All posts by Malia Blom

Transparency

A Little Sunshine

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Government transparency is one of those things that everyone says they support, but not many people give much thought to.  But when you think about it, it’s pretty powerful stuff.  Without transparency, a necessary check on government is gone.  The media does its best, but with limited resources, a need to turn a profit, and other important demands on their time, they aren’t able to be a constant check on the tendency of government to conceal information from the public.

Yes, “conceal.”  Some people might find that melodramatic, but you’d be surprised to learn how often government agencies try to avoid even the simplest and most banal disclosures.  And when you think about it, there’s a certain logic to that.  The public tends to get a little touchy about how their tax dollars are spent, and that’s something that can be worrying to a certain kind of bureaucrat.  Rather than discuss why they felt the need to spend hundreds of dollars on catering, they’d rather people just didn’t know about it.

And that’s why it’s important that we support efforts like Grassroot Institute’s newest transparency project: Hawaii Sunshine.  The newly launched website highlights all state expenditures and state salaries–it’s a treasure trove of information for any Hawaii citizen who is looking to really learn about where our tax dollars go.  Even better, the site encourages people to participate in the fight for greater government transparency by giving people the ability to submit “Pork Alerts” with comments and information on specific expenditures on the site.  And a forum lets visitors continue the discussion amongst themselves.

In truth, the Hawaii Sunshine site is a great toy.  I just spent 20 minutes searching for different kinds of vendors and seeing how much money was being spent on restaurant meals, dry cleaners, taxi rides, and so on.  So check it out, and (if you’re like me) try your best not to shout “I want my money back!” at your computer screen.

Guest Commentary, Hawaii

What Are the ‘Returned Lands’ of Hawaii?

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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.

Akaka Bill

The Immunity Question

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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.

Akaka Bill, Guest Commentary

Why Would a Native Hawaiian Oppose the Akaka Bill?

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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.
Akaka Bill

What Do You Djou?

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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.

Akaka Bill, Hawaii

Equality for Native Hawaiians (and all other Americans)

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By Jere Krischel

In a recent debate (http://www.youtube.com/watch?v=o9d_p7uLfVw), our local politicians once again deceptively framed the Akaka bill as one that would provide some sort of “parity” between Native Americans, Native Alaskans, and Native Hawaiians.

Djou stated, “I think Native Hawaiians should have the same self-determination rights as Native American Indians.”  Hanabusa identified herself as one of, “those who feel that Native Hawaiians should at least have the same rights as Native Americans and Native Alaskans.”

The problem is, they simply gloss over exactly what “rights” they’re talking about.  My cousin is part Native Hawaiian, and not part of any tribe.  My son is part Cherokee, and not part of any tribe.  Exactly what “rights” do Djou and Hanabusa think my son has that my cousin doesn’t?

Neither my cousin, nor my son, get any tribal benefits.  Neither of them have any inherent right to tribal lands, or casino income.  Neither of them have any right to tribal membership, or tribal governance.  But somehow, the Akaka Bill is supposed to bring the “rights” my son has as a Native American to my Native Hawaiian cousin.

Maybe what they really mean to say is that all Native Hawaiians, of even the smallest degree of ancestry, deserve parity with *tribal* members.  Maybe they believe that every Native Hawaiian deserves to have a stake in a tribal casino, and a stake in tribal lands, and a tribal leadership which can remove them from the tribe for any imaginable pretext without any constitutional protections whatsoever.  Maybe what they’re really saying is that Native Hawaiian blood alone should confer rights that Native Americans and Alaskans by blood alone don’t have.

There are two problems with this position.  First off, they’re not really promoting “parity” with Native Americans and Native Alaskans at all – they’re saying that Native Hawaiians, by blood, deserve special treatment compared to Native Americans and Native Alaskans who aren’t tribal members.  By creating a special bit of legislation to bypass the standard tribal recognition process, they’re establishing a brand new set of rights, conferred simply by racial background, to Native Hawaiians with even a single drop of Native Hawaiian blood.

The second problem is particularly pernicious – if the precedent is set that unrecognized indigenous people deserve a separate sovereign government, without the protections of the U.S. Constitution, what is to stop every person in the United States, with even the smallest drop of native blood, to demand a “reorganization” into their own new, sovereign government?  As dangerous as U.S. Tribal law currently is, opening the floodgates to rights determination simply on the basis of race, rather than political history, can only be seen as even worse.

If Djou, Hanabusa, and Case really believe in equality, they should be working towards is ensuring that *all* Americans have the same rights, regardless of ancestry.

What this means is not an extension of existing tribal governments, but a dissolution of them.

It means writing a bill that explicitly declares that all citizens of the United States must enjoy the same rights of self-determination, neither more nor less than their neighbors.

It means ensuring that that a pure Cherokee born in the U.S., and a Native Hawaiian born in the U.S., get the same rights and protections as a first-generation Nigerian who was just naturalized yesterday.

It means not having to ask someone what race they are before deciding what rights they have.

Taxes

Putting the “Fun” in De-Funding NPR

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Confession: I do not listen to National Public Radio.  Except in cabs.  I have no idea why taxi drivers so universally listen to NPR, but there’s probably a very dull sociological paper in there somewhere.  Admittedly, my NPR aversion is not even particularly interesting confession material.  Outside of the beltway, I think people would be more surprised to hear that I did  listen.  If that were the case, I’d probably be besieged with questions like “Why?” and “Do you have anti-boredom superpowers?” and “Really, why?”

Now there are tons of arguments that are often put forward for the continued use of federal tax dollars to support National Public Radio.  Most of these may have been persuasive in 1958, but in the age of the information superhighway, seem almost quaint.  And the notion that government-funded broadcasting is going to be somehow more unbiased or pure is beyond laughable.  The political bias at NPR is so legendary and ingrained that conservatives don’t even bother to complain about it most of the time.

In the end, it seems like habit and tradition (as much as anything else) are what keep the tax dollars flowing to National Public Radio.  Well, that and the fact that (compared to certain other government expenditures) it doesn’t seem like such a huge expense.  (This, of course, is silly thinking, but no less powerful for that.  Of course, you’re not going to throw a dollar out the window just because it represents a comparatively small part of your income.  But who hasn’t experienced the effect of relative cost?  In other words, the effect of looking at a list of things with such high dollar amounts that something on the low end of that group seems like a bargain in comparison.  Incidentally, this also explains why I bought a pair of $250 shoes last week and felt like I got a deal.)

Anyway, if you’re interested in joining the campaign to de-fund NPR, head over conservativehq.com and sign their petition.  For me, it would be worth it just to cut down on the frequency of my tense political discussions with cab drivers.

Entertainment

The Best of Free Press

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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.

Akaka Bill

Bar None

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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.

OHA

Penned In

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Lest it be said that all I do is criticize the Office of Hawaiian Affairs, I will direct your attention today to a thought-provoking study they’ve just released on Native Hawaiians in Hawaii’s criminal justice system.  I won’t give it my unqualified seal of approval–after all, the term “disparate treatment” in the title implies a lot more than disproportionate representation and the usual barriers and difficulties encountered upon release–but for an organization that is (theoretically) dedicated to the needs and betterment of Native Hawaiians, this is a worthy topic of study and action.  (And if I may be permitted a little judgment, far more worthy of attention than some of the pet vanity project receiving OHA funding, not to mention the barrels of money poured into lobbying on the Akaka Bill.)  Among the points made by the report (from the OHA press release):

  • Of the people serving a prison term in Hawai‘i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
  • Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
  • Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.

I will question the assertion that Native Hawaiians don’t use drugs at different rates that the rest of the population.  Granted, studies of drug use by ethnic population are legion and far from exact, but the situation is more complex than OHA paints it in their release.  For example, at least one study has found significantly higher rates of persistent smoking and drug use among pregnant women of Hawaiians ancestry.  And anyone who has seen the devastation of the ice epidemic in the Islands wouldn’t be surprised to hear that treatment admissions for use of amphetamines and methamphetamines among Asian and Pacific Islanders far outstrips the rest of the population.   I understand and even applaud the desire of OHA to help lower the number of Native Hawaiians entering the criminal justice system, but playing games with the statistics to bolster their case helps no one.  (Except maybe, those looking for more grant money by appealing to the OHA line.)

Of course, this does lead to the question of what OHA is planning to do with the results of their study.  The easy answer is, “culturally-sensitive interventions.”  But what does that really mean?  If I’m a local woman struggling with these problems, am I going to be comforted by the notion that someone is really working on a culturally sensitive intervention to my family?  Personally, I’d be a lot happier with an approach that was proven to be effective over one that raised my ethnicity over everything else.