(c) Copyright 2017
Kenneth R. Conklin, Ph.D.
All rights reserved
INDEX OF NEWS REPORTS AND COMMENTARIES FROM JANUARY 1, 2017 THRU MAY 2017
January 2, 2017: Obama white House news release and 40-page booklet: 2016 White House tribal nations conference progress report. Excerpts relevant to Hawaii and URL for pdf.
Jan 3: Indian Country online newspaper commentary says Trump will abolish federal Indian policy that recognizes tribes as political entities rather than mere racial groups; special attention to Alaska natives and ethnic Hawaiians.
Jan 4:
(1) One hour and 42 minute video of State of Hawaii Office of Hawaiian Affairs meeting on January 3 in which OHA CEO Kamana'o Crabbe was fired at a cost of buying out his contract that was approved shortly before the November election for 3 years at cost of $450,000. Key highlights of video are listed with time when each happened.
(2) Honolulu Civil Beat online newspaper reports on the OHA board meeting and the two lawsuits against OHA by OHA board members.
(3) Honolulu Star-Advertiser commentary by OHA trustee Peter Apo defends federal recognition of a Hawaiian tribe, and OHA policy of hiring service-provider contractors, as best way to ensure self-determination and to be free from government intrusiveness.
(4) Keli'i Akina news release: Hawaii Ethics Commission says no conflict with Akina being both the head of Grassroot Institute and also OHA trustee, and no conflict with Akina being lead plaintiff in lawsuit against OHA to block Na'i Aupuni election.
Jan 5: Multiple newspapers publish Associated Press article describing how OHA trustee Akina foiled the Na'i Aupuni election.
Jan 6: OHA trustees approve trying to fire OHA CEO Kamana'opono Crabbe, who had been given a new 3-year contract shortly before the election including $450,000 in salary. Crabbe threatens to sue.
Jan 12: Columnist in Kona newspaper describes OHA trustee Keli'i Akina as hero for working to bring all people of Hawaii together regardless of race.
Jan 14: C-SPAN will broadcast on January 17 the hearing by the U.S. Senate Energy and Natural Resources Committee regarding confirmation of President-elect Trump's nomination of Ryan Zinke to become Secretary of the Department of Interior. Ken Conklin writes to the committee, and to the Trump transition sub-team for Department of Interior, asking them to ask Zinke to oppose the DOI final rule 43CFR50 to authorize federal recognition of a Hawaiian tribe and also asking them to repeal that rule by using the Congressional Review Act.
Jan 16 (Martin Luther King Day holiday): OHA trustee Keli'i Akina message recalls MLK speech to Hawaii legislature upon Statehood in 1959, which praised Hawaii for racial harmony and justice. Akina says "Today, there is a growing stereotype of Native Hawaiians as a monolithic group that opposes all that is American and asserts exclusive rights against the majority of others who have made Hawaii their home. This stereotype is clearly not the true picture."
Jan 17: U.S. Senate Energy and Natural Resources Committee held a hearing regarding confirmation of President-elect Trump's nomination of Ryan Zinke to become Secretary of the Department of Interior. The committee webpage provides a video of the entire hearing.
Jan 22: The Garden Island [Kaua'i daily newspaper] major article "124 years after overthrow, Hawaiians continue sovereignty push" See related dialog between Williamson Chang and Ken Conklin regarding the Treaty of Annexation, in the same newspaper, between January 8-16, which might have prompted this January 22 overview.
February 9, 2017: Settlement [of lawsuit] Protects Religious Rights For [ethnic] Hawaiian Prisoners
Feb 11: Ongoing compilation of bills in the Hawaii state legislature related to Hawaiian sovereignty, including links to text of each bill, progress of the bill through various committee hearings, and testimony by Ken Conklin and others.
Feb 23: Judicial Watch online news report "The Attempt to Create an Unconstitutional 'Native Hawaiian Government'" concludes that the Interior Department Final Rule to authorize creation of a Hawaiian tribe should be repealed now through use of the Congressional Review Act.
Feb 25: Hawaii Free Press reports on what happened with a bill in the state legislature that would have promised state recognition of the Hawaiian tribe which the federal Department of Interior regulation was written to help create. The bill was rejected by its committee after massive outpouring of testimony in opposition.
March 1: OHA monthly newspaper describes 2007 United Nations Declaration on the Rights of Indigenous Peoples, and how it [allegedly] applies to ethnic Hawaiians at the state and federal levels.
March 2, 2017: Policy director for Grassroot Institute, Malia Hill, says Trump should rescind the final rule 43CFR50 for creating a Hawaiian tribe, both because it is unconstitutional and because Trump wants to reduce the size of government and and undo numerous Obama regulations. Conklin online comment points out that the best way to rescind 43CFR50 is to use the Congressional Review Act.
March 9: Hans von Spakovsky, in "The National Review", discusses a federal court ruling that prohibits Guam from holding a vote that could lead to independence for Guam, where the vote would be racially restricted to the 36% of Guam's population who are descended from native Chamorros. The ruling is based not only on the 15th Amendment, as was the Rice v. Cayetano decision in Hawaii 17 years ago; it is also based on the 14th Amendment equal protection clause.
March 13: Michael Barone, of the American Enterprise Institute, discusses the Guam decision, noting both Republican and Democrat leaders publicly support race-based voting just as in Hawaii both Republican and Democrat leaders supported the Akaka bill.
March 14: Letter to editor says Trump should cancel Hawaii statehood, return Hawaii to status of independent nation, and pay massive reparations.
March 15: Hans von Spakovsky, in "The Conservative Review", says "... watching the attorney general of Hawaii, Doug Chin, condemn President Donald Trump's revised immigration order as 'blatantly discriminatory' was quite ironic, given that Hawaii is the home of a state government that constantly engages in blatant racial and ethnic discrimination ... and its division of Hawaiian residents into two separate classes, one of which is given special privileges not available to anyone else." [referring to Hawaii's large number of racial entitlement programs]
March 28: Article in "Indian Country Today" says Indian tribes support Gorsuch for Supreme Court, contrary to their usual Democrat allies, because Gorsuch has record of ruling in favor of tribes on sovereignty issues.
** No activity during April.
May 7: Hawaii Supreme Court unanimously issues "Order of Public Censure" against Dexter Kaiama, who is attorney for Keanu Sai, because of Kaiama's accusation against the chief judge of the Third Circuit that the judge is guilty of war crimes under international law. Full text of the Order of Public Censure."
May 10: OHA Gets An F Grade For Telling You How It Spends Your Money (according to Federation of state Public Interest Research Groups)
May 11: Blogger Ian Lind explains "Here's Why Hawaii Judges Are Not 'War Criminals'" Lind says "The Hawaii Supreme Court has administered a mild but still meaningful rebuke to a prominent proponent of the thesis, now in vogue among certain parts of the Hawaiian sovereignty movement, that the Hawaiian Kingdom was never legally made part of the United States and therefore continues to exist as an independent nation. It came in the form of a public reprimand of a lawyer for accusing a state judge of committing war crimes.
May 12: Independence activist publishes article
When It Comes To Native Hawaiian Affairs, Authoritarianism Is In Vogue
OHA trustees, the 'aha and the Democratic Party have all cracked down on opponents of the federal recognition approach to nation-building.
May 27:
(1) University of Hawaii Professor of trust law testifies that OHA is engaged in illegal and immoral actions by concealing income, expenditures, and procurement by using wholly-owned limited liability corporations;
(2) Letter to editor illustrates irrationality and incoherence of Hawaiian sovereignty activists and the newspapers which routinely give them a platform.
END OF INDEX
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BEGIN FULL TEXT OF ALL ITEMS IN THE INDEX, JANUARY 1, 2017 THRU MAY 2017
https://www.whitehouse.gov/blog/2017/01/02/renewed-era-federal-tribal-relations
WHITE HOUSE, PRESIDENT BARACK OBAMA
News release January 2, 2017
BY KAREN DIVER, SPECIAL ASSISTANT TO THE PRESIDENT FOR NATIVE AMERICAN AFFAIRS IN THE WHITE HOUSE DOMESTIC POLICY COUNCIL
Summary: Today the White House is releasing a report outlining some of the successes of this Administration while working on behalf of Tribes.
The Obama Administration has made historic progress over the past eight years in improving the nation-to-nation relationship between the United States and federally recognized Tribes. Together, the Obama Administration and Tribal Nations have accomplished shared goals and achieved milestones that upheld self-governance and self-determination – the foundation for prosperous and resilient tribal nations.
Today, the White House is releasing a report outlining some of the successes of this Administration while working on behalf of Tribes. The report sets a baseline of progress for Tribal Nations to reference in their ongoing work with the federal government, and outlines the priorities that the White House Council on Native American Affairs (WHCNAA) will continue to work on based on Tribal leaders' recommendations. ...
Read the full report HERE [40 numbered pages]
https://www.whitehouse.gov/sites/default/files/docs/whncaa_report.pdf
** Excerpts from the report of special relevance to Hawaii
2016 WHITE HOUSE TRIBAL NATIONS CONFERENCE PROGRESS REPORT
A Renewed Era of Federal-Tribal Relations
January 2017
Page 5: Improving the Nation-to-Nation Relationship
Over the past eight years, the Administration has strengthened the nation-to-nation relationship by striving to uphold the federal government's treaty and trust responsibilities to Tribal nations. Long- standing, historic disputes with Tribes and American Indians and Alaska Natives were settled during the Obama Administration, facilitating the opportunity for Tribes and the federal government to move beyond the tension and cost of protracted litigation. Those settlements have infused billions of dollars into Indian Country, creating opportunities for economic development, social services, and Tribal government programs. In addition, hundreds of thousands of acres of Tribal homelands have been restored in trust for Tribes. Some additional highlights include:
pages 8-9
* Providing a Process for Reestablishing a Government-to-Government Relationship with Native Hawaiians. DOI promulgated a final rule that provides an administrative mechanism for reestablishing a government-to-government relationship between the United States and the Native Hawaiian community. Native Hawaiians are the largest indigenous group in the United States that lacks a government-to-government relationship with the United States. The rule would leave it to the Native Hawaiian community to decide whether to form a government, and to determine whether to seek a government-to- government relationship with the United States.
*Improving Tribal and Native Hawaiian Involvement in the National Historic Preservation Program. In celebration of the 50th anniversary of the National Historic Preservation Act (NHPA), early in 2016 the Advisory Council on Historic Preservation (ACHP) launched an effort to improve the effectiveness of the national historic preservation program. The ACHP is developing a set of policy recommendations and achievable implementation strategies that can be implemented through legislative, executive, or administrative action. Since the NHPA provides Indian Tribes a critical opportunity to have a voice in federal decision making about projects that might affect Tribal sacred and historic places, the ACHP sought input from Tribal leaders and preservation staff as well as intertribal organizations about ways to improve Tribal involvement in the national historic preservation program. Their responses are included in the recommendations and will be formally submitted to the next Administration and the incoming Congress at the end of this year. They will also provide direction for the ACHP's Office of Native American Affairs.
page 12
Consultation
The concept of Tribal consultation arises from the unique legal and political relationship between the federal government and Tribal nations, a relationship grounded in the U.S. Constitution, treaties, statutes, executive orders and judicial decisions. Departments and agencies strengthened their consultation policies and efforts in response to President Obama's Memorandum signed at the first Tribal Nations Conference in 2009 directing Federal agencies to submit detailed plans of actions on how they intend to secure regular and meaningful consultation and collaboration with Tribal officials in the development of Federal policies that have Tribal implications, pursuant to Executive Order 13175. Some highlights include: ...
page 13
* Improving Tribal and Native Hawaiian consultation in federal project planning. In response to the issuance of the Presidential Memorandum on Tribal Consultation and building on the Advisory Council Historic Preservation's (ACHP) longstanding efforts, the ACHP issued an unprecedented amount of guidance on topics ranging from the integration of Section 106 and the U.N. Declaration on the Rights of Indigenous Peoples to the role of applicants in federal-Tribal consultation. The ACHP also published Recommendations for Improving Tribal-Federal Consultation.
* Protection of Confidential Information. The ACHP issued a "Frequently Asked Questions" guidance document on protecting sensitive information about historic properties under Section 304 of the National Historic Preservation Act. Federal agency officials, SHPOs, THPOs, Indian Tribes, Native Hawaiian organizations, and other stakeholders in the Section 106 process often ask ACHP staff how sensitive information about historic properties can be protected from public disclosure.
page 14
Education and Native Youth
A cornerstone of the Administration's efforts with Indian Country has been its work with Native youth. The commitment to Native youth has been embraced by a broad array of federal agencies who undertook initiatives ranging from direct engagement to program development and agency reforms. Highlights include: ...
page 18
* Enhancing Support for Climate & Environment Education for Native Youth. In 2015 and 2016, U.S. Fish and Wildlife Service, Bureau of Indian Affairs (BIA), the National Park Service (NPS), U.S. Geological Survey (USGS), at the Department of Interior along with the Environmental Protection Agency, National Oceanic and Atmospheric Administration, and U.S. Department of Agriculture's (USDA) Forest Service hosted the first two Inter-Tribal Youth Climate Leadership Congress (Congress) to promote youth engagement and positive community action for climate resilience. Participating Native American, Alaska Native, and Native Hawaiian students learned about climate change issues in indigenous communities, federal agency efforts to address impacts, and how the students can help their communities become more resilient in the face of these challenges.
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https://indiancountrymedianetwork.com/news/opinions/trump-repeal-federal-indian-law/
Indian Country Media Network [formerly Indian Country Today], January 3, 2017
Trump Will Repeal and Replace It!
Federal indian law may be under serious threat
by Steve Russell
No, not Obamacare. Federal Indian law.
President Trump had the blueprint down for ending tribal sovereignty long before he went into politics. My hope was that we would be so far down his priority list that he would not get around to us.
A column by my colleague Lynn Armitage tells me that was a vain hope. She quotes Deswood Tome as asserting that our statutory citizenship is different than constitutional citizenship to our detriment.
That was once true in one sense. It could be taken away. It was conferred without our request and it theoretically could be taken back in a similar manner, but I don't think that's possible now.
One reason is that I do not think the courts will any longer construe the Fourteenth Amendment to deny American Indians birthright citizenship. Leaving aside the administrative nightmare, citizenship cannot be taken away from persons currently citizens absent fraud in the application (we made no application) and that makes our children birthright citizens.
Tome goes on to claim that the Indian Citizenship Act makes us second-class citizens. Say what?
Let's see. I've got a passport. I've got Social Security. I can vote. I have rights under the Constitution that the courts will recognize. What exactly is it I don't have that a fully white citizen has (I'm mixed blood)?
I do have one thing in addition to what a fully non-Indian citizen would have and that is my tribal citizenship. Did you notice my code switch from "white" to "non-Indian?" My purpose was to call attention to some peoples who do not have tribal citizenship in spite of being similarly situated to us in all other respects: Native Alaskans and Native Hawaiians.
Alaska was "owned" by Russia based on conquest and we bought it. The U.S. refused to recognize aboriginal land titles. Congress avoided complete destitution for the indigenous peoples of Alaska with the Alaska Native Claims Settlement Act in 1971.
Alaska Natives got their claims involuntarily settled by allocation of assets to Alaska Native Corporations, in which each Native Alaskan was supposed to get 100 shares. I lack the space to evaluate how the corporations worked out in terms of Native interests, but American Indians ought to study the Alaska situation carefully because it is one possibility for what may become of us in the Trumpian revocation of tribal sovereignty. After all, tribal assets have to go somewhere and it would be bad form to take them immediately. Taking them gradually is more likely.
Hawaii was claimed by England based on Christian discovery but that didn't work out because the discoverer, Captain James Cook, got in an argument with the Natives that did not end well for Cook and several British marines.
Hawaii progressed as much of the world has, from competing warlords to a monarchy to a constitutional monarchy. The last monarch, Queen Lili'uokalani, was overthrown by a U.S. backed coup d'état in 1893.
One hundred years later, Congress passed an apology for the coup and acknowledged that the U.S. had annexed Hawaii unlawfully. On the individual level, Native Hawaiians suffered terribly from European diseases and then from a plague of European missionaries.
The economic and social status of Native Hawaiians is similar to ours. They are circa five percent of the population and they lag in per capita income and education. The state has an Office of Hawaiian Affairs that was meant to manage what public lands Hawaii has left for the benefit of surviving Native Hawaiians.
There are also schools that offer preferential admission to Native Hawaiians for the purpose of addressing the education problem.
Non-Hawaiian settlers have filed lawsuits claiming that these programs are unlawful race discrimination. They have prevailed in opening voting for the trustees of the Office of Hawaiian Affairs to non-Natives and allowing non-Natives to stand for office.
A lawsuit attacking a prep school for Native Hawaiians was made to go away by buying off the plaintiffs because most observers agreed that a school to benefit Natives would not fare well in the U.S. Supreme Court.
The litigation strategy that is slowly prevailing is to challenge the very existence of the Office of Hawaiian Affairs as an act of race discrimination against non-Natives.
The same equal protection of the law argument is regularly directed at programs set up to benefit American Indians and the logic of the Hawaiian case on the OHA election would seem to dictate that non-Indians resident on reservations ought to win lawsuits to be allowed to vote in tribal elections.
What insulates Indians is a line of cases holding that "Indian" is not a racial classification but rather a political one. Ironically, that argument was born in the Japanese internment cases, and in those cases it was bogus. The claim was that internment was lawful because it was not based on race but on allegiance to Japan, a claim that was bogus because most of those interned were American citizens and there was no similar treatment of German-Americans or Italian-Americans.
The race v. tribal citizenship distinction does not rest on particularly solid legal grounds and it has been under relentless attack by the political right organized as the Citizens Equal Rights Alliance, One Nation, and like organizations. Trump is well briefed on this and he was attacking that distinction when he said in a Congressional hearing that his adversaries "don't look like Indians to me."
U.S. Indian policy went though a period called "termination and relocation." It was never held to be unlawful but rather was beaten back politically when the consequences were shown to be dooming relocated Indians to the existence of an urban underclass.
Termination of tribal governments was and is legal. Recognition conferred may be taken away. More importantly, sovereignty cannot effectively be exercised from a condition of dependency.
This is why I have advocated that every tribal government should make two budgets every year. The working budget and another that assumes not a dime coming from the federal government. Doing so would create a potent political weapon against termination and a fall back position if termination comes anyway.
I would very much like to hear advocates of repealing and replacing federal Indian law explain what they propose to replace it with. Indian lawyers understand federal Indian law is grafted uncomfortably to English common law and it contains lots of internal contradictions.
I would love to see federal Indian law rationalized if that could be accomplished without harming Indians, just as I would love to see the obvious shortcomings of Obamacare repaired. To date, I know a grand total of two Indians riding the repeal and replace bandwagon, Lynn Armitage and Deswood Tome.
The difference between Obamacare and federal Indian law is that the fixes for Obamacare are easy to see and would already have been made in an alternate reality where Congress is not dominated by people sent to blow it up rather than to govern. Federal Indian law, on the other hand, has a longer history and many more moving parts.
I don't question that federal Indian law can be improved just like I don't question that Obamacare can be improved. I'm just skeptical about the "and replace" part of the formula. If I were Czar, I could fix Obamacare in no time. I've spent a lot more time studying federal Indian law and I have very little to say about how to fix it.
Those Indians who know how to fix it need to speak up, and everybody needs to become familiar with the status of Alaska Natives and Hawaiian Natives. The former have corporations to preserve their interests and the latter have nothing when even the good intentions of state government are in constitutional jeopardy.
Repealers, terminators -- call them whatever makes them happy but demand they explain the "replace" before you go quietly with "repeal."
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/18855/Video-OHA-Trustees-Vote-to-Fire-Crabbe-450K-Golden-Parachute.aspx
Hawaii Free Press, January 4, 2017
Video: OHA Trustees Vote to Fire Crabbe -- $450K Golden Parachute
YouTube video one hour and 42 minutes
https://www.youtube.com/watch?v=HcX7e1qV6O4
From OHA Boardmeetings YouTube Page
It is not included in the video, but an OHA source informs Hawai'i Free Press that Trustees in executive session voted to offer Crabbe a buy out of the rest of his contract.
The motion was carried by five votes: Chair Rowena Akana, Dr Kelii Akina PhD, Hulu Lindsey, Lei Ahu Isa and John Waihee IV.
During the debate, Crabbe cronies -- now in the minority on the Board -- revealed that they had gifted Crabbe with a $450K golden parachute just before the Nov 8 elections changed the Board majority.
FreeHawaii: Flash OHA Trustees Oust Crabbe
Background:
More Turmoil at OHA -- CFO Resigns
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/18829/More-Turmoil-at-OHA--CFO-Resigns.aspx
OHA: Crabbe Contract Secretly Extended 3 Years
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/18787/categoryId/112/OHA-Crabbe-Contract-Secretly-Extended-3-Years.aspx
$500K: OHA's Giant Cookie Loan
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/18826/500K-OHAs-Giant-Cookie-Loan.aspx
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VIDEO HIGHLIGHTS:
At 25:00 Crabbe asks that the discussion of his contract be held in public.
Trustees break until 31:00
Chair Rowena Akana opens discussion with a damning indictment of Crabbe's role as CEO including:
"Venomous atmosphere ...
"Out of control spending ...
"Staff trips to Europe, Australia ...
"Staff required to get OK to speak to Trustees ...
"Allowing people who are not qualified to be hired ..."
Dan Ahuna -- "Lies"
Robert Lindsey -- "Insanity"
Dan Ahuna "Five trustees voted for (Akana) as Chair in exchange for a promise to oust Crabbe, but we have a contract which was extended only two months ago ... Flushing $450K down the toilet ... cost at least $500K ..."
Recess for at 48:00 back at 49:39
Dan Ahuna: "The Legislature is watching. There are bills in the works which would make Trustee positions appointed rather than elected. This is a message that the Board is incompetent. They did this to the BoE. When you were on it, Trustee Isa ..."
Colette Machado: "Early termination requires a buy-out ... $150K per year for three years."
Peter Apo, Hulu Lindsey, and John Waihee IV silent.
59:00 Crabbe pleads for his job ... (Plays video at 1:06:00) "New contract signed on Nov 1. The terms of the contract are binding and enforceable in a court of law ... No matter what you offer me as a buy-out I will adamantly decline ... Chair Lindsey asked me, 'Why would I want to stay here and put up with this chaos?'"
1:18:00 Crabbe: " ... Our employees are subjugated to the erratic, inconsistent, indecisive decision making and behavior unbecoming of servant-leaders. That continues to erode the integrity of our agencies, the credibility of our achievements ..." " ... I came to OHA despite my ohana and close friends astonishment ..."
1:22:00 Crabbe reads short list of OHA employees who have lasted 20+ years ...
1:25:00 Crabbe plays video prepared by his staff cronies who know they are next to go and for some reason want to stay.
1:39:00 Video ends. Crabbe: "… to be quite honest, I'm fed up with it…."
1:42:00 Trustees go into executive session, recording of meeting ends.
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http://www.civilbeat.org/2017/01/oha-board-votes-to-buy-out-contract-of-ceo-crabbe/
Honolulu Civil Beat, January 4, 2017
OHA Board Votes To Buy Out Contract Of CEO Crabbe
Embroiled in lawsuits, the Office of Hawaiian Affairs wants to get rid of its chief executive six months after giving him a new contract.
By Chad Blair
Under new leadership, trustees of the Office of Hawaiian Affairs have voted to buy out the contract of CEO Kamana'opono Crabbe.
The vote occurred Tuesday during a closed-door session convened to review Crabbe's employment, according to Trustee Kelii Akina. Two other trustees confirmed the action. Civil Beat agreed not to identify them because it was the only way to get confirmation of important information.
The move to get rid of Crabbe comes barely six months after he signed a new three-year contract.
Then-Board Chair Robert Lindsey Jr. said at the time, "The most important decision we make for this organization is selecting its CEO. Our hope is that this decision inspires the confidence and support of our employees and beneficiaries."
Lindsey lost his chairmanship last month when a coalition of five trustees voted to replace him with Rowena Akana.
The ascension of Akana, a former chair, was aided by the November election of Akina, who defeated longtime incumbent Haunani Apoliona. Both have been involved in legal battles with OHA.
Crabbe was appointed OHA's chief executive officer in January 2012. His annual salary is $150,000. He could not be reached for comment Wednesday.
Akana released this statement after being contacted by Civil Beat: "This is a confidential personnel matter that is in the hands of the attorneys. I have no further comment at this time."
It's not clear when Crabbe might leave his post, how much it might cost OHA to buy out the remainder of his contract or whether he will fight the board's action.
Embroiled In Lawsuits
A day after the vote to buy out his contract, Crabbe attended a special OHA board meeting Wednesday. It was a contentious session convened to address litigation involving the trustees.
One lawsuit is Akana v. OHA, in which Akana sued her eight fellow trustees over allegations of breach of fiduciary duties. The case, which is in mediation, also involves a countersuit from the eight other trustees alleging it was actually Akana who breached her duties.
Two of the trustees named in the lawsuits -- Apoliona and Oswald Stender -- are no longer on the board.
The other lawsuit was Akina et al. v. State, which involved Akina suing to stop OHA's support of a nation-building effort.
Akana, eight other current and former trustees, Gov. David Ige, former Gov. John Waihee and others were named as defendants in the Akina suit, which was filed before Akina joined OHA.
The Akina suit was dismissed after the OHA-funded group Nai Aupuni opted to hold an aha, or governing convention, without elected delegates last year. But there remains the question of how to pay attorneys' fees. It's unclear how much the fees amount to or who is responsible for paying them.
On Wednesday, before the board again went into executive session, former Trustee Apoliona spoke up.
She said that trustees Akina, Lei Ahu Isa, Carmen Lindsey and John Waihee IV (the governor's son) were "derelict" in their responsibilities because they voted to name Akana chair -- even though 1st Circuit Court Judge Virginia Crandall already ruled in June 2015 as part of the legal battle that Akana had breached her fiduciary duties by disclosing privileged and confidential information.
"I share this simple reminder," said Apoliona. "When one claims to 'speak pono,' one must also 'act pono.'"
Pono is the Hawaiian word for goodness, uprightness or morality, or following the correct or proper procedure.
Apoliona urged her former colleagues to shine a "bright light on ethics" for the sake of OHA's "well-being and survival."
Trustee Dan Ahuna then read aloud a letter from Stender that reiterated the court's finding on Akana. Stender said it was "imperative" that the board sanction and remove Akana from her post in order to "correct a wrong," one that Stender estimated was costing OHA close to $1 million.
That prompted Akana to explain her side of the dispute, one she said began five years ago with allegations of her leaking confidential information regarding OHA's purchase of the Gentry Pacific Design Center. The building, which leases retail space, is now OHA's headquarters.
Akana explained how she had filed a complaint with the state Ethics Commission accusing Apoliona of a conflict of interest, as Apoliona was at the time of the purchase a member of the Bank of Hawaii Board of Directors. She also alleged that Apoliona violated OHA's own governing rules.
Akana said the OHA board tried to stop her from going to court over a possible violation of the state's Sunshine Law on open records. She has tried to make public board deliberations regarding the purchase, which she has suggested was a bad deal, but OHA's lawyers have argued that some of the information is confidential.
"When they could have negotiated many, many times, they chose not to," said Akana. "Instead they chose to countersue me, and that is how this bill has run up to the fees that it has -- hiring a lawyer at $700-plus an hour."
Attorneys in the OHA boardroom Wednesday included former Hawaii Supreme Court Justice Robert Klein, the board counsel; Paul Alston, representing OHA in the Akana case; and Jim Bickerton, representing Akana in the same case.
Apoliona interrupted Akana to accuse her of defaming her, saying the state Ethics Commission had cleared her of any potential violations. Akana replied that Apoliona was not allowed to address the board.
Another Secret Session
Finally, Klein advised the board members to move into executive session, which they did. The closed-door session lasted several hours.
Before that happened, Akina told board members that the Ethics Commission had also determined that there was no conflict in him serving on the OHA board, even though he is president and CEO of the nonprofit Grassroot Institute of Hawaii.
It was in his capacity as head of Grassroot, which promotes individual liberties, free markets and limited government, that Akina sued OHA and the state.
Akina added that he would recuse himself from any discussion over legal fees regarding his own lawsuit.
The OHA board is scheduled to meet again next week. The agenda had not been posted, but there will likely be a call for yet another executive session.
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http://www.staradvertiser.com/2017/01/04/editorial/island-voices/oha-must-empower-hawaiians/
Honolulu Star-Advertiser, January 4, 2016, commentary
OHA must empower Hawaiians
By Peter Apo
Has the Office of Hawaiian Affairs been serving the needs of the community? According to OHA'S new board chairperson, Rowena Akana, "OHA needs to get back to some of the basic needs that people have," implying that we have not. But this is false.
For the record, OHA trustees have always supported assisting our beneficiaries to meet quality of life challenges such as home ownership, quality education and health care, employment and economic opportunities and other indicators of prosperity and human dignity. To characterize OHA's leadership history otherwise is misleading at best and an unfair characterization of our trust management history.
OHA has implemented two different models of resource allocation in the past 20 years. In the 1990s and early 2000s, the last time Akana was chairperson, OHA pursued the failed government-dependency model of being all things to all people by providing direct services. The direct service model is an antiquated political approach that cannot even begin to address the 133 years of trans-generational trauma that has the Hawaiian community under siege. The direct services model she now intends to bring back primarily protects and ensures the perpetuation of the institution, further enslaving OHA beneficiaries rather than freeing them from an existence of living in the shadow of the government.
The second model of resource allocation, the one OHA has pursued for the past 14 years, and which could be dismantled, is the community empowerment model. This model allows Hawaiian communities to shape their own destinies, on their own terms, and allows them to redefine their status as state dependent beneficiaries to becoming citizens of an emerging self-governing entity. With this model, local communities acquire the experience and leadership capacity to cut the cord of dependency.
Turning back the clock and retreating from the strategic objective of empowering the community-based network of providers already in place is not the answer.
There is one reality of the community empowerment strategy that raises a red flag. Community empowerment is a long, slow and expensive process. It requires patience and a commitment to stay the course, remaining resilient to the likelihood of early failures, and having faith that there will come a tipping point when patience will be rewarded.
Fortunately, many organizations have already developed leadership capacity with OHA's help, including Hawaiian-focused charter schools, and community organizations for health, reforestation, revitalization of taro fields, fishponds, farming and many, many more.
In the end, the full measure of success fundamental to OHA's constitutional intent is to put ourselves out of business by building the capacity of every Hawaiian community to serve itself, on its own terms, and be free of the government. This is self-determination at its best. Anything less is failure.
Peter Apo is a trustee of the Office of Hawaiian Affairs, elected in 2010.
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** Ken Conklin's online comment
Little Peter found himself in the minority when the OHA board met to choose its chairperson, and like the little boy he is, he threw a tantrum and stomped out of the room. Now he's here using this newspaper to inflict his tantrum on us all.
Peter's conclusion says "In the end, the full measure of success fundamental to OHA's constitutional intent is to put ourselves out of business by building the capacity of every Hawaiian community to serve itself, on its own terms, and be free of the government. This is self-determination at its best. Anything less is failure."
Peter, you are lying. If you are successful in turning ethnic Hawaiians into a federally recognized Indian tribe, then by your own words you have guaranteed failure. Not one of the 567 tribes is self-sufficient or free of the government. The whole point of federal recognition is to jump on the gravy train and feed at the government teat forever, at the expense of everyone else.
To justify grabbing billions of dollars from the feds, Little Peter feels entitled to huge reparations for "the 133 years of trans-generational trauma that has the Hawaiian community under siege." Wow! I don't know what happened in 1884 that allegedly traumatized ethnic Chinese or ethnic Hawaiians -- maybe Peter's a couple years off, referring to the "bayonet constitution" of 1887 forced on King Kalakaua by local residents angry at government corruption -- there were zero U.S. troops involved and no reparations are owed.
Little Peter was elected to the OHA board in 2010, and re-elected in 2014. Let's work to get him UNelected when his name is on the ballot again in 2018. Send him out to pasture alongside Haunani Apoliona so they can make beautiful music together to console themselves for 133 years of transgenerational trauma.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/18860/Akina-Ethics-Commission-Upholds-Participation-in-Suit-Against-Fake-Indian-Tribe.aspx
Hawaii Free Press, January 4, 2017
Akina: Ethics Commission Upholds Participation in Suit Against Fake Indian Tribe
News release by Keli'i Akina
Dr. Keli'i Akina's Status as OHA Trustee Upheld
Board meets in Executive Session
News Release from OHA Trustee Dr Kelii Akina, PhD January 4, 2016
HONOLULU, HI - Today, the Office of Hawaiian Affairs Board of Trustees convened in Executive Session to discuss Akina et al. v. State of Hawaii et al., a lawsuit in which Trustee Keli'i Akina participated, along with four Native Hawaiian OHA beneficiaries and two other individuals, as plaintiffs against OHA. No adverse action was taken against Trustee Akina.
Prior to the Executive Session meeting, Trustee Akina presented a statement from Daniel Gluck, Executive Director and General Counsel for the Hawaii Ethics Commission. In it, Mr. Gluck wrote, "There is no conflict per se with Trustee Akina serving as President/CEO of a non-profit organization while also serving as an elected trustee of OHA."
Mr. Gluck also stated, with regard to Trustee Akina's participation (as an OHA Trustee) in any matters involving the Akina lawsuit itself, "Again, we believe that there is not necessarily a per se conflict of interest ... " The full text of the statement from the Ethics Commission Executive Director was provided to Board Chair Rowena Akana for use in the Executive Session.
"Today was a productive day. The will of the voters who elected me was upheld," Trustee Akina said. "While the content of the Executive Session is confidential, no adverse action was taken against me, and I am honored to continue to work alongside my fellow Trustees for the betterment of Native Hawaiians and all Hawaii."
####
Keli'i Akina, Ph.D., is a community leader who is known for the phrase he has coined, "E Hana Kakou" - Let's work together! Over the past several years as a public policy adviser at the legislative, congressional and international levels, Dr. Akina's mission has been to preserve the Aloha Spirit by which native Hawaiians and people of all races are welcomed and encouraged to work together for a better future for all our keiki. He is president and CEO of the Grassroot Institute of Hawaii, a nonprofit, independent think tank.
DISCLAIMER: The views expressed in this news release do not reflect those of the Office of Hawaiian Affairs or its Board of Trustees.
-----------------------
https://apnews.com/9f26be2b918f4961bd2052bd0553af88/New-Hawaiian-Affairs-trustee-foiled-Native-Hawaiian-election
AP News, January 5, 2017
and
http://www.staradvertiser.com/2017/01/05/breaking-news/new-hawaiian-affairs-trustee-foiled-native-hawaiian-election/
Honolulu Star-Advertiser, January 5, 2017, evening breaking news online only.
NEVER IN PRINT EDITION
and
http://www.hawaiitribune-herald.com/news/state/new-hawaiian-affairs-trustee-foiled-native-hawaiian-election
Hawaii Tribune-Herald [Hilo], print edition January 6, 2017
and
http://www.westhawaiitoday.com/news/local-news/new-hawaiian-affairs-trustee-foiled-native-hawaiian-election
West Hawaii Today [Kona], print edition January 6, 2017
New Hawaiian Affairs trustee foiled Native Hawaiian election
By JENNIFER SINCO KELLEHER
HONOLULU (AP) -- The man who thwarted an effort to hold an election for Native Hawaiians is the newest trustee of the public agency that provided $2.6 million for the failed self-governance vote.
Kelii Akina was elected in November as an at-large Office of Hawaiian Affairs trustee, unseating Haunani Apoliona, who was a trustee since 1996.
Akina's win came as a shock to some in the Native Hawaiian community who wonder if his views are consistent with the office's aim to improve Native Hawaiians' wellbeing.
"I'm a little concerned because of his rhetoric during the campaign," said Oz Stender, a Bishop Estate trustee in the 1990s and an Office of Hawaiian Affairs trustee from 2000 to 2014. "The money that OHA gets to carry on its programs to better the lives of Hawaiians, he says should be used for everybody and not only Hawaiians."
Akina's campaign slogan was "OHA for everyone." His campaign material quoted from the 1840 Hawaiian Kingdom constitution: "God hath made one blood of all nations to dwell on the earth, in unity and blessedness."
Akina, a 1976 graduate of Kamehameha Schools, said his views on Hawaiian issues are often misunderstood. People interpreted his slogan in their own ways, he said, adding that he will protect "foundational Hawaiian entitlements as secured by law," including Hawaiian Homelands and ceded lands trusts.
He believes OHA's role in helping Hawaiians embrace self-determination should be limited.
That was the premise of a lawsuit he and a group of Native Hawaiians and non-Hawaiians filed to stop an election for Native Hawaiians that was to select delegates for a constitutional convention. Their challenge reached the U.S. Supreme Court and prompted organizers to call off the election and send all candidates to the gathering. Lawyers for the plaintiffs withdrew the lawsuit in October.
Akina said the lawsuit doesn't speak for his thoughts on self-determination for Native Hawaiians. "So long as public funds are not being used, I encourage all fellow Native Hawaiians to take part as they choose in the process of self-determinism, a right ... afforded them by the First Amendment of the Constitution," he said.
Akina is mostly known for his role as president of the Grassroot Institute of Hawaii, a public policy think-tank. Before entering Kamehameha in the 7th grade, Akina started his education at Wahiawa Elementary, where his first-grade teacher thought he spoke too much Pidgin. His Chinese-Hawaiian mother put a stop to his Pidgin, yet he still easily slips into the language when talking to a fellow Pidgin speaker.
"It's part of our culture," he said, adding Pidgin allows Hawaii speakers to communicate with each other with a unique "warmth."
After graduating from Northwestern University, Akina spent the early '80s living on the Waianae Coast while doing educational outreach for Youth For Christ.
He supports the controversial Thirty Meter Telescope project. "Losing the TMT will harm Native Hawaiians," he said.
As trustee, his first priority will be fiscal sustainability, he said.
Even before he was sworn in as trustee, the Association of Hawaiian Civic Clubs adopted a resolution expressing concern over Akina's position with Grassroot Institute. The resolution calls on him to resign from Grassroot Institute or decline the trusteeship to eliminate any perception of a conflict of interest.
In a written response to the group, Akina said there's no conflict and that the OHA administration hasn't taken issue with it. "The Grassroot board's decision to appoint me as president and to affirm my leadership of their policies going forward is an affirmation of their willingness to support the Hawaiian community in new ways," his letter said.
The association is concerned because Grassroot Institute has "taken a number of positions against what they call racial entitlements of Native Hawaiians," said the group's president, Annelle Amaral.
"The Grassroot Institute only opposes the unconstitutional use of public funds for discriminatory purposes but does not oppose the rights of individuals to pursue different visions of sovereignty," Akina said.
Michelle Kauhane, president of the Council for Native Hawaiian Advancement, which supports federal recognition, said she wonders how much of his support came from the non-Hawaiian vote. A 2000 U.S. Supreme Court ruling allows all Hawaii voters -- not just Native Hawaiians -- to vote in OHA elections.
"I was surprised that he did win because it's not easy to beat the incumbent, in any race," she said.
Akina's trusteeship may help unify other OHA board members, she said.
Hawaiian sovereignty activist Mililani Trask seemed like an unlikely Akina ally: "We crossed swords on many, many issues," she said.
While not quite a team, they ran on similar platforms related to OHA's financial accountability and transparency, said Trask, who lost her trustee race.
While Trask expects disagreements with him in the future, she said, "I think we badly need change."
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http://www.staradvertiser.com/2017/01/06/hawaii-news/oha-trustees-ok-an-attempt-to-rid-agency-of-administrator/
Honolulu Star-Advertiser, January 6, 2017
OHA trustees OK an attempt to rid agency of administrator
By Timothy Hurley
The Office of Hawaiian Affairs Board of Trustees, aligned under new leadership, has decided to enter into negotiations to buy out the contract of CEO Kamana'opono Crabbe.
But whether the agency's top staffer since 2012 actually loses his job is yet to be seen. The board ultimately might not have the votes, and Crabbe has vowed to fight for his job.
In fact, Crabbe was defiant as he addressed the board earlier this week, waiving his right to discuss his situation in a closed session that was scheduled to address his employment contract.
Crabbe reminded trustees that his new three-year, $450,000 contract is legally binding and enforceable in court. He said there is no provision to terminate without cause, and that a costly buyout would be "a breach of your fiduciary duties."
However, he added, "No matter what you offer me as a buyout, I will adamantly decline." He said the reason is his "unwavering commitment to OHA's vision and mission, plain and simple."
But new Chairwoman Rowena Akana said the agency under Crabbe is suffering from out-of-control spending, including, for example, trips by his administration to Europe, New Zealand, Australia and elsewhere.
"The cost is outrageous," she told trustees Tuesday.
Akana said too many employees have left OHA in the past couple of years, while many unqualified people, needing costly training, have been hired.
"This has become a very difficult kind of atmosphere for trustees to work in," she said. "I've seen too many things happen. The atmosphere has never been like it is now. I've been through six administrators, and it's never been this bad, where the staff is afraid to talk to trustees and are being threatened to be written up."
Trustee Dan Ahuna disagreed: "Everything you said is a complete lie."
The board majority, however, voted to enter the buyout negotiations in closed session.
Contacted Thursday, trustee Peter Apo cautioned about making too much of the closed-door vote. He said that anytime a board changes leadership, discussions about changes in staff come with it.
"It's a normal procedure after every election," he said.
Apo said there were five votes to enter negotiations with Crabbe's representative, but it will take six votes to take further action.
Apo, a Crabbe supporter, said it's possible the effort will result in some administrative changes, but it's far from certain that the CEO will be asked to step down.
Akana couldn't be reached for comment Thursday, but she told Hawaii Public Radio that Crabbe has created a destructive atmosphere at OHA. She said the administrator has had a difficult time carrying out board policy.
Crabbe, a former clinical psychologist who is fluent in the Hawaiian language, is excellent in the areas of health and culture, she said, but lacks the expertise in economic development, a major focus of OHA.
Akana said the buyout will be "cheaper in the long run" and will allow the trustees to hire someone "who wants to work with us rather than against us."
Crabbe could not be reached for comment Thursday, but earlier he said that over the past five years he's done his best to adhere to the mission of OHA while setting the agency on a path toward fiscal responsibility.
But it's difficult when some trustees are "tearing our image down," he told trustees Tuesday.
"Employees are subject to erratic, inconsistent, indecisive decision-making and behavior unbecoming of servant leaders," he said. "Power and politics has driven us to a deplorable state of morale and insanity," a condition that has undermined the agency's mission, he added.
"We are looking for Hawaiian leaders to behave in a Hawaiian manner with Hawaiian characteristics, and that means pono (righteous) leadership," he said.
Crabbe concluded his remarks this way:
"I humble myself before thee, and I ask for your forgiveness if my words and actions have offended you. And therefore I mihi (repent). I ask for your forgiveness and repent, for it was not out of spite but more out of frustration. To sit in this chair and endure the kind of trepidation I have to go through … to be quite honest, I'm fed up with it. But I continue to pick myself up and touch the shoulders of my brother to keep on fighting for the mission of OHA."
---------------------
http://www.westhawaiitoday.com/opinion/columns/good-kind-trouble
West Hawaii Today [Kona], January 12, 2017
The good kind of trouble
by bi-weekly columnist Dennis Gregory / Making Waves
There are heroes all around us and one of them is a cheerful Hawaiian man named Kelii Akina.
He didn't charge across a battlefield, win a gold medal or ride a white horse. He's a trustee for OHA, the Office of Hawaiian Affairs.
He bucks the system, makes waves and stirs up plenty pilikia, a real troublemaker.
But so was George Washington, Ghandi and Martin Luther King. So was King Liho Liho, who disrupted the kingdom to make it better.
He's one of those guys. One of the rare ones who has ethics and sticks to them. That makes him a hero right there.
He sees the higher good above the rules, above skin color, even his own culture. So how did Mr. Akina show these qualities? It wasn't easy, it took real coconuts. He's Hawaiian and stood against forming the new Hawaiian Kingdom. He said he had to sum up all his courage to do it.
It was like standing in front of a train, and having it stop at his feet.
But to Kelii it wasn't right, he believed Hawaii and OHA should be for all races, not just Hawaiians. This strong belief was behind his lawsuit to stop an election for native Hawaiians to form their own government.
When someone said, "Don't make a federal case out it," that's exactly what Akina and his group did, they took it to the U.S. Supreme Court and won. The Sovereign Kingdom was dissolved thanks to him.
That's a big move for a local boy from Wahiawa.
After being the biggest wet blanket around, breaking up the biggest Hawaiian movement since the Great King united the islands, what did Hawaiians do? Did they paddle him out beyond the reef and tie a rock around his neck and drop him in the ocean? Did they give him stink-eye?
Nah.
Hawaiian residents voted him an OHA Trustee.
That was the biggest show of aloha ever or maybe something else. Maybe people saw that the time for pulling one race together and excluding other races is over. They elected him because they agreed with him.
Colors are fading thanks to people like Kelii Akina, making these sweeping waves, this good kind of trouble.
He reminded Hawaiians to keep stirring the melting pot, and preserve aloha. By hanging loose more and more, we start to live aloha and see only a person's smile, that's all we need.
Hawaiians don't need a private club or kingdom, they know who they are. That's how you get after saying aloha for 1,000 years.
Akina's message is, "E Hana Kakou -- let's work together! It's time to stop dividing people and start uniting them. Only by putting aside our political, ethnic, religious and other differences, can we create the Hawaii our keiki deserve."
Jesus could not have said it better, neither could've Thomas Jefferson or Abe Lincoln. Mahalo, Mr. Akina, for standing up for all Hawaii.
But did I mention he is for the TMT? I said he was great, I didn't say he was perfect.
Dennis Gregory is a musician and writer who mixes, truth, humor and aloha in his biweekly column. He can be reached at makewavess@yahoo.com
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** Ken Conklin's note: Ryan Zinke is Trump's nominee for head of the Department of Interior. The Senate Energy and Natural Resources Committee, headed by Alaska Senator Lisa Murkowski, will hold its confirmation hearing on Tuesday January 17, at 10 AM Eastern time (8 AM Mountain time). C-SPAN has set aside 3 hours to cover the hearing -- the same C-SPAN channel which normally broadcasts live sessions of the House of Representatives. Most challenges will probably concern his stance on environmental issues, but there could be some discussion of his policies on Indian tribes. In case anything changes, here's the schedule for all three C-SPAN channels:
https://www.c-span.org/schedule/
-----------------
From:
Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St. Apt. 1205
Kane'ohe, HI 96744-6083
tel/fax (808) 247-7942
e-mail Ken_Conklin@yahoo.com
Re: Zinke Nominating Hearing and Obama midnight regulation 43 CFR 50
To:
Senate Energy and Natural Resources Committee
fortherecord@energy.senate.gov
and
Doug Domenech
Lead, Interior Department Transition Landing Team
The Trump-Pence Transition Team
dougdomenech@gmail.com
Date: 14 January 2017
Aloha kakou,
Please ensure that Secretary Zinke, and the Department of Interior, and the Trump Transition Team, do everything possible to repeal Obama's midnight regulation 43 CFR 50 which authorizes the DOI to give federal recognition to a Hawaiian tribe whenever representatives of that racial group choose to seek recognition. The final rule was unilaterally proclaimed by publication in the Federal Register on October 14, 2016 to take effect on November 14, following an Advance Notice of Proposed Rule-Making and a Notice of Proposed Rule-Making, each accompanied with comment periods.
The final rule describes itself as a minor regulation because it falsely says, but does not substantiate, that the financial impact would be less than $100 Million. But according to Census 2010 there are 527,000 so-called "Native Hawaiians", which straight-line interpolation shows would be 600,000 now in 2017, eligible to join the "tribe." The financial impact of federal recognition would be HUGE for the U.S. and especially for Hawaii. The social impact would be even worse, considering that "Native Hawaiians" are 20% of Hawaii's population.
The primary reason why Democrats have persisted in trying to create a Hawaiian tribe where no such tribe has ever existed is to provide legal protection for perhaps a thousand racial entitlement programs that are otherwise unconstitutional under the 14th Amendment Equal Protection Clause.
Note that numerous versions of a Hawaiian Government Reorganization bill to create a Hawaiian tribe were blocked by Senate Republicans throughout a 13 year period from 2000 through 2012, but that the DOI Final Rule 43 CFR 50 is Obama's attempt to usurp Congressional authority by using executive power to create a law that Congress repeatedly rejected. The legislation, and then the proposed DOI rule, were opposed in writing on several occasions by the U.S. Commission on Civil Rights, and by Republican filibusters in the Senate, and on numerous articles by Republican leaders in magazines of national circulation. For further information and citations see
http://tinyurl.com/zkbd22p
Senator Cornyn, who serves on the Energy and Natural Resources Committee, spoke eloquently and at length against the Hawaiian Government Reorganization bill (Akaka bill) on two occasions during an hours-long floor debate on a cloture motion to proceed on June 7, 2006, Congressional Record pp. S5574-5 and June 8 p. S5632.
The best way to kill 43 CFR 50 permanently would be to repeal it through the Congressional Review Act. If that doesn't work out then perhaps a formal written Opinion regarding unconstitutionality, from the DOI Solicitor, would be helpful, along with language prohibiting its implementation in the budget for DOI.
Secretary-nominee Zinke should be asked to pledge opposition to and refusal to implement 43 CFR 50.
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https://www.facebook.com/photo.php?fbid=861685573973547&set=a.383294031812706.1073741825.100003963382213&type=3&theater
Keli'i Akina Facebook page, January 16 (MLK Holiday), approx 9:30 AM
As your OHA Trustee-at-Large, I will strive to honor Dr. King and make his dream a reality for Hawaii. All of us in Hawaii are the reason Martin Luther King and his fellow marchers wore garlands of lei during the famous march in Selma. King visited our islands in 1959 and addressed both houses of our newly formed state legislature, telling them: "As I think of the struggle that we are engaged in in the South land, we look to you [Hawaii] for inspiration and as a noble example, where you have already accomplished in the area of racial harmony and racial justice, what we are struggling to accomplish in other sections of the country."
Today, there is a growing stereotype of Native Hawaiians as a monolithic group that opposes all that is American and asserts exclusive rights against the majority of others who have made Hawaii their home. This stereotype is clearly not the true picture. The majority of Native Hawaiians are also of Japanese, Chinese, Caucasian, Filipino, and countless other racial backgrounds
All the people of Hawaii deserve a future where King's dream is realized by our keiki [children].
As your OHA Trustee-at-Large, I will strive to honor Dr. King and make his dream a reality for Hawaii.
E hana kakou/Let's work together!
Keli'i Akina, Ph. D.
Trustee-at-Large,
Office of Hawaiian Affairs
DISCLAIMER: The contents of this message are the personal views of Trustee Keli'I Akina and not necessarily the position or views of the Office of Hawaiian Affairs or its Board of Trustees.
----------------------
Jan 17: U.S. Senate Energy and Natural Resources Committee held a hearing regarding confirmation of President-elect Trump's nomination of Ryan Zinke to become Secretary of the Department of Interior. The committee provides a webpage containing a video of the entire hearing, plus written opening statements by chair Lisa Murkowski, ranking member Maria Cantwell, and candidate Zinke; and Zinke's disclosure form -- go to
http://www.energy.senate.gov/public/index.cfm/2017/1/nomination-hearing-of-the-honorable-ryan-zinke-to-be-the-secretary-of-the-interior
Hawaii Senator Mazie Hirono is the most junior member of the committee, so her time came at the end of each of three rounds of questioning; but she used her time only in the first session, beginning at 2:46 of the video on the committee website. Chair Murkowski announced there was a vote in progress in the Senate, but the committee would squeeze in Mazie before everyone had to leave. Mazie's performance was mercifully shorter than the time she could have taken, and was very poor. Airhead comes to mind. After members returned from the floor vote there were two more rounds of questions, but Mazie did not ask any. It was mentioned that during Zinke's routine private meeting with Mazie the previous week Zinke promised to come visit Hawaii; but nearly every committee member got a similar promise from Zinke during the Tuesday hearings.
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http://thegardenisland.com/news/local/years-after-overthrow-hawaiians-continue-sovereignty-push/article_d9b42280-4c22-54e6-99f1-0a6bbfafaf78.html
The Garden Island (Kaua'i), Sunday January 22, 2017
124 years after overthrow, Hawaiians continue sovereignty push
by Alden Alayvilla - The Garden Island
LIHUE -- Over 120 years have passed since a handful of businessmen with loyalties to the U.S. led a coup d'etat to overthrow the Kingdom of Hawaii, but some Native Hawaiians on the Garden Isle continue to advocate sovereignty.
"In reality, the U.S. recognized Hawaii back in 1875 when they signed the Treaty of Reciprocity with the Hawaiian Kingdom, recognizing her as a free and neutral and sovereign state," said Hanalei resident Kaiulani Mahuka. "When you have people as determined as the Hawaiian people are to regain their sovereignty, anything and everything's possible."
Claiming Hawaiian national lands is top priority for the people of the Hawaiian government, said Keohokui Kauihana, a noble representing Kauai in the Hawaiian Government Legislature.
"There will be future exercises to be done to claim the lands," Kauihana said. "We're trying to establish our jurisdictions back. The public will begin to understand that the state has no jurisdiction."
Others, however, believe sovereignty will never be regained.
"The opportunity to maintain the sovereignty of the Hawaiian people really ended with the abdication of Liliuokalani from the throne," said Bill Fernandez, local author and former president of the Kauai Historical Society. "I'm not saying it's right, but the takeover by Hawaii by the plantation interests was somewhat manufactured by the U.S."
Whether it was America, Germany or Japan, Fernandez maintains that it was inevitable a great power was going to grasp Hawaii.
"We go through periods of time of rising Hawaiian leaders ... but outside of armed revolt, nothing like independence will occur," he said.
Kaneohe resident Ken Conklin, who moved to Hawaii in 1992, agreed.
"Hawaii should remain unified with the United States of America," said Conklin, author of "Hawaiian Apartheid -- Racial Separatism and Ethnic Nationalism in the Aloha State." "All of the people should remain united under the single undivided sovereignty of the state of Hawaii."
Conklin said Hawaiian sovereignty is a complicated issue. It starts with small steps, he said.
"The big concept is unity and equality," he said. "We're all equal. We all should be treated equally. We should maintain our unity with the U.S. and each other."
The state of Hawaii is trying to be a sovereign state power, but it doesn't have the qualifications, Kauihana said.
"The state of Hawaii is in international violation, so everybody has to know that," he said. "You can't just make up authority. What they're doing is blocking their sovereignty with their rules and regulations."
Conklin would rather see the "nasty politics" between the advocates of sovereignty and supporters of the U.S. than violence.
"Politics may be nasty, but it's not as nasty as an upright war," he said. "If there hadn't been an overthrow, where would we be now? Maybe we would be a part of Japan."
'We grew up in a lie'
Though the United States recognized Hawaii as a sovereign nation in 1875 with the Treaty of Reciprocity, its military consisting of 162 armed troops joined a group of Hawaii businessmen led by Lorrin Thurston -- a lawyer and grandson of American missionaries to Hawaii -- marched past Iolani Palace on Jan. 5, 1893.
Under pressure from Thurston and the group of American loyalists, and to avoid any act of bloodshed, Queen Lili'uokalani surrendered Hawaii's sovereignty 12 days later.
"I, Lili'uokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom," she said on Jan. 17, 1893.
The queen believed the U.S. would eventually restore the Hawaiian Kingdom, but the U.S. would later annex Hawaii through a joint resolution which led the islands into statehood in the summer of 1959.
Kauihana said the Hawaiian Kingdom should bring more evidence of the suppression of Hawaiian sovereignty to light.
"I've grown up living a fraud all these years. We grew up in a lie. We have to identify it as war crimes," he said. "It was illegal to the max, and the U.S. knows it, too."
Hawaii did have a chance for sovereignty during World War II, Fernandez said.
"One of the tenets of United Nation's creation was colonized people would have an opportunity to regain their independence," he said. "Because the UN had a resolution that was coming in 1960, it required all signatories in the UN to go through this process of allowing colonized people to go through this independence."
But that changed in 1959.
"Once Hawaii became a state, it became an exception to the UN resolution," he said.
American history has portrayed the overthrow to be a rescuing of the Hawaiian Kingdom by the United States, Mahuka said.
"They created the illusion that Hawaii at the time was a country that needed to be rescued," she said. "In reality at the time of the overthrow, Hawaii was the richest nation in the planet with a 98 percent literacy rate with her people."
In 1993, President Bill Clinton issued the Apology Resolution that "acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States."
It also acknowledges the Hawaiian people did not relinquish their claims to sovereignty to the United States.
It was then, almost 25 years ago, when Mahuka was awakened.
"Our queen never excluded any race, ethnicity. She would never allow her people to sleep in the streets," Mahuka said. "In order for any of our legacies to be continued in truth, America has to do the right thing and de-occupy our country. They have to follow through and do the right thing."
** Note from Ken Conklin: From January 8-16, 2017 this newspaper published several essays in a dialog regarding the Treaty of Annexation, between Kenneth R. Conklin, Ph.D., and University of Hawaii Professor of Law Williamson Chang. Full text of that dialog, along with full text of a previous dialog between Chang and Conklin that had been published in Honolulu Civil Beat online newspaper on December 17-18 of 2015, are on this webpage: "Is there a Treaty of Annexation between Hawaii and the United States? Dialogs between Williamson Chang and Ken Conklin: at
https://big11a.angelfire.com/DialogsChangConklinTreatyAnnex.html
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https://turtletalk.wordpress.com/2017/02/09/settlement-protects-religious-rights-for-hawaiian-prisoners/
Turtletalk, February 9, 2017
Settlement Protects Religious Rights For Hawaiian Prisoners
by Sarah M Donnelly
Links: Civil Beat article by Rui Kaneya,
http://www.civilbeat.org/2017/02/settlement-protects-religious-rights-for-hawaiian-prisoners/
previous posts
https://turtletalk.wordpress.com/tag/davis-v-abercrombie/
Download(PDF): Doc. 778-1 Memo Points and Authorities in Support of Motion for Preliminary Approval of Class Settlement Agreement Reached by Counsel on May 14 2015 and Request to Set Fairness Hearing
https://turtletalk.files.wordpress.com/2017/02/doc-778-1-memo-points-and-authorities-in-support-of-motion-for-preliminary-approval-of-class-settlement-agreement-reached-by-counsel-on-may-14-2015-and-request-to-set-fairness-hearing.pdf
From the docket report: 02/06/2017 869 EP: Confirmation Hearing Re: Settlement held. Settlement approved. Order to be issued. (Court Reporter Debi Read.) (JUDGE LESLIE E. KOBAYASHI)(wnn, )
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On February 11 Ken Conklin posted his ongoing compilation of bills in the Hawaii state legislature related to Hawaiian sovereignty, including links to text of each bill, progress of the bill through various committee hearings, and testimony by Ken Conklin and others. The compilation will continue as more bills have hearings, until the session ends in May. Look in the compilation for especially these bills and Conklin's testimony on them:
HB862 RELATING TO TRAINING. (Requires state and county department heads to take the training on native Hawaiian and Hawaiian traditional and customary rights administered by OHA.)
HB620 RELATING TO THE KAHO'OLAWE ISLAND RESERVE COMMISSION.
(Appropriates funds to support the Kaho'olawe Island Reserve Commission.)
SB643 RELATING TO THE HAWAIIAN LANGUAGE. (Clarifies that Hawaiian shall be required for public acts and transactions beginning on January 1, 2020. Requires that upon request by a member of the public for the Hawaiian language version, the public officer having the care and custody of a government record, paper, or document shall make all reasonable efforts to make it available in Hawaiian.)
HB1297 RELATING TO HAWAIIAN SOVEREIGNTY. (Provides that the State shall support a model of sovereignty and self-governance chosen by the [ethnic] Hawaiian people that complies with federal and state law.)
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http://www.libertynewsnow.com/use-cra-repeal-dept-interior-rule-tries-create-unconstitutional-native-hawaiian-government/article6777
Liberty News Now (Judicial Watch), February 23, 2017
The Attempt to Create an Unconstitutional "Native Hawaiian Government"
The Department of the Interior (DOI) last year promulgated a rule intended to provide a way to organize "a Native Hawaiian government" that could "seek a government-to-government relationship with the United States." In plain English, this is an attempt to grant tribal status to Native Hawaiians by executive decree. The means for accomplishing this would be a vote, restricted by the regulation to those who had at least one drop of Native Hawaiian blood.
This atrocious rule, which is almost certainly unconstitutional, should immediately be repealed. Congress has the power to do so now under the Congressional Review Act (CRA). This law allows Congress a certain time to object to any new rule if it believes, for example, that an agency has overstepped its legal authority. If the President agrees, the rule is repealed.
The DOI's regulation amounts to (another) attempt by the now-departed Obama Administration to use an executive order to circumvent Congress – and the Constitution. Under art. I, § 8, Congress is vested with the authority to regulate commerce with Indian tribes. This has been interpreted to mean that Congress has complete power to make this decision. Starting in 2000 and for more than a decade, Hawaii's Senator Akaka tried to convince Congress to pass the Native Hawaiian Government Reorganization Act, popularly known as the "Akaka Bill." The Akaka Bill would have granted Native Hawaiians a pathway to federal tribal status. But Congress never passed the bill.
Switching tactics, the Obama Administration decided to try to accomplish the same thing by executive action. Relying on a hodgepodge of federal statutes, the DOI argued that a "special" or "trust" relationship existed between the U.S. government and Native Hawaiians, and that this provided the basis for the DOI to adopt a regulation creating a pathway to Native Hawaiian tribal status. This approach is dishonest. The federal government has never recognized Native Hawaiians as a sovereign entity like other Indian tribes. If it had, there would have been no need for the Akaka Bill. When members of Congress expended political energy for more than a decade trying to pass that bill, were they wasting their time? The DOI's regulation is based on a fiction and ignores the obvious: Native Hawaiians have not been granted federal tribal status because Congress rejected the effort to do so.
Even worse is what the DOI's regulation does. It requires members of the Native Hawaiian community to adopt a "governing document" - meaning a constitution - and then to submit that document to a "ratification vote." Under the DOI's regulation, that ratification vote would be restricted to voters who can prove that they were descendants "of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii." A single drop of blood is enough to be allowed to vote. This is the same ugly standard applied during the Jim Crow era to define a person as black for the purposes of the segregation statutes.
Such a rule would define more than 500,000 Americans as "Native Hawaiian." (Only 1.3 million people live in Hawaii.) If such a tribe ever were formed, it would instantly become the largest tribe in the United States, by a wide margin. Indeed, this looks more like a secession movement that the designation of a tribe. When Hawaii tried to take advantage of this regulation by holding an election restricted to "Native Hawaiians," using the same definition as the DOI, Judicial Watch sued on the grounds that this constituted racial discrimination in violation of the Constitution. (Akina v. State of Hawaii, No. 15-322.) The Supreme Court appeared to agree when it granted an injunction in December 2015 stopping the election. Hawaii later abandoned its efforts to hold such an election.
This is a strong sign that the Supreme Court would also enjoin any other attempt to hold a racially exclusive, "Native Hawaiian" election. The DOI's rule is nothing but an invitation to violate the Constitution. It should be repealed now under the CRA. [Congressional Review Act]
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** Ken Conklin's online comment:
On October 14, 2016 the Obama Department of Interior proclaimed the "final rule" 43CFR50 by publication in the Federal Register. The most effective way to kill that rule, at minimal expense, is for Congress to repeal it using the Congressional Review Act. Otherwise it will require many years and expensive lawsuits to get rid of it. But there is a limited time when CRA can be used. So please, members of the Senate and House, quit talk/talk/talk. It's time to take action.
For 13 years when the Akaka bill was active in Congress, it was Republican Senators who blocked the bill. Conservative commentators published hundreds of editorials against the bill and the DOI regulation -- see a collection of them from 2000-2014 at
http://tinyurl.com/5eflp
So where are these Republican Senators, Congressmen, and commentators now when final victory can be easily achieved? Let's go! GET THE JOB DONE! Use the Congressional Review Act to repeal 43CFR50 before time runs out.
Here's my 134-page testimony opposing the DOI "final rule"
http://tinyurl.com/o58qdhs
To understand the background and national significance of what's happening in Hawaii, see this book: "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State"
http://tinyurl.com/2a9fqa
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/19220/HB1297-State-Recognized-Indian-Tribe-for-Hawaii.aspx
Hawaii Free Press, February 25, 2017
HB1297: State-Recognized Indian Tribe for Hawaii
by Andrew Walden
With President Donald J Trump in the White House, some in Hawaii may think themselves safe from the Fake Indian Tribe.
HB1297 "Relating to Hawaiian Sovereignty" proves them wrong.
In spite of zero media attention, HB1297 drew 747 pages of opposition testimony before an House Committee on Oceans, Marine Resources & Hawaiian Affairs (OMH) hearing February 14. The one and only written testimony in support came from the Office of Hawaiian Affairs "with amendments." OHA has pushed for a Tribe ever since the 1999 ouster of the Broken Trustees of Kamehameha Schools.
HB1297 reads: "The State shall support a model of sovereignty and self-governance chosen by the Hawaiian people in a manner that comports with administrative rules and procedures established by the United States Department of the Interior and that complies with federal and state law ... This Act shall take effect upon its approval."
"(T)hat complies with federal and state law" obviously refers to both Act 195 of 2011, which authorized creation of the Kanaiolowalu Roll, and DOI Rule 43 CFR Part 50 (RIN 1090-AB05) which remains on the books now even as the Obama Administration recedes into history.
"Chosen by the Hawaiian people in a manner that comports with administrative rules and procedures established by the United States Department of the Interior" obviously refers to the DoI rules for a vote on Nai Aupuni 'Constitution.'
Any material 'State support' for the effort to turn Hawaiians into a fake Indian tribe could run counter to the US Supreme Court Rice v Cayetano decision which holds that the State cannot conduct racially discriminatory elections. Grassroot Institute President Kelii Akina (now an elected OHA Trustee) and others won a December 2, 2015 US Supreme Court injunction against the use of OHA funds to conduct the Nai Aupuni tribal election.
After Kanaiolowalu insiders absconded with millions of OHA dollars set aside to sign Hawaiians up for a tribal "Roll", the Nai Aupuni Tribe has been unable to raise much private money. Nai Aupuni dissolved itself in early 2016.
But who needs material support when the State could simply deem Nai Aupuni constitution 'approved' and establish the Nai Aupuni Constitution as the foundation of a State-recognized Fake Indian Tribe -- with immunity from State law for criminals -- political and otherwise -- who wish to dip their beaks and immunity from State environmental, gaming, and land use laws for the favored developers of Tribal leaders.
Verbal testimony from the State Attorney General's Office and OHA was withheld after OHM Committee Chair Rep Kaniela Ing -- himself a Nai Aupuni 'delegate' -- announced "the Chair's intent to defer."
Opposition testimony included:
Karen Murray: "Please oppose this HB1297 at this time. It is inappropriate and would be seen as yet another attempt to "settle" in a bum's rush all Hawaiian land claims and to steal from Hawaiians yet again."
Ikaika Hussey: "In Hawaii's history we know that the 2.2 million acres of Crown and Government lands are roughly coterminous with the lands utilized by the State of Hawaii. The State of Hawaii thus has an interest in subsuming a Hawaiian entity beneath it, so that it can extinguish native claims to those lands. This bill is a precursor to a massive land grab and settlement."
Clifford Kapono, Sr.: "Hawaiians are demanding our valuation of lands in trust(s) and those questionably ceded be clarified by a Native Hawaiian Tribunal and not an extension of any western cognitive process ..."
Under legislative rules, 'deferral' effectively kills HB1297 for the session. The content could be 'scooped' into a 'Frankenbill' or the entire bill could theoretically be revived in 2018.
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** Note by Ken Conklin: Here's my written testimony, and how to find complete information about this bill:
HB1297 RELATING TO HAWAIIAN SOVEREIGNTY.
Provides that the State shall support a model of sovereignty and self-governance chosen by the Hawaiian people that complies with federal and state law.
Bill text (including all amended versions), history, committee hearings, pdf of all testimony submitted to each committee, YEAs and NAYs, committee reports:
http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=HB&billnumber=1297&year=2017
The public file of testimony on this bill HB1297 from the first committee's hearing alone is 749 pages long, occupying 162 Megabytes, takes many minutes to download even with high-speed internet, and is available at
http://www.capitol.hawaii.gov/Session2017/Testimony/HB1297_TESTIMONY_OMH_02-14-17_.PDF
SPECIAL NOTE: The first committee hearing on this bill was the House Committee on Ocean, Marine Resources, and Hawaiian Affairs. The chairman of the committee is Kaniela Ing, a youthful far-left Hawaiian sovereignty activist whose views might be described as supporting racial entitlement programs at taxpayer expense and race-based political sovereignty. Chairman Ing censored Ken Conklin's testimony by preventing it from being included in the file of all testimony on this bill, until Conklin complained to the Speaker of the House and all representatives, after which Conklin's testimony then appeared -- Ing did the same censorship trick on another testimony Conklin had submitted to the same committee on the same day regarding a different bill. For details about what happened with Conklin's testimony on this particular bill, see this blog entry:
https://historymystery.kenconklin.org/2017/02/17/legislsupportdoitribeconklintestimonydisappeared/
and for information on Conklin's appeal to the House Speaker and members which probably forced Ing to include Conklin's testimony, see
Kaniela Ing, Hawaii legislature committee chairman, unethically disappeared written testimony by the same author on two different bills on the same day.
Ken Conklin's testimony in opposition:
There is no historical, legal, or moral justification for race-based political sovereignty for ethnic Hawaiians.
Proposals to "reorganize" a Native Hawaiian governing entity are absurd, because there has never been such an entity in the history of Hawaii and therefore there is nothing to be reorganized. After a thousand years, the first time all the Hawaiian islands were organized under a single governing entity was in 1810 when Kamehameha The Great finally intimidated Kaua'i's King Kaumuali'i to surrender without a fight, and merged his domain with all the rest of the islands which Kamehameha had conquered by force of arms. But the high chiefs in Kamehameha's ruling government included the British Caucasian John Young as Governor of Kamehameha's own home Hawaii Island -- Young's tomb is in Mauna Ala, the Royal Mausoleum, guarded with a pair of pulo'ulo'u (sacred taboo sticks), and is the only tomb there which is built in the shape of a miniature heiau; his bones are the oldest in Mauna Ala. British Caucasian Isaac Davis was Governor of O'ahu.
Here are four persuasive reasons why this bill should be defeated.
1. The bill pledges the State government to support whatever model of sovereignty is chosen by a racial group comprising 20% of Hawaii's people, regardless whether the other 80% oppose it. That's clearly not pono. A proposal to create an apartheid regime by dividing the lands and people of Hawaii along racial lines should not be endorsed by the legislature unless it is placed on the ballot in a general election under the same rules for approval as used for a state Constitutional amendment. But even in the unlikely event that such a proposal gets ratified by the people, it is clearly contrary to the U.S. Constitution and would likely be overruled by the courts.
2. Numerous scientific surveys show that a majority of Hawaii's people -- including probably a majority of "Native Hawaiians" -- oppose this idea. The most reliable and credible surveys were done by nationally esteemed professional public opinion survey companies, including Zogby, headquartered outside Hawaii and thus insulated from propaganda generated by OHA and not beholden to OHA or Kamehameha Schools for lucrative contracts. Even when polls were done by local newspapers or by OHA, over a period of years, the results consistently show that "Native Hawaiians" have the same ranking of priorities as the general population -- top priorities are education, healthcare, housing, the environment, and traffic. The lowest priorities are Native Hawaiian rights, race-based handouts -- and, lowest of all -- ethnic Hawaiian "nationhood" (i.e., the Akaka bill or administrative rule-making to create a Hawaiian tribe). For a compilation of information and links to survey results, see pages 29-34 in Ken Conklin's "Testimony regarding RIN 1090–AB05" at
http://big09.angelfire.com/ ConklinTestmnyDOI081514RulesChangeHawnTribe.pdf
3. There have been perhaps a thousand news reports and commentaries over the years from 2000 through 2014 opposing the Akaka bill and, more recently, opposing the Department of Interior regulation for creating a Hawaiian tribe. The U.S. Commission on Civil Rights spoke loud and clear against the Akaka bill in 2006 and 2009; and in September 2013 four Commissioners sent a letter to President Obama warning that it would be unconstitutional to use administrative rulemaking or executive order to create a Hawaiian tribe and give it federal recognition. In 2001 and 2005 the House Committee on Judiciary, and its subcommittee on the Constitution, took the unusual step of publicly opposing the Akaka bill even though a different committee had jurisdiction over "Indian" legislation. Constitutional law expert Bruce Fein published several articles opposing the Akaka bill, some of which were republished in the Congressional Record at the request of Senator Jon Kyl. Mr. Fein also wrote a monograph "Hawaii Divided Against Itself Cannot Stand." Mr. Fein's essay is of special interest to scholars because of his analysis of the apology resolution of 1993 as well as the provisions of the Akaka bill. Full text of these items has been compiled over the years, including U.S. Commission on Civil Rights letters on official letterhead. A master index provides lists and links for specific time periods. See
https://www.angelfire.com/hi2/hawaiiansovereignty/ AkakaPublishedOpposition.html
4. During February 2016 a monthlong meeting was held on O'ahu in which unelected "Native Hawaiians" who had been candidates in an attempted election run by a group called Na'i Aupuni wrote a proposed constitution for a "Native Hawaiian" nation. They wrote it with the specific intention that it would meet the requirements of the Department of Interior "final rule" for creating a Hawaiian tribe.
Right up front in your face, the preamble says "we join together to affirm a government of, by, and for Native Hawaiian people" [i.e., of the race, by the race, and for the race], and "affirm our ancestral [i.e., race-based] rights and Kuleana to all lands, waters, and resources of our islands and surrounding seas." [i.e., we're gonna take over the whole place, just like Kamehameha did, who was known as "Ka Na'i Aupuni" -- the conqueror.] "We reaffirm the National Sovereignty of the Nation. We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence. Our highest aspirations are set upon the promise of our unity and this Constitution."
The plain language in the preamble is the declaration of a race-war from a gathering blatantly labeled "Na'i Aupuni" which means "Conquest."
In case there's any doubt about fascist racial exclusivity, Article 2 -- Citizenship -- says "A citizen of the Native Hawaiian Nation is any descendant of the aboriginal and indigenous people who, prior to 1778, occupied and exercised sovereignty in the Hawaiian Islands and is enrolled in the nation."
Article 7, Section 4 reaffirms the religious belief that ethnic Hawaiians have a genealogical relationship with the islands, saying "The Nation has a right, duty, and kuleana, both individually and collectively, to sustain the 'Aina (land, kai, wai, air) as an ancestor, source of mana, and source of life and well-being for present and future generations. And Article 8 says "The Government shall not ... Make any law with intent to suppress traditional Native Hawaiian religion or beliefs."
What will happen to the 80% of Hawaii's current population who do not have any Hawaiian native blood? Perhaps the same thing that happened to the vast majority of the indigenous Africans when small minorities of Caucasians took over the governments of Rhodesia (Zimbabwe) and South Africa.
Full text of the proposed constitution is at
http://big09.angelfire.com/NatHwnConstitAdopt022616.pdf
Is this the sort of Hawaiian tribe which our legislature wants to go on record as supporting? God help us!
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https://issuu.com/kawaiola/docs/kwo0317_web
Ka Wai Ola [OHA monthly newspaper], March 2017, page 15
UN declaration asserts Indigenous rights
By Derek Kauanoe [Head of Governance division]
The world changed a little bit, and for the better, when the United Nations General Assembly voted on the UN Declaration on the Rights of Indigenous Peoples ("UNDRIP") in 2007. More than 140 countries adopted the UNDRIP acknowledging indigenous peoples' rights, including rights to lands and resources, thanks to decades of peoples' hard work and advocacy. In this month's governance column, we discuss relevant international developments, federal policies towards Native Hawaiians, and briefly, review the history and current status of Native Hawaiians within the State of Hawai'i. By generally examining developments at these three levels, we encourage Native Hawaiians to consider how developments at these three levels line up with each other.
International developments
The UNDRIP explains that indigenous groups have a right to decide for themselves what their political status will be and how to advance their economic, social and cultural development. It also rec- ognizes indigenous groups' rights to govern themselves on internal and local matters, and determine how to fund their self-governing functions. The UNDRIP created internationally recognized "minimum standards for the survival, dignity and well-being of the indigenous people of the world." The UNDRIP is an important tool for protecting indigenous peoples' interests and resources.
In 2010, President Obama endorsed the UNDRIP and specifically mentioned Native Hawaiians several times throughout his announcement. One commentator explained that when the U.S. expressed its support for the UNDRIP, "it joined the world community in welcoming a new era of human rights."
More recently, world leaders have been considering whether and how to enhance indigenous groups' participation at the U.N. During a consultation session in June 2016, U.S. State Department representatives stated that the U.S. supports enhancing indigenous groups' participation at UN meetings on issues impacting their communities.
Federal
The federal government recognizes Native Hawaiians as an indigenous people. This recognition, however, is not the same as a political relationship with a Native Hawaiian government. In 2016, the Obama Administration created a process for reestablishing a political relationship with a Native Hawaiian government if one ever chooses to pursue a relationship with the U.S. But, having a process to reestablish a political relationship did not create such a relationship. It merely created a doorway for a potential relationship. The government-to-government relationship between indigenous groups and the U.S. has helped keep state governments out of indigenous matters.
State
Native Hawaiians played an active role in the earliest days of the territorial government following the overthrow. Scholars have shown that after "annexation" Hawaiian leaders wanted statehood because they would have more political power as a state than as a territory.
The 1978 Constitutional Convention created a semi-autonomous agency to improve Native Hawaiians' conditions, required the state Legislature to provide sufficient funding to the Department of Hawaiian Home Lands, and reaffirmed protection of traditional and customary rights. In 1993, the State of Hawai'i expressed its intent to transfer management and control of Kaho'olawe Island's resources to a Native Hawaiian government.
As recently as 2011, the State of Hawai'i officially recognized Native Hawaiians as the indigenous aboriginal people of Hawai'i. It is important to know that few states, if any at all, are willing to make this type of recognition.
The international community, as well as the federal and state governments, supports the right of indigenous groups to be self-governing and to make their own decisions. Native Hawaiians are included in this group but have not yet fully-utilized the opportunity during a time when support at the international, federal, and state levels are aligned.
The UNDRIP says Indigenous peoples have the right to make decisions regarding our own internal affairs. In Hawai'i, this means Native Hawaiians can reorganize and choose their own leaders (to manage their assets and resources) without interference from others (including the State of Hawai'i.) Let us consider what it means to have the international community and the federal and state governments in general agreement about indigenous populations and their rights to self-determination and self-governance.
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http://www.civilbeat.org/2017/03/trump-should-rescind-obamas-hawaiian-government-rule/
Honolulu Civil Beat, March 2, 2017
Trump Should Rescind Obama's Hawaiian Government Rule
The rule envisions a "government" of Native Hawaiians that depends upon a race-based vote -- something forbidden by the Constitution.
By Malia Hill
Despite the furor over President Trump's executive orders, surprisingly little attention has been paid to the way the new president is shrinking the size of government, two regulations at a time. On Jan. 30, Trump signed an executive order requiring that for every new federal regulation passed, two must be rescinded.
When it comes to rolling back regulations that harm business, there are plenty of targets in the federal code. But if the new administration really wants to make a statement about the Constitution ... if they want to reject the identity politics that defined the Obama presidency ... there's one rule in particular that should be at the top of the "rescind" list: 40 CFR Part 50, otherwise known as "Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community."
What's wrong with this rule from the Department of the Interior? It would be easier to list what's not a problem. To put it bluntly, if you thought the title was an unwieldy bit of political doublespeak, you've only just begun.
Why not begin with the fact that the rule was pushed through in the last months of the Obama presidency despite a myriad of practical and legal problems? The rule envisions a "government" of Native Hawaiians that depends upon a race-based vote -- something forbidden by the Constitution and which was being litigated while the rule was under consideration. In fact, in Akina v. Hawaii, the Supreme Court upheld an injunction on a race-based election for delegates to a Native Hawaiian Constitutional Convention. And the sole reason for that convention was to start creating the Hawaiian "tribe" envisioned by the proposed rule.
The rule goes to immense effort to carve out a special government purely on race/ethnic origin. But doing so would violate the Constitution and could tear apart the social foundations of Hawaii. Considerations of how the regulation would affect every facet of life in the small multiracial state -- from criminal law to child custody -- were swept aside in order to cater to a specific political faction within the Hawaiian community.
And that may be the most troubling element of all. The Native Hawaiians who were supposed to benefit from the rule don't support it. Public hearings in Hawaii were overwhelmed by individuals who opposed the rule and thousands of individuals submitted comments begging the federal government not to get involved in the issue. Polls show that support for a Native Hawaiian tribe (never more than a slim majority) has been steadily dwindling.
Now, many Hawaiians are rightfully objecting to the millions of dollars that have been wasted on a divisive and unconstitutional nation-building scheme. In fact, a 2015 survey found that Native Hawaiians overwhelmingly want the government agency that handles Hawaiian issues (the Office of Hawaiian Affairs) to concern itself with providing housing, jobs, education and health care rather than get involved in Hawaiian nation-building.
President Obama was so committed to identity politics that he pushed this regulation on a group that didn't want it. President Trump would do well to listen to the Hawaiian people and rescind this rule. In doing so, he would be adhering to the spirit of his original order. Because when a group of citizens tells you that getting the federal government involved is only going to muck things up, you should listen.
About the Author
Malia Hill is the Policy Director for the Grassroot Institute of Hawaii, and lives in the Washington, DC area, where she works on both national and state issues affecting the future of Hawaii. Her background is in law, politics, and communications.
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** Ken Conklin's online comment
43CFR50 can and should be rescinded by using the Congressional Review Act (CRA).
http://tinyurl.com/hgyxff7
Senators usually won't interfere with legislation focused on a different State. But there were Republican Senators who filibustered against the Akaka bill and are still in the Senate. They would certainly be willing to invoke CRA. See multiple speeches by Senators Cornyn, Alexander, and McCain at
http://tinyurl.com/k299m
If the Senate is too busy on other matters to use CRA to repeal the Hawaiian tribe "final rule" there are other methods. Next time a budget is passed funding the Department of Interior, include a sentence prohibiting DOI from implementing the Hawaiian tribe.
If all else fails, there will be a lawsuit. The Supreme Court overturned several Obama regulations on grounds they were unconstitutional abuses of power. Regulations (like 43CFR50) can only implement details of laws passed by congress; they cannot create new laws which Congress has refused to pass.
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http://www.nationalreview.com/article/445645/guam-plebiscite-racist-voting-restrictions-struck-down-federal-court
National Review, March 9, 2017
Guam's Racially Segregated Voting Scheme Is Struck Down
A federal judge found that the island's efforts to restrict voting to "native" residents violated the Constitution.
by Hans A. Von Spakovsky
After a lonely six-year battle, retired Air Force officer Arnold Davis, a resident of Guam, has finally won his right to register to vote in the U.S. territory and participate in a plebiscite on its future.
On March 8, Judge Frances Tydingco-Gatewood ruled that Guam's law limiting registration and voting to "Native Inhabitants" of the island is a violation of the Fourteenth and Fifteenth Amendments. As the judge said, the Constitution does not allow the government "to exclude otherwise qualified voters in participating in an election where public issues are decided simply because those otherwise qualified voters do not have the correct ancestry or bloodline."
This decision has been a long time coming. The suit, filed by J. Christian Adams and the Center for Individual Rights in 2011, arose when Davis tried to register to vote on the plebiscite. His application was rejected and marked as "void" by the Guam Election Commission because he is white.
Guam, you see, banned residents from registering or voting unless they were Chamorro "natives," which to the territorial government means people whose ancestors were original inhabitants of Guam. Chamorros constitute only about 36 percent of the island's present population.
The race-based voting ban clearly violated the Constitution and the Voting Rights Act, yet the Obama Justice Department refused to protect Davis or any of the other disenfranchised residents of the island. It neither filed suit against Guam nor intervened in support of the lawsuit filed by Adams and the Center for Individual Rights. Instead, it gave Guam $300,000 to help finance the plebiscite.
The case itself has a complicated procedural history that included a trip to the Ninth Circuit Court of Appeals, which reversed Tydingco-Gatewood's original decision dismissing the case. The dismissal was based on erroneous arguments that Davis didn't have standing to sue and that his claim was not ripe. The Ninth Circuit sent the case back to Tydingco-Gatewood, holding that Davis not only had standing to challenge Guam's race-based voting law, but that the claim was ripe because Davis was alleging that "he was currently subjected to unlawful unequal treatment in the ongoing registration process."
In her March 8 decision, Tydingco-Gatewood did what she should have done in the first place: applied the precedent set by the U.S. Supreme Court in Rice v. Cayetano (2000). In Rice, SCOTUS threw out a similar voting restriction enacted by Hawaii, holding that the Fifteenth Amendment "prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race," and making clear that ancestry cannot be used as a proxy for race.
Judge Tydingco-Gatewood also noted the Supreme Court's decision in another infamous case, Hirabayashi v. U.S. (1943). In that case, which concerned the treatment of Japanese Americans during World War II, the Court noted: "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Judge Tydingco-Gatewood went on to cite specific discussions by territorial legislators that make it very clear that the Guam legislature intended to "manipulate the system to exclude" anyone other than Chamorros from voting -- an obvious violation of the Fifteenth Amendment.
The judge also found that Guam had violated the Fourteenth Amendment by denying equal protection to its residents. All "Guam voters have a direct interest and will be substantially affected by any change to the island's political status." Guam had asserted that only the "colonized people" of the island should be allowed to vote on its future political status. But, the judge noted, the island failed to cite any legal authority that would allow it to "disregard or circumvent the U.S. Constitution and the laws of the United States."
The defiant attitude displayed throughout this litigation by Guam officials and plebiscite activists reared its ugly head again after the ruling came out. Joe Garrido, chairman of the "Free Association Task Force" organized by Guam's Commission on Decolonization, called Tydingco-Gatewood a "colonized federal judge" who is "not working for the Chamorro people. . . . She is working for the government that is colonizing Guam."
In his "State of the Island" address, delivered just two days before the decision, Guam governor Eddie Calvo said that if the federal court ruled against Guam, he would "petition the other branches of the federal government to secure the right of our people against this continuing subjugation." He promised that he would not turn his "back on the Chamorro people," although he is apparently willing to turn his back on the other 64 percent of island residents who don't fit his definition of a Guam "native."
After the ruling, Calvo issued a statement vowing to find a "way to work around" it, adding that when the judge "says we can't -- I say we can." He even proposed changing the plebiscite by having "two separate boxes -- one would be marked if you're a native inhabitant and the other would be marked if you're a non-native."
Calvo's defiance makes it all the more essential for the Justice Department to bring its heft to bear against any efforts to subvert the judge's ruling. If the governor actually tries to implement a racially segregated ballot as he has suggested he will, the Justice Department must act.
-- Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former Justice Department counsel. Along with John Fund, he is the co-author of Who's Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama's Enforcer: Eric Holder's Justice Department.
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http://www.aei.org/publication/race-based-voting-overturned-in-guam-after-six-years/
American Enterprise Institute, March 13, 2017
Race-based voting overturned in Guam -- after six years
by Michael Barone
Can a U.S. state or territory "exclude otherwise qualified voters in participating in an election where public issues are decided simply because those otherwise qualified voters do not have the correct ancestry or bloodline"? You get a perfect score if you answer yes, and if you take six years of litigation in federal courts to arrive at that answer. That's one way to describe the decision by Judge Frances Tydingco-Gatewood overturning the Guam government's requirement that only citizens of Chamorro descent to vote in a referendum on the political status of Guam.
The suit was filed in 2011 on behalf of a non-Chamorro-descended resident of Guam by J. Christian Adams and the Center for Individual Rights, as Hans von Spakovsky recounts in National Review Online.
Judge Tydingco-Gatewood's original decision denying relief was reversed by the 9th Circuit Court of Appeals and her decision granting relief was issued on March 8. That's a long time to reach a decision clearly compelled by the 15th Amendment of the Constitution and the Supreme Court's 2000 decision Rice v. Cayetano. That case, which I discussed in this blogpost, limited voting for the state's Office of Hawaiian Affairs to people of Native Hawaiian descent. The most recent litigation in Hawaii was sparked by the state's establishment of a Native Hawaiian Roll Commission to enroll voters of Native Hawaiian descent to propose amendments to the state constitution and to pass one affirming the sovereignty of "the Native Hawaiian people."
I'm guessing these efforts in Hawaii and Guam are politicians' attempts to appease the demands of activists seeking to establish some form of separatism, or even independence from the United States, of people of indigenous ancestry.
Of course, this is profoundly at odds with the words and spirit of the United States Constitution, which begins with the words "We the people" -- with no adjective included. And the indigenous populations are a minority in both the state and territory. The most generous definition of Native Hawaiians -- "race alone or in combination with one or more other races" -- shows they make up only 23 percent of the population of Hawaii; estimates are that there are only about 1,000 people there completely of Native Hawaiian ancestry. And Chamorros account for 36 percent of the population of Guam.
Hawaii, when it was admitted to the Union in 1959, was considered a model of racial tolerance and harmony -- one reason statehood was opposed for many years by segregationist Southern Democrats. Now Hawaii, or at least some nontrivial number of activists supported by appeasement-minded politicians, and Guam seem to be bent on racial separatism. Tragic!
By the way, support for these measures is bipartisan. Guam Gov. Eddie Calvo, a Republican, decried Judge Tydingco-Gatewood's decision and called on Congress to somehow reverse it. And while Republicans are scarce on the ground in Hawaii (they currently hold only 6 of 51 seats in the state House and none of 25 in the state Senate), former (2002-10) Republican Gov. Linda Lingle supported some but not all measures to establish a Native Hawaiian entity.
The American Enterprise Institute for Public Policy Research (AEI) is a nonpartisan, nonprofit, 501(c)(3) educational organization and does not take institutional positions on any issues. The views expressed here are those of the author.
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http://www.staradvertiser.com/2017/03/14/editorial/letters/taxpayers-foot-bill-for-all-city-services/
Honolulu Star-Advertiser, March 14, 2017, Letter to editor
Trump can restore Kingdom of Hawaii
President Donald Trump, in his address to Congress, said the time for small thinking is over.
Yes, the time for biggest thinking is now:
* Restore the Kingdom of Hawaii back for the forgotten peoples in Hawaii.
* End annexation and the 50th State of Hawaii.
* Return all federal occupied lands back to the Kingdom.
* Return all income tax paid by residents since annexation, and all federal tax dollars taken from Hawaii.
* Hold the federal government accountable to clean up Hawaii.
* Restore only Kingdom laws in Hawaii.
Calvin Hulihee
Aiea
Roy Nakamura
McCully-Moiliili
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https://www.conservativereview.com/commentary/2017/03/hawaii-sues-trump-admin-for-discrimination-but-have-they-checked-the-mirror
The Conservative Review, March 15, 2017
HAWAII SUES TRUMP ADMIN FOR DISCRIMINATION ... BUT HAVE THEY CHECKED THE MIRROR?
By: Hans von Spakovsky
Nate Madden of Conservative Review has outlined the problems with the latest lawsuit filed by Hawaii against President Donald Trump's revised immigration order temporarily suspending entry from six terrorist safe havens. (Arguments are being held today in federal court.) But watching the attorney general of Hawaii, Doug Chin, condemn President Donald Trump's revised immigration order as "blatantly discriminatory" was quite ironic, given that Hawaii is the home of a state government that constantly engages in blatant racial and ethnic discrimination.
Contrary to Chin's outrageous claim, Trump's new order does not discriminate against anyone, whether based on race or religion. Although Chin accused the administration of issuing an order designed to divide people into "a superior race," it is Hawaii that blatantly discriminates to divide Hawaiian residents and create a "superior race" of Hawaiians entitled to special loans, low cost housing, and other privileges.
The state government has a special "Office of Hawaiian Affairs" (OHA). As its own website says, the OHA awards scholarship money to "Native Hawaiians," as well as loans to "start businesses, improve homes, consolidate debts, and continue their education." It also gives out grants and leases out land at very special, low rates to "Native Hawaiians." To qualify, you have to prove you are a "descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778" according to the Hawaiian Home Commission Act. As Peter Kirsanow, a member of the U.S. Commission on Civil Rights, says, this is no different than the "odious 'one drop rule' contained in the racial-segregation codes of the 19th and early 20th centuries."
In a highly critical 2005 report on the proposed Native Hawaiian Government Reorganization Act, the Civil Rights Commission said that Hawaii "is in a league by itself" when it comes to officially sanctioned discriminatory conduct. Hawaii has some nerve claiming that the revised executive order "differentiates between people based on their ... national origin." That is something the Hawaiian government does every day -- differentiate between people based on their origin and whether they can trace their bloodlines back to 1778.
Attorney General Doug Chin should put his own house in order before he starts accusing President Trump of discrimination. He would be better off suing his own state government to stop its flagrant discrimination and its division of Hawaiian residents into two separate classes, one of which is given special privileges not available to anyone else.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation (heritage.org) and former Justice Department official.
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** Ken Conklin's note: If a Hawaiian tribe is created and gets federal recognition through the Department of Interior regulation published in the Federal Register on October 14, 2017, there will probably be a lawsuit which will probably reach the Supreme Court. Support by the Indian tribes for the nomination of Neil Gorsuch creates the impression that Gorsuch might rule in favor of a federally recognized Hawaiian tribe despite the prevailing view that Gorsuch is politically conservative on most issues.
https://indiancountrymedianetwork.com/news/politics/tribes-support-neil-gorsuch-supreme-court-nod-democrats-plan-filibuster/
Indian Country Today, March 28 2017
Tribes Support Neil Gorsuch Supreme Court Nod as Democrats Plan Filibuster
Native American Rights Fund: '[T]he conclusion drawn is that Indian tribes will likely have a better chance on their cases with Gorsuch on the court'
by Rob Capriccioso
Exhibiting a split with Democratic allies in Congress, several tribes are going on record supporting Judge Neil Gorsuch's nomination to become an associate justice to the U.S. Supreme Court, despite coalescing Democratic plans in the Senate to filibuster him.
"Judge Gorsuch's record includes a great number of decisions involving tribal governments, tribal people and tribal interests, and he has consistently demonstrated not only a sound understanding of Federal Indian Law principles, but a respect for our unique and closely held cultural values," wrote Alvin Not Afraid Jr., chairman of the Crow Tribe Executive Branch, in a recent letter to Senate leadership.
"The importance of having a sitting Justice on the U.S. Supreme Court who understands Federal Indian law and treats tribes fairly cannot be overstated, since it is this Court that is all too often called upon to define, recognize, and in some cases, limit the rights we wield as separate sovereigns within the context of this great nation we all live under."
Added Mark Azure, president of the Fort Belknap Indian Community Council, in another recent letter to Senate leaders: "[W]hile we do not expect that Judge Gorsuch will agree with tribal interests on every issue, we also believe that he is immensely well qualified and we are confident that Judge Gorsuch is a mainstream, commonsense Westerner who will rule fairly on Indian country matters."
Gorsuch, a judge for the U.S. Court of Appeals for the Tenth Circuit since 2006, needs 60 votes to be confirmed, but Senate Democrats have expressed consternation about a variety of his past rulings, and they are especially concerned about whether he would rule to overturn Roe v. Wade. Democrats are widely angry, too, that Republicans did not allow a vote on President Barack Obama's nomination of Judge Merrick Garland to the Supreme Court in 2016 after the passing of Justice Antonin Scalia. Many, including Sen. Bernie Sanders of Vermont – a major tribal champion of late – have said they will vote against his nomination.
Because Gorsuch, 49, can't get to 60 votes without Democratic support given the current makeup of the chamber, it is not likely under current Senate rules that he would be confirmed.
However, Senate Majority Leader Mitch McConnell and the Republican majority could overturn the requirement for 60 votes and choose to go for a simple majority of 51 votes. That action -- known as the "nuclear option" -- would overturn long-standing tradition in the Senate, but Republicans are willing to do so, they say, after Senate Democrats in 2013 when in control of the chamber changed the rules to make it easier to confirm federal appointees of Obama that had been stalled due to Republican opposition. President Donald Trump is supportive of the nuclear option in the case of Gorsuch.
Tribal allies of Gorsuch, including leaders with the National Congress of American Indians and the Native American Rights Fund, have made clear to the White House and Senate that they fully support Gorsuch because they see him as a pro-tribal sovereignty judge.
"When compared to Justice Scalia's Indian law record, the conclusion drawn is that Indian tribes will likely have a better chance on their cases with Gorsuch on the court," the Native American Rights Fund offered in a recent analysis of Gorsuch's record.
Gorsuch himself pointed to his past work on tribal and Indian cases during his confirmation hearings before the Senate Judiciary Committee the week of March 20.
"Tribes are, as you know, sovereign nations," Gorsuch said. "Our constitutional order affords this body considerable power in dealing with those sovereign nations by treaty and otherwise."
He later added: "Our history with Native Americans is not the prettiest history."
According to paperwork the judge submitted to the Senate Judiciary Committee, as highlighted by Sen. John Hoeven (R-N.D.), chair of the Senate Committee on Indian Affairs, Gorsuch lists Yellowbear v. Lampert as one of the 10 most significant cases over which he has ruled. That case saw the judge uphold an American Indian prisoner's right to access to a sweat lodge.
"Neil Gorsuch will be a fair Supreme Court Justice for all of America, including Indian country," Hoeven said in a statement issued March 15 after he and a group of tribal leaders visited the White House to share their support.
"Judge Gorsuch has a strong track record and considerable experience dealing with federal Indian law, having written the opinion on 18 Indian law cases," Hoeven added. "He has shown respect for Indian religious freedom and tribal sovereignty."
Hoeven said that the following tribal nations and groups were represented at the White House meeting on Gorsuch and tribes: Navajo Nation, Chickasaw, Central Council of Tlingit and Haida Indian Tribes of Alaska, Choctaw Nation, Caribou Tribe, as well as the Native America Rights Fund and the National Congress of American Indians. The press was not invited to cover the meeting, according to Hoeven's office. The White House has not responded for requests for comment about the meeting.
On March 27, Sen. Steve Daines (R-MT) announced that the Assiniboine and Sioux Tribes of the Fort Peck Reservation, as well as the Fort Belknap Indian Community and the Crow Tribe had endorsed Gorsuch.
Osage Nation Congresswoman Shannon Edwards, 10th Circuit Representative to the American Bar Association's Standing Committee on the Federal Judiciary, also testified in favor of Neil Gorsuch in front of the Senate Judiciary Committee during his confirmation hearings last week.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/19616/Dexter-Kaiama-Keanu-Sais-Favorite-Lawyer-Censured.aspx
Hawaii Free Press, May 7, 2017
Dexter Kaiama: Keanu Sai's Favorite Lawyer Censured
By News Release, Supreme Court of Hawai'i.
OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. DEXTER K. KAIAMA, Respondent.
SCAD-16-0000522
Decided: May 01, 2017
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack and Wilson, JJ.)
ORDER OF PUBLIC CENSURE
Upon examination of the July 18, 2016 report filed with this court by the Disciplinary Board of the Hawai'i Supreme Court, the exhibits appended to it, and the record as a whole, and upon full and careful consideration of the briefs in this matter submitted to this court by Respondent Dexter K. Kaiama and by the Office of Disciplinary Counsel, we conclude, by clear and convincing evidence, that the record supports the violations identified by the Disciplinary Board:1 specifically, that, on July 13, 2012, by filing the Notice of Protest and its attachments in the Third Circuit litigation presided over by the Judge in question, Respondent Kaiama, with reckless disregard as to the truth or falsity of the allegation, accused the presiding Judge of committing war crimes under international Conventions, and thereby filed a frivolous document that served no legal or practical purpose, in violation of Rule 3.1 of the Hawai'i Rules of Professional Conduct (HRPC) (1994), harassed and embarrassed the Judge, in violation of HRPC Rule 3.5(b), engaged in conduct reasonably likely to disrupt the tribunal - and which did disrupt the tribunal - in violation of HRPC Rule 3.5(c), and made statements with reckless disregard as to their truth or falsity concerning the integrity of the Judge, in violation of HRPC Rule 8.2.
With regard to Respondent's arguments concerning the scope of permitted testimony at the disciplinary hearings, we note Respondent Kaiama had an opportunity to argue before the Hearing Officer for the admission of witness testimony, and was allowed to submit written evidence into the proceedings regarding the legal arguments which he asserted supported his accusations against the Judge. We therefore conclude the Hearing Officer's evidentiary rulings, made following the October 17, 2014 hearing, and the general conduct of the proceedings did not deny Respondent Kaiama's rights to due process. See Bank of Hawaii v. Kunimoto, 91 Hawai'i 372, 388, 984 P.2d 1198, 1214 (1999).
We conclude that Respondent Kaiama's allegations are clearly false upon the evidence in the record, as Respondent Kaiama has not proffered any evidence the Judge in question has been convicted of war crimes by any court or tribunal.
We further conclude the Respondent's accusations were not opinion based upon fully-disclosed facts, but were mere allegations, based upon tenuous legal analysis of broad statutory provisions which do not survive analysis. We conclude Respondent Kaiama's allegations " 'imply a false assertion of fact' " which could "reasonably be interpreted as stating actual facts about their target" which are not true, and the charge of war criminal does, by its plain language, charge the Judge with "commission of a criminal offense." See Standing Comm. on Discipline of the U.S. Dist. Ct. v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990)). In sum, in the words of the United States Court of Appeals for the Ninth Circuit, Respondent Kaiama's accusations "erode public confidence without serving to publicize problems that justifiably deserve attention," id. at 1438. As such, Respondent's allegations are not protected speech. Cf. State ex. rel. Oklahoma Bar Ass'n v. Porter, 766 P.2d 958, 968 (1988). We further conclude these allegations were made with a reckless disregard to their truth or falsity, and were not assertions a reasonable attorney, considered in light of all his professional functions, would make in the same or similar circumstances. See Yagman, 55 F.3d at 1440, U.S. Dist. Ct. v. Sandlin, 12 F.3d 861, 866-67 (9th Cir. 1993); In re Terry, 394 N.E.2d 94, 95-96 (Ind. 1994); In re Comfort, 159 P.3d 1011, 1019-20, 1027 (Kan. 2007); Kentucky Bar Ass'n v. Blum, 404 S.W.3d 841, 856 (Ky. 2013); In re Cobb, 838 N.E.2d 1197, 1212 (Mass. 2005); In re Petition for Disciplinary Action Against Nathan, 671 N.W.2d 578, 584-86 (Minn. 2013), In re Coe, 903 S.W.2d 916, 917 (Mo. 1995); Matter of Westfall, 808 S.W.2d 829, 837 (Mo. 1991); Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 429 (Ohio 2003); Lawyer Disciplinary Bd. v. Hall, 765 S.E.2d 187, 198 (W.Va. 2014).
We also emphasize Respondent Kaiama faces discipline for the allegations made in the Notice of Protest, not for his arguments in the underlying litigation that the court lacked jurisdiction because of the continued existence of the Kingdom of Hawai'i, an argument which, if successful, could achieve an articulable objective for his client, i.e., dismissal of the litigation. See ODC v. Burgess, No. 12608 (August 3, 1988) (drawing a similar distinction and imposing a public censure for Burgess's personal denial of the de jure legitimacy of the government of the State of Hawai'i and its courts, in so doing repudiating his oath taken upon admission to the bar). By contrast, the allegations for which Respondent Kaiama faces discipline do not serve any discernible purpose within the underlying litigation and, hence, cannot be characterized as mere 'zealous representation' of the Respondent's clients. Nor do the allegations bear a rational relationship to any previous opinions of this or other courts of the State and, hence, are not good faith arguments for an extension of such precedent. Nor was the filing of the Notice justified for any other proper purpose: Respondent Kaiama does not offer any specific evidence, cite to any court rule or procedure of any other fora, or articulate any reasonable legal theory to support his assertion that filing the Notice of Protest was necessary to preserve the issue for review by another forum. In short, we conclude that the allegations serve no other purpose but to harass the presiding Judge by threatening him with dire consequences for his previous and subsequent rulings in the litigation.
Respondent Kaiama's conduct warrants suspension, absent mitigating circumstances. See American Bar Association Standards for Imposing Lawyer Sanctions (2000), Standards 6.22 and 6.32; ODC v. Ng, SCAD-12-414 (March 1, 2013); ODC v. Shea, SCAD-11-777 (May 1, 2012); see also ODC v. Cook, No. 28300 (March 6, 2007); Gardner, 793 N.E.2d at 424, Sandlin, 12 F.3d at 862-63, 867; Cf. Westfall, 808 S.W.2d at 838.
We find, in aggravation, that Respondent Kaiama has substantial experience in the practice of law while, in mitigation, we find Respondent Kaiama has a clean disciplinary record, his conduct was absent a dishonest or selfish motive, and he was fully cooperative with the disciplinary proceedings. Therefore, in light of the mitigating factors, which outweigh those in aggravation,
IT IS HEREBY ORDERED that Respondent Kaiama is publicly censured for his misconduct. Respondent Kaiama is, however, cautioned that further such conduct may result in a period of suspension.
IT IS FINALLY ORDERED that Respondent Kaiama shall bear the costs of the disciplinary proceedings upon the approval of a timely-submitted verified bill of costs from the Office of Disciplinary Counsel.
Paula A. Nakayama
Sabrina S. McKenna
Richard W. Pollack
Michael D. Wilson
FOOTNOTES
1. We accept the Findings and Conclusions as amended by the Board, with two exceptions. Based upon the Hearing Officer's role as finder of fact, we accept Finding No. 12 as proposed by the Hearing Officer, and accept Finding 13, as amended to read "It was never Respondent's intent to be disruptive." Nevertheless, insofar as we join other jurisdictions in applying an objective test regarding such conduct, and conclude Respondent Kaiama, at a minimum, leveled his accusations with a reckless disregard to their truth or falsity, we conclude the record supports the violations of the Hawai'i Rules of Professional Conduct identified by the Board.
Mark E. Recktenwald [Chief Justice]
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http://www.civilbeat.org/2017/05/oha-gets-an-f-grade-for-telling-you-how-it-spends-your-money/
Honolulu Civil Beat, May 10, 2017
OHA Gets An F Grade For Telling You How It Spends Your Money
The Native Hawaiian agency claims it's becoming more open all the time, but a national study says otherwise.
By Chad Blair
A new report identifies 42 government agencies across the country that have poor practices when it comes to online spending transparency.
One of them is the Office of Hawaiian Affairs, the only city, county or state agency named from Hawaii.
The U.S. PIRG Education Fund's report, titled Following the Money 2017: Governing in the Shadows, was released last month.
The federation of state Public Interest Research Groups describes itself as "a consumer group that stands up to powerful interests whenever they threaten our health and safety, our financial security, or our right to fully participate in our democratic society."
The report gives OHA, which had expenditures of $55 million in 2013, a grade of F.
U.S. PIRG gave OHA scores of zero when it comes to online searches for checkbook-spending level information, data that can be downloaded in bulk and the ability to search for keywords, recipients and excluded information.
Only nine other agencies, which U.S. PIRG calls "special purpose districts," were considered worse than OHA. They include the Sacramento Area Flood Control Agency in California, the King County Rural Library District in Washington state and the Nebraska Public Power District.
"Citizens' ability to understand how their tax dollars are spent is fundamental to democracy," the report's executive summary states. "Budget and spending transparency holds government officials accountable for making smart decisions, checks corruption, and provides citizens an opportunity to affect how government dollars are spent."
OHA CEO: Transparency A 'Top Priority'
Nationwide, there are more than 38,000 special districts that spend more than $200 billion annually.
PIRG evaluated 79 agencies in all. Those topping the list with "A" grades include the Port of Houston Authority in Texas, the Chicago Transit Authority and the Louisville-Jefferson County Metropolitan Sewer District.
"The nation's most transparent special districts are often those in states that have taken action to require or encourage the posting of financial information online," the report states.
Asked to comment on the report, OHA CEO Kamanaʻopono Crabbe said, "Transparency and accountability continue to be top priorities for the Office of Hawaiian Affairs. To this end, we are committed to going above and beyond just complying with minimum open government requirements, such as the state sunshine law."
As examples, Crabbe said OHA's monthly report on all board actions and votes is included in its newspaper, Ka Wai Ola, which is distributed to more than 60,000 subscribers in Hawaii and on the mainland.
OHA has also live-streamed Board of Trustee standing committee meetings since 2013. And, OHA posts online meeting agendas and minutes, annual reports, financial statements and procurement and awards information.
At least one OHA trustee thinks OHA can do better.
"While OHA serves the special purpose of bettering the conditions of the Hawaiian people, it is a state government agency which must be transparent and accountable to the public," said Trustee Kelii Akina. "In my personal opinion, OHA can improve its online financial transparency by simply creating a website page that provides detailed information on OHA's revenues, spending, fiscal policies and priorities, and also allows the public to respond with constructive feedback."
Akina, who was elected to the board in November, has led efforts to scrutinize OHA's operations through auditing. He supported the majority of trustees who briefly installed Trustee Rowena Akana as board chairwoman.
Akana has long criticized how the agency is run, and she tried to have Crabbe fired. Just this week, Hawaii News Now reported that the state attorney general is investigating whether OHA improperly awarded a lucrative contract without competitive bidding. The report quotes Akana as saying the improper awarding of OHA contracts is rampant.
Crabbe said efforts at greater financial transparency are already underway.
In March, OHA added a page on its website about its upcoming biennium budget, one that allows for community input. More information on contracts and personnel will be posted beginning in October, he said.
"While transparency and accountability are agency priorities, we also recognize that there will always be room for improvement," said Crabbe. "In the end, we welcome opportunities to share with our beneficiaries and the public how OHA is managing its trust to meet our legal mandate of bettering the lives of Native Hawaiians."
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http://www.civilbeat.org/2017/05/ian-lind-heres-why-hawaii-judges-are-not-war-criminals/
Honolulu Civil Beat, May 11, 2017
Here's Why Hawaii Judges Are Not 'War Criminals'
A well-known Native Hawaiian attorney argued a judge couldn't evict a Big Island resident because he lived in the Kingdom of Hawaii. The state Supreme Court disagreed.
By Ian Lind
The Hawaii Supreme Court has administered a mild but still meaningful rebuke to a prominent proponent of the thesis, now in vogue among certain parts of the Hawaiian sovereignty movement, that the Hawaiian Kingdom was never legally made part of the United State and therefore continues to exist as an independent nation.
It came in the form of a public reprimand of a lawyer for accusing a state judge of committing war crimes.
In an "Order of Public Censure" filed May 1, the Supreme Court unanimously affirmed findings of the Office of the Disciplinary Counsel that attorney Dexter Kaiama committed several violations of the Hawaii Rules of Professional Conduct in 2012 when he accused Circuit Court Judge Greg K. Nakamura of being a "war criminal."
Kaiama, who has been a practicing attorney for 30 years, has been active in numerous cases involving Hawaiian issues. He currently represents KAHEA: The Hawaiian-Environmental Alliance in the contested case hearings on the Thirty Meter Telescope.
The allegations triggering the disciplinary action were made in a July 6, 2012, letter addressed to then-Pacific Commander Adm. Samuel J. Locklear III. The letter was titled, "Violations of International Law: Protest and Demand." A copy was filed in state court the following week as a "Notice of Protest."
It identified the "alleged war criminal" as Nakamura, and the "war crime victim" as Kale Gumapac, who was facing foreclosure and eviction from his Big Island property after ceasing to make mortgage payments to his bank. Gumapac's case was being heard in Nakamura's courtroom.
Kaiama, in the letter to Locklear, referred to an Army field manual on the law of war, and said Nakamura "committed a war crime by willfully depriving" Gumapac "of a fair and regular trial prescribed by the Geneva Convention, IV."
Further, Kaiama wrote, a second war crime would result if Nakamura ruled in favor of the bank because "private property cannot be confiscated" by an occupying force under the Geneva Conventions.
Nakamura responded by filing a complaint with the Office of the Disciplinary Counsel in August 2012, asking it to investigate Kaiama's actions.
"The notice states that I have committed a 'war crime,'" Nakamura complained. "The notice serves no useful legal purpose and, therefore, in my opinion, it is designed to harass me as the decision maker."
"Please investigate," the judge asked.
Slow-Moving Wheels Of Justice
Following a hearing and extended legal arguments, the ODC's report and recommendations were submitted to the Supreme Court in July, 2016, nearly four years after the judge filed his complaint, and the court's decision finally emerged nearly 10 months later.
The ODC called Kaiama's "war crime" allegations "patently false." And neither ODC nor the court gave credence to the views of Keanu Sai, whose historical theory of the kingdom's continued existence is now accepted as gospel by a significant faction of the Hawaiian sovereignty movement.
For starters, ODC pointed out the obvious: "The State of Hawai'i is not at war with any nation, including the United States of America."
Citing the same Army manual, ODC argued that the law of war applies when there is "armed hostility between States … usually accompanied by a declaration of war."
"Absent war, no objectively reasonable attorney could possibly arrive at the conclusion that Judge Nakamura is a war criminal," it concluded.
And the Supreme Court agreed.
"We conclude that Respondent Kaiama's allegations are clearly false upon the evidence in the record, as Respondent Kaiama has not proffered any evidence the Judge in question has been convicted of war crimes by any court or tribunal," the court ruled.
The court further agreed with ODC's finding that the document containing the war crime accusation was a "frivolous document that served no legal or practical purpose," and that Kaiama had "knowingly harassed and embarrassed" the judge, in further violation of court rules.
The court stressed that it was the "war criminal" allegation that warranted the public censure, and "not for his arguments in the underlying litigation that the court lacked jurisdiction because of the continued existence of the Kingdom of Hawaii."
The court also ordered Kaiama to pay the costs of the ODC's investigation and proceedings.
Island-Style Alternative Facts
The propositions that somehow the Kingdom of Hawaii still legally exists and Hawaii statehood is therefore just a fiction present a troublesome set of alternative facts which have created a haven for scofflaws and swindlers. If the government and courts are viewed as fictions, then laws, contracts and all sorts of things can be righteously ignored by believers. Mortgage lenders, title companies, and courts have all been dealing with increasing instances where their legitimacy and authority is being challenged.
The basic idea is somewhat twisted, but relatively simple.
It begins with the premise that the United States does not have a legal claim on Hawaii, and the Kingdom of Hawaii continues to exist as a matter of international law. It's a controversial historical theory promoted for years by Keanu Sai, a political scientist who is also a self-proclaimed official of one of the groups claiming to speak for the Hawaiian Kingdom.
In practical terms, the theory doesn't have to be correct as long as people are willing to accept it as such, relying on its obscure references, abundance of fine-print footnotes, implicit but untested assumptions and an ample dose of misrepresented facts.
But if the kingdom still exists, why is Hawaii still an integral part of the United States? According to the theory, it's because the islands have been subjected to a military occupation that started with the overthrow of the monarchy in 1893 and has continued to the present.
Here's the tricky part. If Hawaii is an occupied territory, then it's subject to international agreements — including the Geneva Conventions — governing the treatment of those under hostile military rule.
That gets you to the proposition that a state judge could be considered a war criminal for enforcing the law to collect a debt from a homeowner in foreclosure.
And that's why the Supreme Court's action is important. It's another incremental step in reminding people that when you live and work in the real world, there are consequences for clinging to those alternative facts, however ideologically appealing you think they might be.
Follow Civil Beat on Facebook and Twitter. You can also sign up for Civil Beat's free daily newsletter.
About the Author
Ian Lind is an award-winning investigative reporter and columnist who has been blogging daily for 15 years. He has also worked as a newsletter publisher, public interest advocate and lobbyist for Common Cause in Hawaii, peace educator, and legislative staffer. Lind is a lifelong resident of the islands.
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** Ken Conklin's online comment (if it gets past the blockers and censors at Honolulu Civil Beat)
Thanks to Ian Lind for a straightforward, clear explanation.
Kale Gumapac was a homeowner whose property was foreclosed after he failed to pay his mortgage, which he did because of reliance on Sai's theory about illegal occupation of Hawaii by U.S. and lack of jurisdiction by federal or (puppet regime) state courts. Sai and Gumapac have had numerous joint appearances on TV podcasts. Sai has been causing a lot of pain to a lot of people for more than 20 years as he pushes his absurd historical and legal theories, and Kaiama has been engaging in abuse of legal process in support of Sai. It's long past time for the Supreme Court to rein them in. For in-depth explanation of what's going on, see webpages
"Keanu Sai's Hawaiian history fantasies" at
https://www.angelfire.com/big09/SaiFantasiesSwissDipl111113.html
and
"The latest nonsense from Keanu Sai (April 2015)" at
https://www.angelfire.com/big09/SaiSwissTreaty1864WarCrimes.html
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http://www.civilbeat.org/2017/05/when-it-comes-to-native-hawaiian-affairs-authoritarianism-is-in-vogue/
Honolulu Civil Beat, May 12, 2017
When It Comes To Native Hawaiian Affairs, Authoritarianism Is In Vogue
OHA trustees, the 'aha and the Democratic Party have all cracked down on opponents of the federal recognition approach to nation-building.
By Kaiulani Milham
While resurgent authoritarianism has been getting tacit approval from the Trump administration, here in the Democratic stronghold of Hawaii, it's been getting a pass, too.
At least when it comes to Hawaiian affairs.
One of the most recent offenses to democratic principals came in the form of a free speech crackdown on public testimony by the Office of Hawaiian Affairs' new chair, Colette Machado.
But it's not just OHA that has been marking Hawaiian affairs with a taint of less-than-democratic practices.
There have been multiple recent cases of creeping authoritarian tendencies with other Hawaiian affairs groups as well, including the Hawaiian Affairs Caucus of the Democratic Party of Hawaii, and, most egregiously, the 2016 Native Hawaiian Constitutional Convention.
A common thread running through all of these groups is found in their service to the federal recognition agenda; the same agenda political insiders within the Native Hawaiian Roll Commission have been pushing on Hawaiians for more than a decade at a cost of more than $33 million.
Authoritarianism is defined as a repressive force whose tactics include coercion, force, manipulation, exclusion and humiliation designed to amass and maintain power and domination.
OHA's crackdown on free speech, a list of rules threatening limits on the content of beneficiary concerns and other restrictions, were pronounced by Machado, just one month after she was voted in as chair, at the beginning of the April 6 meeting of the OHA Board of Trustees.
The public testimony rules at OHA include restricting beneficiaries from questioning board members and reading prepared testimony, and requiring that they fill out a form before providing testimony.
OHA typically streams video of its meetings and then posts the video online. However, OHA's video of the April 6 meeting is conspicuously incomplete. Missing all of Machado's announcement, it includes only the final minutes of the 90-minute meeting.
When beneficiaries turned out to protest the crackdown at OHA's very next trustees meeting April 27, with signs reading "Don't Silence the Lahui" they were met with notably toned-down printed copies of the rules.
The new version eliminated the more offensive First Amendment infringement Machado pronounced April 6 that, "Community concerns not related to agenda items is allowable, but subject to the chair's discretion." Despite this pronouncement, the chair has no such discretion.
According to the 1983 U.S. Supreme Court Ruling in Perry Educ. Ass'n v. Perry Local Educators Ass'n, restrictions on speech at public meetings must be "content neutral." In other words, barring a compelling state interest, you can't place a prior restraint on what someone wants to say in a public meeting.
Cherry-Picking Quotes
In explanation of the crackdown, Machado said she was taking action in response to a beneficiary concern raised at the previous month's board meeting, calling for removal of Trustee Peter Apo; whose January sexual misconduct lawsuit settlement cost OHA (and its beneficiaries) $50,000.
Since the settlement, the case had led to two further lawsuits demanding Apo resign from his seat on the board and repay the $50,000.
Attempting to justify the new rules, Machado cherry-picked quotes from Office of Information Practices opinion letters, while neglecting to cite another OIP formal opinion letter, 02-02, which says "oral testimony must be allowed even if a person wishing to testify did not sign up."
When presented with testimony at the April 27 meeting objecting to the infringement of free speech, Machado dug her heels in.
Unapologetic and unchastened by quotes from the Supreme Court ruling on censoring the content of public testimony, she issued a veiled threat to remove "beneficiary concerns" from the agenda, asking whether the comments were made in favor or against keeping beneficiary concerns on the agenda, or removing them.
It's not like this is the first time Machado's leadership style has been found repressive.
On May 5, Hawaii's First Circuit Court upheld a November 2014 Office of Information Practices opinion letter which determined the OHA trustees, under Machado's last stint as chair, violated Hawaii's Sunshine Law when she failed to allow pubic testimony on an agenda item scheduled for executive session.
While the specifics of that case had to do with OHA's rescission of the May 2014 letter sent by OHA Chief Executive Officer Kamanaʻopono Crabbe to then-U.S. Secretary of State John Kerry, the underlying OHA interest, once again, was squelching dissent on federal recognition.
If, as the "Kerry Letter" sought to confirm, the Hawaiian Kingdom still exists under international law, why would Hawaiians accept a less-than status as a U.S. tribe under federal recognition?
'No One Speaks For The 'Aha'
Attempts to repress opposition to federal recognition have been at play in other Hawaiian affairs arenas as well.
Reminiscent of bygone Soviet Union, and more recent Russian, crackdowns on free speech, authoritarian controls were commonplace at the February 2016 Native Hawaiian Convention.
Both media and independent observers were banned during the entire month-long gathering, known as "The ʻAha," which took place behind the locked gates of an exclusive golf club in Kailua.
For example, a policy laid out by the pro-federal recognition ʻAha Communications Committee, insisted that "no bad news" would be permitted in press releases issued from the convention. As a participant in the ʻaha, and member of the ʻAha Communications Committee, I spoke against this censorship, but was quickly overruled.
In likewise authoritarian style, all participants in the ʻaha were warned against speaking about the ʻaha to the media with the oft-repeated mantra, "No one but the ʻaha, speaks for the ʻaha."
This particular stricture came to a head in the second week of the ʻaha when a petition opposing a land-grabbing bill in the Legislature was circulated and signed by the majority of participants. Before it could be submitted, the petition was co-opted by a member of the leadership team, who took it upon himself to alter the text of the petition, without the approval of those who had signed it, all for fear that it violated the "No one speaks for the ʻaha" rule.
Democratic Party Joins In
Similar controls on free speech were imposed at a 2016 meeting of the Hawaiian Affairs Caucus of the Hawaii Democratic Party, where the meeting agenda featured a presentation on the ʻaha-created, federal recognition-ready, "Constitution of the Native Hawaiian Nation."
Apparently alerted by the presence of members of the pro-independence Protest Naʻi Aupuni group, the caucus chair, a longtime federal recognition advocate, sternly forbid audio recording of the meeting, regardless of the fact that Hawaii is a "one-party consent" state wherein anyone, who is party to a conversation, may record it.
The Democratic Party platform's section on Native Hawaiians, submitted by the Hawaiian Affairs Caucus, contains the pro-federal recognition statement: "We support Native Hawaiian self-determination, consistent with federal policy for native self-determination extended to other indigenous peoples of the United States."
The platform statement is an absolute contravention of the nearly universal opposition to federal recognition that Hawaiians personally expressed in their oral testimony at U.S. Department of Interior Advance Notice of Proposed Rule Making meetings held throughout Hawaii in 2014.
Authoritarian tactics were displayed even more recently, in the aftermath of the Oahu Democratic Party of Hawaii Convention on April 22 at Aloha Stadium where a flier — objecting to the Hawaiian Affairs Caucus' pro-federal recognition contribution to the Democratic Party platform — was denounced as "garbage" in a mass email to Hawaiian homesteaders.
Calling the authors of the flier the "Anti-Everything Cult," the email twisted the intention of the flier from opposing federal recognition to opposing homesteaders' rights:
"They have nothing to offer, nor should any homesteader in their right mind follow these people into a black hole of nothingness. They are professional whiners — let's call it like it is, and homesteaders aren't whiners."
The underlying message of all of this repressive behavior on the part of those diehards for federal recognition is a simple one. Be quiet and do as you're told.
It's not a healthy foundation for a Hawaiian nation built on democratic principles, but an excellent start for an authoritarian regime.
About the Author
Makaha resident Kaiulani Milham is a Kanaka Maoli journalist and independence activist who participated in the Nai Aupuni Aha in Feb. 2016.
** Ken Conklin's attempted online comment (blocked by Civil Beat, as is now their usual custom)
Indeed, "When It Comes To Native Hawaiian Affairs, Authoritarianism Is In Vogue." The explanation is simple. The powerful, wealthy race-based institutions want to create an Indian tribe. And Indian tribes are notoriously authoritarian. The chiefs rule the Indians. Any Indian who doesn't like the way the chiefs treat him has no recourse to the courts (except the tribal court), because tribes have sovereignty. If you make too much noise the chiefs will disenroll you. OHA sometimes comes right out publicly and says OHA is not a state government agency -- it cannot be held accountable to procurement regulations or open-meeting laws, especially when spending "trust" money instead of tax dollars. So they say. They're wrong, but you need megabucks to take them to court.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/19734/Randy-Roth-OHA-Misusing-LLCs-to-Hide-from-Law.aspx
Hawaii Free Press, May 27, 2017
You-Tube video of OHA board meeting of May 25, 2017, 2 hours and 54 minutes
https://www.youtube.com/watch?v=RVLNZJ1RRQs
Randy Roth testimony begins at the 3:15 mark
Randy Roth: OHA Copies Bishop Estate -- Misusing LLCs to Hide from Law
Highlights from Randy Roth testimony and Q&A:
"I'm … here because 20 years ago I was involved in what some then called the Bishop Estate Controversy. I co-authored with Judge Sam King a book called ‘Broken Trust' about it. And one aspect of that situation I think is similar to my perception of one aspect of what you're facing today. It primarily has to do with the use of what I'm describing as ‘wholly-owned subsidiaries', these LLCs that OHA has set up. Simply stated, I think regardless of how the question of OHA's legal status is resolved, I think there are reasons why OHA can't be using the LLCs to get around laws that would otherwise be applicable to OHA and OHA Trustees.
"If, for example, OHA is a State agency, I believe very strongly that these LLCs are subject to procurement laws, public information and Sunshine laws. You simply can't hide things by dropping them into a wholly-owned subsidiary such as these LLCs, in my opinion.
"If instead, OHA is a classic trust, then trust law applies. I think there are a variety of fiduciary duties that make it improper for OHA Trustees to, in effect, delegate extremely important functions and to do it in a way I think would not enable anyone to hold OHA Trustees accountable for the delegation or for the acts of their agents or for a number of other duties the OHA Trustees simply cannot rid themselves of simply by dropping assets and activities into LLCs.
"So, my bottom line on all this - I think on the audit which you are about to conduct -- and I commend you -- I think that's exactly what is needed. I think the public will support that very, very strongly. I think particularly your beneficiaries will support that very strongly. I would simply say that it's critically important -- in my opinion -- that those LLCs be included.
"I've read published reports suggesting to me that legal counsel that you have evidently received in the past having to do with these LLCs in my opinion is very questionable. And I believe those lawyers who gave that advice having to do with those LLCs have their own interests to protect at this point in time. So I would suggest to you that, in my opinion, they have a conflict of interest. As fiduciaries I think it is critically important that you not seek legal advice on issues such as I am testifying on from attorneys that I believe have a conflict of interest on those specific issues.
"I really appreciate that you're allowing me to share my thoughts on these critically important issues and I'd be happy to address any questions you might have ..."
Q&A begins at 9:50 mark.
At 15:10:
" ... While the law is confusing in some ways, I personally think OHA is a State agency. Obviously, all of you have been holding yourselves out as Trustees holding trust assets. So at least arguable you're subject to all of the restrictions that would apply to a State agency and all of the fiduciary duties that would apply to trustees.
"Your situation in that regard is quite unique. And so when I sit here and offer you expert testimony, it is my opinion, based on a lot of complicated input, that you simply can't do what I think has been done with the LLCs in the past.
"I don't know all the details, which is one reason why I think the audit is necessary. I certainly don't know what the motivation was in setting them up in the first place. But if you drop down a function that would otherwise be subject to Information Practices, Sunshine Laws, Procurement Laws into a wholly-owned LLC -- in my expert opinion that does not shelter that from those laws.
"Similarly, if you have various fiduciary duties as Trustees that would require you to do something and you're trying to avoid that by putting it -- and even if your motive isn't to avoid it -- if the effect is to avoid those fiduciary duties by dropping it into a wholly-owned LLC, in my opinion that is a breach of the duty."
at 18:05
" ... What I've seen (in the media) has suggested, for example, on some procurement issues, that Trustees have relied on advice that to me is simply wrong on its face. And with respect to Information Practices issues, whether or not to respond or how to respond to a 92-F request for information, for example, I've seen a letter from attorneys representing the Trustees that I think is simply on its face wrong. I think its legally indefensible.
"If my conclusion is correct, then I think whomever provided that legal advice has some issues of their own and that would cloud their judgment in providing advice now on whether my testimony is accurate or not."
at 20:10
"(Trustees) have a duty to be accountable. You have a duty to communicate that information that is necessary to hold you accountable. And I referenced what we used to call Bishop Estate, currently operating under the trade name of Kamehameha Schools. I mentioned those events 20 years ago because the Trustees at that time -- at least a majority of the Trustees -- especially the Lead Trustee for Asset Management for that Trust at that time, were constantly using wholly-owned subsidiaries in an attempt to get around various fiduciary duties that they had as Trustees. And it not only was legally indefensible -- it's a primary explanation for how so many serious breaches of trust could go on so long and the Trustees not be held accountable for that.
"I felt that story should have taught the community a lesson that you simply can't allow people in positions like those Trustees were in - or like all of you are in -- to avoid accountability simply by shuffling a bunch of pieces of paper and simply saying ‘oh, now some other entity owns that property.'"
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Written Testimony:
May 25, 2017
To: OHA Board of Trustees
From: Randall Roth
Re: Pending Audit
I served on the faculty of the University of Hawaii's Richardson School of Law for the past 35 years, but this testimony is mine alone. I am not here on behalf of any other person or organization.
My interest in OHA is longstanding and has occasionally including public comment. For example, along with former OHA trustee Walter Heen, I've raised questions relating to OHA's legal status: "What is OHA?", Honolulu Star-Advertiser, Dec. 20, 2015, at -- "What-is-OHA?".
My testimony today focuses on what I perceive to be OHA's misuse of wholly owned LLC subsidiaries to avoid laws applicable to OHA and OHA trustees. Such use would be indefensible whether one assumes OHA is a charitable/public trust or a state agency. Either way, OHA and OHA trustees cannot properly use wholly owned LLC subsidiaries to avoid otherwise applicable legal duties such as a trustee's duty to provide full accountings when legally required to do so, or a government official's duty to comply with procurement and sunshine laws.
I express these opinions now because of an upcoming audit that I believe would be woefully incomplete if it does not include OHA's wholly owned subsidiaries.
If OHA trustees have at any time relied on legal counsel for advice on OHA's above-mentioned use of subsidiaries, it would not be reasonably prudent for OHA trustees to seek legal advice now on the correctness of that prior legal advice. In other words, any legal advice related to the subject matter of my testimony should be sought from non-conflicted counsel.
Mahalo for this opportunity to express my views on this critically important matter.
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** Ken Conklin's note: See also my webpage published August 19, 2011
"OHA is a state government agency despite its assertions to the contrary. It must disclose its income, budget, and expenditures. OHA, the new Act 195 state recognized tribe, and any future federally recognized Akaka tribe are government-created agencies and therefore must all comply with the 15th and 14th Amendments to the U.S. Constitution." at
https://www.angelfire.com/big09/OHAstateagency.html
Excerpts:
In recent days a long-standing controversy has once again come to public attention. It is a matter of great importance whether OHA is a state government agency and must comply with state law regarding elections, open meetings, disclosure of budget information including salaries and expenditures, etc. The specific issue currently under discussion is whether OHA must release information about the salaries of its employees, on the same basis as any other state agency. But there are other issues of far greater importance.
These are the section headings:
1. What are some examples of OHA's refusal to disclose salaries and expenditures?
2. Is OHA a state government agency?
3. Is there any validity to OHA's assertion that it is a private trust whenever its "trustees" are spending ceded land revenues, rather than tax dollars, on behalf of its "beneficiaries"?
4. Since OHA is a state agency, therefore the Roll Commission created by Act 195 is a state agency whose members are appointed by the Governor. But Act 195 requires the Governor to appoint only from a list of nominees who must be of a specific race, in violation of the court decisions in Arakaki#1.
5. The state-recognized tribe envisioned by Act 195 is little more than a replacement for OHA as originally constituted before the Rice and Arakaki court decisions partially dismantled it -- a racially exclusive group of leaders elected by and handing out benefits to a racially exclusive group of members, where the benefits are taken from all Hawaii citizens of all races. But the tribe itself will be a state agency just as OHA has always been, not a private trust; for the same reasons discussed above regarding the Roll Commission.
6. Both federally recognized tribes (Akaka bill) and state recognized tribes (Act 195) are political entities which existed before the federal and state governments which recognize them came into being. First the tribes existed. Later the federal and/or state governments recognized them. But neither the Akaka tribe nor the Act 195 tribe ever existed historically, and still do not exist until the federal or state government creates them. The so-called Hawaiian "tribe" will be nothing more than an agency of the federal or state government, not a real tribe in any normal meaning of that word.
7. Conclusion: The flow of power and ownership from the State of Hawaii to the Act 195 tribe show that both OHA and the tribe are agencies of the state government. Likewise, the Akaka tribe would be a federal government agency, because it has never existed until the government creates it. For both the Akaka tribe and the Act 195 tribe, it would be unconstitutional for these government agencies to have racial restrictions on their officers, members, or beneficiaries.
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http://thegardenisland.com/news/opinion/mailbag/letters-for-saturday-may/article_93928551-a3a1-562e-8fa2-4f044a17c91c.html
The Garden Island (Kaua'i), Letters for Saturday, May 27, 2017
** Ken Conklin's note: This letter illustrates the craziness and incoherence of Hawaiian sovereignty activists, and the willingness of Hawaii newspapers to publicize their rantings. This newspaper has published numerous other letters by the same writer -- put the name "Michele Lincoln" into the newspaper's internal search engine to find them.
Queen Liliuokalani trusted in a higher power
If Kamehameha's reign and Hawaiians' blood quantum is the basis for Hawaii's sovereignty then it's: "Game over!"
Kamehameha established "he with the best weapons and most power rules." The United States threatened Hawaii with physical force continuing that protocol of "might makes right."
Blood quantum limits are arbitrary and capricious, causing dissension, disunity and uncertain futures.
Passionate about Hawaii's independence, David Malo influenced the constitution: "God must be our aid, for it is His province alone to give perfect protection and prosperity." Recognizing that mankind needs divine guidance, intervention and restoration.
God restores! His way includes food, fun and thankful hearts. One Bible example is when King Josiah expunged the nation of what's not "in consistency with the general spirit of God's law" (Hawaiian Constitution) and then established what is. An annual celebration acknowledging God's deliverance ensued like never before.
Betrayed Queen Liliuokalani responded to the unjust overthrow by trusting God's righteous reputation. Appealing to the "Highest's" court (without statutes of limitations) she wrote "To the Almighty Ruler of the universe, I commit my cause."
"On the night He was betrayed" Jesus established "the new covenant between God and his people -- an agreement confirmed with blood." Jesus' blood quantum is the game changer!
Michele Lincoln, Lahaina
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