Tag Archives: For Hawaiians Only

Stately Spending

If you know your way around this site, you know that there are two ways of perusing the many, many grants we’ve recorded.  Many.  Many, many, many.  It’s overwhelming actually.  And overwhelming is kind of the point.  No matter where you stand on the issue of Native Hawaiian sovereignty or the Akaka Bill, if you’ve checked out the grants here, you cannot fairly say that Native Hawaiians receive no support or help.  There may be any number of cultural or socio-economic issues at play in the question of how Native Hawaiians fare in society.  But if you’re looking for a reason to support the Akaka Bill, the claim that Native Hawaiians get no government resources is laughable in light of the evidence here.

Anyway, for those who just want an overview, there’s the quick list that can be viewed here.  And for those who want to dig a little deeper, there’s the wiki/database of grants that can be viewed here.  (And as a reminder: if you have any information or feedback to share on any grant, be sure to email us at 4hawaiiansonly@gmail.com so that we can add that information to the wiki.  Frequent or especially helpful researchers are given their own log-ins to update at will.)

Recently, we added some information to our quick grant list that was previously only available in the wiki–you can now see at a glance which grants come from federal agencies and which from state departments.  It’s no surprise to see that the federal portion of the grants on the list so far is slightly higher–a total of approximately $265,666,125 spent since fiscal year 2007.  As for approximate state spending, it comes to a more modest (but still considerable) $56,201,112 for the same period of time.  That’s more than the annual budget for a few different state departments.  For a state that struggles with budget and deficit problems, that’s almost real money.

The State’s Akaka End Run

For those who thought that the change in Congress meant a respite from the imminent threat of the Akaka Bill, think again.  In what might be something of a desperation move, the legislature has introduced a bill that purports to recognize a Native Hawaiian tribe through the state.  (Essentially, a state version of the Akaka Bill–you can read the full text here (House version) and here (Senate version).)

I can pick on all sorts of things in this–the historical revisionism, the doubtful claims, the questionable legislative findings–but we’ve been down this path many times before.  And you may be thinking that there’s little chance it would pass, or that it would likely fail a test of constitutionality.  But that’s not the point.  This is pure politics at work.  If the legislature can pass the bill, then it operates as a powerful argument in Washington that Hawaii is united behind the Bill–and frankly, the Inside-the-Beltway types tend not to pay much attention to what we are doing out here, so they would likely take that at face value.  (And OHA is going to be spending far more money telling them that’s the case than any opponents to Akaka would be able to raise.)  There is, however, a bright side.  If the state bill were to fail, that would make Congress less inclined to take up the Akaka Bill again.  So, if this is an issue you care about, this is a good time to contact your state legislator and share your views.

OHA: Rant vs. Reason on Race (A Debate)

Hawaii’s splendid isolation has contributed so much to the character of the islands.  Our island paradise owes much to it, as does our culture of family and “aloha spirit.”  On the other hand, those on the mainland have only the slightest acquaintance with the political and social issues we struggle with, and it’s easy for the most complicated and contentious issue to be reduced to static and soundbites by the time they reach Washington, DC.  And that’s how the Akaka Bill, a socially divisive, culturally transformative piece of legislation, gets reduced to “a nice little thing for Native Hawaiians” by the time it hits the beltway.  Few people outside of the Islands know much of our history, and even fewer know much about the Office of Hawaiian Affairs, the Bishop Estate Trust, Kamehameha Schools, or any of the ways that the fight over the Akaka Bill is affecting Hawaii.

And for a perfect moment that really crystallizes the harm that the Akaka mentality is causing in our Islands, one need go no further than the recent exchange between Jere Krischel, an activist and member of the Grassroot Institute of Hawaii and Rowena Akana, a Trustee-at-Large for the Office of Hawaiian Affairs.

The interchange began when Ms. Akana used the bully pulpit of her column in OHA’s monthly newspaper to attack the Grassroot Institute and Mr. Krischel for their opposition to the Akaka Bill—specifically for Mr. Krischel’s statement that the Akaka Bill, “racially segregate families and communities into groups with different rights based on whether or not they have Hawaiian blood.”  Though Akana called this “ridiculous,” she made no effort to defend her position, instead devolving into ad hominem attacks and invective.  She makes the absurd claim that the Grassroot Institute has no roots in Hawaii, and goes on to make the outrageous statement that, “Krischel and his ilk are the foreigners and they are the racists! They need to go back to where they came from and take with them their racist attitude. We don’t need them to spoil our Hawaii.”  As Mr. Krischel is from Hawaii, it leaves one to wonder where she would like him to go “back to.”

It should be unnecessary to treat such obvious slander seriously, but for the record, Grassroot Institute is a member of a national policy network, but has been active in Hawaii, on Hawaii’s issues, since it was founded here in 2001.  Mr. Krischel was born in Hawaii, went to Punahou, had a paper route in Wahiawa, and picked pineapple for Del Monte as a summer and weekend job.  What’s truly outrageous is that Ms. Akana takes the position from the outset that a.) One must pass some sort of “Hawaiian-enough” litmus test before one even dares to express an opinion on the Akaka Bill—a Bill that (let’s not forget) affects all of Hawaii and not only Native Hawaiians); and that b.) Anyone expressing a negative opinion of the Akaka Bill is a racist who needs to get out of Hawaii.

No wonder those who oppose the Akaka Bill state that it will result in a destructive level of racial division in the Islands.  It seems to have a head start on that even without being passed.

In response to Ms. Akana’s column, Mr. Krischel wrote a letter taking exception to her insults, asking for an apology for her accusations of racism, and explaining his motives for his opposition to the Akaka Bill.  Krischel writes:

First and foremost, as a human of many ethnicities and nationalities, I have a strong aversion to any racial categorization. The thought of being defined by one’s ancestry is anathema to me. Although some may wish to label themselves “indigenous” to one area or another, it is my firm belief that ultimately we are all descendants of immigrants and indigenous to the planet earth, and we should treat one another with equality and respect no matter where the bones of our ancestors are interred.

As an American, from a country with a history born of the rejection of hereditary title and monarchy, I strongly believe in the ideals of human equality. Although the United States has not always been perfect in implementing the 14th amendment, it is an ideal to which I believe we should all aspire

. . . .

As a scholar, I also have a strong interest in Hawaiian history, which has been further sparked by my recent participation in the debate over the issues of the 1893 overthrow, race-based government programs in Hawai`i, and the impending Akaka Bill. My father, Walter Benavitz, was a member of the Polynesian Voyaging Society, and participated in the 1987 tour of the Hokule`a. My school, Punahou, was a place of history drawing back to 1841 with a strong Hawaiian studies component.

All of these motivations brought me to the decision that I could no longer remain silent, and allow the racial supremists to dominate the dialogue. Witnessing the current tone and tenor of particular extremists on the issue, those activists inspired the “activist” within me.

It is my sincere hope that with enough constructive discussion, we can overcome our frailties, realize the complexity of “historical truth”, and move beyond the politics of identity. We can and should live in a world that tackles humanitarian issues in a needs-based, race-blind manner.

Ms. Akana’s response to Mr. Krischel’s letter did not do much to continue an open dialogue, rather instructing him to read a number of books meant to open his eyes to the innate racism of his background and the Islands.  She points out that racist attitudes existed in the Islands far into the 20th century (an issue that was not up for debate), and suggests (no doubt to the surprise of Punahou grads everywhere, including—one might think—our current President) that Punahou is an example of that tradition of racism and privilege by pointing out that, “Punahou School was started by the missionaries who did not want to have their children go to school with any Hawaiian or any other minority.”  In her short instruction of Mr. Krischel in her reply, she states that, “You obviously are oblivious not only to Hawaiian History but also to the history of the Japanese and other immigrants who came to Hawaii to work and live.  Otherwise, you wouldn’t be so pie in the sky pious with your attitudes.”

In his response, Mr. Krischel deals with the issues of race and historical examples presented by Akana, pointing out that they further emphasize his belief that any race-based policy would be a mistake.  Krischel writes:

For example, the fact that Japanese and Chinese immigrants, who were the only ones ever treated like second class citizens under law (see the 1887 Constitution of Hawaii which took away the right to vote from Asians), would be excluded from Hawaiian programs and race-based governments seems like adding insult to injury.  My clear understanding of the history of immigration and institutionalized racial discrimination in the past (including race-based pay which put haoles and native Hawaiians on top, Portuguese second, and chinese, japanese and filipino at the bottom), makes me ever more adamant that we should avoid such racial qualifications in the future.

. . . .

if at some point in history someone was racially discriminated against, we don’t achieve justice by racially discriminating against others today.  The answer is to remove *all* racial qualifications from *all* laws and government regulations, and to treat people as equals in both blood and spirit now and forevermore.  The fact that you could somehow interpret my demand for racial equality as some sort of hidden racism just doesn’t seem rational at all, and is why I must insist on an apology from you.

I hope you understand very clearly that the Akaka Bill, and any government program which decides a person’s worth based upon their racial heritage rather than on their individuality, is poisonous, and just as bad, if not worse, than all of the injustices you listed in your reply to me.  While indulging in a spirit of revenge against others may offer some cynical satisfaction, it’s destructive both to the self, and to society.  I clearly understand that the world has not always been a kind place to everyone, and that even in Hawaii, we’ve had many injustices in the past (even before western contact in 1778, when the ali’i ruled supreme and the kauwa served as a permanent slave class).  But the evils of the past do not justify more evil in the present.

I believe Hawaii is a model for the world because as far back as 1840, our constitution declared that all people were “of one blood”.  I believe Hawaii is a model for the world because the Kamehameha Dynasty turned a stone age society into a modern Kingdom in less than a generation by embracing Western ideals, technology and society.  I believe Hawaii is a model for the world because despite the rough patches of our history, we are more kapakahi than anywhere else, and in choosing who we will love and have children with, we ignore race with a passion unmatched anywhere else that I know of.

I also believe that what you currently support in the Akaka Bill, and in the preservation of existing race-based programs in Hawaii, including many OHA programs, threatens very deeply what makes Hawaii so special.

Ms. Akana’s next (and final) letter is very short.  She states that, “When no reparations or any compensation is given for taking or the stealing of Native lands, Natives have every right to seek justice.”  She does not explain how this position fits into the existence of the Bishop Estate Trust or Hawaiian Homelands.  Ms. Akana then declines to continue the conversation.  At no point does she apologize for calling Mr. Krischel a racist.

Mr. Krischel’s reply to Ms. Akana’s final letter are an eloquent examination of the problem with the language of grievance that Ms. Akana employs as her primary argument:

I’ll respectfully remind you that like many others without any ancestors in Hawaii before 1778, I was born in Hawaii, and didn’t migrate here from *anywhere* else.  If you want to point out that my ancestors migrated here from somewhere else over a hundred years ago, I’ll point out that the same is true of the few Marquesans and/or Tahitians in your ancestry who migrated here before Captain Cook arrived in 1778.  The “a small fraction of my ancestors were here before yours were” argument is hardly the basis for any form of government, or appropriate for deciding how to apportion resources between people.

Furthermore, your argument regarding Native Alaskans and Native Americans is fatally flawed and based on a terrible, yet apparently very common, misunderstanding of Indian Law by Akaka Bill supporters.  Native Alaskans and Native Americans do not have any sort of claim on the US based on their bloodline, and my non-tribal part-Cherokee son can attest to that.  There may be federally recognized *tribes* (including the Cherokee Freedmen, who have African American ancestors, and often don’t have any Native American ones), but there is no recognition for someone simply because their ancestors lived somewhere before western contact, which is what the Akaka Bill proposes.  Most Native Alaskans and Native Americans, including my son, aren’t part of any tribe at all, and are treated the same way as other non-tribal citizens are.  Particularly for Hawaii, where the Kingdom nobly declared in 1840 that all people were “of one blood”, and made no distinction between natives and non-natives, creating a new political relationship based on blood is simply racism, pure and simple.

Lastly, there was no “taking or stealing” of Native lands.  You may despise the ali’i for giving away vast tracts of land to their European supporters during the Kingdom Period, and you may despise those native Hawaiians who sold their kuleana lands to non-natives after the Great Mahele, but nothing was taken, and nothing was stolen.  Your pursuit of “justice” here, specifically on the basis of bloodline, is terribly misinformed and ignores the true history of the land.

Now, if you’ve got any sort of specific information about a specific acre of land, that was stolen from a specific person, by a specific person, at any specific time in the history of the Kingdom, Republic, Territory or State of Hawaii, please, share with me – I would love to learn if you have something to teach, and with specifics we can work towards rectifying things without any appeal to race.  But simply waving one’s hands and declaring that you, based simply on your bloodline, deserve some sort of reparation or compensation from me, for some unspecified piece of land supposedly stolen from a native Hawaiian by some unspecified person at some unspecified time, is not a rational argument, especially considering that my non-native ancestors in Hawaii, by your own citations in your first reply, were terribly discriminated against and exploited.  The children of ali’i asking for reparation and compensation from the children of plantation laborers seems distasteful on every level imaginable.

It is no coincidence that the more people learn about the Akaka Bill, the less comfortable they are with it.   Initially swayed by the praiseworthy desire to do something good for Native Hawaiians, the public has been mislead by the Rowena Akanas of this world into thinking that this is a simple “reparations” issue.  But as Jere’s examination of Hawaiian history and the philosophical problems with race-based policies demonstrate, the Akaka Bill actually takes Hawaii in the wrong direction.  And the attempts of Ms. Akana to shut down all argument through invective, accusations of racism, and faulty history are an example of just how far the Akaka Bill can take us away from Hawaii’s spirit of aloha and ohana.

To read the full exchange between Jere Krischel and Rowena Akana, click here.

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.

E Pluribus–What?

By Jere Krischel

E pluribus unum.  Present on the Great Seal of the United States since 1782, its meaning is both simple and profound – “Out of many, one.”  Originally it may have been but a literal acknowledgement of the Union of the thirteen colonies, but as the years have gone by it has become a philosophical premise which we apply as a standard of morality.  It is today a clarion call for the respect of diversity, an acknowledgement that while we may have our differences, we are one people, under one law.  Each citizen of the United States takes for granted that regardless of their racial background, cultural background, or family history, they are endowed by their Creator, the same unalienable rights as all their other fellow citizens.

The startling truth, however, is that we have a lot further to go before our laws and our country are aligned with this noble motto.  Just as the institution of slavery stood as a stain against the noble ideals upon which our constitution was based, today we live under a government which has yet to make good on the motto, ‘E Pluribus Unum.’  While our constitution expressly prohibits denying people equal treatment under the law with the fourteenth amendment, our government has often both willfully and woefully ignored this basic guarantee.

The race-based quota system of affirmative action is perhaps the most visible example of this violation of constitutional rights (with a low point in Grutter v. Bollinger, and some progress recently with Ricci v. DeStefano).  The idea of treating people differently because of their racial background is anathema to the concept of civil rights, and the “fighting fire with fire” philosophy of fixing racial discrimination by using more racial discrimination is hypocrisy at its worst.  However, an even more egregious violation of the principle of equal treatment exists in current Indian law, and an even greater danger is presented to us with the Akaka Bill that has been proposed in various forms for the past ten years.

As it stands today, we have three distinct classes of citizenry in the United States – tribal leaders, tribal members, and non-tribal citizens.  Tribal leaders stand generally above the law, with no constitutional checks on their power.  The Supreme Court in its Nevada v. Hicks (2001) case stated, “it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes.”  This exemption from the basic protections afforded to other citizens places tribal members in the most disparaged class of the three, leaving them at the whim of their tribal governments.  While under tribal jurisdiction, non-tribal citizens fare just as poorly, but they at least have the wherewithal to escape from the reservation, while tribal members face the threat of tribal expulsion, confiscation of the lands their family may have lived on for generations, and even loss of custody of their own children.

Today, there are 565 federally recognized tribes which may freely violate the constitutional rights of their members.  The Shinnecock Nation, backed by Gateway Casino Resorts, with only 1,292 members, became number 565 on October 1, 2010, after all appeals to their recognition (including objections from other already established casino tribes) were exhausted.  The Shinnecock, and the other 564 federally recognized tribes, are granted exemptions from state and local jurisdictions, creating a special class of citizenry not subject to the rights and laws of their peers.  These federally recognized tribes also have access to lucrative federal assistance programs (regardless of any tribal casino income), funded by non-tribal taxpayers and controlled exclusively by tribal leaders.

So instead of ‘E Pluribus Unum,’ the truth is that today we live in a country governed by ‘E Pluribus Pluribus,’ with a constant, yet often overlooked, division of people into different strata of citizenship.  The Akaka Bill serves as yet another continuation of that deplorable trend, promising to “reorganize” everyone with the smallest drop of native Hawaiian blood into an Indian tribe, with all the equal protection problems that come with it.  Specifically constructed to protect current race-based programs targeted at native Hawaiians, the Akaka Bill is a headlong dive into the constitutional loophole provided by Indian Law, and promises to divide the State of Hawaii in the most wrongheaded manner imaginable.

From a purely self-interested point of view, it’s no wonder that future Akaka Tribe leaders want to get in on the Indian Tribe game – between the casino money, and the federal dollars appropriated (regardless of whether or not a tribe is economically self-sufficient), even the most reasonable and rational person might be sorely tempted.  An investigation into recent native Hawaiian grants handed out by the government, at http://4hawaiiansonly.com, has already identified over 766 grants totaling over $273 million dollars.  While only a drop in the bucket compared to the more than 4 billion spent on Indian tribes every year (the BIA is unable to give any exact number), there is no question that we’re talking a lot of money, and a lot of temptation.

It will be a long road for our country, to repair the self-inflicted wounds of ‘E Pluribus Pluribus.’  Ending the second and third class citizenship status of existing Tribal Law, and preventing the enactment of further injustices like the Akaka Bill will not be easy – the forces arrayed against a nation of one people, under one law, have resources common citizens simply cannot match.  But in the end, no matter how long or difficult the struggle, the United States will one day live up to its noble ideals of its founding – E Pluribus Unum.

Penned In

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.

Writ or Wrong

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.

Guest Series on Tribal Gaming (Part 4)

Today’s entry in our ongoing series by Jim Marino on the development of tribal gaming in California deals with the immediate aftermath of the passage of Proposition 1A–the ballot measure that was a de facto legalization of tribal casino gambling in California.  For Hawaiians, this is an interesting study in how special interests can lobby and maneuver their way to their ends, regardless of popular sentiment on the issue.  Not to point any fingers or anything, but my experience in Hawaii politics doesn’t fill me with confidence that our own state’s politicians would be immune to the kind of machinations that were so successful in bringing gaming to California.  Also of interest, a short discussion of the impact of tribal sovereign immunity (which protects Indian tribes from certain lawsuits) and the societal impact of casinos.

INDIAN CASINO GAMBLING IN CALIFORNIA
AFTER PASSAGE OF PROPOSITION 1A
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 6, 2010

(Part 4)

As I discussed in last week’s article, Proposition 5 was struck down as unconstitutional by the California Supreme Court in August 1999. Undaunted by that fact, two months later in October 1999, Gov. Davis and the Legislature approved the 59 tribal-state compacts Davis negotiated in secret and without proper public input.

Then, to overcome the fact that these 59 compacts had been executed and approved by the Legislature without lawful authority, Gov. Davis and the Legislature put a second “Legislative Initiative” on the ballot in March 2000 called Proposition 1A. Although that Proposition was written as a Constitutional amendment to authorize the Governor to negotiate future compacts with Indian tribes with casinos in California, it was, in effect, intended to ratify the 59 illegally signed compacts approved 5 or 6 months earlier – and to do so without informing the voters, who approved Proposition 1A, of the real purposes of that initiative.

Just as soon as Proposition 1A was approved by voters in March 2000, the 59 compacts were submitted en masse to the Secretary of the Interior, who approved all of them without checking either the legitimacy of the tribes who signed them or the eligibility for gambling on the land that was identified as the sites for these 59 or more casinos.

As a result, several faux tribes who did not and still do not have eligible lands for any class II or class III gambling, as defined by the IGRA 25 USC section 2703 and 2719, were given class III gambling casino compacts by Gov. Davis.

As set out in an earlier installment, one of the most glaring problems created by the I.G.R.A. was its failure to provide for local input and control over gambling casinos that were thrust into their midst by the I.G.R.A. and by these tribal-state compacts.

Many of these 59 tribes, then armed with the Gray Davis “give-away” tribal-state compacts, began constructing casinos and acquiring lands to construct large mega-casinos. In some cases, they undertook to expand their existing gambling casinos far beyond the small and modest casino operations that existed in communities on existing Indian lands, and that were pointed to by the casino tribes during the campaigns for Proposition 5, and then later Proposition 1A as evidence of their need to continue these modest enterprises.

It became immediately apparent what a mistake it was to have approved Proposition 1A. The worthless compacts negotiated by Gov. Davis paid nothing to the state. These Indian casinos and businesses began placing tremendous demands on public services and infrastructure, yet they were immune from the taxes that pay for those things. Therefore, the non-Indian taxpayer had to shoulder that cost and received nothing from the casino profits and still don’t.

The provisions in these compacts requiring that the tribes would either participate in the State’s Workers Compensation system or establish an equivalent system, complete with impartial independent tribunals to protect their employees, was immediately ignored. These compacting tribes, neither participated in the State system nor adopted a comparable system, leaving injured employees with no effective recourse at all. The State and the various state agencies like the Attorney General and the Gambling Control Commission made no effort at all to force the casino tribes to abide by any compact terms, particularly those terms that were actually enforceable at law. The compacts have a provision 11, which allowed the State to sue a tribe to terminate the gambling compact for a violation of its terms but this has never been done. Injured citizens, workers or communities could not sue upon these compacts because the only rights to sue in these compacts for enforcement of the terms that were set out therein were limited to disputes between the State and the affected tribe. Again local governments, communities and non-Indian citizens had no say so. The term and condition, contained in these 59 virtually identical compacts, requiring protections for injured, damaged or cheated customers was likewise ignored by these casino tribes. Instead when customers sought relief for injuries or other tort damages, violations of law or breaches of contract, the tribes uniformly denied such claims and informed customers they could not sue the tribe, its casino or any other tribal business because of the court-created legal immunity doctrine (discussed in earlier segments of this series).

When anyone did sue them, the tribes would successfully move the court to dismiss the lawsuits and all claims, on the basis the tribe was immune from lawsuit. If injured employees or customers tried to sue the State or others as some did, based on the tribal-state compact provisions that were included, ostensibly for their protection, the State and tribes claimed the compacts created no “third-party rights” i.e., no rights for anyone but the State or the affected tribe. In one case, three injured employees I represented sued the State and the Governor instead of the Chumash tribe and casino, asserting the complete failure of the State to enforce the compact provisions, which were included to protect them. The State’s attorneys then removed the case from State court to federal court, asserting the case raised a “federal question” even though Worker’s Compensation law is a matter of state law and was the subject of a term set out in the compa ct.

Once removed to federal court, the State’s Attorney General then asserted that the Indian tribes were necessary or indispensable parties to the action, and moved the federal court to dismiss the case on the basis the Indian tribe or tribes, who were necessary or “indispensable parties,” could not be joined in any case because they were immune from lawsuit. Plaintiffs would have to join the tribe as a party, so this Catch-22 argument went, and the plaintiffs could not do so because the tribe and its businesses had immunity from all lawsuits. The case was thus dismissed and affirmed by a three-judge panel of the 9th Circuit Court of Appeals. The U.S. Supreme Court refused to grant a writ of certiorari to hear the case.

People who dealt with or entered into contracts with these casino tribes and businesses found out that if the tribe stiffed them for the bill, they could not sue, again based on the court-created doctrine of legal immunity for Indian tribes and their businesses discussed in last week’s article.

This use of the tribal legal immunity doctrine to evade legal responsibility is one of the most flagrant and outrageous impacts of Indian gambling and business expansion. This doctrine is exacerbated by the fact that these tribes, their casinos and businesses, can also operate outside of all state and local laws (except alcohol-control law). Laws that were enacted over many years to protect customers, workers, the environment and quality of life.

They are able to evade these laws under the silly fiction that these tiny bands or tribes of fractional Indian descendants (some with only one or two members) are “sovereign governmental entities” of their own with governmental status, all just because bureaucrats at the Bureau of Indian Affairs have “recognized” or officially “acknowledged” them as a tribe, band or community of Indians.

As discussed earlier, before conferring the right to unregulated casino gambling on these “Indians,” neither the State of California nor the federal government made any effort to determine if the tribes who were given gambling compacts were legitimate tribes or whether the land on which they constructed casinos, or were seeking to do so, were legitimate and were located on legally eligible “Indian Lands” as defined under federal law [25 USC 2703 or 2719]. To this day, more than half of the 59 tribal-state compacts and Indian casinos operating in California, were and are probably still, operating illegally.

One of the common methods that gambling promoters and investors, using an “Indian tribe” as a front to introduce gambling casinos into a community, is the promise of “jobs.” Often they target communities that are economically depressed because they know local government, unions, Chambers of Commerce, businesses and others often jump at the chance for anything that creates “jobs.”

This Indian gambling casino explosion was so sudden and extensive, that a few years ago a developer ran a full-page ad in the Palm Springs newspaper advertising that he had investors willing to bankroll “Indian casinos” and tribal recognition and listing a toll-free number. At the request of Arizona Sen. John McCain, David Crosby, testifying as a witness, put that advertisement in the Congressional record during a hearing of an Indian Affairs Sub-Committee being held 4 years ago, specifically to review Indian gambling policies on local communities.

Sen. McCain promised those of us attending that hearing, several times over, that the IGRA had to be amended in order to provide for more local control over Indian gambling casinos. Despite those hollow promises, nothing has been done yet, years later. As evidenced by that ad, the stampede to turn California into another gambling Mecca like Nevada got so bad that promoters and gambling investors were literally trolling for “tribes.”

Because most local governments, elected officials and their attorneys knew virtually nothing about Indian Law, gambling law or the false economics of gambling casinos, they did not know how to deal with the flood of Indian casinos the State had improperly authorized. They were easily convinced by tribes and investors that locating an Indian casino in their community was a “done deal,” and they had nothing to say about it because it was all a matter of federal law and furthermore, it would be good for the community economy anyway. The casino tribe might even agree to pay them something in lieu of the many taxes they don’t pay if they cooperated, but if the local government didn’t play ball and support the casino proposal, they would get nothing.

As a result of all this subtle blackmail, gambling promoters and investors, along with ersatz Indian tribes have been able to locate casinos in numerous communities even though they are not wanted, produce no benefit and only create a host of problems as well as place untold demands and costs on all government and public services and all infra-structure without paying the taxes needed to fund them.

In talking with many people who voted in favor of Proposition 1A, every single person I spoke with expressed the fact that they believed they were voting at the time, to allow the existing Indian tribes in California to simply retain the low-key gambling operations they had at the time and solely on their own lands. No one expressed to me any understanding that a vote in favor of that Proposition 1A was authority for dozens of tiny Indian tribes made up of fractional or questionable Indian descendants to be able to build huge Las Vegas style mega-casinos anywhere they wanted to. In fact, the many people I spoke with indicated they also expected any Indian gambling casino to remain on their existing Indian lands.

What has in fact occurred is that those existing tiny and modest casinos have been replaced with glitzy giant casinos measured in hundreds of thousands of square feet and thousands of gambling devices.

There are casinos that have ruined entire residential neighborhoods like the San Manuel Casino rising above single-family homes in a housing tract, which homes then lost most of their value because of the nearby gambling operations. Neighbors complained about noise, traffic, drunkenness, open drug trafficking and even having to pick up beer cans and used hypodermic needles from their front lawns.

Virtually every casino community has now experienced increases in crime ranging from shoot-outs, murder, theft, robbery, embezzlement, gang activity, substance abuse and drug trafficking, drunk driving, auto accidents and fatalities, gambling addictions, credit problems and bankruptcies, family neglect, even suicides, and the list goes on. Recently, Highway 154 ominously being called “the Chumash Highway” has experienced several auto accident fatalities, not to mention the officially unexplained suicide jumpers from the Cold Springs Canyon bridge. Only a few weeks ago, a gang shoot-out erupted amongst the slot machines at the Jackson Rancheria casino located in Amador County.

Not long ago, Sheriffs deputies were involved in a running gun battle outside the Soboba Casino where at least two suspects, who were tribal members, were shot and killed and the Sheriff refused to respond to calls there anymore. One deputy Sheriff working a special overtime detail at the Chumash Casino in Santa Ynez arrested 36 drug violators in only six weeks time, most of them felonies involving methamphetamines being used, possessed and sold around the casino.

In another case, an elderly couple were walking in the parking lot of another Southern California Indian casino near San Bernardino and a thief whizzed by on a motorcycle and snatched the woman’s purse in the parking lot. The motorcycle grazed their car during the theft. They reported the incident to casino security guards, expecting that the crime would be reported to the Sheriff’s Department. They found out later, when they made an insurance claim for the damage to their car, this incident was never reported to the police. This is but another of the many negative impacts of Indian casinos, the fact that the primary duty of Indian casino security staff is to conceal any negative incidents that occur or insinuate the false claim that some kind of “sovereign status” permits them to deal with criminal acts when it does not.

Another problem is the failure and refusal of many local media outlets to report the crime, corruption and negative incidents occurring regularly at Indian casinos because those casinos are the biggest television, radio and newspaper advertisers they have. So the so-called “free press” has in effect, been co-opted by the fear of offending these gambling casinos who are their best advertising customers.

The increased demands on public service and infrastructure created by Indian gambling casinos are immeasurable and are detrimental to the surrounding areas near these unregulated casinos, which have been or are being located in, or near, highly populated areas.

NEXT TIME (PART 5): THE FALSE ECONOMICS OF INDIAN GAMBLING CASINOS AND ITS CORRUPTION OF THE STATE’S GOVERNMENT

This article was originally published in the Santa Ynez Valley Journal.

Certified Hawaiian

When you’re Hapa, you get used to people playing, “guess the ethnicity” with you.  Especially on the mainland.  (In Hawaii, the game is generally much shorter.  In part because one of your cousins will inevitably walk by and put an end to things.)  I actually don’t mind it though.  I’ve always liked the way that our racial/ethnic mix gives us a broad feeling of connection on the Islands.   Like we’re all in this together.  After all, even if you may not be Portuguese/Japanese/Filipino/Samoan/Hawaiian/Chinese/Haole/Etc., it’s a pretty fair guarantee that you’re at least related to someone who is.

And this leads us to one of the things that so puzzles me about how the Akaka Bill is supposed to work–namely, how do you even go about defining who counts as “Hawaiian Enough” to be part of a Native Hawaiian government.  After all, we’re talking about a culture that includes the concept of hanai adoption.  That’s about as far from a “one-drop rule” as it’s possible to get, culturally speaking.

But, of course, since we’re talking about laws and stuff here, there has to be a way to legally define who gets to play in a Akaka government.  But would you believe that, as the Bill currently lies, a significant number of those who would consider themselves Hawaiian wouldn’t count as such for the purposes of the Akaka Bill?  In fact, one analysis found that more than 73% of those who defined themselves as Hawaiian for the purposes of the census would now be counted as such for the purposes of the Akaka Bill.  Here’s why:

Under the conditions set forth in S1011, Section 3(12), for an Hawaiian to become a “Qualified Native Hawaiian Constituent” all five of the following conditions must be met:

  • (A) Must be direct lineal descendant of indigenous people living in Hawaii on or before January 1, 1893 or of a person eligible in 1921 for Hawaiian Homelands.
  • (B) Wishes to participate in the reorganization of the Native Hawaiian governing entity
  • (C) is 18 years of age or older;
  • (D) is a citizen of the United States; and
  • (E) maintains a significant cultural, social, or civic connection to the Native Hawaiian community, as evidenced by satisfying 2 or more of 10 criteria

Of the five, Parts (B) and (E) are the most likely to exclude Hawaiians from becoming “Qualified” to participate in the Tribe.  Part (B) most likely means excluding all persons who do not sign up for Kau Inoa.  The December, 2009 Kau Inoa Newsblog proudly announces: “Those who register in Kau Inoa will help shape the Hawaiian nation to come….We are happy to share that at the end of November 2009, 108,118 people were registered in the Kau Inoa Native Hawaiian Registry….”

The 2000 US Census counted over 401,000 Hawaiians in the US.  A 2004 estimate by the US Census Bureau counted 279,651 Hawaiians in Hawaii, down from 283,430 in 2000.  The out-migration of Hawaiians is a direct result of the lack of economic opportunity created by OHA-funded shake-down artists and their environmentalist allies.  The Kau Inoa number is less than 27% of all Native Hawaiians, but it gets worse.

Rule (E) excludes many of the roughly 122,000 Hawaiians living outside of Hawaii.  Exceptions are made for for college students, military personnel, federal employees (such as Congressional staffers) and their dependents,  Hawaiian Homelands beneficiaries, their children and grandchildren.

By making “Native Hawaiian Membership Organization” into the following two separate rules, an activist or other OHA operative who has been a member of two Native Hawaiian Membership Organizations thereby meets the “two of ten” qualification in Part (E):

  • (viii) Has been a member since September 30, 2009, of at least 1 Native Hawaiian Membership Organization.
  • (ix) Has been a member since September 30, 2009, of at least 2 Native Hawaiian Membership Organizations.

The bill does not contain a list of such organizations, leaving the door open to all sorts of games as some organizations are accepted and others are not.

I don’t know about you, but I find the notion of having to “prove” your Hawaiian-ness by virtue of what clubs or activities you belong to be . . . mind boggling.  Especially when you consider that the Akaka Bill includes a loophole for those who might not have Hawaiian blood, but are “regarded as Hawaiian” by the Native Hawaiian community (whatever that may mean).  By that logic, a haole with the right connections can be part of the Native Hawaiian government while a 100% local, ethnically Hawaiian guy who likes to keep to himself might not.  Seriously.  Only politicians and huge sums of money can combine to create something so ludicrous.  Don’t tell me that’s what most people are thinking of when they say that Native Hawaiians deserve some kind of recognition.

Depend On It

The Heritage Foundation has released its 2010 Index of Dependence on Government, and you will be unsurprised to hear that American dependence on government programs continues to grow–especially in the health and welfare sectors.  Now, I will be the first to admit that, when confronted by a bevy of charts and words like “index” and “variables,” my eyes begin to glaze over and I think longingly of cool drinks and reality TV reruns.  But there is a reason to pay attention to what the number-crunching prognosticator-types are talking about.

For example–do you have (or are you working towards) a government pension?  Do you want it to still be there when you need it?  Because when budget crises reach a certain critical point (*cough* California *cough*), one of the first things that they look to cut are pensions and state salaries.

So what does this have to do with government spending on Hawaiians.  Because while a few hundred million is nothing to sneeze at, spending on Native Hawaiians seems minor in a year that included the massive stimulus bill.  But there’s more to the problem of creating a dependency on government programs than just the dollars and cents of it.  As the authors of the index explain:

To be clear: Every person will be dependent on others many times during his or her life, and there is nothing wrong with that. People spend most of their childhoods utterly dependent on their parents, and many people will rely on caregivers during their last years. Dependence on family, neighbors, fellow members of community groups, and—yes—local government is the normal, everyday stuff of life.

When people receive aid from someone in their social circle, they are given an opportunity to repay that aid someday in a similar way. Mutual aid is the glue that binds communities together; it gives strength to families and the greater civil society. Most Americans know instinctively that creating strong communities and families is a matter of caring for each other.

When the federal government provides aid, that aid also binds the dependent person to the aid giver. This aid, however, is anything but mutual. No one expects the dependent person one day to give similar aid to the federal government. And government aid certainly does not strengthen communities and families: If Americans have learned anything about the federal welfare system, it is how effectively it undermines family structure and hollows out communities.

Worse, dependence-creating programs quickly morph into political assets that policymakers all too readily embrace. Voters tend to support politicians and political parties that give them higher incomes or subsidies for the essentials of life; but no matter how well-meaning policymakers might have been when they created government aid programs like Medicare, unemployment insurance, and subsidized housing, these same programs quickly grow beyond their mission and turn into a mechanism that creates and sustains a never-ending cycle of dependence—and entitlement thinking.

Is there a clearer delineation of the problem inherent in depending on government to shore up the health of a community, be it racial, ethnic, or otherwise?  I’ve been worried for a long time about the slowly dissolving sense of ohana in the Islands, and I begin to wonder if this is part of the explanation for it.