Tag Archives: Sovereignty Movement

A Lack of Resolution

Over on Hawaii Reporter (which I swear doesn’t do anything to get all these mentions here except produce a broader and more fearless variety of opinions than the vast majority of other Hawaii news sources), Ken Conklin has an interesting take on the most recent effort of the Hawaii Legislature to rewrite history.  The article is worth reading in its entirety (not least of all for the impassioned discussion of the ultimate effect of these endless muddled legislative exercises in pandering), but here are the highlights:

House Concurrent Resolution 107 (HCR107) in the Hawaii legislature would establish “a joint legislative investigating committee to investigate the status of two executive agreements entered into in 1893 between United States President Grover Cleveland and Queen Liliuokalani of the Hawaiian Kingdom, called the Liliuokalani assignment and the agreement of restoration.”

The investigating committee would be empowered to “Issue subpoenas requiring the attendance and testimony of the witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the joint investigating committee; … Administer oaths and affirmations to witnesses at hearings of the joint investigating committee; Report or certify instances of contempt as provided in section 21—14, Hawaii Revised Statutes …”


The purpose of such an investigation is not merely to do academic research on an obscure historical question from 118 years ago. The purposes are to claim that the U.S. had an obligation to restore Liliuokalani to the throne; and to claim that the obligation of the President of the United States continues to this day to restore the Kingdom of Hawaii to its former status as an independent nation.

Throughout my nineteen years in Hawaii I have seen the legislature repeatedly pass bills and resolutions encouraging some sort of race-based Hawaiian political entity, or sovereign independence. Year after year: Let’s pay for an election of delegates to a Native Hawaiian convention, and years of their travel expenses for meetings, so they can choose the tribal concept or write a constitution for an independent nation; let’s pass a resolution in 2002 asking the United Nations to investigate the legitimacy of Hawaii’s admission to statehood in 1959; let’s support the Akaka bill in Congress; let’s proclaim April 30 of every year a permanent holiday called “Hawaiian Restoration Day”; let’s create a state-recognized tribe with a state-only version of the Akaka bill; let’s transfer $200 Million in land or money to OHA; etc. etc. ad nauseum.

Why? All these legislative actions have accomplished is to stir up racial animosity, feelings of entitlement, etc. Hopes are raised for some people who want land and money from the rest of us, and then those hopes come crashing down. Over and over again. Remember the Aloha Airlines plane that had a huge hole ripped out of its side in mid-flight, due to metal fatigue caused by too many takeoffs and landings? That’s what resolutions like this are doing to all Hawaii’s people, and to ethnic Hawaiians in particular.

NB: Be sure to read the whole article to see the main points of Mr. Conklin’s testimony against the Resolution.

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.

For the Future Subjects of the Kingdom of Maui

Right.  So . . . the problem with totally out-there politicians is that no one takes them seriously.  Which means that no one really thinks about the damage they can do or the implications of their more extreme proposals.

Consider Gladys Baisa, currently a councilwoman from Maui.  According to her website, there’s not much that separates Gladys from your average, excruciatingly dull local politician.  She likes old people, hot pink gingham, the environment, and children, and is willing to show up at the groundbreaking of a new tennis court and endure the tedium of a County Council meeting.  (For those who have never been, it’s a lot like a PTA meeting, only less sexy and without the possibility of baked goods.)

Oh, and one other thing: she has proposed a “draft ordinance acknowledging the reinstatement of the Hawaiian Kingdom nation.”

Yep, Gladys feels that the governing body that is primarily responsible for pressing issues like, “What should we name the new park?” is equipped to handle the transfer of political power and land to a newly established sovereign Hawaiian kingdom.  Alrighty then.

I’ll spare you the painful details of how this is going to be accomplished, as not everyone enjoys a trip to Delusionville.  (Why yes, she does name a Prime Minister and Minister of Foreign Affairs for the Reinstated Kingdom of Hawaii.  What do you think this is?  Amateur hour?)

Of course, the real problem here is how easy Gladys is to dismiss.  (P.S. She’s running for reelection right now, and as far as I can Google, not in any particular danger of being unseated as yet.)  Of course, Maui isn’t going to vote to reinstate the Kingdom of Hawaii.  But for those who are inclined to dismiss the problems inherent in Akaka, let this be a bit of a warning to you.  The divisions and disagreements over the crown lands and the future of Hawaii aren’t going to go away with the passage of the Akaka Bill.  In fact, it’s more likely to open even bigger divisions and political questions.  And there is the scary possibility that one day, Gladys’ proposal won’t seem so “out-there.”

By the way, if you’re thinking of letting Gladys know what you think about her various political stances, you can email her here.

Akaka by OHA

So, if you’ve been living in a cave on Mars, with your fingers in your ears, going, “La, la, la, la, la” over and over again, you’ll probably be glad to hear that the Office of Hawaiian Affairs has launched an “informational” page to help people truly understand the implications of the Akaka Bill.  Of course, if you’re even slightly conscious and an inhabitant of Hawaii, you probably already have  grasp of the basics.  But I’m sure OHA’s effort will be deeply appreciated by those who just woke from a coma or those who don’t care to have their news tainted by elements of impartiality.

Of course, there’s not much new to find there–they’ve basically taken the “There, there . . . no need to worry, it won’t change anything except the very foundations of the state,” approach.  It was interesting to see that they skipped right past the fact that a roll of names of eligible Hawaiians to participate in the formation of the of the new Native Hawaiian government would be determined and published . . . without really questioning how that determination would be reached.  This was especially fascinating in light of OHA’s assurance that the Akaka Bill is not race-based.  Technically speaking, that would be proper, as the Kingdom of Hawaii was not a racial entity, but a regular old sovereign government with borders, citizens of many races, and so on.  But that’s not exactly the history of Native Hawaiian programs in the last several decades, which (understandably) tend to focus on actual Native Hawaiian lineage.

The claim that the Akaka Bill is not race-based does bring up an interesting paradox, however. Pretend for a moment that it really was going to reflect the history of the Hawaiian nation and include anyone who can trace their heritage to citizens of the Kingdom–including Native Hawaiians, Chinese, whites, and so on.  It certainly would be a most accurate representations of Hawaiian citizens at the time of annexation.  But would there be much support for an Akaka Bill that wasn’t at it’s heart, race-based?  Somehow, I doubt it.

A Feeling of Recognition

Interesting things are happening in Hawaii politics when it comes to support for the Akaka Bill.

Actively opposing it still takes a measure of political courage.  (Which, believe it or not, is not necessarily an oxymoron.)  But slowly, enough concerns have been raised about its effect on the Islands that some of those aspirants to office that aren’t completely beholden to the Akaka supporters are searching for some other language to express their reservations.  Consider it the political equivalent of backing quietly away from a terrible potluck dinner, saying, “No, I’m pretty full.  I think maybe I’ll just have this roll.”  (This might not be the best analogy, in that I’ve never been to a bad potluck dinner in Hawaii.  You all are luckier than you know.  Maybe everyone should have to do a year-long mission to the Mainland so that they can learn about the horrors of the mysterious gooey casserole and wet, salty, mushy rice.)

The result is a move towards ambiguity.  Look for statements that support, “some form of recognition for Native Hawaiians,” and yet stop short of endorsing Akaka.  Putting aside for the moment, all of the debate about how comparable the situation of Native Hawaiians is to that of Native Americans, there is (at heart) a genuine and admirable impulse here:  No one wants to underrate the contribution of Native Hawaiians or the importance of Hawaiian culture.  And when combined with the difficult socio-economic situation of many Native Hawaiians, there is a clear desire to assist that community–heck, this entire website calculates the millions and millions of dollars spent on all of these motivations.  But warm feelings do not make necessarily make good law.  In fact, all of this vague charity comes perilously close to that “soft bigotry of low expectations” thing.  I’m starting to wonder whether all of these well-intentioned feelings aren’t more destructive to the future of Native Hawaiians than anything else.  Stopping short of creating a separate governmental system, but still wanting to give “something” to Native Hawaiians . . . isn’t that pretty close to where we are now, only without making it official with Presidential signatures and much patting-ourselves-on-the-back?  (Then again, if I was Hawaiian, I’d be happy to just get a check for my share of the millions in federal, state, OHA, and Bishop Estate money spent to help me.  Because I’m starting think that I could do a lot more to help myself than any of those groups.)

A Primer on the Akaka Bill

As you go through the many grants in our database, the obvious question (aside from “How much money????” and “Do any of these really help people?”) that comes to mind is how these programs for Native Hawaiians fit in with the Akaka Bill.  Or it should be.  Unfortunately, the Akaka Bill is one of those things that people tend to react to emotionally even when they don’t know much about it.  The people of Hawaii are generous.  They want to help Native Hawaiians.  They’re told that the Akaka Bill will do so.  But what they’ve only begun to find out is the true implications of the bill . . . that it’s not good for Hawaii. Or Hawaiians, Native or otherwise.

At the American Spectator, Peter Hannaford has a good article on the implications of Akaka—how it creates a race-based government inside the state and a truly unequal situation for the residents of Hawaii.  (He also points out how passage of Akaka plays into the strategy of the sovereignty movement.)  And he makes the important point that Congress cannot create an Indian tribe, which it would be doing by passing the Akaka bill.  After all, the sovereign nation of Hawaii was not composed only of Hawaiians, but of a wide variety of races and ethnicities who had come to the Islands for a variety of reasons.  Hawaii was a melting pot before melting pots were cool.  In that sense, Akaka is a violation of the spirit of the Islands.  (And, as this site demonstrates, helping a group via government action is a tricky thing to accomplish effectively.)