Hokelei Lindsey has posted her paper, “Native Hawaiians and the Ceded Lands Trust: Applying Self – Determination as an Alternative to the Equal Protection Analysis,” on SSRN. It is forthcoming in the American Indian Law Review. The AILR’s shift over the last few years to a peer-review system continues to pay dividends.
Here is the abstract:
On February 25, 2009 the United States Supreme Court heard oral arguments in Hawai‘i v. Office of Hawaiian Affairs, a case dealing with Hawai‘i’s ceded lands trust. The aftermath of that case likely will put the ceded lands trust and its native Hawaiian purpose on a collision course with the Equal Protection clause of the United States Constitution. Scholars previously have argued that “native Hawaiian” is a racial classification and strict scrutiny should apply. Other commentators have drawn an analogy to programs that benefit Native American tribes and argue that a rational basis standard should apply. In this article, I propose a previously unexamined approach to analyzing the native Hawaiian purpose of the ceded lands trust. The original purpose of the lands that comprise the trust was determined by the Kingdom of Hawai‘i before incorporation into the United States, therefore, I argue that the logic of the equal protection analysis is misplaced. Consistent with its original purpose, the trust is about self – determination not the allocation of government benefits based on race, which would trigger equal protection. Thus, understanding the trust and the trust res through the lens of self – determination offers an alternative to the equal protection analysis and provides a means of reconciliation between the United States and the Native Hawaiian people.
Turtle Talk 