Archive for category Reference

Hirono (D,HI) v. Kavanaugh re Hawaiian racial entitlement programs and converting a racial group into a federally recognized tribe.

by Kenneth R. Conklin, Ph.D.

On Wednesday September 5, 2018 Senator Mazie Hirono (D, HI) was scheduled to have a half hour late in the afternoon (she has low seniority) to question Supreme Court nominee Brett Kavanaugh in the Judiciary committee confirmation hearing. Reporter Nick Grube was given information from Senator Hirono regarding the topics she intended to raise, and Grube’s article leaking that information was published in Honolulu Civil Beat [online newspaper] very early in the morning. Hirono is up for re-election this November, so of course she is grandstanding and this left-leaning online newspaper is happy to help her. The article, entitled “Brett Kavanaugh No Friend Of Special Rights For Native Hawaiians — Trump’s Supreme Court nominee once called the Office of Hawaiian Affairs a “naked racial spoils system.” is at
https://tinyurl.com/yae2osl8

Hirono’s entire 31 minute performance in the Wednesday committee hearing was later posted by her minions on YouTube at
https://tinyurl.com/y7z9u4ta
The portion devoted to Hawaiian racial entitlements, tribalism, and Rice v. Cayetano is in minutes #9:05 to 17:30 (the first 9 minutes were spent trying to embarrass Kavanaugh by asking whether he had ever sexually harassed women, and blaming him for failing to report 9th Circuit Judge Alex Kozinsky for doing so).

Brett Kavanaugh’s Wall Street Journal commentary: “Are Hawaiians Indians? The Justice Department Thinks So.” Wall St. J., Sept. 27, 1999, page A35 as archived by the online daily Indian compilation at “Turtle Talk” is at
https://tinyurl.com/ycugydcn

What’s this about “the justice department thinks so”? Remember that in 1999 Bill Clinton was at the end of his Presidency, and was sending high-level representatives from his Department of Justice and Department of Interior to hold “reconciliation” hearings in Hawaii, asking ethnic Hawaiians what goodies they would like from the federal government as part of the “reconciliation” called for in the apology resolution of 1993 (at the beginning of his Presidency). This was Clinton’s way of gearing up for the expected ruling in Rice v. Cayetano, which came in February 2000, and gearing up for introduction of the Akaka bill in the House and Senate in July 2000 as a way to overrule the Supreme Court.

Brett Kavanaugh, Robert Bork, and Roger Clegg jointly wrote an amicus brief in Rice v. Cayetano which was very influential in producing the 7-2 decision abolishing the portion of Hawaii’s Constitution that mandated racial segregation in Hawaii’s election of OHA trustees. Kavanaugh was the counsel of record. Everyone old enough will remember how Robert Bork got borked at his confirmation hearing for Supreme Court. Roger Clegg is now President and General Counsel of the Center for Equal Opportunity, where he worked for many years under the leadership of Linda Chavez; Clegg was helpful for many years in fighting the Akaka bill and Hawaii’s plethora of racial entitlement programs. The brief is very lengthy, filled with citations, and well-argued as you would expect from a nominee for Supreme Court. It’s available on findlaw, the free version of Lexis-Nexus, at
https://tinyurl.com/y8hwd7dh

Both of Judge Kavanaugh’s essays should be read by all the people of Hawaii, because they are powerful arguments against “Native Hawaiian” racial entitlement programs and the now-20-year effort to create a federally recognized Hawaiian tribe whose size could potentially now be 600,000 (one drop of the magic blood is enough to belong). The whole purpose of converting a racial group into an Indian tribe is to provide a legal basis for about a thousand currently existing racial entitlement programs to survive legal challenges under the 14th Amendment equal protection clause, and to increase this racial group’s political power and give them ownership of lands and corporations. Judge Kavanaugh’s essays are strong medicine against dividing the lands and people of Hawaii along racial lines. For a compilation of many Hawaiian racial entitlement programs, see
https://tinyurl.com/zrfuy8k

Here is a compilation of all major articles opposing the Akaka bill (to create a Hawaiian tribe) which I updated continuously from year 2000 through 2014: The front page is an index broken into time periods; full text of each article is available in the subpages for the several time periods.
https://tinyurl.com/5eflp

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Republic of Hawaii — letters of formal diplomatic recognition

Following the Hawaiian revolution of January 17, 1893 that overthrew Hawaii’s monarchial system of government, foreign nations that had diplomatic relations with Hawaii’s Kingdom government gave the appropriate level of diplomatic recognition to each of the two successor governments of the continuing sovereign independent nation of Hawaii. No nation filed a protest.

Local consulates in Honolulu immediately sent letters granting de facto recognition to Hawaii’s temporary, revolutionary Provisional Government. See the contents of those letters as published in the Morgan Report (808-page official report of the U.S. Senate Committee on Foreign Relations) at
http://morganreport.org/mediawiki/index.php?title=DIPLOMATIC_RECOGNITION_OF_THE_PROVISIONAL_GOVERNMENT

Then in July 1894, after a permanent government of the Republic of Hawaii was established, copies of the Republic’s Constitution were sent to the heads of state of foreign governments with a request for formal diplomatic recognition.

At least 19 Emperors, Kings, Queens, and Presidents on 4 continents personally signed letters in 11 languages which arrived in Honolulu in Fall 1894, giving full-fledged diplomatic recognition to the Republic government of President Sanford B. Dole. Photos of those letters were taken in the Hawaii state archives, along with accompanying English translations, some accompanying introductory letters from diplomats, and some envelopes; and for each nation, an explanation of the special significance of its documents in light of that nation’s previous diplomatic history with the Kingdom of Hawaii and today’s Hawaiian sovereignty controversies. Every photograph can be magnified for good readability by clicking the photo once; or a second click will yield a super-magnification. See all those things at
https://historymystery.kenconklin.org/recognition-of-the-republic-of-hawaii/

A 23-page booklet can be downloaded in pdf format suitable for printing. It includes a one-page montage of photographs of the documents for each of 20 nations plus the Queen’s letter of abdication and oath of loyalty to the Republic. Click here:
https://historymystery.kenconklin.org/roh.recognition.pdf

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Native Hawaiians Study Commission majority report 1983

The Native Hawaiians Study Commission was created by the Congress of the United States on December 22, 1980 (Title III of Public Law 96-565). The purpose of the Commission was to “conduct a study of the culture, needs and concerns of the Native Hawaiians.” The Commission released to the public a Draft Report of Findings on September 23, 1982. Following a 120-day period of public comment, a final report was written and submitted on June 23, 1983 to the U.S. Senate Committee on Energy and Natural Resources and to the U.S. House of Representatives Committee on Interior and Insular Affairs.

The 747-page majority report of the NHSC begins with an executive summary and list of conclusions and recommendations, followed by 14 major chapters written by experts, focused on Hawaii’s ancient and modern history, demographics, culture, religion, and reports about responses to the unique needs of Native Hawaiians by federal and state governments, and private institutions. At the end are glossaries explaining Hawaiian-language words, a list of references, and an appendix. For each of the 747 pages of the majority report a photo of the page (click to magnify for easy readability) is next to a simple text version of its contents that is digitized and searchable. See the entire 747-page report, beautifully formatted, at
http://grihwiki.kenconklin.org/mediawiki/index.php?title=Native_Hawaiians_Study_Commission_Report

Ken Conklin’s webpage about the report describes how it was created, how political differences resulted in majority report vs. minority report, and how the majority report found a home on the internet. The webpage also summarizes the conclusions reached by the Commission, and explains the importance of the NHSC report in current controversies regarding Hawaiian sovereignty and racial entitlement programs. Conklin’s webpage about the report is at
http://www.angelfire.com/big11a/NHSC.html

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For Hawaiians Only

A valuable webpage providing information about 856 government funded racial entitlement programs for the exclusive benefit of “Native Hawaiians” was disrupted but has now been partially restored. Several other webpages on the same topic are also available.

All these programs, valued into the Billions of dollars, are paid for by tax dollars from the governments of the United States and the State of Hawaii. It is likely that these programs are unconstitutional. Some have been challenged in state and federal courts. Thus far the lawsuits to dismantle them have been dismissed on technical procedural issues including “standing” and the “political question” doctrine. However, those dismissals never reached the merits of these cases. Thus all these programs remain available as targets for future civil rights lawsuits based on the 14th Amendment equal protection clause and other arguments.

Keep in mind that this compilation pertains only to government programs funded by taxpayers, and does not include enormous privately funded programs such as Kamehameha Schools (Bishop Estate) which alone is worth $10-15 Billion, Lili’uokalani Childrens Trust, and many others.

The collection of webpages listing and describing Hawaiian racial entitlement programs is at
http://www.angelfire.com/big11a/ForHawaiiansOnly.html

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Testimony in opposition to Department of Interior proposal to create a Hawaiian tribe by administrative rule change

August 19, 2014 was the final day to submit testimony regarding the Department of Interior Advance Notice of Proposed Rule-Making to create a Hawaiian tribe and give it federal recognition by an administrative procedure or executive order without Congressional action.
http://www.gpo.gov/fdsys/pkg/FR-2014-06-20/pdf/2014-14430.pdf

At least 2069 written comments were submitted during the 60 day comment period. A large majority were opposed to the Department of Interior proposal. The following seven testimonies are especially valuable in opposition because they explicitly rely upon the fundamental principles of racial equality and the unity of all Hawaii’s people under the undivided sovereignty of the State of Hawaii:

(1) Kenneth R. Conklin of the Center for Hawaiian Sovereignty Studies
http://www.regulations.gov/#!documentDetail;D=DOI-2014-0002-0887
and
http://big09.angelfire.com/ConklinTestmnyDOI081514RulesChangeHawnTribe.pdf

(2) Keli’i Akina, President, Grassroot Institute of Hawaii
http://big09.angelfire.com/ANPRMopposeGRIHKeliiAkina.pdf

(3) Hans A. von Spakovsky of The Heritage Foundation
http://thf_media.s3.amazonaws.com/2014/pdf/LM136.pdf
and
http://big09.angelfire.com/ANPRMopposeHeritageVonSpakovsky.pdf

(4) Paul M. Sullivan
http://big09.angelfire.com/ANPRMopposePaulSullivan.pdf

(5) H.W. Burgess
http://big09.angelfire.com/ANPRMopposeHWBurgess.pdf

(6) Sandra Puanani Burgess
http://big09.angelfire.com/ANPRMopposeSandraPuananiBurgess.pdf

(7) Jack Miller
http://big09.angelfire.com/ANPRMopposeJackMiller.pdf

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“Pacific Gibraltar” — important new book on Hawaiian history

In 2011 a major book was published by a highly respected historian who analyzed the Hawaiian revolution and annexation.

William M. Morgan Ph.D., PACIFIC GIBRALTAR: U.S. – JAPANESE RIVALRY OVER THE ANNEXATION OF HAWAII, 1885-1898 (Annapolis: Naval Institute Press, 2011). It is available at “Bookends” in Kailua, and amazon.com. Sixteen copies are scattered around various branches of the Hawaii Public Library. A detailed book review, with many lengthy quotes from each chapter, is at
http://tinyurl.com/8y2s6o5

Most Hawaii readers will be surprised by details about Grover Cleveland’s attempt to overthrow President Dole and restore the Hawaiian monarchy through a combination of diplomatic and military intimidation in mid to late 1893; and by the fact that Congress considered it perfectly proper to use joint resolution in 1898 as the method of ratifying Hawaii’s five-year-long eager request for annexation.

Perhaps the biggest surprise in the book is the seriousness of Japan’s diplomatic maneuvering — and deployment of multiple warships in Honolulu as a show of force — to block annexation and to demand voting rights for Japanese living in Hawaii. The U.S., Hawaii, and Britain were worried Japan could gain political control of Hawaii through demographic conquest, and/or an imminent Japanese military occupation of Hawaii. The U.S. and Britain counteracted Japan’s multiple warships by their own deployments of warships in Honolulu harbor.

The author, William Michael Morgan (no relation to Senator James T. Morgan of the 1894 Morgan Report), has a Ph.D. in History from Claremont Graduate University. According to information about his book at amazon.com, Dr. Morgan was a Foreign Service officer in the Department of State for more than 30 years, and lived in Japan for 13 years, first as a Marine lieutenant in 1971-72 and then three assignments in the Foreign Service. His State Department domestic jobs included Director of the Japan-Korea desk of the old U.S. Information Agency, Acting Director of the International Visitor Leadership Program, and Director of Analysis for East Asia and the Pacific in the Bureau of Intelligence and Research. During 2007-09, he taught U.S.-Japan relations and National Security and Public Diplomacy at Georgetown’s School of Foreign Service while on “detail” from the State Department.

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The Lure of Bad History

A long time ago, in a state far, far, away, I was a history major.  In answer to the question already forming on the lips of some of my readers, no.  I did not want to be a teacher.  I was a history major because I liked history in general and I liked it a whole lot more than other things that one can major in. I also, quite obviously, had no notion whatsoever of useful majors for lucrative post-college careers.  But that’s not the point of being a history major.  The point of being a history major is the ability to watch movies and then bore your friends with a huffy catalog of historical inaccuracies therein.  Be kind to your history major friends as they do this.  They had to write 20-page examinations of the political situation in medieval France and have no other outlet for this knowledge.

And we do live in a world full of historical inaccuracies.  This is nothing new, of course.  The temptation to reframe history for one’s own purposes (or because of one’s own biases or learned biases) is an eternal one.  What’s important is that we recognize that tendency and work to prevent it from becoming the basis of bad policy.  No, I’m not just legitimizing your friend’s tendency to go on about the problems in the movie Titanic.  (A noble calling in itself.) To some extent, history can be a matter of interpretation, but we can’t just give bad facts and specious interpretations a pass.

And when it comes to Hawaiian history, boy do we have a minefield of inaccuracy.  Whether based on the desire to romanticize the past or a political agenda, very few things have become as distorted as Hawaii’s path to US statehood.  It can even rear its head in a simple corporate publication, as Ken Conklin’s recent article in the Hawaii Reporter demonstrates.  Conklin identifies and corrects a series of inaccuracies in a recent HMSA magazine. The article is worth reading in its entirety, but here is a small sample:

Jokiel writes “In the years following the 1893 overthrow of the Kingdom of Hawai’i, the new government worked tirelessly to eradicate the Hawaiian language.” That’s totally false. Here’s what’s true.

Immediately after the revolution of January 17, 1893 royalist newspapers (both Hawaiian and English language ones) were suspended by the Provisional Government. That’s normal after any revolution. But after a few weeks all the newspapers resumed publication, with zero censorship.

Noenoe Silva published a book in 2004 entitled “Aloha Betrayed: Native Hawaiian Resistance to American Colonialism.” On page 181 Silva says there were both Hawaiian-language and English-language newspapers supporting Lili’uokalani after the overthrow and throughout the Republic period; and also newspapers in each language that were pro-Republic.

When the Republic of Hawaii was created in July of 1894, its Constitution was published in both English and Hawaiian. The continued publication of Hawaiian language newspapers, and publication of the Republic’s Constitution in Hawaiian, clearly disprove Jokiel’s assertion that “the new government worked tirelessly to eradicate the Hawaiian language.”

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What Are the ‘Returned Lands’ of Hawaii?

By Jere Krischel

In an article titled “What are the ‘Ceded Lands’ of Hawaii?” written for Honolulu Civil Beat on 11/08/2010, Professor Van Dyke makes some critical errors in his assessment of both the history and the law.  While acknowledging the Supreme Court’s rejection of the “Apology Resolution,” he still relies on it for his “legal” justification.  While quoting from the Admissions Act of 1959, he omits a key clause that differentiates between “should” and “can.”  But most problematically, Van Dyke intimates that “Native Hawaiians” were somehow legally separate during the Kingdom period in Hawaii, and that the public lands that were returned to the State of Hawaii have some sort of racial lien on them.

The first red flag we should recognize in Van Dyke’s writing is the use of quotes around the term “illegal.”  In order for something to be illegal, we must have several things – a concrete body of law which was violated, a judiciary to arbitrate the dispute, and finally, a finding after a trial presenting both sides of the issue.  Without these necessary requirements, we are substituting personal opinion for legal fact.  Although PL103-150 (aka “The Apology Resolution”) uses the term “illegal” several times in describing the Hawaiian Revolution, it does not identify any specific law which was violated, any judiciary with jurisdiction over the Hawaiian Revolution of 1893, nor any trial which was conducted to determine guilt or innocence.

So can the “Apology Resolution” unilaterally declare the Hawaiian Revolution of 1893 illegal?  Absolutely not.  Ex post facto laws are explicitly forbidden by the U.S. Constitution –  one cannot simply pass a law which declares someone’s prior actions illegal.  Neither does the legislature have the authority to declare someone guilty as a matter of legal fact.  In recognition of this and the basic principles of statutory construction, the Supreme Court on March 31, 2009 firmly established that the “Apology Resolution” had no legally binding effect, stating that the “‘whereas’ clauses cannot bear the weight that the lower court placed on them.”

The second major mistake Van Dyke makes is a subtle, but important distinction between something that is necessary, and something that is allowable.  Van Dyke states that the 1959 Admissions Act demanded that “revenues from these lands should be used” for native Hawaiians.  This is a misread of the Admissions Act, which provided limits on what the revenues could be used for, not mandates.  The specific text of the Admissions Act reads, “such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes…their use for any other object shall constitute a breach of trust…”

This means that the State of Hawaii could spend every penny on public education, and not a dime on the development of farm and home ownership.  Or, it could decide to spend everything on public improvements and provisions for public use of the lands, while not funding anything else.  Any combination of “one or more” would be legal according to the Admissions Act.  The only two things that would be a breach of trust would be to spend none of the revenue at all, or spend any of the revenue on a non-permissible use, such as supporting private schools, or the development of automobile ownership.

With his words Van Dyke echoes a misinterpretation of the Admissions Act that OHA has been intentionally cultivating for many years, using it to justify a 20% share of revenue from the public lands of the State of Hawaii to native Hawaiians (although OHA specifically ignores the blood quantum definition used in the Admissions Act).  By their rationale, exactly 20% should be allocated to farm and home ownership, exactly 20% should be allocated to public schools, exactly 20% should be allocated for public improvements, and the last 20% should be allocated to make public lands available for public use.  But the Admissions Act, as plainly read, has no such mandate whatsoever.

The most insidious misrepresentation Van Dyke makes, however, is regarding the citizenry of the Kingdom of Hawaii, and the chain of ownership of the ‘ceded’ lands.

From its inception, the Kingdom of Hawaii was a multi-racial nation.  High Chief Olohana, otherwise known as John Young, fought beside Kamehameha the Great to establish the unified Kingdom, and was the grandfather of Queen Emma herself.  The first constitution of the Kingdom of Hawaii in 1840 stated boldly that all people were “of one blood,” and established equality between all races over 100 years before the modern civil rights movement in the United States.  Characterizing the Crown Lands or Government Lands of the Kingdom of Hawaii as being dedicated to only one race is a desecration of both the spirit and the laws of the Kingdom from which they came.

With his synopsis, Van Dyke perpetuates the fiction that the ‘Ceded Lands’ are still ‘ceded.’  But the truth is, they are now more properly called  the ‘Returned Lands.’  The Crown Lands and Government Lands of the Kingdom of Hawaii were consolidated into the Public Lands of the Republic of Hawaii in 1894.  These public lands (about 1.8 million acres) became the ‘Ceded Lands’ in 1898, when the Republic ceded them to the United States on the condition that the revenues and proceeds, except for the parts used for the civil, military or naval purposes of the U.S., “shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.”  Van Dyke acknowledges that this created a “special trust”, but he carefully omits that the ‘Ceded Lands’ Trust was established for all the inhabitants of the Hawaiian Islands, not just for those of a specific ancestry.

When the Territory of Hawaii was established in 1900 by the Organic Act, it reiterated that the public lands were acquired by the United States in “absolute fee” under the Annexation Act, free from “all claim of any nature whatsoever.”  These ‘Ceded Lands’ finally became the ‘Returned Lands’, when the lands were returned to the public of the State of Hawaii as per the Admissions Act of 1959.  The circle was finally complete – what had originally been the public lands of all the people of the Kingdom of Hawaii, became the public lands of all the people of the State of Hawaii.

Placing exclusive racial claims upon the ‘Returned Lands’ is an abuse of the trust placed in the State of Hawaii, and a violation of our Constitutional guarantees of equal protection.  No matter how many times these false claims are repeated, and no matter how many myths are invented to justify such race-based distinctions, they will never become true, and will never be justified.  All of the inhabitants of Hawaii, regardless of ancestry, have a powerful claim to the ‘Returned Lands,’ as clearly demanded by the Organic Act and the legacy of the multi-racial Kingdom of Hawaii.

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Book review of Jon Van Dyke “Who Owns the Crown Lands of Hawaii?”

Book review by attorney Paul M. Sullivan, published in UH Law Review:

http://tinyurl.com/ctbopx

Sullivan’s book review in the context of other materials about the ceded lands and the recent Supreme Court decision:

http://tinyurl.com/chbkpx

Cato Institute: The One-Drop Rule in Hawaii? The Akaka Bill and the Future of Race-Based Government (Capitol Hill Briefing)

Cato Institute: The One-Drop Rule in Hawaii? The Akaka Bill and the Future of Race-Based Government (Capitol Hill Briefing)

The power point presentation in PDF format of Jere Krischel’s presentation is available here.