Papahanaumokuakea National Monument: Memo to Interior Secretary Ryan Zinke urging him to rescind the addition of OHA as co-trustee and to rescind racially exclusive rights for access for Native Hawaiians for religious and cultural activities


(c) Copyright 2017 Kenneth R. Conklin, Ph.D. All rights reserved

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Background: Ryan Zinke, Secretary of Interior under President Trump, published a request for comments regarding a large number of national monuments or extensions. See the notice published in the Federal Register FR Doc. 2017-09490 Filed 5-10-17, available here:

Review of Certain National Monuments Established Since 1996; Notice of Opportunity for Public Comment
https://www.regulations.gov/document?D=DOI-2017-0002-0001

As can be seen in the chart included in that notice, the Papahanaumokuakea National Monument, and its huge extension proclaimed by President Obama near the end of his term, is by far the largest monument ever proclaimed.

The docket folder for comments, including access to more than 100,000 comments already submitted before Memorial Day and all additional comments that will be submitted before the deadline on July 10, is available at
https://www.regulations.gov/docket?D=DOI-2017-0002

What follows is the comment submitted by Ken Conklin on Memorial Day May 29, 2017. It has its own individual URL on the "regulations" website at
https://www.regulations.gov/document?D=DOI-2017-0002-121599

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To:
Ryan Zinke, Secretary, U.S. Department of the Interior

Re:
COMMENTS REGARDING THE PAPAHANAUMOKUAKEA MARINE NATIONAL MONUMENT AND ITS EXPANSION

Date:
Submitted on Memorial Day May 29, 2017 honoring military personnel, civilians, and explorers of all races, cultures, and religions whose bones lie within the monument and its extension, or whose cultures or religions were practiced there.

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
Website: "Hawaiian Sovereignty: Thinking Carefully About It"
http://tinyurl.com/6gkzk
Book: "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State"
http://tinyurl.com/2a9fqa

TWO REQUESTS

1. Please rescind the designation of the Office of Hawaiian Affairs (OHA) to be a co-trustee of the Papahanaumokuakea monument and/or its extension.

2. Please rescind all racially exclusive rights for religious and cultural activities granted to "Native Hawaiians" in regard to the Papahanaumokuakea monument and/or its extension; or else extend the same rights to all races for religious and cultural activities.

SUMMARY OF REASONS JUSTIFYING THE REQUESTS

People of many races have historic presence including ancestral bones in the Papahanaumokuakea (PHMA) monument and/or its extension. People of all races deserve equal rights of access for cultural, religious, and economic purposes. The U.S. Supreme Court in Rice v. Cayetano stated that "Native Hawaiian" designates a racial group, not a political entity. The Equal Protection clause of the U.S. Constitution's 14th Amendment guarantees that all persons shall be treated equally under the law by the government regardless of race. The First Amendment tells us that the government is forbidden from adopting or establishing the ancient Hawaiian religion or any other religion.

The fact that a few individuals of a particular race performed religious observances on some islands centuries ago does not entitle all people of that race now to perform reinvented similar observances on those islands even when today's individuals have no evidence of lineal descent and no habit of engaging in those practices as their own religion. Furthermore it is immoral and illegal for government to establish special rights limited to one race or religion when many races and religions are also represented in the bones and artifacts found in the Papahanaumokuakea monument and/or its extension.

The Office of Hawaiian Affairs is a racial separatist institution seeking to create a "Native Hawaiian" tribe. Its goal is to divide the people and lands of Hawaii along racial lines. Designating OHA as co-trustee of the Papahanaumokuakea monument and/or its extension would place the U.S. government in the position of being an enabler, facilitating establishment of an apartheid regime in Hawaii. OHA is not a reliable or morally upstanding partner as co-trustee of PHMA monument, as demonstrated by the fact that for many years OHA has evaded and refused to comply with state law regarding open meetings, disclosures of its salaries and expenditures, and seeking competitive bids in procurement of materials or services.

Singling out Native Hawaiian ancient religion and cultural practices for special preference for access and activity in the monument discriminates against other races and religions which are entitled to equal respect and the equal protection of the laws.

OHA IS A RACIAL SEPARATIST INSTITUTION SEEKING TO CREATE A "NATIVE HAWAIIAN" TRIBE

The State of Hawaii enacted amendments to its state constitution in 1978 which included creation of a new agency of the state government called Office of Hawaiian Affairs. "Native Hawaiians" were racially defined as people who have at least one ancestor who lived in Hawaii before the arrival of British explorer Captain Cook in 1878. Board members of OHA were to be called "trustees" even though the 1898 Treaty of Annexation and the 1959 Statehood Act specify that Hawaii's public lands are a trust for the benefit of all the people of Hawaii (regardless of race). According to the amended state constitution which created OHA in 1978, the only people allowed to vote for trustees of OHA were Native Hawaiians. That requirement was struck down by the U.S. Supreme Court in 2000 as being in violation of the 15th Amendment guaranteeing that the right to vote shall not be denied or abridged on account of race. Also, according to the amended state constitution, the only people allowed to stand as candidates for OHA trustees were Native Hawaiians. That requirement was struck down by the U.S. District Court in Honolulu later in year 2000 in Arakaki v. State of Hawaii, as a followup to Rice v. Cayetano; and the decision was upheld by the 9th Circuit Court of Appeals.

Despite the striking down of racial requirements for voting and for candidacy for OHA trustees, OHA continues to operate as a state government agency which considers itself entitled to spend tens of millions of dollars every year on programs which are racially exclusionary, solely for the benefit of Native Hawaiians. Lawsuits challenging this racially exclusionary policy have never been dismissed on the merits, but have been dismissed because of procedural problems with "standing" or the "political question" doctrine. For the history, and links to specific lawsuits, see "Tenth anniversary of U.S. Supreme Court decision in Rice v. Cayetano. The February 23, 2000 decision in Hawaii's most important civil rights lawsuit spurred a decade of additional civil rights lawsuits against government and private race-based programs, and prompted racial separatists to seek protection for those programs through the Hawaiian Government Reorganization bill (Akaka bill)" at
http://www.angelfire.com/big09a/RiceCayetanoTenthAnniv.html

For 13 years, 2000-2012, bills were pending in Congress to create a "Native Hawaiian" Indian tribe (the "Akaka bill"); but all such legislation was defeated. OHA is reported to have spent more than $30 Million propagandizing and lobbying for that legislation. Then, under President Obama, the Department of Interior began a process to create a regulation to allow creation of a Native Hawaiian tribe that could get federal recognition if it met certain requirements. The regulation became final with publication in the Federal Register on October 14, 2016 and took effect on November 14. OHA provided financing and political muscle for the regulatory process, and for the continuing efforts to create a Hawaiian tribe and to work toward federal recognition for it. For a compilation of news reports and commentaries during 2017, with links to similar compilations for 17 years, see
http://big11a.angelfire.com/AkakaHist115thCong.html

Having OHA as co-trustee of Papahanaumokuakea (PHMA), alongside the State of Hawaii, virtually guarantees that the entirety of PHMA will be transferred to the exclusive jurisdiction of a "Native Hawaiian" tribe once that tribe achieves federal recognition; in the same way as state law already designates the island of Kaho'olawe to be transferred to the tribe once the tribe receives federal and state recognition. It is legally and morally reprehensible for the U.S. government to facilitate the creation of an apartheid regime in Hawaii, dividing the people and lands of Hawaii along racial lines. Please see the book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" at
http://tinyurl.com/2a9fqa

OHA is not a reliable or morally upstanding partner as co-trustee of PHMA monument, as demonstrated by the fact that for many years OHA has evaded and refused to comply with state law regarding open meetings, disclosures of its salaries and expenditures, and seeking competitive bids in procurement of materials or services. See these sources for details about OHA's misfeasance:
(1) 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.
http://www.angelfire.com/big09/OHAstateagency.html
(2) News report about testimony on May 25, 2017 by University of Hawaii professor of trust law regarding OHA usage of limited liability corporation wholly-owned subsidiaries as so-called private companies allowing OHA to hide its income and expenditures and to engage in procurement through sole-source non-competitive contracting.
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/19734/Randy-Roth-OHA-Misusing-LLCs-to-Hide-from-Law.aspx

PEOPLE OF ALL RACES SHOULD HAVE EQUAL ACCESS TO PAPAHANAUMOKUAKEA FOR THEIR OWN CULTURAL, RELIGIOUS, AND ECONOMIC PURPOSES

Through Proclamation 8031 of June 15, 2006, as amended by Proclamation 8112 of February 28, 2007, the President established the Papahanaumokuakea Marine National Monument. On August 26, 2016 Through Proclamation 8031 of June 15, 2006, as amended by Proclamation 8112 of February 28, 2007, the President established the Papahanaumokuakea Marine National Monument. On August 26, 2016 President Obama proclaimed a massive expansion of it, adding approximately 442,781 square miles.

There have been numerous documents and webpages during a period of about 20 years describing and justifying the establishment of a Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, and then the monument, and now its massive expansion. Many of those documents and webpages provide historical information and culture-based folktales whose purpose is to justify special rights for access and activities for so-called "Native Hawaiians" -- special rights which are limited to that racial group and not available to other racial groups.

It is certainly true that a few Native Hawaiians centuries ago occasionally visited those places and engaged in cultural or religious activities there; and some of them died and their bones are buried there. However, it is then asserted that every individual now living who has a drop of Hawaiian native blood should be entitled to special rights to go there and engage in similar activities regardless whether today's individual is in fact descended from any of the few natives who actually did those things so many years ago, and regardless whether today's individual actually believes in the ancient religion or has a habit of engaging in those particular cultural or religious activities.

We know that not all people of a particular race behave in the same way or believe in the same gods. We call it prejudice, or stereotyping, or racial profiling, when a police officer who had a bad experience with a Black hoodlum wrongly assumes that the next Black man he meets is also a hoodlum. Religious beliefs and cultural practices are not genetic -- they are learned through upbringing and daily practice rather than inheritance. The fact that some Vikings raped and pillaged centuries ago does not mean we should expect today's men of Norwegian ancestry to do likewise, nor should we expect them to pray to the ancient Norse gods.

If someone now living was born and raised in a family which frequently visited PHMA and engaged in fishing, cultural or religious activities there, then he should certainly have a right to continue. But if he and his parents and grandparents grew up with no experience in PHMA, and no adherence to the ancient cultural or religious customs ascribed to small piles of rocks on some of the islands in PHMA, then he should have no more rights to access or activity than any person of any other race.

Documents and webpages celebrating the history of Native Hawaiian culture and religion in PHMA often fail to take note that other races, cultures, and religions also have a history there. Indeed, if PHMA is a sacred place for Native Hawaiians on account of a few Native Hawaiian bones lying there, then PHMA is also a sacred place for people of other races, cultures, and religions whose bones are also located there. If every living Native Hawaiian is entitled to special access and cultural activity on account of a few Native Hawaiian bones there, then every person of Japanese, Chinese, European and American ancestry is similarly entitled, and for the same reason.

President Obama's proclamation of August 26, 2016 includes a section about shipwrecks, noting that Asian and Caucasian bones remain there. "Deep-sea technologies have enabled the USS Yorktown, an aircraft carrier torpedoed during the battle [of Midway], to be found at more than 16,000 feet below the ocean's surface. Eyewitness accounts and historical records tell the stories of the destroyer USS Hammann, five Japanese vessels (the four aircraft carriers Hiryu, Soryu, Kaga, and Akagi, and the cruiser Mikuma), and several hundred aircraft that were also lost during the battle in this area. The locations of these vessels have yet to be identified. All told, the adjacent area serves as a final resting place for the more than 3,000 people lost during the battle."

And yet, the only cultural/religious/racial group specifically mentioned is "Native Hawaiian practices, including exercise of traditional, customary, cultural, subsistence, spiritual, and religious practices within the Monument Expansion ..." That is plainly discriminatory. What happened to respect for Buddhist, Shinto, Christian, and Jewish religious and cultural practices?

Racial/cultural discrimination against people with no Hawaiian native ancestry goes back all the way to the early years when the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve was being developed. The National Oceanographic and Atmospheric Agency in 2002 published a 150-page Draft Reserve Operations Plan which included the membership criteria for the 15 voting members of the 25-member Sanctuary Advisory Council. The first category states that there must be three Native Hawaiian representatives, including one Native Hawaiian elder. This racial designation is very different from all the other categories, which are race-neutral designations of activities or functions such as commercial fishing, recreation, and education.

Does the designation of three Native Hawaiian representatives imply that there cannot be any Native Hawaiians among the remaining council members representing commercial fishing, recreation, education, etc? Probably not! It would be clearly illegal to exclude people on the basis of race! The focus of the first item should be knowledge of Hawaiian history, culture, and language; it should not be race. Is a racial group considered to have a group interest, comparable to "research representatives" or "tourism representatives?" If such balkanization of our society is to be entertained, then other racial groups would also be entitled to race-specific representation. The racially exclusionary language of this first item is not only illegal, it is also very unwise. The council should have the services of the people who have the greatest expertise and love for Hawaiian history, culture, and language; and it is wrong to narrow the pool of candidates by imposing a racial restriction. Many of the people universally recognized as being most knowledgable about Hawaiian history, culture, and language were/are not racially Hawaiian. Examples can be found in the bibliography comprising Appendix 3 of the DROP. For example, the listing for Dr. Kenneth Emory's book on the Archeology of Nihoa and Necker Islands. Thus, the person most closely associated in the last 200 years with the sacred Moku Manamana, who described the cultural and spiritual significance of what he found there, was a Caucasian man. Various non-ethnic-Hawaiian anthropologists are noted experts on Hawaiian history and culture, including Emmett Cahill, Walter Judd, Jocelyn Linnekin, Marshall Sahlins, and Valerio Valeri.

When reading the following quote from the 1992 Draft Reserve Operations Plan, think about English-language sources and Japanese and Chinese-language sources, as well as Hawaiian-language sources; and think about European, American, Japanese, and Chinese ancestors as well as Polynesian ancestors. Surely there is room in this project to include the sea-chanties of the English whalers and the "banzai!" cries or kamikazi prayers of the Japanese warriors along with the mele of the Polynesian navigators.

"This action plan is aimed at researching, assessing, compiling, and cataloging information regarding the culture and history of the NWHI Archipelago from such sources as mele and oli (song, chant), oral histories and accounts, Hawaiian language newspapers, ship logs and journals, and archaeological and anthropological studies as well as historic accounts by living Native Hawaiians. In addition, the information gathered will be documented in reports and through cultural forms of expression such as mele (song, chant) and hula (dance), and disseminated to the public as part of the process of education about this unique and fragile place. Oral traditions passed down through mele reference islands beyond Lehua and recall the travels of seafaring Polynesian ancestors traversing through this vast area on their way to and from the main Hawaiian Islands."

The purpose of these comments is not to disparage Native Hawaiian history. Rather, it is to assert the obvious -- that people of many races passed through the NWHI and had significant cultural and religious experiences here. We are all entitled to memorialize the history of our own race and to learn from the histories of other groups. If tax dollars are going to be spent celebrating bygone cultural or religious events of one group, then funds should be spent to honor the memories of all groups.

On page 49 of the DROP, a religious doctrine is propounded that would seem to justify special rights in NWHI for people of one race:

"The natural elements of the Northwestern Archipelago are considered early ancestors born in primordial times and therefore the older relatives of living Native Hawaiians. Both share an interdependent, 'ohana (family) based relationship which requires malama [caregiving] to be given to the older siblings who in turn provide for the well being of the younger."

This same religious doctrine has also been propounded regarding islands in the main group of eight Hawaiian islands. For example, Kaho'olawe is said to be the kinolau (body-form) of the god Kanaloa, and the island was born from the uterus of the goddess Hina.

Such religious stories can be beautiful and inspirational. But they cannot be used to establish government policy that would give one racial group priority. The First Amendment to the United States Constitution guarantees that anyone has the freedom to hold and express such opinions. But that same First Amendment also says that nobody has a right to establish such religious opinions as the official views of the government. "Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof; or abridging the freedom of speech ..." Native Hawaiians or anyone else has freedom to engage in whatever religious ceremonies or protocols they wish (so long as they do not thereby harm the environment or other people), but it is unconstitutional for people holding a particular religious opinion to prohibit the free access or expression by other people who do not hold those opinions. Some currently-living Native Hawaiians may sincerely believe they are lineal descendants of certain gods or of certain islands. The rest of us are socially obligated to treat those religious opinions with respect, but we are not legally of morally obligated to give political control or property-ownership to people based on such beliefs.

Could we please eliminate gratuitous racial references, and open up participation to everyone on an equal basis without racial restriction? Here is an example of how that can easily be done. The executive order, appendix 1, page 133 of DROP, Section 9, states:

"Section 9. Native Hawaiian Uses. Native Hawaiian noncommercial subsistence, cultural, or religious uses may continue, to the extent consistent with existing law, within the Reserve and Reserve Preservation Areas identified under section 8 of this order. The Secretary shall work with Native Hawaiian interests to identify those areas where such Native Hawaiian uses of the Reserve's resources may be conducted without injury to the Reserve's coral reef ecosystem and related marine resources and species, and may revise the areas where such activities may occur after public review and comment, and consideration of any advice and recommendations of the Reserve Council."

As previously, let's remember the following: This provision of DROP sets forth a theory that a racially-defined group should have special rights in certain areas. Currently-living members of that racial group will apparently be given special rights, even though they are unable to prove lineal descent from persons who may have lived in these areas previously.

If it is appropriate to give special rights to living persons because members of their race formerly inhabited this area or conducted significant activities there, then the same logic would apply to members of other racial groups. For example, the report recognizes that European explorers visited this area and died in shipwrecks; and that European and American fishermen and whalers also visited this area and may have lost their lives in storms. So, according to the logic of the report, any Caucasian person of European or American descent should have special rights to visit the area for cultural preservation and also for religious observances related to the souls of their racial forebears who died here. And, if recreational or subsistence fishing rights are to be given based on the fact that members of one's race previously engaged in such activities here, the same logic would require that Caucasian fishermen or even whale-hunters should be allowed to follow the practices of their racial forebears.

The political struggle for racial equality in PHMA is an extension of the same struggle in the main Hawaiian islands. Some Hawaiian sovereignty activists are ethnic nationalists, seeking to "liberate" Hawaii from the United States. Some activists are racial separatists, seeking to establish a nation within a nation on the model of an Indian tribe. Both varieties of sovereignty activist claim that ethnic Hawaiians are indigenous and therefore are entitled to special political, legal, and economic rights simply on account of being ethnic Hawaiian. There are many issues involved. Here are brief comments on some of these issues, and internet links to webpages that provide extensive historical and legal analyses.

Ethnic Hawaiians are not indigenous. No humans occupied Hawaii until 2000 years ago. Polynesian immigrants came in several waves of voyaging canoes from different areas of Polynesia and with different cultural practices. The final wave of Polynesian invaders came from Tahiti around 800 years ago and completely changed the genetics, government, and culture, imposing the war god Ku, the ali'i social hierarchy, and the institution of human sacrifice. Polynesians have a shorter tenure in Hawaii than Anglo-Saxons have in England; and the latest wave of Polynesian invaders who took over the islands arrived here later than the Norman invasion of England.
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html

It is a matter of considerable dispute whether there are gathering rights permitting people to go onto other people's property to collect food and cultural materials, and to have access to the shoreline; however, if such rights of trespass do exist, they are rights pertaining to all residents of an ahupua'a, not only to so-called 'indigenous' people.
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html

Even if Hawaiians were indigenous, it would be legally and morally wrong to give them special standing based on race. The history of the Kingdom of Hawaii shows that the Native Hawaiians welcomed newcomers, eagerly changing their old ways to embrace the newcomers' religion and culture.
http://www.angelfire.com/hi2/hawaiiansovereignty/seconddialog.html

A social contract of full partnership was established under the leadership of the sovereign Kings of Hawaii, exercising self-determination on behalf of the natives.
http://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html

According to this social contract, newcomers were given full equality of voting and property rights, in return for investment of capital and expertise. Non-natives became fully equal subjects of the Kingdom through both naturalization and birth, and held high elective and appointive positions in the government. There were no special rights for "indigenous" people during the final 40 years of the Kingdom period.
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html

Whatever special rights may pertain to individuals or families having a tradition of subsistence farming, fishing, hunting, or religious observances should be based not on race but on the fact that such individuals or families have such customary practices in this particular area. All persons must be treated equally, regardless of race; claims to "indigenous" status notwithstanding.
http://www.angelfire.com/hi2/hawaiiansovereignty/principles.html

Activists like to use the beauty of Hawaiian music, hula, language, and cultural activities, together with a general impression that Hawaiians have suffered historically, to elicit public sympathy for their victimhood grievances and thus for their political goals.
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html

But there is no legitimacy to claims for reparations for racially-defined Hawaiians, as shown by both an informal essay
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinallsovereign.html
and a scholarly legal analysis
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

The ceded lands were all the public lands of the Kingdom of Hawaii, both government lands and crown lands. In particular, the crown lands were owned not by the monarch personally, but by the government; and were used to generate income to support the office of the head of state. In 1910 ex-queen Lili'uokalani sued the United States for compensation for what she claimed to be her personal right to the crown lands. The court ruled that she did not have any personal ownership of those lands even before the overthrow, and was not entitled to any compensation. But it is interesting that she never made any claim that the crown lands belonged to Native Hawaiians as a group, and she only claimed to own them personally.
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html

Allowing OHA to be co-trustee of PHMA, and giving special race-based rights to ethnic Hawaiians for access and cultural practice, facilitates Hawaiian religious fascism in which a twisted version of a beautiful creation legend provides the theological basis for a claim that ethnic Hawaiians are entitled to racial supremacy in the governance and cultural life of the Hawaiian islands.
http://www.angelfire.com/big11a/HawnReligFascism.html

Eliminating OHA co-trusteeship and special race-based privileges in PHMA are ways to promote the thriving of the Aloha Spirit, manifested in the twin pillars of unity and equality.
http://www.angelfire.com/big11a/AlohaUnityEquality.html


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