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Report from the Front: Indian Law Conference at Reagan Presidential Library

Report from the Front

GRIH Fellow Speaks at the Reagan Presidential Library

By Jere Krischel
February 4, 2009

Walking into a convention of lawyers, wearing a simple aloha shirt and sporting a wild pony tail, I must have seemed like some radical Native Hawaiian sovereignty activist. Nearly everyone was dressed in slick suits, ties, and dress shoes.

I arrived about 15 minutes early at the Reagan Presidential Library, and navigated my way around to the Federalist Society reception area, tucked downstairs underneath the "Reagan's Country Cafe." With a minimum of fuss, I was offered a badge, and I made my way to one of the dozen or so tables, each seating eight.

The first discussion was titled, "How Comfortably Does Tribal Sovereignty Fit With American Democratic Ideals?" There were five speakers, all lawyers of some sort, but as expected, it was definitely tilted towards the conservative side. The primary argument of those who disdained tribal sovereignty centered around the lack of basic protections for those under tribal jurisdiction or dealing with tribes. Although the Indian Civil Rights Act helped bring at least some of the Bill of Rights to tribal governments, it was pointed out by Joe Matal that the prohibition of the establishment of religion was absent because the Pueblos were a theocracy, and the equal protection clause was absent because of the inherent racial discrimination present when measuring blood quantum. Example after example of absolute miscarriages of justice were explored, including efforts by the Seminole and Cherokee to dis-enroll African-American members of their tribes, simply on the basis of race.

Professor Carole Goldberg, the one left-left-left-of-center voice on the panel, tried to justify tribal sovereignty by asserting it is an American ideal to allow government and representation at the most local level, but she didn't have much of an argument to make when it was noted that non-tribal workers and non-tribal customers in tribal casinos were essentially "local" to the casino, and had no rights or constitutional protections at all there. She also seemed to lump every last Native American into a single amorphous entity of "Indians," and made reference to "Indian traditions" and "Indian-style justice" that seemed awfully disrespectful of the great diversity of pre-U.S. nations in North America.

Professor Goldberg kept making reference to the fact that Native Americans never asked to become U.S. citizens, and therefore never consented to be a part of the United States. When I asked her during the question and answer session if native-born Americans also never consented (since we were just born here), her reply was that consent was given by my ancestors, and therefore I "inherited" their consent. After the session was over, I asked her if Native Americans with even a single non-native ancestor who consented to be a U.S. citizen should be considered as "consenting." She had no substantive reply, but hopefully it gave her something to think about.

Professor Goldberg also rather pointedly thanked the Chumash, as well as the Reagan Library, for hosting the conference...but she didn't thank any earlier peoples whom may have been conquered by the Chumash. I can understand that, as a tribal leader, she very well may have strong loyalties to her people, and those she considers similar, but I kept getting the feeling she had a very one-dimensional view of Native Americans. If she held the same position on Europeans, she'd see no difference between Germans, French, Spanish, English, and Italians, considering their ideas of justice and culture as monolithic.

For lunch, we were treated to a light salad, and a chicken breast with white sauce on it, and some mashed potatoes and veggies on the side. As a dyed in the wool carbophobic, I pretty much nibbled at the edges of everything, limiting myself to the buffalo mozzarella, some of the greens, and the chicken breast. I had brought a stash of cheese sticks and salami to supplement what I could pick from the meal. Dessert was a chocolate cup with mousse and some fruit, which I avoided like kryptonite.

Immediately following lunch, we were treated to a short talk by Ken Starr. Yup, Ken Starr, the guy who found that blue dress. He was a lively speaker, and he definitely had friends in the crowd (I guess lawyers are pretty sociable types). I never really had any opinion of him, but he's apparently some sort of super-lawyer, who became a judge at age 36. Anyway, never thought I'd meet the guy who wrote the Starr Report (yes, I read it in full as soon as it was released) but I did, and shook his hand and thanked him after his talk, and he amazingly managed to pronounce my name correctly on the first try.

After Ken's talk, there was a two-person panel discussing "International Law and Indian Law," which was just plain scary. I didn't take really detailed notes on either of those speakers (Walter Olson and Maimon Schwarzschild), but Olson laid out a frightening history of litigation in the United States, and Schwarzschild gave a very informative walkthrough of the genesis of the infamous U.N. Declaration of Indigenous Rights. Lesson of the story here is that the people who want a return to tribalism, and "special status," and a roll back of just about everything occurring from the 1400s to the 1900s, have money, have lawyers, and are working hard to pressure the U.S. into abrogating the rights of "non-native" citizens simply on the basis of bloodline.

I suggested to them later that maybe we just need one more tribe, one more "indigenous" nation, a tribe called "The Human Tribe." It would consist of all humans in America indigenous to this earth, and it would have only one law: any rights or benefits held by any member of the tribe must be given to all members of the tribe. Tax breaks for a guy because he's Oneida? Then tax breaks for everyone. Gambling rights for a guy because he's Cherokee? Then gambling rights for everyone. Allowed to vote in tribal elections? Then everyone can vote in tribal elections.

The last panel, the one I actually came to see, was about a topic near and dear to my heart, the Akaka Bill. Gail Heriot, of the U.S. Commission on Civil Rights, faced off against Davianna McGregor, an ethnic studies professor at U.H. Manoa. McGregor picked me out of the crowd before the panel started (maybe my aloha shirt gave me away), and we talked for a few moments before they started-I apologized to her ahead of time, explaining I was on the other side of the issue, and was going to ask her hard questions. She was gracious, graceful, and took a bunch of arrows during the Q&A session after their debate, including a zinger from me.

I'm fully convinced that, at heart, Professor McGregor believes she's doing the right thing, for the right reasons, and I'm sure my concerns about having no other homeland than Hawaii, yet not being "Native Hawaiian" by blood, is something she'll have to think about and struggle with. But although she did mention some very critical parts of Hawaiian history (including it's history of civil rights, which treated natives and non-natives equally by 1850), she also glossed over a bunch of stuff, including the alleged U.S. involvement with the overthrow of Liliuokalani as per the Blount Report (she should be looking at the report which came after, at http://morganreport.org).

When it came time to ask questions, I was thinking about asking her simply about why we should undo the civil rights won during the Kingdom of Hawaii period, but on the spur of the moment, I ended up doing a bit of a soliloquy. I started by giving my appreciation to McGregor for coming, noting we both shared the bonds of local culture and the aloha spirit. Then I believe I talked about my father, who sailed on the escort vessel to the Hokule'a on the way to Tahiti, and how by blood, he's "indigenous" to the Azores, even though his heart and soul is in Hawaii. She had said earlier that the first Marquesans to Hawaii by 600 A.D. had a uniquely identifiable culture, and were therefore "indigenous." I said that the Hawaiians of today, of all races, all together, have a uniquely identifiable culture, so how come they're not "indigenous?" I'm a hapa-haole, and nowhere in the world are you going to find another like me; Hawaii is my only homeland.

And if I remember correctly, that's when I boomed out, "He Hawai'i au; he mau Hawai'i kakou a pau!" "I am Hawaiian; we are all Hawaiians!" It probably came out a bit louder than I expected, but truth be told I can't quite remember all the details very clearly, it almost felt as if someone else was speaking with my voice. I remember feeling a touch of emotion, feeling just the slightest bit shaky, as I spoke of how the first constitution of the Hawaiian Kingdom in 1840, which McGregor had mentioned, deemed that all people were "of one blood." I think at that point, with the eyes of the crowd on me, I remembered to get back to an actual question, and ended with something to the effect of, "Why should we turn back the clock?"

McGregor didn't have an answer for me, other than a few nods and a smile of sympathy, or perhaps a look of honest respect for my mana'o. After my question, she struggled with a string of detailed questions that were asked of her from the rest of the audience, but through no fault of her own-specifics are notably absent from the Akaka Bill, and all of the hard questions are left to future negotiations with no limitations. Although McGregor truly believes that passing the Akaka Bill and forming a new government will somehow help with the social ills within the Native Hawaiian community, it's hard to justify when all you're doing is adding another layer of government. Just on the overhead alone, you're going to reduce the amount of money going to the public of Hawaii, native or not.

Gail Heriot gave an additional historical background, disputing some of what McGregor asserted, but then dismissed the history as irrelevant to her actual objections: one, the Akaka Bill is a bad idea, and two, it is probably unconstitutional. Both Heriot and McGregor made it pretty clear that the Akaka Bill was in response to Rice v. Cayetano, but from Heriot's point of view, doing an end run around the judiciary was neither warranted nor justified.

After the debate concluded, there was a student/lawyer reception (who shushed away some folks who had continued the conversation with the speakers at the podium after the debate), and a general reception in the back. They had some meat dishes, so I snacked a bit there, but although a lot of people were also enjoying cocktails, I'm just not that much of a drinker. Dating an alcoholic at one point in your life will do that to you.

A bunch of people came up to me during the reception, thanking me for my question/soliloquy during the Akaka Bill debate, and I also made some time to thank Davianna McGregor for coming to speak, and being so graceful in sharing her mana'o to a crowd that was stacked against her. If I ever get the opportunity to speak to a group of OHA people, I hope to have just half of her courage and aplomb. (I also hope that any OHA crowd would be as polite as the audience at the conference-hard questions were asked, but everyone was respectful.)

I left and made the short drive home back to La Canada. All in all, it had been a very interesting and informative day, being surrounded by lawyers and law students, learning a bit more of the technical side of the legal issues of tribal sovereignty, and getting to hear from those I disagreed with. Having more of these conversations, more of these debates, more thinking about the Akaka Bill and its consequences, would be a great benefit to all the people of Hawaii, and the nation.

- GIR -

Grassroot Institute member Jere Krischel is a volunteer historian and civil rights activist who has been discussing and studying the Akaka Bill and its historical basis online and in print since 2004. Born and raised in Hawaii, he attended Punahou and later graduated from the University of Southern California.

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