Archive for category Native Hawaiians

Ethnic Hawaiians as a racial group do NOT own our public lands. Extending long-term leases is OK


HB499 HD2 SD2 CD1 is a bill passed by both chambers of the Hawaii legislature after many committee hearings and amendments, and was sent to the Governor on April 28, 2021.

RELATING TO LEASE EXTENSIONS ON PUBLIC LAND.
Report Title: Public Lands; Lease Extension; Development Agreement
Description: Authorizes the board of land and natural resources to extend certain leases of public lands for commercial, industrial, resort, mixed-use, or government use upon approval of a proposed development agreement to make substantial improvements to the existing improvements. (CD1)

The bill is controversial, as can be seen by the numerous NAY votes in both chambers. Full text of the final bill, and all versions of the bill as amended along the way, and the committee reports and list of who voted which way in each committee, and files of all the testimony from each hearing, can be found at
https://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=499&year=2021

Hawaiian sovereignty activists staged protest rallies and launched a letter-writing campaign asking Governor Ige to veto the bill. The activists assert that Hawaii’s public lands, ceded to the U.S. at annexation in 1898 and returned to Hawaii at Statehood in 1959, are stolen crown and government lands from the Kingdom of Hawaii which, they say, rightfully belong to Native Hawaiians; and extending commercial leases to as long as 99 years unjustly delays the return of those lands to the Native Hawaiians. The Governor has until June 21 to notify the legislature if he is considering a veto of this bill; otherwise the bill will become law whether or not he signs it. If he notifies the legislature that he is considering a veto, then he has until July 6 to actually veto it or sign it or else it will become law without his signature. If he vetoes the bill, the record of NAY votes in the legislature indicates it is unlikely that the legislature could muster enough votes for the super-majority needed to override a veto.

On May 29 Kenneth Conklin, Executive Director of the Center for Hawaiian Sovereignty Studies, sent Governor Ige a message urging him not to veto HB499, and to either sign the bill or let it become law without his signature. Dr. Conklin argued that the public lands never belonged to Native Hawaiians as a group. He provided a summary of the history related to those lands, including a 20-year-long litigation record ending with a 2009 decision by the U.S. Supreme Court which ruled unanimously, 9-0, that the public lands belong to the State of Hawaii in fee simple absolute, can be sold without needing permission from Native Hawaiians, and that the 1993 apology resolution is merely a resolution of sentiment with no legal force or effect regarding the public lands. Dr. Conklin’s message can be seen here.

To: David Ige, Governor, State of Hawaii
Re: Please do NOT veto HB499 RELATING TO LEASE EXTENSIONS ON PUBLIC LAND
Date: May 29, 2021

Aloha Governor Ige,

Please do NOT veto HB499. Please either sign it or allow it to become law without your signature.

In recent weeks the usual loudmouthed Hawaiian sovereignty activists have held rallies and engaged in a letter writing campaign trying to persuade you to veto HB499. They FALSLY say that Native Hawaiians are the rightful owners of Hawaii’s ceded lands, and that those lands should be “returned” to Native Hawaiians, and that lengthening the term of commercial leases delays or blocks the eventual “return” of these lands to “the rightful owners.” The Honolulu newspaper has repeatedly published lengthy propaganda articles in collaboration with the outside pressure group “Pro Publica” asserting falsehoods about the history of land ownership in Hawaii.

Native Hawaiians as a group never owned the public lands, nor any portion of them. At first Kamehameha The Great personally owned all the lands in Hawaii by right of conquest. The King owned the land, not native Hawaiians as a group. In 1848 his son Kamehameha3, having inherited the land, began the Mahele process dividing the land into 3 categories: Crown lands which he kept as his personal property; Government lands owned by the government for public purposes on behalf of all the people of Hawaii regardless of race; private lands given in fee simple to individual chiefs with carve-outs for individual commoners for small parcels where they lived or farmed.

Native Hawaiians as a group had no group-ownership of any Crown land, Government land, or private land. King Lota Kamehameha5 mortgaged his Crown Lands to pay gambling debts, and by 1865 the lender was threatening to foreclose for non-payment of principal or interest. The Kingdom legislature therefore passed a law taking ownership of the Crown lands, in return for issuing government bonds to pay off the mortgage; and the King happily signed. Revenue from the Crown lands was given to the King for his expenses in maintaining a lifestyle befitting his role as head-of-state; but otherwise the Crown lands were indistinguishable from the Government lands and the merger was known from then until now as Hawaii’s “public lands.” They belonged collectively to all Hawaii’s people of all races, with no racial set-asides for “Native Hawaiians.”

In 1893 the monarchy was overthrown, and replaced by the Republic of Hawaii in 1894 — the new government took control of the public lands from the former government, as happens after any revolution or election. 1897 the Republic of Hawaii offered a Treaty of Annexation which the U.S. Congress and President agreed to in 1898. As terms of the Treaty specified, Hawaii’s public lands were ceded to the U.S. in return for the U.S. accepting responsibility to pay off the accumulated national debt from the Kingdom and Republic (the monetary value of that debt payoff was larger than the market value of all the public land). The U.S. did not simply “take” the land; it was held in trust for all the people of Hawaii regardless of race, with revenue to be used “for education and other public purposes.” The ceded lands were returned to Hawaii under terms of the Statehood Act of 1959, except for national parks and military bases, with revenue to be used for any one of more of five purposes; and for the first 20 years of Statehood virtually all the ceded land revenue was used for Hawaii’s public schools (including UH) serving all Hawaii’s children regardless of race. Native Hawaiians as a group never owned the public lands, nor any portion of them.

OHA, and a few other groups or individuals, have repeatedly sued the State of Hawaii demanding revenue from the ceded lands, or demanding that the State be prohibited from selling any parcel of ceded lands without permission from Native Hawaiians. Probably the most significant contested case over the ceded lands ran through state agency and court proceedings beginning in 1990, and ended with a U.S. Supreme Court decision in 2009. It concerned the State’s wish to transfer land at Leialii and Laiopua from the State Department of Land and Natural Resources to the State Housing and Community Development Corporation, to develop low-income housing.

When the State of Hawaii tried to sell a parcel of ceded lands there, OHA filed a lawsuit to stop that particular sale and to prohibit the state from any further sales.
On December 5, 2002 Hawaii circuit court judge Sabrina McKenna ruled against OHA, concluding that the State of Hawaii has a right to sell ceded lands.

OHA appealed Judge McKenna’s decision. On January 31, 2008 the Hawaii Supreme Court ruled 5-0 that Judge McKenna was mistaken. The Hawaii Supreme Court ruled that the State of Hawaii is permanently prohibited from selling any ceded lands until such time as a settlement has been reached regarding the claims of Native Hawaiians. That decision was based on the 1993 U.S. apology resolution in which the U.S. “confessed” to helping overthrow the monarchy in 1893, and the U.S. acknowledged that Native Hawaiians have never relinquished their claims to Hawaii lands.

The State of Hawaii filed a petition for certiorari with the U.S. Supreme Court asking it to review and overturn the state Supreme Court decision. Twenty-nine other states shortly thereafter filed an amicus brief supporting Hawaii’s petition for certiorari. On October 1, 2008 the U.S. Supreme Court granted the petition for certiorari. On February 25, 2009 the U.S. Supreme Court heard oral arguments, and on March 31, 2009 ruled unanimously, 9-0, to overturn the Hawaii Supreme Court.

The U.S. Supreme Court ruled that the State of Hawaii owns the ceded lands in fee simple absolute, has the right to sell those lands without needing permission from Native Hawaiians, and that the 1993 U.S. apology resolution is merely a resolution of sentiment which has no legal force or effect on who owns the ceded lands or what procedures must be followed when selling them.

A very large webpage provides links to legal briefs and memos, transcripts of oral arguments and decisions, full text of numerous news reports and commentaries, tracking this case from beginning to end. See
https://bigfiles90.angelfire.com/CededNoSell.html

It is quite ludicrous to hear ethnic Hawaiian activists complaining about extending some leases of public land to a term of 99 years, when DHHL leases are routinely granted for 99 years and are expected to be easily renewed for another 99 years. Indeed, there are some homestead leases whose term is 999 years! (yes, that’s nine hundred ninety-nine years!) Allowing 99-year leases (and especially 999 year leases) exclusively to people who have Hawaiian native blood while denying such leases to people lacking the magic blood would be an example of systemic racism, and would be clearly contrary to the 14th Amendment Equal Protection Clause.

Governor Ige, please do NOT veto HB499. Please sign it, or allow it to become law without your signature.


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TMT Mauna Kea U of Calif Regents Oral Testimony Given on 9/16/20

by Kenneth R. Conklin, Ph.D.

BACKGROUND: Hawaiian sovereignty activists have protested against the University of Hawaii proposal to build a thirty-meter telescope as part of the astronomy campus atop Mauna Kea. One of the major elements of their protest is the claim that Mauna Kea is a sacred place which TMT would desecrate — a claim sincerely believed by some but also asserted falsely for political advantage by many activists who have no religious beliefs or even conflicting beliefs. Several years ago they forcibly blocked the access road to disrupt a blessing ceremony customarily done when beginning a new project. Then in 2019 and 2020 a mob of hundreds of protesters forcibly blocked the access road to prevent construction from beginning, rotating mob members, building permanent tents and other facilities squarely on the road, and placing kupuna (elders) on their front line to dissuade police from enforcing the law. A timid, fearful, politically correct governor and mayor tolerated the year-long blockade until the COVID-19 virus forced everyone to go home.

The TMT project, like other observatories that have operated for decades, is funded by a consortium including universities on the mainland and around the world. The activists have sent their leaders to meet with the regents or boards of directors of some of those institutions to lobby them to withdraw from the project, thus undercutting its financial base. In response the University of California Board of Regents held hearings over the internet with livestreaming, and invited public testimony by telephone (to avoid infection from the COVID-19 virus). Below is Ken Conklin’s time-limited testimony from Wednesday September 16, 2020.


Aloha kakou,

‘O Ken Conklin keia mai ke ahupua’a ‘o He’eia, Ko’olaupoko, O’ahu, Hawaii.

I am Kenneth R. Conklin, Ph.D., a retired professor of Philosophy.
I have lived in Kane’ohe for 28 years, have studied Hawaiian history and the ancient religion in depth, and speak Hawaiian with moderate fluency.

Some ethnic Hawaiians oppose the TMT project because they claim Mauna Kea is a sacred place, and TMT would be a desecration of of it.

Here are three reasons why that claim should be rejected:

1. Most ethnic Hawaiians today are Christians. The real disrespect of ancestors and desecration of the ancient religion comes at the hands of ethnic Hawaiians who today abuse it as a mere pawn in their political chess game. The four primary native Hawaiian leaders, exercising self- determination on behalf of their people, officially abolished their old religion in 1819, when Kamehameha died, the year BEFORE the Christian missionaries arrived. They were King Liholiho Kamehameha II; Keopuolani who was Kamehameha’s sacred wife and mother of the next two Kings; Ka’ahumanu who was Kamehameha’s favorite wife and acted as co-ruler with Liholiho; and Kahuna Nui (High Priest) Hewahewa. They abolished the old religion by publicly violating an important taboo at a large banquet and then ordering the heiaus (stone temples) and wooden idols to be destroyed throughout all the islands. Today’s ethnic Hawaiians are welcome to invent any religion they wish; but cannot claim the old religion remains authoritative.

2. According to the most widely-recognized creation legend from the old religion, the goddess who gave birth to Haloa, the primordial ancestor from whom all ethnic Hawaiians are descended, was Ho’ohokukalani . Her name literally means “She who placed the stars into the heavens.” She gave birth to Haloa on Mauna Kea. Therefore Mauna Kea is exactly the right place where mother goddess Ho’ohokukalani should be worshipped by her descendants. Telescopes are today’s implements whereby Hawaiians today can worship their primordial goddess Mother who placed the stars into the heavens.

3. It would be unconstitutional for any governmental agency, including the Board of Regents, to adopt a religion as the basis for making laws or regulations. The First Amendment to our Constitution commands that there shall be “no law respecting an establishment of religion.” Neither the U.S. nor State of Hawaii nor State of California nor Board of Regents is allowed to elevate the ancient Hawaiian religion, nor any ersatz reinvented version of it, as the authority for making government decisions. No matter how much you may respect the ancient religion, no matter how much you may admire the modern people who reinvent that religion as a basis for their own political activism, you must ignore that religion when setting government policy for the shared use of Mauna Kea by all the people of our multiracial society.

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