booth to determine the constitutionality of a law that only applied to indigenous Hawaiians. The 1852 Constitution, however, succeeded the 1840 Constitution. The newer constitution’s First Article read, “God hath created all men free and equal and endowed them with certain inalienable rights …”  Writing for the court, Justice George Morison Robertson explained that the newer Article 1 language originated from the 1840 language — the same language recently used by Akina to suggest Native Hawaiians are not a unique group of people. Robertson described those specific words as announcing a political principle and further explained that particular language is not “in an absolute and unlimited sense. That language must be interpreted … by the succeeding provisions of the Constitution — by the expressed or clearly implied requirements, authorizations and limitations of the instrument, regarded as a whole.”

Then, Justice Robertson cautioned against adopting an unsophisticated interpretation of the Constitution’s First Article, “[t]he bare recognition of those principles is by itself of no practical value without their authoritative application.”

Here, the Court directs us to look beyond the plain language of the constitution; Akina does the exact opposite.

The Court authoritatively acknowledged that a law, applicable only to indigenous Hawaiians, “assist[ed] in promoting the material interests and general welfare of the nation at large.” This sentiment held true in 1863 and is equally true today.

19th Century Indigenous Self-Determination

Chief Justice Elisha Allen took the liberty of discussing the Hawaiian government’s unique treatment of its aboriginal (indigenous) people in a separate opinion. This opinion is remarkable because it explains how aboriginal Hawaiians exercised indigenous self-determination within a recognized nation-state in the 19th century.

After explaining that aboriginal Hawaiians were vested with legislative power to pass laws exclusively applicable to themselves, the chief justice clarified, “The aboriginal race would have never surrendered this power, because they always have been aware … that there were some laws which were regarded as wise for them… .”  The chief justice also briefly detailed other laws that only applied to indigenous Hawaiians and were passed over a near 20-year period through legislative processes.

Legal History, Recognition of Indigeneity

Akina cannot claim with any meaningful authority that laws and processes addressing the unique needs of indigenous Hawaiians “is blatantly non-Hawaiian.”

If Hawaiian-ness is rooted in our history, then we need look no further than the Rex v. Booth case to see that the historical government of the Hawaiian people supported a policy of Native Hawaiians being treated as an indigenous people with unique circumstances and special rights.  If we wanted to look further, we may examine the other individual laws the court mentioned that applied only to Native Hawaiians and still find that such an approach is very Hawaiian today.

While the State of Hawaiʻi and the United States recognize Native Hawaiians as an indigenous people (just as the Kingdom did), Akina would rather reclassify Native Hawaiians as only a minority group without the rights other indigenous peoples have.

Civil Beat readers should also know that more than 140 countries throughout the world support the United Nations Declaration on the Rights of Indigenous Peoples. The declaration makes clear in Article 3, “Indigenous peoples have the right to self-determination.” President Obama included the Native Hawaiian people in his endorsement of the declaration. Native Hawaiians have a right to self-determination and with the declaration developing as an international legal norm, the United States is expected to provide processes for the exercise of Native Hawaiian self-determination.

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