Equal Protection and the Special Relationship: The Case of Native Hawaiians

Abstract

In the 1970s, the Supreme Court rejected several equal protection challenges to government programs that singled out members of Indian tribes,' invoking a constitutionally grounded "special relationship 2 between the

Post-Racialism and the End of Strict Scrutiny

“…270 As strict scrutiny began to monopolize race's legal playing field, the "political" nature of Indian status became the crucial distinction enabling "Indian-conscious" programs to survive. 271 And the primary locus of political struggle for Native Americans has not been to be seen as "not Indian" but rather to have their own conception of Indianness given legal weight and meaning. 272 Noting the doctrinal vitality of government noticing religion and indigenous status is not to say there is universal agreement in either of these two contexts.…”

Reconciliation and Plasticity in a Postcolonial Hawai‘i

“…In the illustrative case of Hawai'i, 29 the question of the provenance of the "ceded" lands -whether they will be controlled by the state acting as trust guardian for Hawaiians, assimilated into the state's collective assets, or used as a resource base for a proto-Hawaiian government -is, while likely a major motivator for settling the question of recognition, nonetheless not open to negotiation within the Akaka Bill. 30 Nor are the consequences of recognition for this question clear in any explicit manner; some argue that the Akaka Bill will effect a significant transfer of the ceded lands to Hawaiians in the name of reconciliation, 31 while others have voiced deep skepticism that land transfer can be secured in this manner. 32 In summary, these critical approaches to reconciliation are skeptical of the sufficiency of the rights and identities states are willing to recognize in the interest of resolving colonial disparities.…”

A Law of Their Own: Native Challenges to American Law

“…Babbitt, 115 F.3d 657 (9th Cir. 1997); Benjamin 1996. ascend the legal podium to challenge American legality, they do so solely as members of the American polity. They can allude to and rely on notions of justice that transcend prevailing legal arrangements; but ultimately, they have nowhere to turn in invoking law but the American legal system.…”