Legacy in Paradise: Analyzing the Obama Administration’s Efforts of Reconciliation with Native Hawaiians

Troy J.H. Andrade March, 2017

This Article analyzes President Barack Obama’s legacy for an indigenous
people—nearly 125 years in the making—and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule—an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to counter their negative socio-economic status—is analyzed within the historical and political context of a government coy to live up to its reconciliatory promises. The Article analyzes past attempts to establish a government-to-government relationship and considers new avenues for reaching this end. The Article concludes that although the rule brings the federal government closer to its ideals of justice, it does not go far enough to engender true social healing, specifically because of the uncertainty that the rule will be followed by a conservative Trump Administration that will likely be hostile toward Native Hawaiians and other indigenous communities.

Introduction

The locals in Hawai’i are accustomed to the holiday vacation of the first family. Some mind little the additional traffic congestion caused by the motorcade or the slight economic boost for the local shave ice shops or high-end restaurants. After all, Hawai’i is a respite for America’s only island-born President, Barack Obama. Yet the Obama-Hawai’i connection often brings unsolicited attention to the struggles facing the island State, including Hawai’i’s homelessness crisis, dilapidating infrastructure, and increasing cost-of-living.¹ Despite its problems—problems that are not unique to the fiftieth state—Hawai’i was Obama’s “home state.”²

In 1961, a time when interracial marriage was illegal in parts of the country,³ Ann Dunham, a Kansas-born college student, and Barack Obama, Sr., an economist from Kenya, welcomed their son and future president.⁴ “Bar” or “Barry,” as he was colloquially called by his friends and family, would be raised by his mother and grandparents in the multicultural State of Hawai’i.⁵ He was sent to a prestigious preparatory school before making his way to college, law school, the urban communities of Chicago, the United States Senate, and the White House.⁶ Through his adventures across the nation, Hawai’i remained special to Obama: “No place else could have provided me with the environment, the climate, in which I could not only grow but also get a sense of being loved[.]”⁷ He continued, “[t]here is no doubt that the residue of Hawaii will always stay with me, and that it is a part of my core, and that what’s best in me, and what’s best in my message, is consistent with the tradition of Hawaii.”⁸ He even highlighted his upbringing in Hawai’i as a symbol of his own political philosophy: “The opportunity that Hawaii offered—to experience a variety of cultures in a climate of mutual respect—became an integral part of my world view, and a basis for the values that I hold most dear.”⁹ It was this utopian view, often referred to as the “Aloha Spirit,” that skyrocketed Obama to the highest echelons of political power.¹⁰

However, lurking behind the façade of an idyllic paradise home of multi-cultural acceptance and generosity is the history of a people dislocated from their land and stripped of their self-governance—a history Obama himself characterized as “[t]he ugly conquest of the native Hawaiians through aborted treaties and crippling disease brought by the missionaries[.]”¹¹ This history, which runs the all-to-familiar narrative of a colonizing nation forcing itself into and then upon a smaller nation, is not unique to Hawai’i.¹² But, in the case of Hawai’i, there is no doubt that the United States actively participated in the overthrow of the Kingdom of Hawai’i and, under a conservative administration, shepherded annexation despite vocal opposition from Native Hawaiians.¹³ Indeed, the federal government itself recognized its involvement and “apologize[d] to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination.”¹⁴ Over the years, and despite several efforts, the issue of reconciliation for these past injustices has, thus far, eluded Native Hawaiians.

With the ascension of Hawai’i’s favorite son to the highest seat of American political power, could justice through formal political recognition of Native Hawaiians as a self-governing polity finally be realized? Indeed, the Obama Administration captured the need for equality: “As a political community entitled to self-determination, the Native Hawaiian people have the same fundamental rights of political liberty and local selfgovernment as any Indian tribe. Native Hawaiians should not be relegated to second-class status among our Nation’s indigenous peoples.”¹⁵ This Article seeks to address the hallmark of President Obama’s reconciliatory legacy for Hawai’i’s indigenous community: an administrative rule that sets a process in which the United States would reestablish a government-togovernment relationship with Native Hawaiians.

To contextualize President Obama’s historic and unprecedented action, Part I of this Article begins with an overview of the failed federal reconciliation efforts during the administration of President George W. Bush (“Bush II Administration”) following the United States Supreme Court’s decision in Rice v. Cayetano .¹⁶ Part II then details the hodgepodge, yet innovative, strategy for obtaining Native Hawaiian reconciliation—a tripartite effort that wove together the State of Hawai’i’s compilation of a list of Native Hawaiians, a private organization’s reorganization of a Hawaiian governing entity, and the centerpiece of the effort, the Obama Administration’s rule that set a pathway to reestablish a government-togovernment relationship with a Hawaiian governing body. To assess the constitutional validity of this multi-faceted reconciliation effort, Part III of this Article analyzes: (1) Akina v. Hawaii ,¹⁷ which challenged the State’s compilation of a roll and the independent entity Na’i Aupuni’s private reorganization of a Hawaiian governing body; and (2) President Obama’s use of his executive authority. Using the Social Healing Through Justice framework, Part IV of this Article then critiques the most important aspect of the tripartite effort: President Obama’s action. In the end, this Article concludes that the rule—indeed Obama’s reconciliatory legacy for Native Hawaiians—does not go far enough to engender true reconciliation and address the deep societal wounds that have plagued Hawai’i’s indigenous people for over a century.

I. The Context and Ascension of President Obama’s

Native Hawaiian Legacy

Barack Obama has not minced words when talking about the lingering effects of colonization on Native Hawaiians:

As someone who grew up in Hawaii and has enormous love for the Hawaiian culture, I also think it is important . . . [to] acknowledge[] that there have been difficulties within the community of Native Hawaiians, oftentimes despite the fact that we are visitors to Hawaii; that many times particularly young Native Hawaiians have had difficulties in terms of unemployment, in terms of being able to integrate into the economy of the islands, that some of the historical legacies of what has happened in Hawaii continue to burden the Native Hawaiians for many years into the future.¹⁸

To address these negative “historical legacies” that have manifested themselves in various negative socio-economic indicators for Native Hawaiians,¹⁹ the State of Hawai’i and the federal government have, for the past forty years, made some efforts to reconcile.

For the State, following the resurgence of the Hawaiian culture and the courageous steps taken by Hawaiian protestors in the 1960s and 1970s, the people of Hawai’i, through a vote following the State’s 1978 Constitutional Convention, approved a constitutional amendment creating the Office of Hawaiian Affairs.²⁰ The drafters of the amendment envisioned the Office of Hawaiian Affairs as an entity that would act to better the conditions of Native Hawaiians, and serve as a receptacle for reparations between the Hawaiian community, the State, and the federal governments.²¹ The agency was to be funded through revenues from the public lands trust that was established at Statehood to, among other things, improve the condition of Hawaiians.²² Pursuant to the State constitutional amendment, Native Hawaiians would elect other Native Hawaiians from across the State to serve as trustees of the entity.²³ The goal of the entity was reconciliatory: to “unite Hawaiians as a people[,]” to ensure that “Hawaiians have more impact on their future[,]” and to provide the agency with “maximum independence.”²⁴ On the federal side, after multiple failed attempts at seeking reparations for Native Hawaiians for the tragic effects of colonization, in 1993—one hundred years after the overthrow of the Kingdom of Hawai’i—Congress approved and President Bill Clinton signed into law the Apology Resolution. That law set forth an apology on behalf of the American people for the actions of Americans in supporting and orchestrating the overthrow of the Kingdom and called for reconciliatory efforts between Native Hawaiians and the United States.²⁵

With support in the State and key support in the federal government, the time was opportune for true reconciliation. That time, however, quickly dissipated as the political winds shifted and a conservative regime gained control of the federal government.

A. “That Difficult Terrain”

In the early months of 2000, over twenty years after the State constitutional amendment created the Office of Hawaiian Affairs, the U.S. Supreme Court sent shockwaves through the Hawaiian Islands when it dismantled the State’s reconciliatory framework by striking down the provision mandating that voters for trustees of the entity be Native Hawaiian.²⁶ In Rice v. Cayetano , the Rehnquist Court continued the conservative march against indigenous rights.²⁷

With a romanticized and narrowly-tailored view of Hawai’i political and legal history,²⁸ Justice Anthony Kennedy, writing for a majority, concluded that the voting scheme for the Office of Hawaiian Affairs, although argued as being based on ancestry and political status, was intended to serve as a racial classification: “The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.”²⁹ Justice Kennedy boldly added: “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”³⁰ Justice Kennedy had the audacity to then cite the following quote about racial equality from a 1943 decision, Hirabayashi v. United States , in which an earlier Court held that the internment and curfews of Japanese Americans by the American government during World War II was constitutionally firm: “Distinctions between citizens solely because of their ancestry, are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”³¹

As a defense—a defense with which the federal district court and Ninth Circuit panel agreed³²—the State argued that the exclusion of non- Hawaiians from voting for trustees of the Office of Hawaiian Affairs was permissible under Morton v. Mancari , which allowed differential treatment of Native Americans.³³ The Court, however, brushed aside the Mancari analogy. Justice Kennedy noted that the preferential hiring policy in Mancari , while having a racial component, was specifically directed towards members of “federally-recognized” tribes—a status that had not yet been conferred upon Native Hawaiians by the political branches.³⁴ Accordingly, while the history of colonization of Native Americans was very similar to that of Native Hawaiians, the Court in Rice remarked that the State wanted to “extend the limited exception of Mancari to a new and larger dimension.”³⁵ Nevertheless, the Court ultimately sidestepped deciding whether to extend Mancari because, according to the Court, “[i]t [was] a matter of some dispute . . . whether Congress may treat the native Hawaiians as it does the Indian tribes.”³⁶ Instead of navigating “that difficult terrain,” Justice Kennedy chose to decide the issue based on the State’s lack of authority to enact the type of voting scheme at issue.³⁷ The Court thereby concluded that the Fifteenth Amendment was applicable because the election of trustees for the Office of Hawaiian Affairs “are elections of the State, not of a separate quasi sovereign[.]”³⁸ In refusing to definitively rule on the Mancari issue, the Court signaled its unwillingness to decide what, if any, was the “political status” of Native Hawaiians. The determination of “political status” would thus need to instead be made by the political branches.

The harm from the Rice majority opinion is in its legitimization of American superiority over indigenous peoples.³⁹ The Rice majority, as one scholar concluded, “turned a blind eye to history.”⁴⁰ In a scathing dissent, Justice John Paul Stevens wrote: “The Court’s holding today rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the State of Hawaii.”⁴¹

Following the decision, the plaintiff boldly professed:

I’m proud to be part of Hawaii’s history . . . . It was good for Hawaiians, and certainly good for the state. Got everybody thinking. Hawaiians took advantage of being able to play the part of victim and get entitlements based on race. They stepped over the line. The Rice decision made everyone step back.⁴²

The Rice decision indeed made Hawaiians “step back.” Yet, future Chief Justice and the Office of Hawaiian Affairs’ then-attorney, John G. Roberts, Jr., saw the decision as a victory:

The good news is that the majority’s opinion was very narrowly written and expressly did not call into question the Office of Hawaiian Affairs, the public trust for the benefit of Hawaiians and native Hawaiians, but only the particular voting mechanism by which the trustees are selected.⁴³

Rice erased from memory the fact that the Office of Hawaiian Affairs was created as a vehicle to reconcile the harm caused by a century of atrocity committed against Hawaiians. Rice questioned the validity of all programs that benefitted Native Hawaiians. Rice opened the floodgates to more legal challenges to Native Hawaiians and Native Hawaiian programs.⁴⁴ Thus, Rice shifted the momentum from reconciliation to protection.

B. Failed Reconciliation in Congress

Given the assault on Native Hawaiian programs, on July 20, 2000, United States Senator Daniel K. Akaka introduced “A bill to express the policy of the United States regarding the United States’ relationship with Native Hawaiians, and for other purposes[,]” which proposed to formally recognize Hawaiians as indigenous people that have a right to self-determination under federal Indian law.⁴⁵ Specifically in response to Rice , Senator Akaka’s bill, later referred to as the Native Hawaiian Government Reorganization Act or the Akaka Bill, sought to clarify the political status of Native Hawaiians with the federal government, establish a process to create a Hawaiian governing entity that would be “federally recognized,” and protect various Hawaiian-serving programs from constitutional challenges.⁴⁶ The Akaka Bill specifically called for the creation of a federal commission that would certify a list of Native Hawaiians eligible to create a governing body that the United States would recognize.⁴⁷

The Akaka Bill, which would go through various iterations and be introduced in every Congress for well over a decade, represented an admirable effort by Hawai’i’s congressional delegation to facilitate and codify self-governance and self-determination for Native Hawaiians in American law.⁴⁸ Through the Akaka Bill:

[T]he Native Hawaiian people [sought] the restoration of their government, because they know and have witnessed how the Federal policy of self-determination and self-governance has not only had a dramatic impact on the ability of Native communities to take their rightful place in the American family of governments, but also how that policy has enabled Native people to grow and thrive.⁴⁹

Thus, federal recognition, for some, meant the conveyance of a special status to an indigenous government that could come with a broad array of federal protections and benefits.⁵⁰

However, Native Hawaiian views of federal recognition as envisioned through the Akaka Bill waned as the political tides shifted toward a more conservative American regime. For example, the first draft of the Akaka Bill, S. 2899, reflected the concerns of the Hawaiian people.⁵¹ One of the principle reasons for the wide support was the inclusion of an express disclaimer that historical claims against the federal government by the Hawaiian people would not be barred and that international recourse would be available to address future claims.⁵² Indeed, after public hearings in Hawai’i, and in response to those Native Hawaiians pursuing international claims, the bill was redrafted to command that, “Nothing in this Act [was] intended to serve as a settlement of any claims against the United States, or to affect the rights of the Native Hawaiian people under international law.”⁵³ At the time, some of the opposition to the Akaka Bill was “based only on principle” as the disclaimer clearly set forth a protection of an international recourse.⁵⁴ Over time, and in an effort to capitulate to the demands of the Bush II Administration and most Senate Republicans, the Akaka Bill became watered down. The express disclaimers stating that the rights of Native Hawaiians would not be foreclosed in the international arenas were eliminated and replaced with provisions that mandated federal oversight and waiver of any claims against the federal government.⁵⁵ Because of the elimination of the protective disclaimers, some Native Hawaiians vigorously opposed the Akaka Bill as it would foreclose Native Hawaiians from pursuing independence under international law.⁵⁶

Opposition to the Akaka Bill also came from pro-American conservatives, both Hawaiian and non-Hawaiian, who viewed the “special treatment” of Native Hawaiians as unconstitutional and inconsistent with their ideal of equality. One commentator vilified those lawmakers that supported the passage of the Akaka Bill: “the legislation is an important symptom of Democrats’ constitutional flippancy and itch for social engineering. ‘One nation, indivisible’? Not for the House majority or the Senate committee that has approved Akaka’s mockery of the Pledge of Allegiance.”⁵⁷ Conjuring the imagery of the Jim Crow-esque system in South Africa, attorney H. William Burgess suggested that the Akaka Bill would create “apartheid” in Hawai’i.⁵⁸ Burgess was a member of the Grassroot Institute of Hawaii—an organization staunchly opposed to the Akaka Bill that would, through the guise of promoting democratic principles, unnecessarily incite fear through propaganda and misinformation.⁵⁹

Leading the opposition’s charge against the Akaka Bill in the Senate was Arizona Senator Jon Kyl, the chairman of the Senate Republican Policy Committee.⁶⁰ In the summer of 2005, Kyl released a thirteen-page report, titled “Why Congress Must Reject Race-Based Government for Native Hawaiians.”⁶¹ In the Kyl Report, the Republican Senator argued that the Akaka Bill created a race-based government that promoted “racial division and ethnic separatism.”⁶² The Kyl Report further advised Republican Senators, “Congress should not be in the business of creating governments for racial groups that are living in an integrated, largely assimilated society. . . . If Congress can create a government based on blood alone, then the Constitution’s commitment to equality under the law means very little.”⁶³ Kyl’s efforts were supported in concept and in funding by the Grassroot Institute.⁶⁴

To bolster support of the Akaka Bill, Hawai’i’s congressional leaders enlisted the help of Republican Governor Linda Lingle and her Administration to curry favor with Republican lawmakers. Lingle—a rare Republican leader in a State dominated by the Hawai’i Democratic Party and a rising star of the national Republican Party—specifically met with those undecided Republican senators to rally support. Governor Lingle shot back at the lobbying efforts of Senator Kyl for his “false” statements: “His opinion is wrong, his facts are wrong and now it’s up to us to make clear where he’s mistaken, to make it clear to his colleagues.”⁶⁵ By June of 2005, many supporters were confident that the Akaka Bill had the necessary fifty-one votes to become law.⁶⁶

On July 14, 2005, the Bush II Justice Department sent a letter to Senator John McCain, chairman of the Senate Indian Affairs Committee, informing him that the Bush II Administration had four concerns with the Akaka Bill: limitations periods, military matters, criminal jurisdiction, and gaming.⁶⁷ Akaka Bill supporters welcomed the letter as it was the first time that the Bush II Administration commented on the proposed legislation and because it did not express concerns with the constitutionality of the bill. Amendments were proposed to the bill to allay the concerns of the Bush II Administration, but those amendments also alienated pro-nationalist Hawaiians.⁶⁸

With the Bush II Administration’s concerns seemingly addressed and Republican support trickling in, the stage was set for a vote by the United States Senate on September 6, 2005.⁶⁹ Before the vote could be taken, however, Hurricane Katrina decimated the Gulf Coast and the work of Congress came to a halt so legislators could address the emergency.⁷⁰ The vote was postponed indefinitely.⁷¹

The Bush II Administration subsequently raised constitutional concerns with the legislation: “As the Supreme Court has stated [in Rice ], whether Native Hawaiians are eligible for tribal status is ‘a matter of some dispute’ and ‘of considerable moment and difficulty.’ ”⁷² It was yet another setback to the Akaka Bill. After lobbying efforts with the Senate’s Republican leadership to schedule a vote on the Akaka Bill proved unfruitful, and after a shameful vote by the United States Commission on Civil Rights to recommend that Congress not pass the legislation,⁷³ Senator Akaka took to the Senate chambers in May 2006, and vowed to take the Senate floor every day until a vote on the bill was called.⁷⁴ After three days, Senator Akaka announced that the Republican leadership would petition for a cloture to force a vote on the bill following the Senate’s May recess.⁷⁵

Debate in the Senate was limited to three hours.⁷⁶ The debate and vote came during a week when Senate Republican leadership brought various measures that appealed to the party’s conservative bloc, including a constitutional amendment to ban gay marriage and a bill to repeal the estate tax.⁷⁷ One commentator recognized, “[a]lthough both measures failed to gain enough votes, the objective was to stir up the conservative Republican base to turn out to vote this year and divert attention from less flattering issues such as the Iraq war and rising gasoline prices.”⁷⁸ In other words, it appeared to have been a calculated strategy by Senate Republicans to rally their base in support of conservative causes. Ignoring the special treatment that had been given to Native Hawaiians for over a century and the federal government’s commitment to reconciliation through the Apology Resolution—Senate Republicans instead utilized the debate period to lament their opposition to the Akaka Bill and any form of political recognition of Native Hawaiians. For example, invoking the Rice march of “color-blind” justice and again refusing to accept that Native Hawaiians should be treated similarly to Native Americans and Alaska Natives, Republican Senator Jeff Sessions stated: “It is not too much to say the legislation could create a crack in the American ideal of equal rights and colorblind justice. This would be a huge step. It is a step we must not take.”⁷⁹

Senator Akaka took the floor and reminded his colleagues of the intent of the legislation: “At the heart of it, this bill is about fairness [.] . . . [it] provide[s] a structured process to finally address long-standing issues resulting from a dark period in Hawaii history, the overthrow of the [K]ingdom of Hawaii.”⁸⁰ Then-Illinois Senator Barack Obama spoke of the need to reconcile:

. . . [M]any of you know that I was born and raised in Hawaii. Anyone who has been fortunate enough to visit or call Hawaii home, as I once did, and as my grandmother and sister and adorable niece still do, anybody who has spent time in Hawaii cannot help but recognize the uniqueness of the place. In addition to its scenic landscapes and rich history, it is the living legacy of aloha —the spirit of openness and friendliness that is ingrained in the shared, local culture that shapes and enhances each island encounter and experience.

Throughout Hawaii’s history, individuals of all nationalities, races and creeds have found solace in Hawaii. In large part

this stems from the culture of Native Hawaiians, who have always acknowledged and celebrated diversity. This incorporation of new cultures and practices over the years has strengthened and unified the community. And as the child of a black father and a white mother, I know firsthand how important Native Hawaiian efforts are to foster a culture of acceptance and of tolerance.

For this reason, I am proud to join Senator [Akaka] to

extend the Federal policy of self-governance and self-determination to Native Hawaiians. Native Hawaiians are a vital part of our Nation’s cultural fabric, and they will continue to shape our country in the years to come. . . .

As Americans, we pride ourselves in safeguarding the

practice and ideas of liberty, justice, and freedom. By supporting this bill, we can continue this great American tradition and fulfill this promise by affording Native Hawaiians the opportunity to recognize their governing entity and have it recognized by the Federal Government. . . .

This bill gives us an opportunity not to look backward but

to help all Hawaiians move forward and to make sure that the Native Hawaiians in that great State are full members and not left behind as Hawaii continues to progress.⁸¹

Senator Obama’s eloquent plea, however, likely fell on deaf ears as, earlier that day, the Bush II Justice Department sent a letter to Senate Majority Leader Bill Frist concluding that the Akaka Bill was:

further subdividing the American people into discrete subgroups accorded varying degrees of privilege. As the President has said, ‘we must . . . honor the great American traditions of the melting pot, which has made us one nation out of many peoples.’ This bill would reverse that great American tradition and divide people by their race.⁸²

One lawmaker called the Justice Department’s letter “grossly disingenuous” as the Bush II Administration’s concerns were all addressed in the revised version of the bill,⁸³ and that the Republican leadership used the letter as a statement of the Bush II Administration’s position to shore up those last few votes from undecided Republicans.⁸⁴

The Senate Democrats in attendance, including Obama and New York Senator Hillary Clinton, voted unanimously in favor of the motion to invoke cloture.⁸⁵ Future Republican presidential candidate John Mc- Cain, joined by fellow Arizona Senator John Kyl, crossed over the aisle and supported bringing the Akaka Bill up for a vote to end debate consistent with a promise McCain had made as Chairman of the Senate Indian Affairs Committee.⁸⁶ Republican Senator Ted Stevens recalled how previous congressional representatives’ fears of the unique treatment of Alaska Natives was unjustified and never panned out: “Time has proven them wrong. This bill will fulfill our federal obligation to these native Hawaiian people.”⁸⁷

But it was not enough. The motion to invoke cloture was defeated 56 to 41.⁸⁸ In the end, the cloture vote was four votes short of the necessary amount to bring the Akaka Bill to a final up-or-down vote by the Senate.⁸⁹ The Senate Republicans, shirking their commitment to reconciliation with Native Hawaiians, stonewalled the process. After six years of legislative maneuvering and millions spent to get the federal government to anti-up to its reconciliatory promises, the Senate failed to even bring the legislation to the floor.

C. Stalling Reconciliation

Despite the setback, Senator Akaka would continue to introduce his signature legislation.⁹⁰ The Akaka Bill, however, did not get the same amount of attention from lawmakers as it did in 2006. In 2008—no doubt because of the dissatisfaction with the Bush II Administration’s policies and actions—Senator Barack Obama and his “blue wave” won back the Presidency and Congress.⁹¹ After the election results settled and with the defection of Republican Arlen Specter to the Democratic Party in April 2009, the Senate Democrats had the required sixty votes needed to overcome a filibuster and to move forward with their agenda.⁹² Although the time was ripe (filibuster proof Senate and clear presidential support), there was little movement to bring the Akaka Bill up for a vote as other issues, such as universal health care, captured the attention of lawmakers.⁹³ Then, on August 25, 2009, Massachusetts Senator Ted Kennedy passed away.⁹⁴ After a special election, Republican Scott Brown filled Kennedy’s vacant seat.⁹⁵ The Senate Democrats lost their super-majority and their opportunity to move legislation, like the Akaka Bill, to final votes. Putting aside the likely unified support by Senate Democrats, the Akaka Bill still had Republican allies, like Alaska’s Lisa Murkowski. But, Senator Akaka took the risk of putting forth an amended version of the bill that Hawai’i’s Republican Governor refused to support.⁹⁶

By 2010, however, the political atmosphere had become so partisan that the election brought in a new tranche of Republican legislators who refused to support the Akaka Bill.⁹⁷ In an attempt to pass the legislation during the lame-duck session of 2010, President Obama’s Attorney General, Eric Holder, and Interior Secretary, Ken Salazar, sent a letter to the Senate leaders requesting passage of the Akaka Bill.⁹⁸ The Obama Administration recognized: “Of the Nation’s three major indigenous groups, Native Hawaiians—unlike American Indians and Alaska Natives—are the only one that currently lacks a government-to-government relationship with the United States.”⁹⁹ Despite the Obama Administration’s plea, the Akaka Bill never again made it to the Senate floor.

The 2011 version of the Akaka Bill, the final one introduced by Senator Akaka, was his swan song.¹⁰⁰ It was co-sponsored by Hawai’i’s senior Senator Daniel K. Inouye and Alaskan Senators Murkowski and Mark Begich.¹⁰¹ It sailed through The Senate Committee on Indian Affairs, which Akaka chaired, but never received a vote by either the Senate or the Republican-controlled House of Representatives before Congress adjourned.¹⁰² As Senator Akaka had previously announced his intention to retire and with the unexpected passing of Senator Inouye, the Akaka Bill—and thus any movement toward reconciliation with the federal government—was dead.¹⁰³

II. Forging a New Path for Reconciliation and Facilitating

the Reestablishment of Hawaiian Governance

With the dramatic failure of the Akaka Bill in Congress and little prospect of the passage of similar legislation given the Republican control of the Senate, a new path forward needed to be devised. A new strategy for reconciliation needed to be pieced together. The strategy involved the State laying a foundation by funding a roll of Native Hawaiians and President Obama’s bold use of his presidential power to pass an administrative rule detailing a path for the reestablishment of a formal relationship between the federal government and the Hawaiian community.

A. Laying the Groundwork: Act 195, the Native Hawaiian Roll

Commission, and the State of Hawai’i

Sensing that recognition efforts through Congress had stalled, in 2011, the Hawai’i State Legislature passed Act 195, which created a Native Hawaiian Roll Commission whose responsibilities included facilitating reconciliation by preparing a roll of “qualified Native Hawaiians.”¹⁰⁴ Governor Neil Abercrombie—the former Congressman that shepherded the Akaka Bill through the House of Representatives—choked up after signing the bill: “This bill is the first step in seeing to it that we have a Native Hawaiian governing entity. It’s not only the first step, it is a practical manifestation of all that has gone on before.”¹⁰⁵ Indeed, it was an effort to “rekindle momentum for Hawaiian self-governance after the Akaka Bill stalled in Congress.”¹⁰⁶ The roll commission’s chair, former Governor John Waihe’e, was more blunt, stating that the “valiant effort of [Senator] Akaka was . . . yesterday’s news.”¹⁰⁷ Waihe’e continued, “Act 195 was really a stroke of genius[.]”¹⁰⁸

Under Act 195, the government simply required the publication of the list of individuals: “The publication of the roll of qualified Native Hawaiians . . . [was] intended to facilitate the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves.”¹⁰⁹ Act 195 required that an individual on the roll be “a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands,” and who has “maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity[.]”¹¹⁰

In practice, Act 195 simply required the roll commission to collect and compile a list of individuals sharing common characteristics. Despite some legislators’ visions, Act 195 by its terms did not mandate any conduct or set any eligibility requirements for an election.¹¹¹ The roll commission’s responsibility was no different than what the government, through agencies like the United States Census Bureau or the Bureau of Labor Statistics, already did—collect information that could then be sorted. Courts across the country have upheld the collection of demographic data pertaining to race.¹¹² These courts have been clear that the mere collection of data is distinguishable from using such information to classify individuals and treat them different from others.¹¹³

The language of Act 195 that referenced an intent to “facilitate” a process and serve as a “basis” for qualified Native Hawaiians to reorganize was merely aspirational. Act 195 in no way created a binding commitment to sanction a specific process that would lead to the establishment of a Hawaiian governing entity.¹¹⁴ Pursuant to Act 195, once the roll was published, Native Hawaiians themselves could then use (or not use) that roll in whatever way they deemed necessary. Once the roll commission completed its publication, it could seek dissolution from the Governor.¹¹⁵ Thus, under the enacted law, other than compiling and verifying the roll, the State would not participate in the details of creating or reorganizing a Hawaiian governing entity.¹¹⁶

The roll commission’s campaign to register Native Hawaiians, called Kana’iolowalu, was unsuccessful at the beginning. The Commission spent over $1.8 million to register fewer than 10,000 Native Hawaiians.¹¹⁷ Within two years, the roll commission registered only 17,225 people out of an approximately 527,077 Native Hawaiians throughout the United States.¹¹⁸ Partially due to confusion and/or a registration paralysis from previous efforts by the Office of Hawaiian Affairs to enroll Native Hawaiians, the roll commission was not successful.¹¹⁹ The roll commission’s lack of success was also attributable to it being an arm of a State that itself had done tremendous violence to Native Hawaiians and the cause of self-determination.¹²⁰

As a runaround to the lack of support, in 2013, the State Senate fashioned a last-minute solution. In an interesting political maneuver, the State Senate “gutted and replaced” a bill regarding service of process, with a bill that mandated that the roll would include anyone that had registered in the prior enrollment efforts or anyone that met the ancestry requirements of Kamehameha Schools.¹²¹ The State Senate’s legislation, while met with little opposition at the time—likely due to its belated nature— was signed into law as Act 77.¹²² Act 77 allowed for the transfer of names and information from the various enrollment processes.¹²³ This law exponentially grew the size of the roll to upwards of 130,000.¹²⁴ In simply compiling a list of qualified Native Hawaiians, the State took the first steps to assist in the reconciliation efforts.

B. Fortifying the Foundation: Obama Administration’s Rule

In 2014, in response to a call for federal action and consistent with the Ninth Circuit’s invitation for the Interior Department to “appl[y] its expertise to . . . determine whether native Hawaiians, or some native Hawaiian groups, could be acknowledged on a government-to-government basis,”¹²⁵ the Obama Administration issued an Advance Notice of Proposed Rulemaking (“ANPRM”).¹²⁶ Through the ANPRM, Obama’s Interior Department sought comments on the following questions:

[1] Should the Secretary propose an administrative rule that

would facilitate the reestablishment of a government-togovernment relationship with the Native Hawaiian community?

[2] Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the

United States could reestablish a government-to-government relationship?

[3] If so, what process should be established for drafting and

ratifying a reorganized Native Hawaiian government’s constitution or other governing document?

[4] Should the Secretary instead rely on the reorganization of

a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?

[5] If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-togovernment relationship with the reorganized Native Hawaiian government?¹²⁷

Following issuance of the ANPRM, a delegation from the Obama Interior and Justice Departments traveled across the State and through the continental United States to listen to hours of testimony regarding the five inquiries.¹²⁸ During the many hours of public comment, the Obama delegation heard a vocal segment of Native Hawaiians opposed to any federal effort to reestablish a government-to-government relationship.¹²⁹

Despite the vocal opposition to the federal rule-making process, on October 14, 2016, the Interior Department announced a final rule that would create a pathway for a Native Hawaiian Governing Entity (“NHGE”) to reestablish a government-to-government relationship between Native Hawaiians and the United States (hereinafter referred to as the “Rule” or “Part 50”).¹³⁰ The Rule, 43 C.F.R. part 50, outlined the criteria that the federal government would consider in its determination of whether to reestablish a relationship with a requesting reorganized NHGE.¹³¹ The Interior Secretary would assess the NHGE’s request and use the following criteria in determining whether to reestablish a formal relationship:

(a) The request includes the seven required elements described

in [section] 50.10;¹³²

(b) The process by which the Native Hawaiian community

drafted the governing document met the requirements of [section] 50.11;¹³³

(c) The process by which the Native Hawaiian community determined who could participate in ratifying the governing

document met the requirements of [section] 50.12;¹³⁴

(d) The duly ratified governing document, submitted as part of

the request, meets the requirements of [section] 50.13;¹³⁵

(e) The ratification referendum for the governing document

met the requirements of [sections] 50.14(b)-(c) and was conducted in a manner not contrary to Federal law;¹³⁶

(f) The elections for the government offices identified in the

governing document, including members of the governing body, were consistent with [section] 50.15 and were conducted in a manner not contrary to Federal law[.]¹³⁷

In terms of participation, the Rule required that at least half, and no fewer than 30,000, Native Hawaiians must cast a vote in favor of the governing document; this means that at least 60,000 Native Hawaiians must participate in the referendum vote.¹³⁸ Of those, 30,000 Native Hawaiians that vote in favor of the governing document at least 9,000 must be native Hawaiian, as defined by the Hawaiian Homes Commission Act, and at least half of all native Hawaiians must favor the referendum.¹³⁹

The Rule was also clear that the process of reorganizing a governing body would come from the Native Hawaiian community and not the State or the federal government: “Any government reorganization would . . . occur through a fair and inclusive community-driven process. The Federal Government’s only role is deciding whether the request satisfies the rule’s requirements, enabling the Secretary to reestablish a formal government- to-government relationship with the Native Hawaiian government.”¹⁴⁰

Some praised Obama’s efforts as a “a historic step towards doing what is right and just for Native Hawaiians[.]”¹⁴¹ But, the dissidents still made their voices heard. Keli’i Akina of the Grassroot Institute—the same entity that bitterly opposed the Akaka Bill—sharply criticized Obama’s action:

This is yet another attempt by the Department of the Interior to do an end run around Congress by assuming powers it simply does not have. . . . The Congress has clearly indicated that they—and not the [Interior Department]—have the power to recognize a Native Hawaiian government. On multiple occasions, they considered and decided not to pass the Akaka Bill, demonstrating that the Constitutional concerns in the creation of a race-based government were real and unavoidable.¹⁴²

Akina foreshadowed his direct challenge to any effort to reestablish a government-to-government relationship.

C. Na’i Aupuni

The federal and State governments laid the foundation for reorganizing a Native Hawaiian government and reestablishing a formal relationship with the United States. Although the State and federal governments made the initial strides to set up a path for Native Hawaiian self-determination, the task of reorganizing a governing body was left to the Native Hawaiians themselves. On October 16, 2014, the Office of Hawaiian Affairs stepped forward and authorized the use of special trust funds to a neutral thirdparty to “facilitate an election of delegates, election and referendum monitoring . . . and a referendum to ratify any recommendation of the delegates. . . .”¹⁴³

One private organization heeded the call and took it upon itself to organize an ‘aha or gathering, in which a governing document could be drafted and proposed for an eventual ratification vote.¹⁴⁴ That entity, Na’i Aupuni, would serve as the backbone of the latest effort to organize Native Hawaiians. In its Bylaws, Na’i Aupuni described its creation:

[T]he Office of Hawaiian Affairs . . . authorized and approved the use of the Funds to enable Native Hawaiians to participate in a process through which a structure for a governing entity may be determined by the collective will of the Native Hawaiian people by transmitting the Funds to an entity that is independent of [the Office of Hawaiian Affairs] and any apparatus of the State of Hawai’i . [The Office of Hawaiian Affairs] initially invited nine Ali’i trusts, Royal societies and Civic organizations to discuss the development of this independent body. From that group of nine, the following three organizations, each represented by two individuals, continued the discussion . . . . Eventually, the three organizations . . . decided that the purpose of the entity would be best served if the six individuals in their individual capacity and not as representatives of any organization should form and lead the independent entity by serving as directors of the Na’i Aupuni.¹⁴⁵

Na’i Aupuni sought funding from the Office of Hawaiian Affairs to conduct its own election of delegates, a convention, and a possible ratification vote.¹⁴⁶ The Office of Hawaiian Affairs thereafter provided Na’i Aupuni with $2,595,000.00 of Section 5(f) trust funds as a grant for Na’i Aupuni to coordinate its own election efforts.¹⁴⁷ The grant agreement mandated that the Office of Hawaiian Affairs would not “directly or indirectly control or affect the decisions of [Na’i Aupuni.]”¹⁴⁸ The Office of Hawaiian Affairs thereby provided Na’i Aupuni with a “no strings attached” grant for Na’i Aupuni to conduct its own independent election of delegates for Hawaiian people to consider whether and, if so, in what form, a Hawaiian governing entity should be reorganized. Na’i Aupuni, on its own accord, decided to use the State’s roll as a basis for its election because it believed that it was too expensive and time-consuming to have to create a new list of Native Hawaiians.¹⁴⁹ The roll also provided the most comprehensive list of individuals as it included the lists compiled by the Office of Hawaiian Affairs in its various registration efforts.¹⁵⁰ With the framework in place, and a contract with an election vendor secured, Na’i Aupuni commenced the election process in the summer of 2015.

Native Hawaiians criticized the Office of Hawaiian Affairs’ support of Na’i Aupuni. The unity that was initially sought was falling apart. Sovereignty-proponent Walter Ritte stated:

I am totally opposed to this idea of giving [five] individuals the reigns and letting them steer our canoe[.] I’ve never seen these people involved in the efforts over the years to build our nation. Somehow, before we strike this deal, we need to clean this up, because we can’t build our nation in the sand. We need a solid foundation, but this is not the foundation that we were told would represent us.¹⁵¹ Some cautioned that this recognition process mirrored those in Indian Country.¹⁵² There, the goal of the federal government was assimilation so that the government could divest the native people of their claims to lands.¹⁵³

The reorganization nevertheless moved forward. Na’i Aupuni used the roll to seek delegates for its ‘aha .¹⁵⁴ Na’i Aupuni’s independent process called for a gathering of forty elected delegates representing various geographic locations, including several delegate seats for Native Hawaiians that live in the continental United States.¹⁵⁵ The announcement of candidates for delegates was made on September 30, 2015.¹⁵⁶ The list of delegate candidates represented, as Na’i Aupuni President J. Kuhio Asam indicated, “a good cross-section of the Native Hawaiian community.”¹⁵⁷ Some favored federal recognition for Native Hawaiians, while others believed that the Kingdom of Hawai’i still existed, and that the State and federal governments had no jurisdiction in the islands.¹⁵⁸ Clearly, the views on the entire Kana’iolowalu and Na’i Aupuni process and the Office of Hawaiian Affairs’ apparent $6.8 million involvement were diverse.¹⁵⁹ But, after over a decade of jockeying, the process of reconciliation finally reignited under President Obama’s watch.¹⁶⁰

III. The Legality of the Hawaiian Reconciliation Effort

The push for the tripartite strategy of reconciliation for Native Hawaiians, which combined the State’s Roll, Na’i Aupuni’s governance process, and the Obama Administration’s Rule, undoubtedly raised questions about the legality of the entire effort. However, as described below, the efforts of Na’i Aupuni and the State were upheld as constitutional in Akina v. Hawaii , President Obama’s Rule is a proper exercise of the president’s constitutional authority, and the Rule would withstand an equal protection challenge if one were raised.

A. No Close Nexus: The Constitutionality of the Efforts of Na’i Aupuni

and the State of Hawai’i

On August 13, 2015, anti-Akaka Bill proponent Keli’i Akina and several other individuals, including two non-Hawaiians and three Native Hawaiians, filed a lawsuit against the State of Hawai’i, the State Governor, the trustees of the Office of Hawaiian Affairs, the Commissioners of the roll commission, and Na’i Aupuni to halt the process of reorganizing a Hawaiian governing entity.¹⁶¹ Judicial Watch, a “constitutionally conservative, nonpartisan educational foundation that promotes transparency, accountability and integrity in government, politics and the law[,]”¹⁶² funded the Akina lawsuit. Harkening back to the comments made about the Rice decision, Judicial Watch President Tom Fitton stated:

Who would believe that in this day and age U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view. . . . Using a race-based enrollment list to help radicals in Hawaii tear the State apart and break away from the United States of America is a violation of the U.S. Constitution and basic federal voting rights law. And that Hawaiian officials would prevent you from voting if you don’t sign up for their racial apartheid theories is an affront to the First Amendment. Our clients who are being denied their core constitutional rights believe courts can’t shut down this racist scheme soon enough.¹⁶³ In their Complaint, the plaintiffs asserted nine counts against the defendants.¹⁶⁴ The thrust of their lawsuit was that the roll commission’s list of registered and eligible voters, and Na’i Aupuni’s process of creating a Hawaiian governing entity, each violated the federal Constitution and the Voting Rights Act.¹⁶⁵ Specifically, and as in Rice , the non-Hawaiian plaintiffs asserted that Act 195, which detailed a process for creating the roll, violated the Fifteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Voting Rights Act because it allegedly denied the plaintiffs the right to vote on account of race.¹⁶⁶

To succeed in their claim, which was brought pursuant to 42 U.S.C. section 1983, the plaintiffs needed to show that Na’i Aupuni was a state actor.¹⁶⁷ But, as the facts showed and as the district court held in denying a motion for preliminary injunction, “because [Na’i] Aupuni’s election is a private election, [Na’i] Aupuni is not a state actor . . . . Its election does not fit under the public function test of state action, which requires a private entity to be carrying out a function that is traditionally the exclusive prerogative of the State . . . [n]or does [Na’i] Aupuni’s election fall under a joint action test, which asks whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.”¹⁶⁸ The district court specifically concluded that there was no “close nexus” that would make Na’i Aupuni’s election a public election.¹⁶⁹

B. Executive Power: Analyzing the President’s Authority for

Native Hawaiian Reconciliation

With Na’i Aupuni’s process and the use of the State’s Roll held constitutional, the third and final part of the reconciliation effort—President Obama’s Rule—must be analyzed. In Akina , the district court clearly articulated that it was not deciding “whether the Department of the Interior even has the Congressional authorization to facilitate the ‘reestablishment’ of a government-to-government relationship with the Native Hawaiian community.”¹⁷⁰ Although the district court did not address the question (as it was never raised), resolution of the President’s authority to enact such a rule would eventually meet judicial scrutiny likely because of Republican opposition to the Akaka Bill and the general conservative disdain for President Obama’s use of his executive authority. As discussed below, the President has the legal authority to take executive action creating a separate path of reestablishing a government-to-government relationship with Native Hawaiians.

The question of whether the President has the authority to take such an executive action raises the classic constitutional issue of separation of powers and the extent of presidential authority. In his influential concurring opinion in Youngstown , Justice Robert H. Jackson set out a tripartite framework for evaluating executive action and separation of powers.¹⁷¹ First, Justice Jackson concluded that the President’s authority is “at its maximum” when his actions are pursuant to “an express or implied authorization of Congress[.]”¹⁷² When the President’s authority is at its zenith, the action is “supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”¹⁷³ Second, Justice Jackson articulated that there is a “zone of twilight in which [the President] and Congress may have concurrent authority” or where the distribution of authority “is uncertain.”¹⁷⁴ In such circumstances, “congressional inertia, indifference or quiescence may sometimes, as least as a practical matter, enable, if not invite, measures on independent presidential responsibility.”¹⁷⁵ The test of whether executive action was appropriate would likely “depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”¹⁷⁶ Finally, Justice Jackson contended that the President’s power is “at its lowest ebb” when executive action is taken that is inconsistent with an express or implied will of Congress.¹⁷⁷ In these situations, courts can sustain Presidential action “only by disabling the Congress from acting upon the subject.”¹⁷⁸ Justice Jackson’s scheme has been subsequently adopted as the “accepted framework” for evaluating separation of powers and the validity of executive action.¹⁷⁹

As applied here, President Obama’s executive action is consistent with the first category of Justice Jackson’s framework.¹⁸⁰ Although the Constitution provides Congress with broad authority to regulate the affairs of the nation’s indigenous peoples,¹⁸¹ including Native Hawaiians,¹⁸² that authority does not foreclose the President’s power to address indigenous affairs.¹⁸³ Indeed, the President is provided with the power to execute all laws that are passed,¹⁸⁴ and he or she is directly responsible for the Interior Department,¹⁸⁵ which Congress has expressly vested with authority to, “under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe , have the management of all Indian affairs and of all matters arising out of Indian relations .”¹⁸⁶

Congress also provided that the President “may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs, and for the settlement of the accounts of Indian affairs.”¹⁸⁷ Congress further broadened the scope of presidential authority when it granted power to the Interior Secretary to publish a list of recognized tribes that “ the Secretary recognizes to be eligible for the special programs and services.”¹⁸⁸ This broad power of recognition was expressly affirmed in Miami Nation of Indians of Indiana, Inc. v. United States Department of the Interior , where Judge Richard Posner stated, “the analogy to recognition of foreign governments has prevailed to the extent that Congress has delegated to the executive branch the power of recognition of Indian tribes without setting forth any criteria to guide the exercise of that power .”¹⁸⁹ Judge Posner also stated, “Recognition is, as we have pointed out, traditionally an executive function. When done by treaty it requires the Senate’s consent, but it never requires legislative action, whatever power Congress may have to legislate in the area.”¹⁹⁰ Accordingly, when framed within the context of presidential authority to deal with indigenous affairs, there is little doubt that Congress has expressly and implicitly delegated broad power to the President to promulgate an administrative rule to reestablish a government-to-government relationship with an indigenous community. The Court must defer to the President’s exercise of his or her recognition authority as a political question not subject to review.¹⁹¹

In the case of Hawai’i, Congress implicitly authorized the Rule through its reaffirmation of reconciliation efforts with Native Hawaiians. In 1993, Congress specifically granted the President authority to reconcile with Native Hawaiians: “The Congress . . . urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.”¹⁹² Following the legislative pronouncement, the Clinton Interior and Justice Departments issued a report that recommended federal recognition of a Native Hawaiian governing body through the creation of “a framework for recognizing a government-togovernment relationship with a representative Native Hawaiian governing body” as a form of reconciliation.¹⁹³ In 2004, Congress mandated that the Interior Department, through its Office of Native Hawaiian Relations, “ continue the process of reconciliation with the Native Hawaiian people[.]”¹⁹⁴ These laws and policy statements are, at the very least, an implied grant of authority to the President to facilitate a process of reestablishing a government-to-government relationship with Native Hawaiians.¹⁹⁵ As then-Associate Justice, and former law clerk to Justice Jackson, William H. Rehnquist, wrote in a post- Youngstown opinion analyzing the breadth of executive power:

[T]he enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to invite measures on independent presidential responsibility. At least this is so where there is no contrary indication of legislative intent and when . . . there is a history of congressional acquiescence in conduct of the sort engaged in by the President.¹⁹⁶

These congressional mandates evince an intent to provide the President with broad independent responsibility in the area of recognizing indigenous communities, specifically Native Hawaiians,¹⁹⁷ and reestablishing formal relationships with those communities.¹⁹⁸ President Obama’s promulgation of the Rule is, thus, “pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”¹⁹⁹ The Rule—executive action taken pursuant to broad congressional authorization—would be “supported by the strongest presumptions and the widest of latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.”²⁰⁰

If there is doubt that Congress has authorized presidential action to formalize a process to reestablish a government-to-government relationship with Native Hawaiians, there is also ample support to show that President Obama’s Rule would meet the strictures of Justice Jackson’s second category as “congressional inertia, indifference or quiescence” enabled and invited “independent presidential responsibility” on the issue.²⁰¹ In 1978, the Interior Department established administrative rules for acknowledging tribes.²⁰² This independent executive action, which was subsequently codified in 25 C.F.R. part 83 (hereinafter referred to as “Part 83”), set forth procedures for establishing when an indigenous group would be federally recognized as an Indian Tribe. Native Hawaiians are not included in the federal acknowledgment process under Part 83 as they are not “indigenous” to the “continental United States.”²⁰³ Yet, the courts have upheld executive recognition of indigenous communities outside the Part 83 acknowledgment process. Indeed, the court acknowledged that “Not every group must go through the Part 83 process to be recognized, however; Interior may waive the Part 83 process if waiver is, in Interior’s view, ‘in the best interest of the Indians.’ ”²⁰⁴ The Interior Department has, on several occasions, recognized an indigenous community outside of the Part 83 process.²⁰⁵ Congress has also not taken any action to invalidate those recognized groups, and has thus acquiesced to the executive’s power to do so. Furthermore, in the specific context of Native Hawaiian reconciliation, Congress, particularly the United States Senate, failed for over a decade to even bring the Akaka Bill to a simple up-or-down vote before the entire body.²⁰⁶ Given the inertia or unwillingness to move on its commitment to reconciliation, Congress, in essence, invited Obama’s executive action. Finally, the need for reconciliation with Native Hawaiians is imperative as the State of Hawai’i and federal government continue their efforts to resolve the injustices of the past.²⁰⁷ Therefore, any argument that the President does not have authority to reestablish a government-to-government relationship is without merit as congressional acquiescence and inertia has invited such action.²⁰⁸

C. Surviving an Equal Protection Challenge

Assuming a party established standing to file a lawsuit against the President and the Interior Department, a lawsuit challenging the Rule would also likely include an equal protection challenge. Under an equal protection challenge, a plaintiff would likely claim that the Obama Administration was denying non-Hawaiians the equal protection of the laws by treating Native Hawaiians differently. There is ample legal authority to conclude that President Obama’s Rule would be upheld as subject to the less-stringent rational basis test set forth in Mancari .²⁰⁹

Similar to that of Native Americans and Alaska Natives, and despite the failed efforts to obtain federal recognition through the Akaka Bill, both the federal and state governments have already recognized the unique and special relationship they have with Native Hawaiians. Indeed, and as the Obama Administration recognized in its amicus brief in support of Na’i Aupuni’s process, federal law already states that “Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship.”²¹⁰ More than 150 other federal laws recognize Native Hawaiians as akin to Native Americans.²¹¹ Some federal laws specifically single out Native Hawaiians for special treatment not given to Native Americans.²¹² Moreover, both Democratic and Republican Administrations have reaffirmed the “special relationship” between Native Hawaiians and the federal government. In 2004, for example, Congress enacted and President George W. Bush signed a law that created the Office for Native Hawaiian Relations within the Interior Department.²¹³ The duties of the Office of Native Hawaiian Relations included, among other things, to “effectuate and implement the special legal relationship between the native Hawaiian people and the United States” and to “ continue the process of reconciliation with the Native Hawaiian people[.]”²¹⁴

As it is clear that both the federal government and the State have recognized their unique relationship with the Native Hawaiian community, a core issue before a court in ruling on the validity of the Rule would be whether the federal government had the authority to treat Native Hawaiians in a special manner. There is, as discussed below, strong support through the Mancari decision to uphold the special treatment of Native Hawaiians.

In Mancari , a unanimous Court upheld a federal Bureau of Indian Affairs policy that favored hiring Native Americans because such “special treatment can be tied rationally to the fulfillment of Congress’ unique obligation towards the Indians[.]”²¹⁵ The Mancari Court determined that hiring preferences ensure Native Americans are given greater participation in their own self-governance, further the federal government’s trust obligations to the Native American tribes, and reduce the negative effect of having non-Native Americans administer matters that affected Native American tribal life.²¹⁶ It specifically held that the Bureau’s hiring policy was not a “racial preference,” but was “an employment criterion reasonably designed to further the cause of Indian self-government and to make the [Bureau] more responsible to the needs of its constituent groups.”²¹⁷ The Mancari Court explained and contextualized why, in the case of native peoples, the constitutional standard to uphold the law is less demanding:

Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a ‘guardian-ward’ status, to legislate on behalf of federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article I, [section] 8, [clause] 3, provides Congress with the power to ‘regulate Commerce . . . with the Indian Tribes,’ and thus, to this extent, singles Indians out as a proper subject for separate legislation. . . . The Court has described the origin and nature of the special relationship:

. . . [T]he United States overcame the Indians and took

possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others. . . . Of necessity the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic.

Literally every piece of legislation dealing with Indian

tribes and reservations, and certainly all legislation dealing with the [Bureau], single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.

It is in this historical and legal context that the constitutional validity of the Indian preference is to be determined. . . .

Contrary to the characterization made by appellees, this preference does not constitute ‘racial discrimination.’ Indeed, it is not even a ‘racial’ preference. . . .

On numerous occasions this Court specifically has upheld

legislation that singles out Indians for particular and special treatment. This unique legal status is of long standing, and its sources are diverse. As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.²¹⁸

As discussed above, Native Hawaiian—like Native American—is not a racial classification, but rather a political classification. The analysis, however, of whether Mancari applies necessarily rests upon the conclusion that Native Hawaiians constitute “Indians” or “tribes” under the Indian Commerce Clause of the United States Constitution, subject to the “assumption of a ‘guardian-ward’ status[.]”²¹⁹

First, Native Hawaiians could, even under a strict constructionist view of the Constitution, be defined as “Indians” and “tribes” for purposes of federal law. Under the terms of the United States Declaration of Independence, the term “Indian” referred to the aboriginal “inhabitants of our Frontiers.”²²⁰ The term “Indian” is also “commonly used in this country to mean ‘the aborigines of America.’ ”²²¹ In addition, Native Hawaiians would also, under a strict constructionist view of the Constitution, be defined as a “tribe.” To be clear, at the time of the founding of the country, “tribe” meant a “distinct body of people as divided by family or fortune, or any other characteristic.”²²² Native Hawaiians are ancestrally distinct people with a deeply rooted connection to the land, a distinct culture, a distinct religion, and a distinct language.²²³

Second, Mancari was premised on the creation of a guardian-ward relationship between Native Americans and the federal government. Here, and whether one agrees with it or not, there is no contention that American law has created a “guardian-ward” relationship between the Hawaiian people and the government.²²⁴

Third, Mancari was also premised on an attempt to correct injustices from the past, such as violent and forcible dispossession of land, and the paternalistic notion of “protect[ing]” Native Americans.²²⁵ Here, again, there is no doubt that sovereignty in the islands was forcibly taken and lands systematically stolen from Native Hawaiians,²²⁶ and that the federal and state governments were attempting to “protect” Native Hawaiian interests by treating them specially.²²⁷

Finally, a federal district court has already acknowledged that the Mancari principles apply to Native Hawaiians and that any argument to the contrary is “meritless.”²²⁸ Within the context of native Hawaiian beneficiaries, the Hawai’i Supreme Court also noted the comparison to Native Americans: “we are dealing with relationships between the government and aboriginal people . Reason thus dictates that we draw the analogy between native Hawaiian homesteaders and other native Americans.”²²⁹

Because Mancari is applicable in the context of dealing with governmental treatment of Native Hawaiians, any special treatment is subject to a rational basis test.²³⁰ Under a rational basis test, the court must assess whether a law is rationally related to a legitimate governmental purpose.²³¹ In this circumstance, the court would analyze and likely conclude that the Rule would satisfy the rational basis test because it is rationally related to the government’s goal of reconciliation with Native Hawaiians in that it provides a path for Native Hawaiian self-governance and control over their own affairs.

IV. President Obama’s Legacyfor Native Hawaiians There is no doubt that President Obama’s Rule, which is firmly

rooted in constitutional protection, represents a watershed moment in the federal-Native Hawaiian relationship. The Rule puts teeth to the unfulfilled promises of reconciliation as firmly articulated in the 1993 Apology Resolution. But, does the Rule provide for true and meaningful social healing between the Native Hawaiian community and the federal government?

A. Social Healing Through Justice Framework

Professor Eric K. Yamamoto developed a “praxis approach” to the healing of communal injustices that has appeal to policy makers and oppressed communities.²³² This approach may illuminate the federal government’s current actions and its potential for social healing with Native Hawaiians. Yamamoto’s framework, titled “Social Healing Through Justice,” merges theories of law, theology, social psychology, political theory, human rights, economics, and indigenous practices.²³³ As Yamamoto asserts, each discipline’s theoretical approach to healing separately offer their benefits and their shortcomings. Law, for example, “speaks of equality and dreams of truly ‘egalitarian’ relations—a law-inspired leveling of social and economic hierarchies. Yet law also acknowledges that claims to reparations, with recent exceptions, have fallen short in the courts.”²³⁴ Theology emphasizes the “reunification of people according to religious tenets of acknowledgment and atonement.”²³⁵ Social psychology “works toward transformations in group consciousness and behavior in an effort to address present-day and future generational wounds.” Political theory highlights “reshaping the polity by breaking old barriers and reincorporating people at the margins.”²³⁶ Human rights proponents “seek to change ‘legal consciousness’ and institutional behavior about what is right and just[,]” but such norms are “largely unenforceable absent collective political will.”²³⁷ Economic theory focuses on “ ’capacity-building’ for those injured by injustice to remove social structural impediments to societal advancement[,]” but such economic reparations are “quickly sacrificed on the altar of government fiscal restraints.”²³⁸ Finally, indigenous practices focus on righteousness and communal resolution of disputes.²³⁹

But through his research, Yamamoto identified six common principles among the various theories:

(1) mutual engagement by those responsible in some fashion and a convergence of their interests in social healing; (2) equality and fair treatment and at least a partial leveling of one group’s power over the other; (3) reparative measures addressing both the individual and the communal (or societal); (4) economic capacity-building and financial assistance for those harmed in ways that foster autonomy and self-determination; (5) a blend of words and actions that encompass acknowledgments of harms and causes, acceptance of responsibility and reconstruction of relationships in order to fully repair the damage; and (6) anticipation and handling of the risks of backlash and incompleteness.²⁴⁰

These principles serve as the bases for the Social Healing Through Justice framework and inform the “conceptual meaning and practical operation of the framework’s four points of inquiry”: recognition, responsibility, reconstruction, and reparation.²⁴¹

The recognition prong of the framework examines, among other things, the way individuals continue to suffer “pain, fear, shame and anger” and the way institutions “embody discriminatory policies that deny fair access to resources or promote aggression.”²⁴² The responsibility prong of the framework involves an “assessment of power over others” and analyzes the “acceptance of responsibility of repairing the damage . . . imposed on others through power abuses.”²⁴³ Reconstruction, the third prong, seeks to “build new production relationships” that bring about “genuine healing and a sense of justice restored” through apologies, forgiveness, and/or the reallocation of “political economic power.”²⁴⁴ The final prong of the framework, reparation, includes an assessment of tangible actions made— whether through monetary restitution, financial, legal or educational support, rehabilitation, to name a few—to heal the damage done and recognized.²⁴⁵

In 2009, Yamamoto and Ashley Kaiao Obrey published an article critiquing the Native Hawaiian-Federal Government reconciliation efforts. In the article, the authors concluded that in the case of Native Hawaiians, the federal government satisfied the first two “R’s”, recognition and responsibility, through passage of the Apology Resolution and the 1999 Joint Reconciliation Report by the federal Departments of Justice and Interior that recommended recognizing some form of self-governance akin to Native Americans.²⁴⁶ The authors concluded, however, that the federal government failed to live up to the reconstruction and reparation prongs needed to “build a new productive relationship” by failing to pass laws or take action that would fully repair past damage and reflect the Native Hawaiian community present-day demands for self-determination.²⁴⁷

B. Although Admirable, the Rule Does Not Engender True Social Healing

The Obama Administration, as mentioned above, finalized a Rule that sets a potentially broader path toward United States acknowledgment of a form of self-determination meaningful and acceptable to Native Hawaiians.

Again, the Rule sets forth the “procedure and criteria for reestablishing a formal government-to-government relationship between the United States and the Native Hawaiian community[.]”²⁴⁸ To establish such a relationship, the Native Hawaiian Governing Entity (“NHGE”) must submit a “request” to the Interior Secretary and that “request” must be granted by the Secretary.²⁴⁹ The request must include: a narrative of how the governing documents of the NHGE was drafted, how the decision was made as to who would ratify the governing documents, how the Native Hawaiian community ratified the governing documents, and how and when elections were conducted for government offices; a copy of the ratified documents; a resolution of the governing body certifying a request being made to the Interior Secretary to reestablish a formal government-to-government relationship; and a certification that the submission is at the request of the governing body.²⁵⁰ The request must describe “how the process ensured that the document was based on meaningful input from representative segments of the Native Hawaiian community and reflects the will of the Native Hawaiian community.”²⁵¹ In addition, the Rule requires that the minimum number of Native Hawaiians and native Hawaiians that need to vote to ratify the governing documents is 30,000 and 9,000 respectively.²⁵² Implicit in these minimum voter requirements is the federal government’s requirement that, at the very least, 60,000 Native Hawaiians and 18,000 native Hawaiians must participate in the process because the Rule requires that the number of Native Hawaiians and native Hawaiians that cast votes must exceed half of the ballots sent out.²⁵³ If all these criteria are met, the United States will form a relationship with only “one sovereign” NGHE and that recognition will take effect upon publication in the Federal Register.²⁵⁴ The Rule states that the NHGE will “have the same government-to-government relationship . . . as the formal government-to-government relationship between the United States and a federally-recognized tribe in the continental United States, in recognition of the existence of the same inherent sovereign governmental authorities[.]”²⁵⁵ It also provided the following:

(b) The [NHGE] will be subject to the plenary authority of

Congress to the same extent as are federally-recognized tribes in the continental United States.

[NHGE] will be eligible for current Federal Native Hawaiian programs, services, and benefits.

(d) The [NHGE], its political subdivisions (if any), and its

members will not be eligible for Federal Indian programs, services, and benefits unless Congress expressly and specifically has declared the Native Hawaiian community . . . to be eligible.²⁵⁶

The Rule mandated: “Reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii.”²⁵⁷

The Rule, like the Akaka Bill, represents a sea of change in the relationship between Native Hawaiians and the federal government inasmuch as the Obama Administration is setting a clear path for potentially validating some form of a body of Native Hawaiians that would have self-governing authority. This path is historic inasmuch as it has not been before opened to Native Hawaiians, let alone to any other indigenous peoples. It is arguably the type of reconstructive action that, under the Social Healing Through Justice framework, could lead to social healing because the Rule could arguably lead to a “new productive relationship” between the Native Hawaiian people and the federal government.²⁵⁸

However, the Rule falls short of ensuring true social healing. While certainly a laudable step toward social healing, the Rule does not, under the Social Healing Through Justice framework, go far enough to meaningfully reconcile with the Native Hawaiian community. Fundamentally, and despite this author’s firm belief in the constitutional validity of the action, the Rule is promulgated by the Administration and not by Congress and therefore leaves greater uncertainty in its validity with a change in regime. Simply put, the Rule could be undone by a subsequent President who may disagree with the policy.

Indeed, American voters recently elected Donald J. Trump as the President of the United States.²⁵⁹ Trump has called for and enacted bans on Muslims to the United States,²⁶⁰ decried Mexican immigrants as “rapists” and criminals,²⁶¹ positioned his campaign on the promise of building a wall across the United States-Mexican border,²⁶² and made his rallying cry, “Make America Great Again”—an attempt to delegitimize the strides made by President Obama.²⁶³ Although he has not specifically addressed reconciliation with Native Hawaiians and other marginalized communities, President Trump has signaled his position with the appointment of Senator Jeff Sessions—an ardent opponent of the Akaka Bill—as United States Attorney General.²⁶⁴ Trump and Sessions would have at the ready an arsenal of tactics to undermine the Rule, including, but not limited to, potentially authorizing the Interior Secretary to use his or her discretion to deny any applicant for recognition.²⁶⁵ Similarly, if not abandoned by the new President, the Rule could be vitiated by a Congress that believes that President Obama may have overstepped his executive authority in promulgating such a Rule.²⁶⁶ Hence, there are some inherent flaws in the Rule itself. As explained below, the Rule alone does not bring about meaningful social healing because it: first, does not “structur[e] everyone’s ‘power to’ participate fully and freely rather than to enable one’s ‘power over’ others” thereby failing the reconstruction prong, and second, it does not provide any reparations.

First, although the Rule provides a “doorway” toward federal recognition, the Rule still structures American “power over” Native Hawaiians in a guardian-ward relationship. As an example, while the federal government appeared to call for a neutral process and set a framework to open a “doorway” for Hawaiian self-governance, it did so under the auspices of federal Indian law, control, and oversight.²⁶⁷ The Interior Department made little effort to reconcile the issue of the loss of Hawaiian sovereignty; it simply stated in response to a comment about the “occupation” of Hawai’i that:

Congress admitted Hawaii to the Union as the 50th State . . . This express determination by Congress is binding on the Department as an agency of the United States Government that is bound by Congressional enactments concerning the status of Hawaii. Under those enactments and under the United States Constitution, Hawaii is a State of the United States of America.²⁶⁸ The Interior Department thus regurgitated a skewed narrative of Hawaiian political and legal history, ignored the findings of the Apology Resolution, and thereby silenced a large segment of the Native Hawaiian community that firmly believed that the annexation and referendum on statehood were contrary to the law. Moreover, and although some advocates requested it, the Administration refused to insert the following disclaimer that the envisioned process would not foreclose international recourse: “Nothing in this part explicitly or implicitly abrogates, affects, or impairs any claim or claims of the Native Hawaiian people under Federal law or International law or affects the ability of the Native Hawaiian people or their representatives to pursue such claim or claims in Federal or International forums.”²⁶⁹ The Administration stated that the Rule “does not address any existing claims that the Native Hawaiian people, either individually or collectively may assert for redress under Federal or international law. All such claims are outside the scope of this rulemaking[.]”²⁷⁰ While this statement arguably leaves the door open for international recourse, there is nevertheless ambiguity.

In addition, while Native Hawaiians would have the same “status” as other Native American tribes, the Rule makes clear that they would not be afforded the same protections as Native Americans, such as the ability to decide for itself whether it will allow gaming on its lands. Instead, the Rule expressly states that Native Hawaiians would not receive the same benefits as an Indian tribe, and implicitly would, therefore, not benefit from the Indian Gaming Regulatory Act, which regulates gaming activities by federally recognized tribes on Indian lands.²⁷¹ Furthermore, the Interior Department stated that because the State of Hawai’i prohibits gaming, the NHGE would not be permitted to conduct gaming, emphasizing the control that the State and State law would continue to have over any proposed NHGE.²⁷² In practice, this means that the NHGE would have to fight for its own benefits and programs and would not be able to partake in the resources (albeit grossly inadequate) available to Native Americans. The Rule also places the American government in a position of power over the Native Hawaiians who must request and lobby every year for State and federal resources. In a similar vein, the Rule makes clear that Native Hawaiians and the NHGE would, like federally recognized tribes, still be under the “plenary” authority of Congress, thereby severely limiting selfgovernance and holding Native Hawaiians hostage to the whims of political elections and partisanship.²⁷³

Second, and more importantly, while the form of a NHGE was certainly left for the Native Hawaiian community itself to decide, the Rule did not clarify how that established relationship would work in practical terms and what reparations would be provided, if at all. The Rule does state, however, that federal lands in Hawai’i were off the table for an NHGE: “Reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii.”²⁷⁴ In other words, the Interior Department could recognize an NHGE, but it would not—at least for the initial recognition process—attempt to repair any of the historic injustices by providing land for the Native Hawaiians. The Rule is premised on the Native Hawaiian people themselves coming up with tremendous funds to conduct a private ratification vote that requires at least the participation of 60,000 individuals.²⁷⁵ There are no provisions for funding or additional resources being provided to assist in the actual formation of an NHGE.²⁷⁶ It has also been asserted that, after receiving recognition, the NHGE would be able to negotiate with the State and the federal government for lands and funds. But, such statements are noticeably absent from the Rule.²⁷⁷ Put simply, there is no indication of what happens after the reestablishment of the government-to-government relationship. There is no indication of what steps the federal government must take after recognition occurs. Will there be reparations via land, funding, educational, and employment opportunities available for Native Hawaiians? Will the federal government ante up for the military’s destruction of land and culturally significant sites? Will Native Hawaiians be afforded an opportunity to repair the harm caused by over one hundred years of colonization and suppression? It is not clear. Thus, while the Rule promotes quasi-reconstruction it is incomplete as to reparations to effectuate meaningful social healing.

The harm in failing to meaningfully reconcile with Native Hawaiians under the Social Healing Through Justice framework poses significant problems for the United States as it continues to position itself in the international arena. In her book, Cold War Civil Rights: Race and the Image of American Democracy , Mary L. Dudziak discussed historically how the United States’ domestic problems with race during a time when American foreign policy focused on the containment of communism, was seen by developing countries after World War II as contradictory to its promotion of democratic principles.²⁷⁸ The same principles apply today in the context of America’s self-interest in resolving claims with Native Hawaiians. Indeed, American moral authority and its reputation has been severely curtailed in recent years because of American imperialist actions across the globe, particularly in the Middle East. After the attacks of September 11, 2001, the United States launched a pre-emptive war in Iraq that destabilized the region.²⁷⁹ In its “war on terror,” the federal government has detained many people and committed human rights violations.²⁸⁰ For example, in the Abu Ghraib prison in Iraq, the United States Army and Central Intelligence Agency physically and sexually abused detainees.²⁸¹ This conduct led the independent pan-Arab newspaper Al-Quds al-Arabi to write: “the aim of this invasion and occupation was primarily to humiliate the Arabs and Muslims and was never for changing the Iraqi dictatorship or establishing a model of democracy, justice, and human rights.”²⁸² In Guantanamo Bay, the American military brutally tortured “enemy combatants” in contravention of the Geneva Convention signed by the United States.²⁸³ On the home front, the federal government passed laws, like the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, commonly referred to as the USA PATRIOT Act, that limited civil and legal rights by grossly expanding the ability of the government to use electronic surveillance on both citizens and non-citizens.²⁸⁴ Recently, leaked documents showed the breadth of the National Security Agency’s intrusive surveillance program on Americans.²⁸⁵ The United States’ conduct from the early 2000s to now reflects poorly in the international community. Curing some of its past local injustices may provide it greater moral authority abroad. Therefore, the United States has a significant international interest in embracing reconciliation efforts with those that it has oppressed—including, among others, Native Hawaiians, Native Americans, and African Americans.

Conclusion

President Obama’s legacy for Native Hawaiian self-determination is a mixed one. While he has ushered forth a new paradigm for assisting in the reestablishment of a government-to-government relationship between the federal government and the Native Hawaiian people, he has failed to take the final steps necessary to bring about true social healing.²⁸⁶ Although his Rule is consistent with American law and shares broad support across the country, those same actions, for some, ignore principles of international law that arguably cast doubt on the validity of American authority in Hawai’i. What emerges is a complex portrait of a people fighting for justice and an American government still coy to take truly reconciliatory action.

In a speech to Pacific Island leaders, in perhaps his last official visit to Hawai’i as the Commander-in-Chief, President Obama recalled the strength of unity:

There’s an old Hawaiian proverb that loosely translates to: “Unite to move forward.” It seems simple enough, but the natives used it as a reminder that if you want to row a canoe, every oar has to be moving in unison, otherwise, I don’t know, you go in circles. You just go around and around. Your pace slows, you drift. You get caught up in the currents, and you get off course.²⁸⁷

Although then speaking to the urgency of rising sea levels and the devastation caused by climate change, the President’s words resonate for reconciliation. The cause of reconciliation and true social healing has lingered for generations. It is only through cooperation and unity among the Native Hawaiian people, the State of Hawai’i, and the federal government that social healing can be accomplished.

As Donald Trump assumes the presidency following a rancorous election of partisan divide, he has an opportunity to make drastic changes to the cause of self-determination and reconciliation for Native Hawaiians and the nation’s other indigenous communities.²⁸⁸ President Trump can either build upon the work and legacy of President Obama or he can, in much the same way that Washington conservatives did, dismantle and stonewall any attempts at finding common ground and reconciling. Time will tell what President Trump’s legacy will be for indigenous America. As President Obama did, President Trump would be wise to heed the Hawaiian proverb: “ Pupukahi i holomua ; unite to move forward.”