The Mystery of Hawaiian History

Correcting historical revisionism and misconceptions promoted by the Akaka Bill

Senators Kyl, Alexander, Cornyn, Coburn publicly oppose Inouye stealth maneuver

Dec 3

Posted by Ken Conklin in Uncategorized | Comments off

The following news release from 4 U.S. Senators shows that they are aware of Inouye’s stealth maneuver and are working hard to prevent it.

Kyl, Alexander, Cornyn, Coburn: Don’t Slip Controversial Measure Into Bill to Keep the Gov’t Open and Funded

GOP senators respond to reports that Native Hawaiian Gov’t Reorganization Act may be added to Omnibus or CR

WASHINGTON – Senators Jon Kyl (R-Ariz.), Lamar Alexander (R-Tenn.), John Cornyn (R-Texas), and Tom Coburn (R-Okla.) today released the following statements in response to reports that the Native Hawaiian Government Reorganization Act – legislation that would establish a new governing entity for individuals of native Hawaiian descent – may be added to an Omnibus Appropriations Bill or a Continuing Resolution, one of which must pass Congress and be signed by the president this month, or the federal government will not have the funding to operate.

“Legislation as highly complex and divisive as the native Hawaiian bill requires vigorous discussion, debate, and amendments,” Kyl said. “An attempt to include it in unrelated legislation to keep the government operating is a breach of process and is an example of what the American people are tired of – back room deals that are inserted in secret packages written behind closed doors.”

“I’m concerned by reports that a special Native Hawaiian bill, or any other controversial measure, might be quietly inserted into must-pass legislation that’s needed to keep the government open,” Alexander said. “If the Democratic majority wishes to pass legislation that would create a new, sovereign government within our borders based solely upon race, it should be brought up separately and debated openly on the Senate floor with the opportunity for amendment.”

“This November, Americans spoke and we listened,” said Cornyn. “Unfortunately, some of my Senate colleagues did not hear the resounding message that rejected secret backroom deals and controversial legislative distractions like this, which have no place in important bills that we need to pass keep our government running. I sincerely hope that Senator Reid will not slip this bill into the omnibus bill and reassess his legislative priorities to reflect the wishes of the American people.”

“Any efforts to circumvent the thorough vetting process of Congress to pass Native Hawaiian legislation is an affront to taxpayers and the U.S. Constitution,” Coburn said. “The federal government has already established a process for recognizing tribal groups. Recognizing Native Hawaiians as an Indian tribe and sovereign entity by circumventing the established process not only creates a parallel sovereign government in the State of Hawaii, but will set a dangerous precedent that could threaten the framework of our nation.”

Akaka bill now being attached to “must-pass” legislation despite Akaka and Inouye previously deploring such a maneuver.

Dec 1

Posted by Ken Conklin in Uncategorized | Comments off

Sources in the Senate report that Sen. Inouye is personally working to jam through the Akaka Bill this month. He would do it by attaching the bill to an omnibus spending bill that his staff is writing in secret. According to Senate sources, Inouye would wait to offer that secret bill until just before the “continuing resolution” funding the government is set to expire. His colleagues would then be forced to either vote for the porked-up omnibus bill (with no public comment, little opportunity for debate, and certainly no chance of amendment) or reject the whole bill and deny the government the funding it needs to stay open. It’s a game of chicken.

Every lame duck session features an omnibus spending bill, sometimes called “the Christmas tree,” used by Senators and Representatives to give expensive gifts to their campaign contributors in the form of earmarks and riders. But attaching controversial and dangerous new policy legislation to an appropriations bill is unusual and unethical, especially when there’s no floor debate on it.

But which version of the Akaka bill will Senator Inouye try to attach?

Read the full essay at
http://www.angelfire.com/big09a/AkakaAttachOmnibusDec2010.html

Tags: , , ,

What Are the ‘Returned Lands’ of Hawaii?

Nov 20

Posted by Malia Hill in Commentary, Reference | Comments off

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.

Tags: , , ,

The Immunity Question

Nov 17

Posted by Malia Hill in Commentary | Comments off

When Governor Lingle announced, with all due flourishing, her newly acquired support for the Akaka Bill, a big part of her new-found appreciation for divisive race-based legislation was in the compromise over criminal immunity that was theoretically being added to the bill.  (I say “theoretically” because–while that language was added to the House version of the Bill–there is no guarantee that it will survive to a final version.)  Lingle was understandably concerned that Native Hawaiians under a new tribal government might be immune from prosecution of criminal activity under state law.  Before anyone starts planning to discover a Native Hawaiian ancestor and set up a counterfeiting ring, I should point out that tribal governments can still prosecute such crimes (and are generally expected to do so).  In short, the question of immunity in a new Native Hawaiian government was a critical one.  So at least that has been addressed, right?

Not so fast.

In addition to the fact that there is no guarantee that the criminal immunity provisions survive to a final version of the Akaka Bill, there is also the fact that the problem doesn’t end with criminal immunity.  Consider this story:

On November 29, 2005, Robert Gutierrez, an employee of the Pueblo of Santa Clara in New Mexico, was driving a car owned by the Pueblo on Pueblo business.   That business took him outside of the tribal boundaries of the Pueblo, into a town in the state of New Mexico.  It was while he was off of tribal land (though still in a tribe-owned car on tribe-business) that Gutierrez made an improper turn into oncoming traffic and caused a car accident.  Peggy Reed and Timothy Reed, a husband and wife who were injured in the accident, sued Gutierrez and the Pueblo for damages arising from their injuries. The Pueblo and Gutierrez didn’t deny their part in the accident–they merely argued that the doctrine of tribal sovereign immunity protected them from the lawsuit.  And sadly for the Reeds, the court agreed, dismissing their lawsuit–a decision that was then upheld by the New Mexico Court of Appeals.  And all based on the concept of tribal sovereign immunity.

How does this relate to the Akaka Bill?  Well, if the bill is passed and Native Hawaiians are provided with the same tribal immunity, it brings an unfair and divisive element to our islands.  If you are crossing the street with your spouse/husband/grandmother, and you’re hit by a Love’s truck doing some deliveries, you can sue Love’s and the driver for your injuries.  That’s how you can recoup the cost of your medical bills, lost pay at work, chronic pain, and so on.  However, under the post-Akaka immunity scenario, if that truck is owned by the Native Hawaiian government and driven by one of their employees, you’re just out of luck.  Tribal sovereign immunity prevents you from being able to sue the Native Hawaiian government for your hospital bills, your Grandmother’s wheelchair, the 3 months of work you missed, or anything else.

These are the kinds of problems we’re speaking of when we warn the people of Hawaii that the Akaka Bill poses a real danger to our state and the spirit of aloha that makes it such a special place to live.

Tags: ,

Why Would a Native Hawaiian Oppose the Akaka Bill?

Nov 11

Posted by Malia Hill in Commentary | Comments off

Actually, there are plenty of good reasons for Native Hawaiians to oppose the Akaka Bill, from believing that it’s not good for Hawaii to mistrusting how it handles the creation of the new Hawaiian government.  But the reasons don’t have to be specific to the bill itself.  There is also a principled approach that questions how it affects the Hawaiian spirit of ohana.  Consider this explanation given to Grassroot Institute President Richard Rowland by a Native Hawaiian who is concerned that the Akaka Bill forces Native Hawaiians to turn their backs on spouses, in-laws, and friends:

In addition, they would also be turning their backs on many others with whom they might have long and close ties that bind such as:  hanai children or parents, aunties and uncle, classmates, teachers, students, coaches, business partners, co-workers, faithful employees, squadron mates,  church parishioners, canoe club members, swim club members, fellow professionals and on and on.

The Akaka bill allows only those with at least one ancestor indigenous to the Hawaiian islands to participate in the process of creating the new government; but it leaves it up to the new Native Hawaiian governing entity to decide the criteria for its own citizenship.  Since the Akaka bill is intended to protect the existing race-based entitlements, it is a given that the new government will not have an Equal Protection clause.  That means the new government will be free to discriminate on the basis of race, even against some of its own citizens.

Hard to see why any Hawaiian would want to join.

Tags:

What Do You Djou?

Oct 31

Posted by Malia Hill in Commentary | Comments off

If we were handing out political courage awards, we wouldn’t exactly break out backs trying to carry the ones needed for Hawaii’s political class.  Especially on the Akaka Bill.  Heck, a three-year-old child could probably handle the load on that one.  Hawaii’s Democrats are rather remarkably in lockstep agreement on a fairly controversial issue–which pretty much indicates that the Party has declared its approval and will brook no dissent.  Hawaii’s Republican Party (such as it is) thankfully lacks the inflexible message of the Democrats, but makes up for it with party leaders who take a half-measures approach that consists mainly of offering weak disapproval and then caving-in after a few showy are largely meaningless “compromises.”  (Yes, there are exceptions.  There always are.  But not enough of them.)  Thus we have Linda Lingle’s shift on the Akaka Bill and Charles Djou’s rather bewildering variations.

Djou, in particular, is an interesting case.  Prior to getting elected, he gave some the impression that even if he wasn’t a vocal opponent of the Bill, neither did he plan to promote it.  But consider the statement he made in a recent radio interview: “Should the Akaka bill come back to the U.S. House, I’m confident that I’d be able to garner far more Republican support for the Akaka bill — make it bipartisan, make it less controversial, and make its passage far smoother.”  It’s hard not to see this as full support for the Bill’s passage.

Then, perhaps sensing that his position on Akaka was gaining him no friends among the Republicans and Independents that he needs in order to win, Djou decided to add a little nuance to his stance on the Bill.  Now, he says that he supports public hearings on the Bill and a non-binding vote from the Hawaii people.  Needless to say, those who are concerned about the impact of the Akaka Bill feel that the voice of the people of Hawaii on the issue should be a binding one–the current suggestion raises the strange possibility that hearings and a vote could show significant opposition to the Bill only to have it overridden by Congress.  Still, Djou’s latest position demonstrates some understanding that the most radical political questions since statehood deserves a public voice.  And of course Djou’s opponent, Colleen Hanabusa (a Democrat) is an unreserved supporter of the Akaka Bill (she has mentioned some support for public hearings, but not for a public vote).  Clearly, election day this year may have a real effect on what happens next in the effort to pass the Akaka Bill.

Tags:

Bar None

Oct 22

Posted by Malia Hill in Commentary | Comments off

The American Bar Association is currently lobbying in favor of the Akaka Bill, having sent a letter this week to every US Senator in favor of its passage.  This is much less impressive than it sounds.   Much like The Simpsons or David Lee Roth, the ABA is a shadow of its former self, living off the credibility of a name that too few have realized no longer carries any guarantee of quality or professionalism.

So when did the ABA jump the shark?  It’s hard to say . . . it’s really one of those incremental things.  Until one day you wake up and they’re applying purely political considerations to their evaluation of judicial nominees.  Among those people who follow such things, it’s common knowledge that the ABA no longer has any credibility as a neutral arbiter of constitutional interpretation or judicial ability.  Now, it functions more like a mouthpiece for the left wing of the Democratic party.  Take the aforementioned letter to the US Senate on the Akaka Bill.  One might imagine that the American Bar Association would present a neutral evaluation of the constitutionality and possible objections to the bill.  Don’t make me laugh.  In essence, it’s little more than a distillation of the same arguments presented by the pro-Akaka Lobby.  In fact, it bears such a similarity to an OHA column that one hopes the ABA didn’t spend too much money to produce such a propagandist rehash.

Of course, that’s how the game is played nowadays . . . bias disguised as neutral analysis is par for the course in modern politics.  It’s just a shame that such politics-as-usual methods are preventing a true debate on the merits of the bill and its possible impact on Hawaii.

Tags:

The Best of Free Press

Oct 15

Posted by Malia Hill in Commentary, News | Comments off

We are a cynical culture when it comes to the media.  And with good reason.  The impartial journalist of integrity is starting to seem like a quaint, old-fashioned notion–soon to be replaced entirely by the journalist who pursues an obvious political agenda, even while loudly ridiculing the possibility of media bias.  And as for local news . . . well, all too often it seems to have devolved to weather updates, local tragedies, and an extended recap of high school sports scores.  (Ironic, most of this can be learned about more quickly by asking the lady next door.)

But there are exceptions.   And today, we’re celebrating the 9th Anniversary of one the best of them.  Yes, today, Hawaii Reporter turns 9.  (Happy Birthday!)

People want to use all the trendy buzzwords about communication in the 21st century to belittle the importance of community news, but the truth is that it’s still as important as ever.  My ability to send a message to Washington DC in a matter of nanoseconds doesn’t make them more interested or dedicated to our interests out here.  And when was the last time you saw something about Hawaii on the national news that didn’t deal with the LA Lakers training camp, a beauty pageant, or a television show?  The more things change, the more they stay the same.  And for all of this time, Hawaii Reporter has been setting the standard for an active, invested, and free community news source.  More than any other news outlet in Hawaii, they have concerned themselves with providing a voice for the regular local guy and keeping abreast of the issues that we really care about (and without the editorializing that so often derails one’s enjoyment of the Advertiser and other Hawaii newspapers.)  Let’s hope they’re around for many more anniversary celebrations.

Tags:

Hawaii Voter Recommendations for November 2010 with special focus on the Akaka bill

Oct 12

Posted by Ken Conklin in Uncategorized | Comments off

1. U.S. Senate: I recommend Cam Cavasso (R), against Dan Inouye (D).

2. U.S. House District #1: I recommend Colleen Hanabusa (D), against Charles Djou (R). [very interesting analysis]

3. U.S. House District #2: I recommend John Willoughby (R), against Mazie Hirono (D).

4. Governor and Lieutenant Governor: I recommend James “Duke” Aiona (R) and Lynn Finnegan (R) against Neil Abercrombie (D) and Brian Schatz.

5. Office of Hawaiian Affairs Trustee (5 seats to be elected):
O’ahu seat: I recommend Jackie Burke to unseat incumbent Walter Heen.
Maui seat: I recommend a blank showing opposition to uncontested incumbent Boyd Mossman.
At Large 3 seats: I recommend casting only two of the 3 votes allowed, in favor of Keali’i Makekau and Kama Hopkins; to unseat the 3 incumbents Rowena Akana, Oz Stender, and John Waihee IV.

Detailed analysis for each contest — especially the surprising recommendation to vote against Charles Djou for Congress — is on a webpage at
http://tinyurl.com/2bfgdyf

Tags: , , , , , , , , , ,

Writ or Wrong

Oct 6

Posted by Malia Hill in Commentary, Office of Hawaiian Affairs | Comments off

So, what ever happened to the much-ballyhooed OHA petition to force money out of the Hawaii legislature?  I remember when they filed it with the Hawaii Supreme Court.  How could I forget?  I got two separate press releases, a print newsletter article, an e-newsletter brief, and multiple links to the story as picked up (and especially endorsed) by other media outlets.  No one would let me forget it.  As I recall, the spin went something like this: the Hawaii legislature was resistant to approving the payout plan for a $200 million settlement between OHA and the Lingle Administration related to ceded land revenues, so OHA petitioned the Hawaii Supreme Court to force the legislature to pass a law regarding this pay-out  In the OHA version of the story, the reason for the Legislature’s foot-dragging is unexplained, though one is free to conclude that the Legislature is just full of culturally-insensitive money-grubbing politicians.  (Not that this is necessarily totally inaccurate, but fairness compels me to point out that our current economic and budget woes make this a bad time for the legislature to try to carve out another $200 million for OHA.)

Anyway, it turns out that the State Supreme Court has ruled on OHA’s petition for a Writ of Mandamus, though in order to learn what happened, I had to read a small column in the lower right corner of page 7 of OHA’s monthly newspaper.  No email blasts for this one, I guess.  As you may have surmised, the OHA petition was denied based on (in the article’s somewhat mendacious words) the court’s, “understanding of the technical requirements for a mandamus action.”  Allow me to translate this into plain language: The court said no, based on the fact that the OHA petition was a bit of public grandstanding with no legal merit.

As I said in my earlier entry on this issue, to me, the big problem is not whether the state owes OHA the money or how they should pay.  I just continue to be amazed at the insensitivity of the powers-that-be at OHA.  After such a difficult economic year, these kinds of stunts don’t do much to bolster the agency’s image.  And trying to obscure the evidence of their miscalculation doesn’t help much either.

Tags: