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Opinion: Native Hawaiian a quirk in federal law?
Wednesday, February 14, 2007
Filed Under: Opinion | Recognition

"'Native Americans on Trial Often Go Without Legal Counsel'

The headline quoted above is from a page one article in the February 1 Wall Street Journal. It will be of interest to those trying to establish a sovereign native Hawaiian entity similar to those that govern native American mainland tribes.

The article points out that, due to a quirk in federal law, Native Americans do not have all the protections of the amendments to the U.S. Constitution generally known as the Bill of Rights. In particular they do not have the right to legal counsel in criminal cases. And they can be subject to double jeopardy -- subject to trial and conviction twice for the same crime, first in the tribal courts and then in the federal or state courts.

This is because the tribal entities are considered under U.S. law to be sovereign nations with the right under the 1934 Indian Reorganization Act to conduct their own legal proceedings in their own courts, with their own laws, prosecutors, judges, and jails.

As the Native Hawaiian Reorganization Act -- the Akaka Bill -- works its way through Congress, those supporting it could solve the lack of counsel problem by amending the Bill to ensure that a right to counsel is included. On the double jeopardy issue, however, the only solution would seem to be complete secession from the United States and the State of Hawaii."

Get the Story:
Tom MacDonald: Due to Quirk in Federal Law, Native Americans in Don't Have Protection Under 'Bill of Rights' (The Hawaii Reporter 2/13)

Relevant Links:
Office of Hawaiian Affairs - http://www.oha.org

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