(c) Copyright 2015
Kenneth R. Conklin, Ph.D.
All rights reserved
=============
INDEX OF NEWS REPORTS AND COMMENTARIES FROM AUGUST 1 THROUGH SEPTEMBER 30, 2015.
August 03, 2015: Only about 18% of ethnic Hawaiians counted in Census 2010 are on the certified Kana'iolowalu racial registry, and those NOT on the roll include many members of the Hawaiian Homes Commission, most of the trustees of Kamehameha Schools, and an OHA trustee.
Aug 5: Notices are arriving in the mailboxes of more than 95,000 Native Hawaiians this week as the first step in the election of delegates to a constitutional convention that will consider options for Hawaiian self-determination.
Aug 7: Native Hawaiian attorneys are skeptical about Nai Aupuni and the Kanaiolowalu Roll. That's the takeaway from a July 29, 2015 forum featuring Nai Aupuni Chair J Kuhio Asam speaking to about 40 members of the Native Hawaiian Bar Association. Transcribed excerpts from an audio tape, and link to download entire audio (54 Megabytes).
August 12, 2015 was the extended deadline for filing comments on the new rule proposed by the U.S. Department of Interior for regulating management and land transfers on the Hawaiian Homelands to further implement the Hawaiian Homes Commission act passed in 1921. Civil rights activists who opposed the Akaka bill and who continue to oppose creation of a Hawaiian tribe view the proposed DOI rule as a trojan horse for using the Hawaiian Homelands as a base for creating a federally recognized tribe. Many testimonies were submitted in opposition to the proposed rule. The two most powerful testimonies were filed by attorney Paul M. Sullivan; and by Keli'i Akina as President of the Grassroot Institute of Hawaii.
Aug 13: Grassroot Institute of Hawaii and Judicial Watch file federal lawsuit to block OHA and Native Hawaiian Roll Commission and their minions from conducting a race-based election to begin building a Hawaiian tribe.
(1) Grassroot Institute news release includes summary of the 33-page complaint and a link to a full-text pdf version which allows copy/paste.
(2) Honolulu Star-Advertiser online breaking news article relies on Grassroot news release but provides no link to it nor any link to text of the legal complaint.
(3) Honolulu Civil Beat online newspaper relies on Grassroot news release without providing link to it, but does provide a view of the 33-page complaint in a format that does not allow copy/paste.
Aug 14: Honolulu Star-Advertiser print edition provides a more detailed explanation of the Grassroot/JudicialWatch lawsuit, but still does not provide any link for readers to see the full text of the legal complaint.
Aug 14 and 15: Department of Interior lets it be known, behind the scenes, that it is still working to create a proposed rule to facilitate federal recognition of a Hawaiian tribe. It's been more than a year since there was any action on the Advance Notice of Proposed Rule-Making. Letting it be known late on August 13 and then August 14 that DOI is still working on creating a proposed rule might be a way of responding to the August 13 morning filing of a federal lawsuit to block the OHA-sponsored election to create a state-recognized tribe, in order to bolster a likely lawsuit defense that this is a political question still under consideration by another branch of government and therefore the courts respect the separation of powers and not interfere (i.e., case dismissed based on the "political question" doctrine").
(1) Andrew Walden, Hawaii Free Press (online newspaper), detailed description of DOI activity including links to cached copies of items posted and then soon removed from DOI website
(2) Chad Blair, leftwing reporter at Honolulu Civil Beat, publishes short news alert that he has gotten word from Jessica Kershaw, DOI press secretary, that DOI is still working on it.
(3) West Hawaii Today (Kona newspaper) news report citing Jessica Kershaw, with more detail than Civil Beat.
Aug 16: Honolulu newspaper columnist takes note of conflict between two factions of ethnic Hawaiians involved in the election to create a Hawaiian tribe: some who want to work within the system to protect and expand racial entitlements, vs. nationalists who will use the convention to seize control on behalf of secession to create an independent nation.
Aug 17:
(1) Na'i Aupuni response to Grassroot lawsuit: Can the lawsuit filed by the President of the Grassroot Institute of Hawaii stop the Na'i Aupuni process? No, because it's not an election of the State of Hawaii.
(2) YouTube video, 44 minutes "Suing to Preserve the Aloha Spirit" Conversation with host Dr. Keli'i Akina, President of Grassroot Institute and guests Robert Popper (Judicial Watch) and Michael Lilly (former Attorney General of Hawaii)
https://www.youtube.com/watch?v=0qYsXCGQIlw
Aug 18:
(1) Honolulu Star-Advertiser EDITORIAL says the Na'i Aupuni roll is a private group [nonsense] so it's OK for them to have a racially exclusive election, but the requirement to affirm the political viewpoint of unrelinquished sovereignty is problematic because all ethnic Hawaiians should be able to participate, especially when that affirmation is something to be decided by those elected;
(2) Political commentater at Star-Advertiser reviews the Grassroot video and the Na'i Aupuni FAQs and warns that it might be illegal for a state-sponsored entity to dictate who is allowed to vote. "Moving this issue back to the Supreme Court could then open up new decisions regarding the relationship between Native Hawaiians and the federal government, with the result that the relationship is identical to that of everyone else."
(3) Honolulu Civil Beat editorial board describes Dept of Interior private statement that it is still working on a rule for federal recognition of a Hawaiian tribe, and concludes that "it's critical that delegate elections for the convention take place as scheduled and that the convention itself is convened quickly thereafter ... because the clock is ticking down on President Obama's remaining 15 months in office." [Factual error: Obama has 17 more months until January 20, 2017]
Aug 30:
(1) Two officials of Na'i Aupuni (OHA subsidiary in charge of electing delegates to tribal constitutional convention) article in Honolulu Star-Advertiser says the Grassroot lawsuit to stop the election will not succeed because Na'i Aupuni is not a state government agency.
(2) James Kuroiwa, a 4th generation Hawaii citizen of Japanese ancestry, disputes the assertion that ethnic Hawaiians are an indigenous people, which was an important element in Act 195 (2011) which authorized the racial registry leading to the Na'i Aupuni election.
Aug 31:
(1) Grassroot Institute news release provides federal court motion for preliminary injunction, and memorandum in support of motion, to stop the OHA-sponsored racially exclusionary election to create a Hawaiian tribe.
(2) Dr. Keli'i Akina, President of the Grassroot Institute of Hawaii, broadcast a 5-minute video explaining that the silent majority of ethnic Hawaiians, and the silent majority of all Hawaii's people, oppose OHA's effort to hold a race-based election to create a phony Hawaiian tribe.
September 1, 2015: News report in Kona and Hilo newspapers describes motion for preliminary injunction.
Sept 3: OHA trustee Peter Apo: Who Are We Building a Nation For? A Hawaiian nation might exist as early as next April. But who would be its citizens?
Sept 4: Investors Business Daily notes that Obama is removing McKinley's name from Alaska's tallest mountain, and Obama is also planning to remove McKinley's annexation of Hawaii. But the article is filled with outrageous falsehoods about Hawaii's history, such as saying that McKinley overthrew the Hawaiian monarchy (which happened 4 years before he became President).
Sept 8: Grassroot Institute President Keli'i Akina explains how lawsuit to stop race-based election helps the silent majority of ethnic Hawaiians find a voice of protest.
Sept 10: Na'i Aupuni list of people who have thus far signed up to be candidates for constitutional convention is being kept secret until end of September, long after Sept 15 deadline to sign up to be candidate.
Sept 11: Honolulu Star-Advertiser, NAME IN THE NEWS features Keli'i Akina and Grassroot Institute of Hawaii.
Sept 13: Al Jazeera U.S. major article describes controversy over Mauna Kea 30-Meter telescope in the context of twisted version of Hawaii history and summary of Hawaiian sovereignty movement (both secession and tribal concept).
Sept 16:
(1) Letter to editor thanks Keli'i Akina and Grassroot Institute for filing lawsuit to stop OHA's effort to elect leadership for fake Hawaiian tribe
(2) Kaua'i newspaper describes factions in OHA-sponsored election, tells ethnic Hawaiians how to register in time for October 15 deadline.
Sept 18: Derek Kauanoe, a law school graduate who works for OHA as manager of its governance division, wrote an article in Honolulu Civil Beat entitled: "Law Recognizes Native Hawaiians as Indigenous People With Special Rights -- Legal rulings dating back to 1863 and ongoing global recognition today confirm the appropriateness of laws that apply only to indigenous Native Hawaiians." Ken Conklin's online rebuttal says the few Kingdom laws that applied only to native Hawaiians did not grant them special privileges but, on the contrary, imposed special restrictions on them for paternalistic reasons, such as the law prohibiting merchants from selling booze to natives; and there was neither the word nor the concept "indigenous" in Kingdom law nor international law at that time.
Sept 19: Newspaper article describes the process for OHA-sponsored election of delegates to create a Hawaiian tribe, and lawsuit against it. U.S. District Judge Michael J. Seabright has scheduled an Oct. 20 hearing on a motion for preliminary injunction, which asks that the election be halted until the case in chief can be decided.
Sept 20:
(1) Defendants' answer brief, 40 pages, in response to Grassroot/JudicialWatch lawsuit, was filed in U.S. District Court on September 15 and became available publicly on Sept 20 in news report.
(2) Fox Business News, national broadcast, includes one-minute segment describing three most awful executive orders Obama is expected to issue in coming months, including what fox calls "Kingdom of Hawaii" converting entire State of Hawaii into de-facto separate nation like a giant Indian reservation.
Sept 21:
(1) Honolulu Star-Advertiser describes controversy and timeline regarding Na'i Aupuni election of delegates, and notes that Na'i Aupuni is not releasing the names of the candidates even though the deadline to sign up has passed.
(2) Honolulu Civil Beat notes power struggle at OHA over consolidation of committees, and describes the schedule for the Na'i Aupuni election of delegates.
Sept 24:
(1) Keli'i Akina: Setting the Record Straight: Hawaiians Are an 'Inclusive People'. Citizenship in the Hawaiian Kingdom was never confined to one race. So a race-based election to create a race-based nation would be blatantly non-Hawaiian.
(2) Peter Apo: Defining the Hawaiian Community. There are many institutions and organizations that make up the Hawaiian community. But its heart may be harder to define.
(3) Ken Conklin: There's a stark contrast between Keli'i Akina's essay and Peter Apo's essay. Akina focuses on what brings us together regardless of race. Apo focuses on drawing a line of racial separation between ethnic Hawaiians vs. those who lack a drop of the magic blood. We do not need or want a new nation. We reject both of the extremist, radical options which Peter Apo claims are the only two choices -- racial separatism (the tribal concept of the Akaka bill and the Department of Interior), and ethnic nationalism (reinventing Hawaii as an independent nation with an overlay of racial supremacy in the name of "indigenous rights").
(4) The Russian government sponsored a conference in Moscow where numerous secession movements around the world were encouraged as a way to destabilize the governments of Russia's opponents. Participants included Lanny Sinkin, representing Hawaii's "King Silva."
Sept 29:
(1) U.S. Department of Interior press release announces long-awaited Notice of Proposed Rulemaking (NPRM) to give federal recognition to phony Hawaiian tribe if tribe complies with conditions in the rule.
(2) U.S. Department of Interior announces Public Meetings & Consultations to Discuss the Proposed Rule
(3) U.S. Department of Interior press release: Frequently asked questions (and answers) about the notice of proposed rulemaking.
(4) Honolulu Star-Advertiser breaking news about NPRM, INCLUDING 73-PAGE DEPARTMENT OF INTERIOR OFFICIAL DESCRIPTION OF HOW THE PROPOSED RULE RESPONDS TO PUBLIC HEARINGS AND TESTIMONY FROM 2014, AND FULL TEXT OF PROPOSED RULE
(5) Grassroot Institute press release
September 30, 2015:
(1) Honolulu Advertiser news report about NPRM, INCLUDING 73-PAGE DEPARTMENT OF INTERIOR OFFICIAL DESCRIPTION OF HOW THE PROPOSED RULE RESPONDS TO PUBLIC HEARINGS AND TESTIMONY FROM 2014, AND FULL TEXT OF PROPOSED RULE
(2) Honolulu Star-Advertiser EDITORIAL praising and supporting the Notice of Proposed Rulemaking
(3) Na'i Aupuni releases list of 209 candidates for election to be 40 delegates to write governing document for fake Hawaiian tribe, including biographies of each
(4) Secessionist blog describes how the Na'i Aupuni election is rigged to support the tribal concept and therefore will not produce true sovereignty. Lengthy quotes from favorite independence activists.
(5) 3 TV stations report that 209 candidates are running for 40 spots to help form a Native Hawaiian government.
END OF INDEX OF NEWS REPORTS AND COMMENTARIES FROM AUGUST 1 THROUGH SEPTEMBER 30, 2015.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15664/Hawaiian-Homes-Commissioners-KSBE-Trustees-and-OHA-Trustee-not-on-Kanaiolowalu-Roll.aspx
Hawaii Free Press, Monday, August 03, 2015
Hawaiian Homes Commissioners, KSBE Trustees and OHA Trustee not on Kanaiolowalu Roll
by Andrew Walden
After burning millions of OHA dollars, and only in response to a lawsuit from the Grassroot Institute, the Native Hawaiian Roll Commission in mid July finally released an uncertified version of the so-called Native Hawaiian Roll. This was followed a week later by release of a "certified" version of the same roll--down to 95,690 after 27,470 "uncertifiable" names were stripped out.
95,690 is about 18% of the 527,077 Native Hawaiians counted by the 2010 US Census. 82% of Native Hawaiians are not participating--including many in positions of leadership.
DHHL Chair Jobie Masagatani, is not on the list. Neither are Hawaiian Homes Commissioners Michael P Kahikina (Oahu), Gene Ross Davis (Molokai), and David B. Ka'apu (West Hawaii).
Current KSBE CEO, Livingston "Jack" Wong, retired KSBE CEO Dee-Jay Mailer, and four of five KSBE Trustees do not appear on the Roll: Micah Kane, Robert KWH Nobriga, Janeen-Ann Ahulani Olds, and Lance Keawe Wilhelm. The only KSBE Trustee registered is Corbett A.K. Kalama.
Of the nine OHA Trustees, only Dan C Ahuna III, is not on the roll. Trustee Lei Ahu Isa is on the roll but in a Facebook post July 24 she responds to the release of the Roll with:
"This is why I introduced a bill in the Legislature to REPEAL Act 195! Already found two people on this who have passed away 23 years ago! RIP!"
OHA CEO Kamanaopono Crabbe -- author of the Kerry letter -- is on the roll, but his alleged ghost writer, David Keanu Sai, is not.
Former OHA Trustees Moanikeala Akaka and Mililani Trask and her sister Haunanai Trask are not on the roll.
Shakedown artists Walter Ritte and Dennis Keiki 'Bumpy' Kanahele urged Hawaiians to sign up prior to last years Interior Department hearings -- and apparently they both signed up as well.
Of the advisory board for the UH Richardson Center for Native Hawaiian Law, only Jonathan Osorio and retired KSBE CEO Dee-Jay Mailer are not on the list.
Unsurprisingly, Robin and Jade Danner and Michelle Kauhane -- nemesis of Jobie Masagatani -- are all on the list.
Abigail Kinoiki Kekaulike Kawananakoa is not on the list, but Quentin Kawananakoa is.
Republican gubernatorial nominee James Richard 'Duke' Aiona, Jr is on the list, his 2014 running mate Elwin Ahu is not. Elwin Ahu is the brother of Lei Ahu Isa.
Politicians Malama Solomon, Faye Hanohano, Billy Kenoi, and Clayton Hee are all on the Roll. Clayton's brother Al Hee is also, but he may soon have to change his voting address to a federal penitentiary.
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http://www.staradvertiser.com/newspremium/20150805_native_hawaiians_sent_word_of_constitutional_convention.html?id=320726721
Honolulu Star-Advertiser, August 5, 2015
Native Hawaiians sent word of constitutional convention
By Susan Essoyan
Notices are arriving in the mailboxes of more than 95,000 Native Hawaiians this week as the first step in the election of delegates to a constitutional convention that will consider options for Hawaiian self-determination.
"Native Hawaiians who have not registered yet but want to vote in the elections have until Oct. 15, 2015, to register," the independent nonprofit Na'i Aupuni announced in a news release. "Na'i Aupuni encourages all Native Hawaiians to participate in this historic opportunity."
The notice of election of delegates was sent Monday to all 95,690 Native Hawaiians whose ancestry had been verified by the Native Hawaiian Roll Commission by July 16. Hawaiians who are interested in becoming delegates to the aha, or constitutional convention, must apply by Sept. 15.
The convention will give Hawaiians an opportunity to decide whether they want to form an indigenous government and, if so, what form it should take. They may choose to create a governance document that would be put up for ratification by all certified Hawaiians on the roll.
Hawaiians have considered a broad range of options for self-determination, from nation-within-a-nation status to restoration of full independence from the United States.
People interested in becoming delegates must be nominated by 10 voters on the Native Hawaiian Roll. They may submit their application online at naiaupuni.org.
Na'i Aupuni was formed in December by volunteers to guide the election process, and its board members will not run as delegates. James Kuhio Asam is its president. The organization is separate from the Office of Hawaiian Affairs and the State of Hawaii, and is funded by Akamai Foundation, which receives grants from OHA.
In order to vote, Native Hawaiians must register by Oct. 15 with the Native Hawaiian Roll Commission. The current certified list of eligible voters is posted at www.kanaiolowalu.org and hawaiianroll.org.
Ballots will be sent to certified voters Nov. 1. Results of the delegate election will be announced Dec. 1.
Forty delegates will be elected, based on the geographic distribution of voters in the Native Hawaiian Roll. Oahu will have 20 delegates; Hawaii island, seven; Maui, three; Kauai and Niihau, two; Molokai and Lanai: one; out of state, seven.
Delegates must live in the district they would represent and be able to attend the eight-week convention on Oahu between February and April.
Na'i Aupuni has contracted Election-America, a private company, to handle the election. The contract allows the notice of election to be sent via mail or email.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15687/Audio-Native-Hawaiian-Attorneys-Skeptical-of-Nai-Aupuni-Kanaiolowalu.aspx
Hawaii Free Press, August 7, 2015
Audio: Native Hawaiian Attorneys Skeptical of Nai Aupuni, Kanaiolowalu
by Andrew Walden
Native Hawaiian attorneys are skeptical about Nai Aupuni and the Kanaiolowalu Roll. That's the takeaway from a July 29, 2015 forum featuring Nai Aupuni Chair J Kuhio Asam speaking to about 40 members of the Native Hawaiian Bar Association.
LINK: AUDIO (Q&A begins at 27:00)
[** Ken Conklin's note: 54 Megabytes; automatically downloads to iTunes on a MacIntosh.]
https://onedrive.live.com/?id=324F325CDD173C20%21525&cid=324F325CDD173C20&group=0&parId=324F325CDD173C20%21524&authkey=%21APItliV-v19hbwk&action=locate
Here are some of the highlights:
First Questioner:
"I have a question regarding the membership of the current roll. How are the names -- how was the roll constituted? In other words, everyone whose name is part of the roll -- did that individual proactively sign up?"
"So if the person is part of OHA (list) and did not opt out, that individual automatically became a member of the roll?"
Second Questioner:
"As I sit here, it's like deja vu from 1996 and the process of the Native Hawaiian Convention, the election and the rest."
1. In 1996, the question was to the Native Hawaiians, 'is this the path that you wish to choose?' and it seems that somehow a determination has been made that this would be the path, so you've left all of that out. And so there's no determination that that is what the people had wanted.
2. You seem to assume a high title of Na'i Aupuni. As I read that title, I'm asking myself, 'Who invoked such a high title of Na'i Aupuni' with names I have not been familiar with with regards to Native Hawaiian groups.
3. We talk about the reorganization of the Native Hawaiian Government and yet you sliced out the non-Native Hawaiians. You have already described the Hawaiian government as consisting of only those of the blood rather than those of nationality. I have some serious consideration about your right to de-nationalize those who are not of the blood who have just as much right to participate.
4. The Native Hawaiian Convention that started previously had not come out with recommendations but they were stopped short, because the funding agency did not allow it to continue with its operation to present its proposal or proposals to its Native Hawaiian people for ratification. Instead it came out with this view of the process driving more and more people towards integration within the United States and away from the independence position -- or at least that is the appearance that is being given.
5. You suggest the vote -- if there is a vote -- may be either 'Ae or A'ole - and just by proposing that, which is common, but that is precisely what has divided our Hawaiian people -- with an 'or' as a conjunction, rather than an 'and' as possibilities for our movement into the future. Someday we can bring together those who support integration as well as those who support independence in a commonality and somehow break that paradigm so we can recognize the bigger commonality than the structured choice of one position versus another position.
Fourth Questioner:
I noticed that during the ratification session, there is nothing there about ratification by the United Nations. I believe this is a requirement that ensures that we are recognized by the rest of the world as the Native Hawaiian government. Speaking of Native Hawaiian government, I've noticed in a lot of the communication that happens these days and as of 1998 also when Dr. Keanu Sai submitted a motion and a complaint to the US Supreme Court -- it was denied. It was denied because the Supreme Court indicated that we are a foreign country and we have no diplomatic connection with the United States and that's the reason why the motion was denied. The motion dealt with complaint as to why all the treaties were made with all the 16 different countries -- including five treaties with the United States. They were all cancelled. And in addition to the complaint about the cancellation of all these treaties, he also indicated in that motion that there were some damages, reparations that needed to be considered for the wrong that was done to the native Hawaiians. So I'm really concerned about that because in 1840 as I understand it, in 1840 when King Kamehameha III adopted the Hawaiian Constitution it changed the status of our government. Prior to 1840 it was a monarchical government -- Kings and Queens. After 1840 it was a constitutional government. That brings a great question to my mind as to what we really are today. Are we still considered a Hawaiian Kingdom or are we -- in accordance with the 1840 Constitution and constitutions after that -- are we a constitutional government?
Fifth Questioner:
Once the roll is published -- it talks about its intent to facilitate the process under which qualified native Hawaiians may independently commence the organization of a convention -- isn't it true, given that, that anybody could form a convention using those certified under the Roll? It doesn't appear from Act 195 that Nai Aupuni has any more authority over anybody else. ...
Secondly, Kanaiolowalu process: There was millions and millions of dollars spent and it went on for a few years and I think that process, I don't remember the exact number, but it was 20-something thousand, thirty at best maybe as far as the registration that was done. And at one point, there was consolidation of these various Rolls that Miriam brought up. It seems to me that there's ... not a very successful effort given all the time and resources that were spent and the few numbers overall. ... What happens if there's not a high voter turnout. What if there's only 20 or 30 thousand people that actually voted for the convention -- have you thought about that? We're talking less than 10% of the Native Hawaiian population. Is that really something that we believe is fair and is something that we all feel comfortable moving forward with as far as nation building?
Seventh Questioner:
We had a Native Hawaiian Convention -- it was known as an 'Aha -- during the 1997-99 period have delegates elected by the native Hawaiian community sat down and drafted and completed two constitutions. Before we were able to distribute them for ratification by the community, we were de-funded. OHA didn't like the result. So what happened was those We met for 17 or 18 months. We met almost on a daily basis -- certainly on a weekly basis and certain committees on an almost daily basis. Those constitutions, the two of them that we completed in the year 2000 were never distributed.
So my suggestion is this: I believe that those delegates were duly elected by our native Hawaiian community back in 1999 are still in recess -- they've never been dismissed or terminated. So what I'm thinking is not to upset the whole deal but if this process is going to review the possibility of drafting government documents, we've already got two that were discussed probably 100 times over and so I would like to see this process here perhaps review -- so we're not starting from scratch, we're not starting from zero -- we look at those constitutions that were discussed over and over again amongst the delegates and present that to this body here that's going to be elected and say, 'This is our starting point.' Rather than starting from scratch which is ridiculous. So those that participated -- Poka was one of them -- have spent endless time reviewing line by line a multitude of constitutions. We already did that so what I'm suggesting is that if you folks are going to get together and do this thing that we're suggesting, then what we need to do is not start from scratch. We need to start from where we ended in the year 2000. Let them look at these two constitutions. What the delegates may decide is up to them but I don't want to start from square one. ...
You're expecting our community to get it done in 40 days. That's a ridiculous timeframe. That's conceivably possible but the truth of the matter is that whoever did this took 17-18 months to get the two constitutions together. So even though you're making it a four-day working period to do all this business with the aha, I think that is an unrealistic timetable because it takes time to debate all these important issues for the constitutions that were drafted.
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August 12, 2015 was the extended deadline for filing comments on the new rule proposed by the U.S. Department of Interior for regulating management and land transfers on the Hawaiian Homelands to further implement the Hawaiian Homes Commission act passed in 1921. Civil rights activists who opposed the Akaka bill and who continue to oppose creation of a Hawaiian tribe view the proposed DOI rule as a trojan horse for using the Hawaiian Homelands as a base for creating a federally recognized tribe. Many testimonies were submitted in opposition to the proposed rule. The two most powerful testimonies were filed by attorney Paul M. Sullivan; and by Keli'i Akina as President of the Grassroot Institute of Hawaii. All the testimonies can be viewed on the Department of Interior website at
http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;dct=PS;D=DOI-2015-0002
Here are the Sullivan and Akina testimonies
-------------
Sullivan testimony as a formatted .doc document is an attachment at
http://www.regulations.gov/#!documentDetail;D=DOI-2015-0002-0457
Comments of Paul Sullivan on proposed regulation ID Number 1090-AA98 concerning land exchange procedures and procedures to amend the Hawaiian Homes Commission Act 1920
I am submitting these comments on my own behalf. The views are my own, and do not necessarily reflect the views of any of my past employers or any organizations to which I have belonged.
Summary: The Department of the Interior (DOI) proposes these two regulations to assist and improve the administration of a State of Hawai'i law under which "native Hawaiians" defined exclusively by race can receive nominal-cost long-term leases of public land of the state of Hawai'i for residential and agricultural purposes. However, before DoI proceeds further with these proposed regulations, it must address and resolve constitutional issues raised by the racial character of the Hawaiian Homes Commission Act (HHCA) and its related statutes and regulations.
Discussion:
Racial discrimination is not peripheral to the HHCA, nor is it merely one of several criteria to be weighed and balanced in selecting lessees. Instead, it lies at the heart of the program. Those who fall outside the racially-defined class have no right to obtain such leases, whatever their need. The U.S. Supreme Court has already ruled that the definition of "native Hawaiian" used in the HHCA is racial. Rice v. Cayetano, 528 U.S. 495, 514-17 (2000). That same definition is used in the proposed DOI regulations and shares the racial character of the statute.
Because of the pervasive racial character of this program, any official action by DOI (or any other governmental agency or agent) to promote or support the program must meet constitutional standards of strict scrutiny; that is, it must address a compelling need and be narrowly tailored in scope and duration to meet that need. See generally Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995).
The U.S. Supreme Court recently addressed this constitutional standard in an affirmative action case involving an academic institution seeking to diversify its student body--one of the very few areas where certain limited types of race-conscious decision-making have been permitted. The Court summarized its equal protection jurisprudence on race-conscious decision-making, stating:
"Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people," Rice v. Cayetano, 528 U. S. 495, 517 (2000) (internal quotation marks omitted), and therefore "are contrary to our traditions and hence constitutionally suspect," Bolling v. Sharpe, 347 U. S. 497, 499 (1954). "'[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,'" Richmond v. J. A. Croson Co., 488 U. S. 469, 505 (1989) (quoting Fullilove v. Klutznick, 448 U. S. 448, 533-534 (1980) ([*2419] STEVENS, J., dissenting)), "the Equal Protection Clause demands that racial classifications ... be subjected to the 'most rigid scrutiny.'" Loving v. Virginia, 388 U. S. 1, 11 (1967).
Fisher v. Univ. of Tex. at Austin, ___ U.S. ___, 133 S. Ct. 2411, 186 L. Ed. 2d 474 (2013). Those principles apply directly to the HHCA. The court's citation to Rice v. Cayetano, of course, is particularly telling since that case specifically held that the definition of "native Hawaiian" in the HHCA was racial.
Nothing in the proposed regulation reflects that this constitutional requirement of strict scrutiny is satisfied, or even that it has been considered, for either the HHCA or the proposed regulation. The racial classification appears on the face of the HHCA and the proposed regulations. The proposed regulations do not show or suggest that there are compelling social or economic or other reasons why native Hawaiians -- and no others of other races--need or deserve exclusive and nominal-cost access to a significant portion of Hawai'i's public land for residences or agriculture. Nothing in the HHCA or the proposed regulations explains why the Federal government may (under the Constitution) or should (as a matter of good policy) support such a program. Nothing in the HHCA or in the proposed regulations explains how such a race-conscious program ever was, or could now be, constitutionally justified, or how the HHCA program was or is narrowly tailored in scope or time or otherwise to meet any purported need for it.
Until these issues are addressed by DOI, with full opportunity for public comment on DOI's analysis, DOI should not provide active support, including the promulgation of new regulations, for the HHCA and the program it establishes.
This is not to say that native Hawaiians who seek housing, agricultural land or any resources or support should be ignored. They should not be ignored, either by governmental agencies or by the private sector. Governmental entities proposing to respond with public funds or public land, however, must adhere to constitutional standards and show how they have done so. DOI should not proceed further with the proposed regulations until it has comprehensively addressed and resolved the constitutional issues presented by the HHCA.
I am attaching citations to some law review articles on related Native Hawaiian issues which are available on-line and which you may find of use.
Thank you for your consideration.
Paul M. Sullivan
P. O. Box 978
Exeter, NH 03833
(808) 382-7584
sullivanpaulm@yahoo.com
Paul M. Sullivan, Recognizing the Fifth Leg: The "Akaka Bill" Proposal to Create a Native Hawaiian Government in the Wake of Rice v. Cayetano, 3 Asian-Pacific Law and Policy Journal 308 (July 2002). This journal is an on-line publication of the William S. Richardson School of Law at the University of Hawai'i. The listed article is available online at
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_03.2_sullivan.pdf
Paul M. Sullivan, A Very Durable Myth: A Critical Commentary on Jon Van Dyke's Who Owns the Crown Lands of Hawai'i?, 31 U.Haw. Law Rev. 341 (2008). Available online at
http://www.inversecondemnation.com/files/sullivan_bookreview.pdf
Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99 (1998). Available online at
https://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html
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Akina testimony as a formatted pdf docuent on Grassroot Institute letterhead is an attachment available on the DOI website at
http://www.regulations.gov/#!documentDetail;D=DOI-2015-0002-0205
July 9,2015
To: Secretary of the Interior
From: Grassroot Institute of Hawaii President Keli'i Akina, Ph.D.
RE: Proposed Rule - Land Exchange Procedures and Procedures to Amend the Hawaiian Homes Commission Act of 1920 (Regulation Identifier Number 1090-AA98)
Dear Secretary:
The Grassroot Institute of Hawaii would like to offer comments on the proposed rule related to Land Exchange Procedures and Procedures to Amend the Hawaiian Homes Commission Act of 1920.
In general, the Grassroot Institute applauds initiatives that would promote the welfare of Native Hawaiians and give them a meaningful path to prosperity. However, we are concerned that portions of the proposed rule will foster cultural division and a damaging relationship between Native Hawaiians and the state and federal governments.
"Reorganization" exceeds the scope of the HHCA
Our first and utmost concern relates to the Department's interpretation of the Act's reference to "rehabilitation" to include, "political, cultural, and social reorganization" that are deemed to forward the goal of rehabilitation. We argue that the common understanding of "political reorganization" of Native Hawaiians reaches far beyond the scope of the Act and the powers of the Department of the Interior. Moreover, any attempt to foster political reorganization of only those Native Hawaiians who are current or future leaseholders under the HHCA would frustrate rather than advance the purpose of rehabilitation by creating serious division within the Native Hawaiian community.
As the recent hearings on the Department's ANPRM regarding the establishment a government-to- government relationship between the U.S. and Native Hawaiians demonstrate, the question of Native Hawaiian reorganization remains unsettled and disputed, even within the Native Hawaiian community. A large and vocal segment of that community has made it abundantly clear that they do not approve of federal intervention in the issue. Under the circumstances, any action promoting political reorganization under the HHCA would not only be premature, but also profoundly damaging to the future of any resulting political body.
Moreover, Congress and Department of Interior officials have both made it clear that political reorganization of Native Hawaiians is outside of the Department's authority. On multiple occasions Congress has considered legislation that would create a path for the political organization of Native Hawaiians, an unequivocal indication that Congress has reserved to itself the power to establish a Native Hawaiian tribal entity.
Further evidence of Congressional intent in this issue can be seen in a public letter to Secretary of the Interior Sally Jewell from Senators Jeff Flake, Lamar Alexander, Tom Coburn, and Mike Lee. Dated August 1, 2014, the letter was written in response to the Department's 2014 ANPRM regarding the establishment of a government to government relationship with Native Hawaiians. In the letter, the Senators write:
"Even if you disagree that the establishment of a Native Hawaiian government would be patently unconstitutional, Congress has not enacted legislation authorizing the Department of the Interior ("the Department") to engage in such a rulemaking. In fact, Congress has repeatedly refused to adopt legislation that would recognize a Native Hawaiian government or reestablish an administrative path for doing so. As such, any unilateral efforts by the Department to move forward administratively are unlawful. Indeed, the Assistant Secretary for Indian Affairs, Kevin Washburn, testified to this effect in March of last year. He told the House Committee on Natural Resources that the Department does not 'have the authority to recognize Native Hawaiians through the Part 83 process.' Rather, Assistant Secretary Washburn asserted that legislation is necessary"
It is apparent, therefore, that any interpretation of the HHCA that allows the DOI to promote "political reorganization" of Native Hawaiians is a stretch that has been repudiated by the actions and statements of Congress.
Political reorganization would be unconstitutional
Finally, there is the question of constitutionality. While the HHCA has never been seriously tested in the courts, there remain significant barriers to any attempt at political reorganization of Native Hawaiians that is dependent on race-based qualifications for entry -- such as those that govern HHCA leaseholders.
In Rice v. Cayetano, the Supreme Court held that the definitions of both "Hawaiian" and "Native Hawaiian" under state law (based on ancestry in the Islands prior to 1778) were racial classifications and that restricting voting rights based on this definition therefore violated the Fifteenth Amendment.
Despite the holding in Rice, the HHCA uses blood quantum-based ancestry as its primary basis for eligibility. However, the courts have been consistent in rejecting the use of ancestry as a proxy for race and the creation of a political entity or "reorganization" created on this basis would leave both that entity and the HHCA itself vulnerable to legal challenge.
The unfortunate and Orwellian references to "social" and "cultural" reorganization are likewise problematic and raise the question of how and why the Department proposes to socially or culturally reorganize the Native Hawaiian people. In addition to being legally and constitutionally problematic, it is difficult to see how any effort to do so would not infringe upon the dignity of the Native Hawaiian people, their history, and their culture. As in the case of political reorganization, any actions by the Department to carry out such a social or cultural reorganization -- even if applied only to HHCA leaseholders -- would not only be vulnerable to legal challenge, but would foster division among Native Hawaiians as a whole.
Land Exchange vs. Land Ownership
Regarding the portion of the proposed rule governing land exchanges, we understand that the goal of these new procedures is to promote efficiency and accountability while respecting the overall intent of the Act. While we approve of efforts to maximize the value and use of the Homelands, we question whether the current approach truly serves the best interests of Native Hawaiians.
As long as HHCA leaseholders lack a true private stake in their land, their economic development will be handcuffed by competing interests. In order to advance the economic interests of Native Hawaiians, it is important to consider a path that would convert HHCA leaseholders into outright owners of their property. As Christopher Alcantara and Tom Flanagan of the Fraser Institute note in their study of Individual Property Rights on Canadian Indian Reserves:
"Twentieth-century history has reinforced our understanding of the role of private property rights in creating an efficient economy. Against this backdrop, it seems evident that developing workable systems of private property rights to facilitate market transactions will be a necessary condition to attaining widespread prosperity on Indian reserves."
Needless to say, it will take time to formulate a plan that would allow the creation of private property rights in the Hawaiian Homelands, but there is no other method as sure to advance the stated goal of the rehabilitation of the Hawaiian people.
Conclusion & Recommendations
The Department is to be commended for its efforts to improve the well-being and prosperity of Native Hawaiians via the HHCA. However, we recommend a few alterations to the proposed rule in order to ensure that goal is met.
First and foremost, the statement that the Act's goal of "rehabilitation" includes "political, cultural, and social reorganization" that is deemed to forward the goal of rehabilitation should be removed in its entirety and further references to such reorganization dropped. Congress has explicitly and implicitly made it clear that such an interpretation far exceeds the scope of the Act and the powers of Department. Not only would such reorganization bring up serious questions of Constitutionality, but it would almost certainly subject the rule, the Act, and more to legal challenge.
In addition, we believe that the optimum path to prosperity for Native Hawaiians is found not through the transfer of existing lands, but through the eventual conversion of the Hawaiian Homelands to private property. That is the only time-tested route to economic independence for the Native Hawaiian people.
Thank you for the opportunity to submit our comments.
Sincerely,
Keli'i Akina, Ph.D.
President, Grassroot Institute of Hawaii
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Aug 13: Grassroot Institute of Hawaii and Judicial Watch file federal lawsuit to block OHA and Native Hawaiian Roll Commission and their minions from conducting a race-based election to begin building a Hawaiian tribe.
(1) Grassroot Institute news release includes summary of the 33-page complaint and a link to a full-text pdf version which allows copy/paste.
(2) Honolulu Star-Advertiser online breaking news article relies on Grassroot news release but provides no link to it nor any link to text of the legal complaint.
(3) Honolulu Civil Beat online newspaper relies on Grassroot news release without providing link to it, but does provide a view of the 33-page complaint in a format that does not allow copy/paste.
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Aug 13 (1)
http://new.grassrootinstitute.org/2015/08/lawsuit-challenges-state-sponsored-race-based-election-and-hawaiians-only-nation/
Grassroot Institute of Hawaii news release, August 13, 2015
Lawsuit Challenges State-sponsored Race-based Election and Hawaiians-only Nation
Grassroot Institute and Judicial Watch Assist Native Hawaiians and non-Native Hawaiians to Speak Out
HONOLULU, HAWAII -- August 13, 2015 -- A group of four Native Hawaiians and two non-Native Hawaiians have filed suit against the State of Hawaii and subsidiary agencies to halt a racially exclusive election and constitutional convention designed to establish a sovereign Hawaiian nation.
Working closely with the Grassroot Institute of Hawaii, the suit was filed by non-profit watchdog group Judicial Watch, represented by former Hawaii Attorney General Michael Lilly. Plaintiffs to the suit include native Hawaiians Keli'i Akina, president of the Grassroot Institute, Melissa Moniz, Kealii Makekau, and Pedro Gapero, as well as non-Native Hawaiians Joseph Kent and Sean Mitsui.
The suit alleges that the election, sponsored by the Office of Hawaiian Affairs (through a contracted organization Na'i Aupuni), using the Native Hawaiian Roll (a voter list compiled and certified by the Native Hawaiian Roll Commission), violates the U.S. Constitution by pursuing a race-based and politically qualified election to establish a racially exclusive nation. The suit thus argues that the State and its agencies are in violation of the First Amendment, Fourteenth and Fifteenth Amendments, and the Voting Rights Act.
The plaintiffs represent three categories: 1) Native Hawaiians whose names were placed on the Native Hawaiian Roll without their consent; 2) Native Hawaiians who are excluded from the Roll because they cannot in good conscience affirm the political declaration required in order to enroll; and 3) Non-Native Hawaiians who were racially discriminated against when excluded from the Roll because of race.
According to Keli'i Akina, Ph.D., President of the Grassroot Institute of Hawaii, and a plaintiff in the case, "This lawsuit is about preserving the Aloha Spirit and the unity of all people in Hawaii. For Native Hawaiians, this suit is also about putting priorities in order. Instead of OHA and the State continuing to waste millions of dollars on the pursuit of a political sovereignty campaign, they need to use these precious funds to meet the real needs of Hawaiians for housing, jobs, education, and health care. Given the low enrollment in the certified Native Hawaiian Roll, it is clear that the Native Hawaiian people themselves have rejected OHA-backed efforts to create a racially exclusive nation. The time has come to stop dividing Hawaii's people and start uniting them."
Tom Fitton, President of Judicial Watch, said, "Who would believe that in this day and age U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view? Using a race-based enrollment list ... is a violation of the U.S. Constitution and basic federal voting rights law."
The current suit follows on the heels of a successful suit filed by Judicial Watch with the assistance of Grassroot Institute in which the Native Hawaiian Roll Commission was ordered by the court to provide Judicial Watch with a complete copy of the Roll. Since posting that list online, Grassroot Institute has been contacted by numerous individuals claiming that their names were put onto the list without their consent. Numerous individuals have also identified names of deceased relatives on the list.
A copy of the complaint can be seen on the Grassroot Institute website.
http://new.grassrootinstitute.org/2015/08/complaint-against-unconstitutional-election/
** Ken Conklin's note: The 33-page complaint in pdf format can be downloaded by clicking here:
http://new.grassrootinstitute.org/wp-content/uploads/2015/08/1-Complaint-F-8-13-15.pdf
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Aug 13 (2)
http://www.staradvertiser.com/news/breaking/20150813_Federal_lawsuit_filed_to_block_Native_Hawaiian_election.html?id=321814401
Honolulu Star-Advertiser, August 13, 2015, Breaking News at 11:32 AM, updated at 12:39 PM
Four Native Hawaiians and two non-Hawaiians filed a lawsuit Thursday in U.S. District Court in Honolulu seeking to block a "race-based" and "viewpoint-based" election planned this fall as a step toward establishing a sovereign Hawaiian government.
The lawsuit, which was filed against the state of Hawaii, Office of Hawaiian Affairs trustees and other "agents of the state," argues that the election violates the U.S. Constitution and the Voting Rights Act by using race and political qualifications to determine voter eligibility.
The Native Hawaiian Roll Commission recently published a list of 95,000 Native Hawaiians eligible to vote for delegates later this year to a governance aha, or constitutional convention to be held next year. The election is being overseen by an independent group, Na'i Aupuni, which is funded by OHA grants through the Akamai Foundation.
The plaintiffs in the lawsuit are Keli'i Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kana'e Gapero and Melissa Leina'ala Moniz. They are represented by Michael Lilly, a former state attorney general, who brought the suit on behalf of Judicial Watch, a nonprofit.
According to the suit, Akina and Makekau, both Native Hawaiian, are excluded from the roll because they cannot affirm the political declaration required for registration. Along with proving Native Hawaiian ancestry, registrants must "affirm the unrelinquished sovereignty of the Native Hawaiian people and my intent to participate in the process of self-governance."
Gapero and Moniz contend they were registered on the Native Hawaiian Roll without their consent. Kent and Mitsui say they were racially discriminated against when excluded from the roll because of race.
All six are Hawaii residents, except Moniz, who lives in Texas.
The Native Hawaiian Roll Commission launched its registry campaign in 2012, under a law passed the year before that aimed to identify and certify Native Hawaiians in order to facilitate their self-governance. The commission signed up more than 40,000 people, and also incorporated names from previous Native Hawaiian registries.
The defendants named in the suit are the state of Hawaii, Gov. David Ige; OHA trustees; Native Hawaiian Roll commissioners and their executive director, all in their official capacity; the Akamai Foundation and the Na'i Aupuni Foundation.
"This lawsuit is about preserving the Aloha Spirit and the unity of all people in Hawaii," said Akina, a plaintiff and president of the Grassroot Institute of Hawaii. "Instead of OHA and the State continuing to waste millions of dollars on the pursuit of a political sovereignty campaign, they need to use these precious funds to meet the real needs of Hawaiians for housing, jobs, education, and health care."
"Who would believe that in this day and age U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view?" said Tom Fitton, president of Judicial Watch.
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Aug 13 (3)
http://www.civilbeat.com/2015/08/lawsuit-says-hawaiians-only-election-is-racially-exclusive/
Honolulu Civil Beat, August 13, 2015
Lawsuit Says Hawaiians-Only Election Is 'Racially Exclusive'
Grassroot Institute of Hawaii and Judicial Watch name Gov. Ige, the Office of Hawaiian Affairs and the Native Hawaiian Roll Commission in the complaint.
By CHAD BLAIR
A hui of four Native Hawaiians and two non-Hawaiians on Thursday filed a lawsuit against the state of Hawaii to halt what plaintiffs argue is "a racially exclusive election and constitutional convention designed to establish a sovereign Hawaiian nation."
The defendants include Gov. David Ige, the trustees and CEO of the Office of Hawaiian Affairs, and the Native Hawaiian Roll Commission, including its chair, former Gov. John Waihee.
The nonprofit watchdog group Judicial Watch filed the lawsuit in U.S. District Court in Honolulu.
Former Hawaii Attorney General Michael Lilly is representing plaintiffs Kelii Akina, president of the Grassroot Institute, Melissa Moniz, Kealii Makekau, Pedro Gapero, Joseph Kent and Sean Mitsui.
The suit alleges that the proposed election -- for which a date has not been set -- violates the U.S. Constitution's First, 14th and 15th Amendments and the Voting Rights Act.
In a press release, Akina said:
"This lawsuit is about preserving the Aloha Spirit and the unity of all people in Hawaii. For Native Hawaiians, this suit is also about putting priorities in order. Instead of OHA and the State continuing to waste millions of dollars on the pursuit of a political sovereignty campaign, they need to use these precious funds to meet the real needs of Hawaiians for housing, jobs, education, and health care. Given the low enrollment in the certified Native Hawaiian Roll, it is clear that the Native Hawaiian people themselves have rejected OHA-backed efforts to create a racially exclusive nation. The time has come to stop dividing Hawaii's people and start uniting them."
OHA declined to comment on the complaint.
Deputy Attorney General James Walther told Civil Beat, "Our office is aware of the lawsuit, and we will be reviewing it."
The Native Hawaiian Roll Commission, established by the Hawaii State Legislature in 2011, launched a registry campaign in 2012 to sign up qualified Hawaiians to participate in self-governance.
The latest lawsuit follows the success of Grassroot Institute and Judicial Watch in state court in June, when the roll commission was ordered to make public its enrollment list -- something the commission has since done.
Grassroot Institute of Hawaii is a nonprofit, nonpartisan groups that self-identifies as "a research institute dedicated to the principles of individual liberty, the free market, and limited, accountable government throughout Hawaii and the Asia-Pacific region."
On a related front, the U.S. Department of the Interior is drafting a proposed rule regarding the procedures to reestablish a government-to-government relationship with a Native Hawaiian governing entity.
================
http://www.staradvertiser.com/newspremium/20150814_lawsuit_challenges_native_hawaiian_election.html?id=321852232
Honolulu Star-Advertiser, August 14, 2015
Lawsuit challenges Native Hawaiian election
The plaintiffs view the roll commission's work and goals as inappropriate
By Susan Essoyan
Four Native Hawaiians and two non-Hawaiians filed a lawsuit Thursday in U.S. District Court in Honolulu seeking to block a "race-based" and "viewpoint-based" election planned this fall as a step toward establishing a sovereign Hawaiian government.
The lawsuit, filed against the state of Hawaii, Office of Hawaiian Affairs, Native Hawaiian Roll Commission and others, argues that the Native Hawaiian election violates the U.S. Constitution and the Voting Rights Act by using race and political qualifications to determine voter eligibility.
The Native Hawaiian Roll Commission recently published a list of 95,000 Native Hawaiians eligible to vote later this year for delegates to a governance aha, or constitutional convention, to be held next year. The election is being overseen by an independent group, Na'i Aupuni, which is funded by OHA grants through the Akamai Foundation.
The plaintiffs in the lawsuit are Keli'i Akina, Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui, Pedro Kana'e Gapero and Melissa Leina'ala Moniz.
"The time has come to stop dividing Hawaii's people and start uniting them," said Akina, president of the Grassroot Institute of Hawaii, a public policy think tank. "At Grassroot Institute we don't have a problem with Native Hawaiians organizing for self-determination. Our problem is with the inappropriate use of public funds by public agencies in a manner that favors one group."
According to the suit, Akina and Makekau, both Native Hawaiians, are excluded from the roll because they decline to make the political declaration required for registration. Along with proving native ancestry, a registrant must "affirm the unrelinquished sovereignty of the Native Hawaiian people and my intent to participate in the process of self-governance."
Gapero and Moniz, who also are Native Hawaiians, contend they were registered on the Native Hawaiian Roll without their consent. Kent and Mitsui say they were racially discriminated against when they were excluded from the roll because they do not have Native Hawaiian ancestry.
All six are Hawaii residents, except Moniz, who lives in Texas. They are represented by attorney Michael Lilly, a former Hawaii attorney general, and Robert Popper, bringing suit on behalf of Judicial Watch, a nonprofit foundation based in Washington, D.C.
"Who would believe that in this day and age U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view?" Tom Fitton, president of Judicial Watch, said in announcing the suit.
The Native Hawaiian Roll Commission launched its registry campaign in 2012, under a law passed the year before that aimed to identify and certify Native Hawaiians in order to facilitate their self-governance. The commission signed up more than 40,000 people and also incorporated names from previous Native Hawaiian registries.
The defendants named in the suit are the state of Hawaii; Gov. David Ige; OHA's trustees and chief executive officer; Hawaiian Roll commissioners and their executive director, all in their official capacities; the Akamai Foundation; and the Na'i Aupuni Foundation.
Clyde Namuo, executive director of the Roll Commission, said the defendants would put up a vigorous defense.
"We really can't comment on the substance of the lawsuit until we have more time to discuss it with our attorneys," he said. "Our general reaction is we're just disappointed. We're especially disappointed by some of the Native Hawaiian plaintiffs that are listed in the lawsuit. To suggest that Native Hawaiians do not have the right to self-determination, it's disappointing for any Native Hawaiian to make that kind of statement."
James Walther, spokesman for the state Department of the Attorney General, said he was aware of the lawsuit but could not comment. "We will be reviewing it," he said.
OHA spokesman Garett Kamemoto also declined to comment on the pending litigation.
In an earlier court case that challenged race-based voting in Hawaii, known as Rice v. Cayetano, the U.S. Supreme Court in 2000 struck down as unconstitutional a restriction that allowed only Native Hawaiians to vote in state elections for the trustees of the Office of Hawaiian Affairs. Two years later an appellate court ruled further that candidates for the Office of Hawaiian Affairs could not be restricted to people of Native Hawaiian ancestry.
In this case the organization holding the election, Na'i Aupuni, is an independent nonprofit formed in December and led by a volunteer board of directors.
According to a grant agreement posted on its website, Na'i Aupuni receives OHA funding through the Akamai Foundation, but OHA has no direct or indirect control over its activities. OHA trustees have authorized spending up to $2.6 million on the current effort to allow Hawaiians collectively to create a governing entity independent of the state of Hawaii and OHA, the document said.
More than 527,000 people in the United States identified themselves as being of Hawaiian descent in the 2010 U.S. Census, nearly 290,000 of them living in Hawaii.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15737/Obama-Administration-to-Propose-Procedure-for-Recognizing-Fake-Hawaiian-Indian-Tribe.aspx
Hawaii Free Press, Friday, August 14, 2015
Obama Administration to Propose 'Procedure' for Recognizing Fake Hawaiian Indian Tribe
By Andrew Walden
In spite of overwhelming opposition from Hawaiians at last year's DoI hearings, the Obama Administration is preparing to bypass Congress and administratively recognize a fake Hawaiian Indian tribe, if OHA cronies can create one in time.
Civil Beat today quotes Jessica Kershaw, press secretary for the Interior Department:
"I will confirm for you that in response to an extensive public comment period with public meetings, as you are aware, in Hawaii and also Indian country in the continental United States and requests from congressional states and Native Hawaiian community leaders, the Department of Interior will propose a rule that establishes an administrative procedure that the secretary would use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States."
No proposed rule designed to bypass Congressional authority over tribal recognition has yet been posted. This article will be updated if and when this changes.
The Interior Department move is pursuant to "RIN: 1090-AB05 Procedures for Reorganizing the Native Hawaiian Community as an Indian Tribe" later retitled: "Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community." DoI has apparently taken down all of its on-line pages covering the progress of RIN: 1090-AB05 (we have provided links to cache) but the webcache of one page indicates some type of action yesterday
-- "Received Date: 08/13/2015."
http://webcache.googleusercontent.com/search?q=cache:sj5vFgYesrMJ:www.reginfo.gov/public/do/eoDetails%3Frrid%3D125408+&cd=1&hl=en&ct=clnk&gl=us
The move comes amidst a flurry of activity related to federal recognition:
A lawsuit filed August 13 challenges the legality of tribal elections being held by Kanaiolowalu, Na'i Aupuni, and OHA.
August 12 was the final day for comments on a proposed federal rule for Hawaiian Homelands. At the last minute, Governor Ige and the Hawaii Attorney General submitted testimony opposing the proposed DoI DHHL rule. The Hawaiian Homes Commission earlier voted to oppose the proposed rules. As we have explained, the proposed DHHL rule also contains a carefully hidden path to administratively "recognize" DHHL as an Indian tribe without a vote of Congress.
OHA subcontractor Election-America August 3 mailed out a "Notice of Election" to 95,000 persons listed on the Kanaiolowalu roll. The deadline to file as a candidate for OHA's tribal 'Aha is September 15.
The Interior Department moves parallel a proposed Obama Admin rewrite of Indian Law which would illegally take away Congress' constitutionally mandated power to recognize Indian tribes. This proposal,#RIN 1076-AF18 "Federal Acknowledgment of American Indian Tribes," is vigorously opposed by House members. The webpage for #RIN 1076-AF18 has also been removed, but can still be seen in cache.
http://webcache.googleusercontent.com/search?q=cache:HXcRKaY0j2EJ:www.reginfo.gov/public/do/eAgendaViewRule%3FpubId%3D201304%26RIN%3D1076-AF18+&cd=1&hl=en&ct=clnk&gl=us
Obama's last day in office in January 20, 2017.
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http://www.civilbeat.com/2015/08/us-interior-to-propose-rule-for-native-hawaiian-government/
Honolulu Civil Beat, August 14, 2015, updated August 15
US Interior to Propose Rule for Dealing With a Native Hawaiian Government
The administrative procedure could lead to establishment of a formal relationship between the United States and an indigenous governing entity in the islands.
By Chad Blair
The U.S. Department of the Interior has taken a major step toward federal recognition of Native Hawaiians.
The agency has moved forward regarding procedures to re-establish a government-to-government relationship with a native governing entity by submitting a draft rule for regulatory review.
The governing entity is in the process of being formed through the Native Hawaiian Roll Commission, which late last month sent notices to qualified voters on how to participate in a constitutional convention for self-governance.
Jessica Kershaw, press secretary for the Interior Department, confirmed to Civil Beat Friday that a draft rule will be proposed:
"I will confirm for you that in response to an extensive public comment period with public meetings, as you are aware, in Hawaii and also Indian country in the continental United States and requests from congressional states and Native Hawaiian community leaders, the Department of Interior will propose a rule that establishes an administrative procedure that the secretary would use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States."
The status of the rule review, which was filed Thursday, is pending and there is no timeline indicated. No text of the rule is yet posted, but it will eventually be available online.
The new development will likely boost the efforts of the commission and its supporters to have qualified Hawaiians participate in an election process.
But it will also upset many others who oppose federal recognition and argue that Hawaii was illegally annexed by the United States in 1898 and in fact remains a sovereign state.
Increased Activism
At a series of "listening tours" held last year to get feedback on whether and how the process of reestablishing a government-to-government relationship should proceed, the Interior Department heard from many islanders who claimed that Hawaii is still a nation and that Americans are occupiers who should leave.
At the same time, advocates for federal recognition believe that there is a unique opportunity to act on federal recognition while locally born Barack Obama is still in the White House. Action through the Interior is seen as the best hope for recognition after the decade-long effort to pass what is known as the Akaka Bill failed in the U.S. Senate.
The Native Hawaiian Government Reorganization Act, as it is formally called, is informally named after its chief sponsor, former U.S. Sen. Dan Akaka of Hawaii.
The latest federal action comes in the same week that a lawsuit was filed alleging that the Native Hawaiian Roll Commission election is racially exclusive and thus in violation of the U.S. Constitution.
Meanwhile, activism among many Native Hawaiians has increased in the wake of blockage of construction of the Thirty Meter Telescope on top of Mauna Kea on the Big Island. The stand-off pits those who say the mountain, which is a sacred site, has been desecrated and those who say the TMT is essential to understanding the origins of the universe.
On Aug. 9, thousands of Native Hawaiians and other residents marched in Waikiki for the "Aloha Aina Unity March," by far the largest demonstration in Hawaii since protests erupted last spring over telescope construction.
Constitutional Convention for Hawaiians
The Roll Commission operates separately from the Office of Hawaiian Affairs, a quasi-state agency tasked with the care and perpetuation of the indigenous population and its culture. But Hawaiians can register through an OHA website registry.
It's estimated by Na'i Aupuni, the vendor hired by OHA, that 95,690 Native Hawaiians have been certified by the Roll Commission to participate in the elections.
Registrants must be descendants of the aboriginal peoples who lived in the Hawaiian islands prior to Western contact in 1778, and must declare their allegiance to Hawaii sovereignty and community.
The filing deadline for Hawaiians to run for the "constitutional convention" is Sept. 15. Those who have not registered but want to vote in the elections have until Oct. 15 to register
Groups like Judicial Watch and the local think-tank Grassroot Institute of Hawaii say that the Kana'iolowalu — the name given to the commission's campaign to enroll Hawaiians — is race-based and therefore unconstitutional.
This is a developing story and will be updated.
** Note from Ken Conklin: On August 15 that closing sentence was removed.
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http://www.westhawaiitoday.com/news/local-news/interior-proposes-intergovernmental-rule-any-hawaiian-gov-t
West Hawaii Today (Kona), August 15, 2015
Interior proposes intergovernmental rule for any Hawaiian gov't
By Graham Milldrum
West Hawaii Today
gmilldrum@westhawaiitoday.com
The Department of Interior has announced their intention to publish their rule for an agreement between the federal government and any Native Hawaiian government.
"... the Department of the Interior will propose a rule that establishes an administrative procedure that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States," wrote Jessicca Kershaw, press secretary for the department.
The rule is largely speculative, as there is no active Hawaiian government.
"... The proposed rule would not attempt to reorganize a Native Hawaiian government or dictate the form of structure of that government. The Native Hawaiian community would determine whether and how to reorganize its government," Kershaw wrote.
She drew a parallel with the "Federal policy of indigenous self-determination and Native self-governance."
The rule comes after a meeting tour with people in Hawaii and on mainland reservations in June and July of 2014. The tour collected more than 5,000 comments in person, by mail and online.
The goal is "a rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States," the document says.
This comes as Native Hawaiians are preparing to vote on delegates to a convention to determine whatever self-governance they may take.
The attempt to hold an election has been challenged in court by Judicial Watch in Washington, D.C., a conservative group. The group says the fact it is exclusively for Native Hawaiians makes it a racial election. The requirement that participants agree with the "unrelinquished sovereignty of the Hawaiian people" and other elements also causes viewpoint discrimination, Judicial Watch wrote in a press release.
In the state, 21.3 percent of Hawaii residents reported in the 2010 census that they had some Hawaiian blood, and 5.9 percent said they were pure Hawaiian. Hawaii County has 29.7 percent of its residents with Hawaiian blood and 8.5 percent are pure Hawaiian. This leads the state in both categories.
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Note from website editor Ken Conklin: The Obama administration is clearly in stealth mode as it works in secret to create a Hawaiian tribe. It's a long-established custom to do "document dumps" late on Fridays to comply with requirements to make documents public while nevertheless doing so at a time which makes it nearly impossible for reporters and commentators to investigate and publish something before they go away for the weekend. The August 14 news report from Hawaii Free Press proves we have items being erased from normal places where they could be observed -- erased shortly after being posted -- but still available behind the scenes in a shortened summary in a cache if you know where to look. Jessica Kershaw is the press secretary for the Department of Interior, but she clearly has a private email list of favored reporters, including Chad Blair at Civil Beat and Graham Milldrum at West Hawaii Today; while she treats more objective reporters like mushrooms (i.e., keep them in the dark and feed them crap). There is nothing in any place where normal people would look regarding any recent events concerning the DOI proposed rule to create a Hawaiian tribe -- nothing on the DOI webpage of press releases, no media advisories, and nothing in Kershaw's twitter list. Is this flurry of activity related to the August 13 filing of the GRIH/JudicialWatch lawsuit? It sure looks that way. The DOI activity on August 13-14 might very well be an effort to bolster an assertion by lawsuit defendants that the lawsuit should be dismissed because of the political question doctrine -- the theory that, due to the separation of powers called for in the Constitution, the courts should not interfere in matters where the legislative or executive branches are engaged in ongoing decision-making. One federal judge actually dismissed a major lawsuit seeking to abolish OHA, because, said the judge, the fact that the Akaka bill was sitting in Congress awaiting possible action [the bill sat there for 13 years with no action!] made the issue of OHA's legitimacy a "political question" not suitable for the courts.
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http://www.staradvertiser.com/newspremium/20150816_mauna_kea_controversy_stirs_activists_on_divergent_paths.html
Honolulu Star-Advertiser, August 16, 2015
Mauna Kea controversy stirs activists on divergent paths
By David Shapiro
The telescope protests atop Mauna Kea have spurred increased political activism by Native Hawaiians, but it's heading in different directions.
At last weekend's Aloha Aina rally in Waikiki, leaders urged more Hawaiian involvement in state and county politics to preserve lands they consider sacred.
Molokai activist Walter Ritte said sovereignty remains the long-term goal, but Hawaiians must assert themselves in state politics to save diminishing resources.
"We're losing them much too fast," Ritte said. "By the time we get to our long-term goals, we're not going to have any natural resources to pass to our future generations."
He was rebuked on Facebook by nationalist leader Bumpy Kanahele, who accused Ritte of never supporting Hawaiian independence and asked mockingly, "You still believe in the American Dream?"
"Desecration, evictions, homelessness, poverty, abuse … overcrowding, traditional and customary rights will never win in the federal and state judicial system," Kanahele declared. "I guarantee you when we form our own independent Hawaiian government, all these separate fires will stop."
Kanahele is urging nationalists to focus on "taking over" the upcoming constitutional convention sponsored by the state Office of Hawaiian Affairs, which they've shunned until now.
Nationalists have seen the convention as an attempt to impose OHA's vision of state-within-a-state sovereignty, giving President Barack Obama a pretext to recognize Hawaiians as the equivalent of an Indian tribe, which Hawaiians overwhelmingly opposed during hearings.
Kanahele believes nationalists can use the constitutional convention to create a provisional Hawaiian government, complete with a military, to negotiate Hawaii's independence from the United States.
The Hawaiians-only election and convention face a legal challenge in federal court, and it remains very much to be seen if a majority of Native Hawaiians support independence in which they give up their U.S. citizenship.
Kanahele has the logistical challenge of getting enough nationalists registered for the Hawaiian Roll and accredited as convention candidates before the filing deadline, Sept. 15.
His effort is at odds with other nationalists who believe Hawaii wasn't legally annexed by the United States and already is an independent nation. They shun state and federal negotiations and press their claims at the United Nations and other international forums.
The Hawaiian Roll, called Kanaiolowalu, has been considered a farce after signing up only 40,000 of more than 500,000 Native Hawaiians worldwide despite years of soliciting and millions spent.
The majority of the 95,000 Hawaiians now on the roll didn't voluntarily register, but were filched from other lists.
Nevertheless, if the ConCon survives in court, it could be lively if Kanahele and others with hard nationalist views are elected as delegates.
And the 2016 state and county elections will become a lot more interesting if Hawaiians who share Ritte's views get involved with the energy they've brought to the Mauna Kea protests.
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http://naiaupuni.org/faq.html
Na'i Aupuni Frequently Asked Questions, update on August 17, 2015
Can the lawsuit filed by the President of the Grassroot Institute of Hawaii stop the Na'i Aupuni process?
Grassroot Institute of Hawaii is a private organization that opposes Native Hawaiian rights and our Native Hawaiian community's current efforts to reorganize our government. In an attempt to prevent our progress, Grassroot's President and others recently filed a lawsuit against the State of Hawaii, Governor Ige, OHA trustees, Native Hawaiian Roll Commissioners, Akamai Foundation and Na'i Aupuni claiming that the Native Hawaiian Roll Commission's registration process violates equal protection and voter rights laws that apply to government agencies. The lawsuit is trying to stop any further actions based on the Roll, including the Na'i Aupuni process.
We strongly believe Grassroot will not succeed in stopping Na'i Aupuni's legitimate and lawful process. The laws Grassroot relies on do not apply to Na'i Aupuni because Na'i Aupuni is not a state agency, it is not controlled by any state agency, and it is not holding a state election. Also, the Native Hawaiian Roll Commission's enrollment process satisfies concerns raised in Rice v. Cayetano (2000) and is based on valid and constitutional state and federal laws, including Act 195, the Apology Resolution, and hundreds of other state and federal acts affirming that Native Hawaiians have a special political and legal status under state and federal law. Although this reasoning explains the defects in the lawsuit because it alleged violations of federal law and was filed in federal court, the delegates' options at the 'Aha will not be limited to federal recognition.
How did Na'i Aupuni come about?
OHA reached out to the ali'i trusts, royal societies and other Hawaiian organizations to discuss reorganization of a Native Hawaiian government and nation building.
This discussion led to the realization that the individuals who would oversee the delegate election and 'Aha process must forego involvement as delegates or political advocates.
Five individuals stepped forward as unpaid volunteers to form an independent organization (Na'i Aupuni) to conduct the process of the election of delegates, the 'Aha and any ratification vote. Na'i Aupuni will also monitor the contractors.
Na'i Aupuni board members also decided to serve as individuals and not as representatives of any one organization in order to preserve their autonomy.
How is Na'i Aupuni funded?
Na'i Aupuni is supported by OHA grant funds to the nonprofit Akamai Foundation, a fiscal sponsor for the benefit of Na'i Aupuni. The funds consist of income and proceeds from the public land trust, pursuant to article XII, section 6 of the Hawai'i Constitution. However, between Na'i Aupuni and OHA:
"OHA agrees that Na'i Aupuni has no obligation to consult with OHA or Akamai Foundation on its decisions regarding the performance of the Scope of Services."
"Na'i Aupuni hereby agrees that the decisions of Na'i Aupuni and its directors, paid consultants, election monitors, contractors, and attorneys regarding the performance of the Scope of Services will not be directly or indirectly controlled or affected by OHA."
"Scope of Services is comprised of an election of delegates, election and referendum monitoring, a governance 'Aha, and a referendum to ratify any recommendation of the delegates arising out of the 'Aha."
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E Hana Kakou with Keli'i Akina, Ph.D., President of the Grassroot Institute of Hawaii
Broadcast every Monday 2-3 PM on the ThinkTech Hawaii online network.
YouTube video, 44 minutes, taped from live program Mon, August 17, 2pm – 3pm HST
Title: Suing to Preserve the Aloha Spirit
https://www.youtube.com/watch?v=0qYsXCGQIlw
Host: Keli'i Akina, Ph.D.
Guest #1: Robert Popper, Judicial Watch (VIA SKYPE)
Guest #2: Michael Lilly, Former Hawaii Attorney General (IN STUDIO)
Description: Why has a group of native Hawaiians and non-Hawaiians filed suit against the Office of Hawaiian Affairs and Native Hawaiian Roll Commission to stop a race-based election and attempts to establish race-based sovereign nation? Hear directly from plaintiff Keli'i Akina and attorney for Judicial Watch Robert Popper, and local counsel Michael Lilly.
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http://www.staradvertiser.com/editorialspremium/20150818_all_hawaiians_deserve_a_vote.html?id=322134532
Honolulu Star-Advertiser, August 18, 2015, EDITORIAL
All Hawaiians deserve a vote
The Native Hawaiian sovereignty movement picked up steam this year with the publication of a list of 95,000 eligible voters, a positive development toward the self-determination that they deserve.
The people on that list, compiled by the Native Hawaiian Roll Commission, would within a matter of months take the long-awaited, critical next step of electing delegates to a constitutional convention. And that would determine what kind of political entity, if any, the Hawaiian community would like to establish.
All of that has been put in limbo with the filing last week of a federal lawsuit challenging the constitutionality of the entire enterprise.
The voter roll seems defensible as a free assembly of people in a private, non-governmental group. But the stronger critique of the election is that its organizers are not giving equal access to voting to all Native Hawaiians.
Whether or not that prevails as the winning legal argument in court, that's a bad precedent, one that should be corrected.
The state Office of Hawaiian Affairs provided funds for the election to one nonprofit, Akamai Foundation, which in turn issued grants to another nonprofit, Na'i Aupuni, which will oversee the election. This does insulate the process from OHA: The contract under which Na'i Aupuni was hired precludes OHA from having any control over the election process, said Bill Meheula, an attorney working with Na'i Aupuni.
The plaintiffs in the lawsuit, filed Thursday in U.S. District Court, counter that the Native Hawaiian Roll Commission, Akamai Foundation and Na'i Aupuni are "agents of the state" and that the election is thus subject to constitutional challenge for using race and political qualifications to determine voter eligibility.
Strictly speaking, the OHA grant for this purpose comes not from the state general fund but from the Native Hawaiian Trust Fund, which the OHA trustees manage for the beneficiary class of Native Hawaiians. This arrangement has withstood court challenge.
But the latter element, about the political qualification, is more troubling. Electors who were enrolled by the commission had to sign a statement to "affirm the unrelinquished sovereignty of the Native Hawaiian people and my intent to participate in the process of self-governance."
The voter list is a composite, however, of that roll and three previous voter drives, which did not include the same pledge: Kau Inoa, Project Ohana and the Hawaiian Registry.
Proponents say the pledge is there to make the purpose of the convention clear. However, in its meeting with the Honolulu Star-Advertiser editorial board, Na'i Aupuni leaders asserted that there was no preordained agenda for the convention.
There are Native Hawaiians who argue against self-governance -- who defend the status quo, and maintain that Hawaiians are U.S. citizens, period. The pledge certainly makes it sound as if their point of view won't be represented in the convention.
The Star-Advertiser has supported the concept of Native Hawaiians having control of resources that have been set aside for Hawaii's indigenous people. The constitutional convention, or aha, that's being planned has the potential to help them realize that goal.
But if there are to be any discussions around Native Hawaiian sovereignty, they should include all Hawaiian voices seeking to be heard. The convention would be flawed if it excludes those who hold a different perspective.
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http://www.staradvertiser.com/editorialspremium/20150818_hawaiian_sovereignty_issue_returns_to_the_courtroom.html?id=322134442
Honolulu Star-Advertiser, August 18, 2015, COMMENTARY by staff commentator
Hawaiian sovereignty issue returns to the courtroom
By Richard Borreca
Hawaiian sovereignty issue returns to the courtroom
According to a ruling by the United States Supreme Court, the state of Hawaii can neither restrict nor limit who can vote in Office of Hawaiian Affairs elections.
The court also said Hawaii cannot say who can run for OHA elections.
Before those two rulings back in 2000, only Hawaiians could vote and run in OHA elections.
That 15-year-old legal history is important now because of a new push to hold a Hawaiian-only election to elect Hawaiian-only delegates to a convention that would "consider different options for Native Hawaiian self-determination," according to the officials running the election.
But a local organization, the Grassroot Institute of Hawaii, has teamed up Judicial Watch, a conservative Washington, D.C.-based nonpartisan group, to sue in federal court to stop the election.
"We think the issue was decided in Rice v. Cayetano," says Robert Popper, a Judicial Watch attorney.
Popper is joined in the lawsuit by Michael Lilly, former Hawaii attorney general.
All this is important because the U.S. Interior Department last week started readying itself to take into consideration whatever government entity is proscribed by the convention delegates in Hawaii.
Supporters hope it could be the beginning of something big, like the United States recognizing some form of a Native Hawaiian government. It could also be the beginning of yet another round of excruciating confusion as Hawaiian and non-Hawaiian groups argue over who has the right to claim sovereignty over the Hawaiian islands.
OHA has come up with a tortured process for conducting the election. It gave $2.5 million to a separate organization, the Akamai Foundation, which in turn gave it to another group, Na'i Aupuni, which then hired Elections-America to hold the election.
Na'i Aupuni explains on its web page that OHA "is a semi-autonomous state agency and may not legally be able to oversee the delegate election process.
"OHA is providing funds to a fiscal sponsor to use at the direction of Naʻi Aupuni to facilitate an election of delegates … and potentially a ratification vote, all without any control by OHA."
The group states: "Na'i Aupuni is not a state agency, it is not controlled by any state agency, and it is not holding a state election. Also, the Native Hawaiian Roll Commission's enrollment process satisfies concerns raised in Rice v. Cayetano."
Popper and Lilly, in their lawsuit, pointed out that the Supreme Court previously ruled that even though OHA is unique, "it is apparent that it remains an arm of the state."
Quoting from the minutes of a February OHA meeting, the suit noted that during a discussion of how the election process can maneuver around the Rice v. Cayetano decision, Peter Apo, an OHA trustee says "this is very tricky navigation required."
All that movement distracts from the central issue of whether or not a state-sponsored entity can dictate who is allowed to vote.
Moving this issue back to the Supreme Court could then open up new decisions regarding the relationship between Native Hawaiians and the federal government, with the result that the relationship is identical to that of everyone else.
Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.
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http://www.civilbeat.com/2015/08/u-s-recognition-of-native-hawaiians-dont-waste-the-opportunity/
Honolulu Civil Beat, August 18, 2015, EDITORIAL
U.S. Recognition of Native Hawaiians: Don't Waste the Opportunity
A rule in the making would create the basis for a relationship between the federal government and a Native Hawaiian governing body.
By THE CIVIL BEAT EDITORIAL BOARD
The generations-old push to re-establish U.S. recognition of the sovereignty and government of the Native Hawaiian people reached a milestone last week when the Department of the Interior announced it will soon publish a draft rule that would allow Native Hawaiians to leverage that recognition.
As Interior spokeswoman Jessica Kershaw told Civil Beat's Chad Blair last week, Interior "will propose a rule that establishes an administrative procedure that the secretary would use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States."
The rule language hasn't yet been made public, but its title has: "Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community."
Once the proposed rule is published, it will be open for a period of public comment -- typically 30 to 60 days. As with any federal agency rule, President Obama will have the opportunity to review the draft before it is published and any revisions made to the rule subsequent to the public comment period -- significant, given the president's personal history and familiarity with Hawaii. Generally, such rules become active within 30 days of the final version's publication in the Federal Register.
This news comes on the heels of notices sent by the Native Hawaiian Roll Commission earlier this month to thousands of voters certified to take part in elections this fall for delegates to a Native Hawaiian constitutional convention for self-governance. The filing deadline to run as a potential delegate for the convention is a month away, with election results to be released Dec. 1. Convention dates haven't been set.
The bottom line is that by year's end, delegates will have been elected to a constitutional convention that could create a Native Hawaiian government that stands to be recognized by the federal government, according to a rule that by that point may be in draft or possibly pending enactment.
A moment for which a great many have been advocating for decades, then, could be here in relatively short order, arriving in a cultural context that may provide a significant tailwind. Thousands of Native Hawaiians and their supporters continue to rally against construction of the Thirty Meter Telescope on their sacred Mauna Kea. Though the TMT is an international venture, the battle over its construction has become symbolic in some quarters of more than 130 years of U.S. disregard for Native Hawaiian culture and injustices to the Hawaiian people.
A Native Hawaiian government would have the standing not only to relate to the U.S. government, but to address for Native Hawaiians such issues as TMT, "ceded lands, Hawaiian Home Lands, water rights, gathering rights … even OHA and the Hawaiian Roll Commission," according to Na'i Aupuni, the independent nonprofit guiding the elections process for the convention.
Even so, this is a path that, understandably, doesn't interest some. For some Native Hawaiians, the overthrow of the Hawaiian Kingdom in 1893 made every action between the United States and Hawaii in the ensuring century-plus – including the 1959 referendum conferring statehood – illegal anathemas. For such Hawaiians, nothing short of revocation of statehood and a U.S. withdrawal from Hawaii is acceptable.
We welcome Interior's incremental step toward creating the environment in which a Native Hawaiian government created by Native Hawaiians has the authority to negotiate a future that would be acceptable for the descendants of those from whom these islands were taken so many years ago.
But it's hard to imagine a realistic scenario in which Hawaii separates from the United States, and perhaps harder still to imagine a scenario in which such a separation would be desirable for the current inhabitants of these islands, given the evolution of Hawaii over the past century.
And so we welcome Interior's important, incremental step toward creating the environment in which a Native Hawaiian government created by Native Hawaiians has the legal standing and authority to negotiate a future that would be acceptable for the descendants of those from whom these islands were taken so many years ago.
To take full advantage of the possibilities inherent in all this, it's critical that delegate elections for the convention take place as scheduled and that the convention itself is convened quickly thereafter.
Why? In part, because the clock is ticking down on President Obama's remaining 15 months in office. There is no guarantee that the next administration will be one that shares his interest in moving the idea of Native Hawaiian self governance forward; maybe more importantly, it's highly unlikely that the next president will have a personal understanding of and affinity for Hawaii anything like that of Obama, who has relatives here and continues to bring his own family to Oahu for the winter holidays each year.
Given the president's potential involvement in the rule-making process, this asset is too important to waste.
If embraced, then, the confluence of multiple dynamics stand to create an environment more favorable toward the cause of Native Hawaiian self determination than has been seen, well, ever in the history of Hawaii's relationship to the United States.
What would a Native Hawaiian government look like? How might it change the status quo in Hawaii? It's far too early to tell, and the question is better directed toward those whom the U.S. Interior Department may soon, at long last, finally recognize as best qualified to provide a legitimate answer.
About the Author -- Contributor -- The Civil Beat Editorial Board
The members of Civil Beat's editorial board are Pierre Omidyar, Patti Epler, Richard Wiens, Chloe Fox and Todd Simmons. Opinions expressed by the editorial board reflect the group's consensus view. Contact Opinion Editor Todd Simmons at todd@civilbeat.com or 808-377-0247.
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http://www.staradvertiser.com/editorialspremium/20150830_nai_aupuni_process_moving_forward_and_welcomes_all_native_hawaiians.html?id=323352341
Honolulu Star-Advertiser, Sunday August 30, 2015, Commentary
Na'i Aupuni process moving forward and welcomes all Native Hawaiians
By Kuhio Asam and William Meheula
** Photo caption
In 2011, Gov. Neil Abercrombie, right, signed the Native Hawaiian Recognition Bill into law as Act 195. It formally recognized Native Hawaiian people as "the only indigenous, aboriginal, maoli people of Hawaii" and established the Native Hawaiian Roll Commission. Also on hand were, from left, Mahealani Wendt, representing Maui Nui a Kama, and then-Lt. Gov. Brian Schatz.
Na'i Aupuni is an independent, nonprofit organization made up of a volunteer board of directors from the Hawaiian community.
The purpose of Na'i Aupuni is to establish a path to Hawaiian self-determination by guiding an election of delegates to a constitutional convention, or 'aha, and conducting a ratification process if needed.
Recently a lawsuit was filed by the Grassroot Institute of Hawaii -- against the state of Hawaii, Gov. David Ige, the state Office of Hawaiian Affairs trustees, the Native Hawaiian Roll, the Akamai Foundation and Na'i Aupuni -- claiming that the Native Hawaiian Roll Commission's registration process violates equal protection and voter rights laws that apply to government agencies.
The lawsuit is an attempt to stop any further actions based on the Roll, including Na'i Aupuni's delegate election and 'aha process.
Na'i Aupuni is proceeding with its plans and strongly believes the lawsuit will not succeed in stopping our process.
The constitutional laws upon which it relies do not apply to Na'i Aupuni because it is not a state agency, not controlled by any state agency, and most important, is not performing a state government function.
Our situation is vastly different from that presented in Rice v. Cayetano (2000), where the U.S. Supreme Court held that the election of OHA trustees by only Hawaiian voters violated constitutional safeguards because it was an election of the state and not the internal affair of Native Hawaiians.
Rice does not apply to the Na'i Aupuni election because it is not a state election, but rather, an exercise of the rights of Native Hawaiians to self-determination.
Although our legal reasoning uses federal law to explain the defects in the lawsuit, we emphasize that the options for consideration by the delegates at the 'aha are not limited to federal recognition. In fact, no political option will be off limits at the 'aha, including independence or the decision not to organize a Native Hawaiian governing entity.
Two of the Native Hawaiian Grassroot plaintiffs complain they were deprived of the opportunity to register with the Roll Commission because they do not agree with the Commission's declaration to affirm the "unrelinquished sovereignty of the Native Hawaiian people and an intent to participate in the process of self-governance."
We understand that the Roll Commission has registered and certified voters -- and will continue to do so -- even if these voters refuse to agree to this declaration.
Alternatively, such voters have the option of registering with OHA's Hawaiian Registry program, which does not include this declaration.
We are committed to the Na'i Aupuni process because it is an opportunity for solidarity that Hawaiians should seize.
Hawaiians have historically been frustrated by federal, state and/or county governments exercising decision-making authority over issues that are of grave concern to us. These issues involve ceded lands, Hawaiian Home Lands, water rights, traditional and customary rights, the Thirty Meter Telescope and even OHA and the Roll Commission.
A Hawaiian government formed by a near majority of adult Hawaiians who reside in Hawaii will be a government that has standing to represent all Hawaiians and, thus, will be in a position to secure the authority to make decisions to address these kinds of issues.
Until this type of structural change takes place, individual Hawaiians or groups of Hawaiians will continue to be left seeking relief within the framework of federal, state and county laws.
Na'i Aupuni welcomes and encourages all Hawaiians to participate in the election and 'aha process, even the Native Hawaiian Grassroot plaintiffs.
Voters must be certified by Oct. 15.
Native Hawaiians may register with the Roll Commission at www.kanaiolowalu.org or Hawaiian Registry at www.oha.org/registry. For more on the Na'i Aupuni election and the 'Aha process, see www.naiaupuni.org.
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http://www.staradvertiser.com/editorialspremium/20150830_native_hawaiians_are_not_indigenous_and_sovereignty_effort_is_discriminatory.html?id=323352251
Honolulu Star-Advertiser, Sunday August 30, 2015. Commentary
Native Hawaiians are not 'indigenous' and sovereignty effort is discriminatory
By James Kuroiwa
American citizens of the state of Hawaii must challenge the constitutionality of Hawaii's Act 195.
The Akina v. State of Hawaii (Office of Hawaiian Affairs) lawsuit filed in federal court on Aug. 13 challenges Act 195, which does not stand muster against the United States Constitution.
Act 195 says, "Indigenous peoples have the right to self-determination."
The state Legislature and the governor erred in enacting and approving Act 195 on July 6, 2011, "without" concurrence from the United States, if Native Hawaiians are indigenous.
Native Hawaiians are not indigenous under the definition of federal law.
The "Akaka Bill" was first introduced in Congress in 2001 as S746 and HR617, to define Native Hawaiians as indigenous; it failed.
All citizens of the state of Hawaii arrived to this very special place called Hawaii, as visitors, and made it home.
The transformation of the kingdom into the state of Hawaii started with the 1840 Kingdom Constitution, and over time amended into the 1894 Republic of Hawaii's Constitution.
The historically significant federal court decisions all certify that the 1898 Newlands Resolution, the 1900 Organic Act and the 1959 Admissions Act are law, and that Hawaii remains multi-ethnic.
Federal court decisions began referencing the three laws beginning with the U.S. Court of Claims that decided the Liliuokalani Dominis v. United States of America on May 16, 1910.
The court decided that net revenue from the former ceded crown lands was "not" due Liliuokalani, and that the former crown lands are owned in fee by the United States, as ceded from the Republic of Hawaii.
Nov. 7, 1978, was the birth of OHA, established as one of the departments with special powers, by the state government. OHA, as a state agency, must conform to the U.S. and state Constitution and laws.
On Feb. 23, 2000, the U.S. Supreme Court decided, in conformance to the 15th Amendment, in Rice v. Cayetano, that "all" registered voters of the state can vote in all OHA elections.
Then on Dec. 12, 2002, the 9th Circuit Court decided that "any qualified" citizen of the state of Hawaii can seek elected office to the OHA board of trustees. The decision was in conformance to the 14th and 15th Amendments, and with the Aug. 6, 1965, Voting Rights Act.
On March 31, 2009, the U.S. Supreme Court decided that the Nov. 23, 1993, "Apology Resolution PL 103-150" and the "37 whereas" statements had no standing in the federal courts and that the Hawaii Supreme Court erred in relying on the Apology Resolution in deciding OHA v. State of Hawaii.
I am a 73-year-old yonsei, fourth-generation American of Japanese ancestry, and Hawaii is my home and the United States my country.
My great-grandparents arrived in Hawaii on April 7, 1891, under the Aug. 19, 1871, Kingdom of Hawaii-Japan Treaty of Amity and Commerce.
My grandmother was born in Hawaii on Oct. 17, 1894.
I could qualify for the Native Hawaiian Roll with one of the three statements, by my growing up with a Native Hawaiian family and having a Native Hawaiian step-father.
I am an American and strongly disagree with and oppose Act 195.
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http://us3.campaign-archive2.com/?u=f9a371d0547f107d938233d66&id=80cd15eb11&e=4a7cf86850
Grassroot Institute of Hawaii, News release, August 31, 2015
Plaintiffs Ask Court to Halt Race-Based Election Immediately
Preliminary injunction filed against state's Native Hawaiians-only nation-building
HONOLULU, HAWAII -- August 31, 2015 -- The plaintiffs in the suit against the State of Hawaii and its agencies to stop the racially exclusive election and constitutional convention to establish a native Hawaiians-only nation (Keli'i Akina, et al v. The State of Hawaii, et al) have filed a motion for a preliminary injunction. The motion asks the court to put the election on hold until after a decision is reached. The group of four Native Hawaiians and two non-Native Hawaiians who brought forth the suit against the election are asking that all the groups involved -- including OHA, Na'i Aupuni, and the Native Hawaiian Roll Commission -- be prevented from engaging in voter registration or calling and holding elections while the case is ongoing.
Keli'i Akina, Ph.D., President of the Grassroot Institute and one of the Native Hawaiian plaintiffs says, "It is imperative to stop draining public funds on a racially discriminatory process that the majority of native Hawaiians have chosen not to endorse, especially while the needs of native Hawaiians for housing, jobs, education, and health go underfunded."
In the memorandum supporting the motion, the plaintiffs argue that they are likely to succeed on the merits of their claims that the election violates the First Amendment, Fourth and Fifteenth Amendments, and the Voting Rights Act. They further argue that to allow the election process to move forward would cause both the plaintiffs and the citizens of the state irreparable harm, citing the Ninth Circuit Court of Appeals opinion that, "[a]n alleged constitutional infringement will often alone constitute irreparable harm."
Working closely with the Grassroot Institute, the case is being brought forward by Judicial Watch, a public interest law firm, with local representation by Michael Lilly, former Hawaii Attorney General. Tom Fitton, President of Judicial Watch states: "There is no doubt that Hawaii is abusing tax dollars on a separatist campaign that discriminates on the basis of race and viewpoint. Right now, U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view. This dangerous, divisive scheme can't be halted soon enough by the courts."
Dr. Akina adds, "Many Native Hawaiians have come forward to state their objections to being put on the roll without their permissions. Others, like I, object to the Roll's effort to exclude those who do not endorse a specific set of beliefs about Hawaiian sovereignty. To pretend that this election represents and honest effort to embody the voice of native Hawaiians is disingenuous."
A copy of the motion and memorandum can be seen here on the Grassroot Institute website.
http://new.grassrootinstitute.org/2015/08/preliminary-injunction-motion-memorandum/
** Note from website editor Ken Conklin: Readers who go to the above link might have difficulty finding the motion and the memorandum, which are two separate documents that might not show up promptly. Therefore, here are direct links to each of those two documents:
** As usual, the motion is very short (only one page after the caption), at:
http://new.grassrootinstitute.org/wp-content/uploads/2015/08/47-Motion-for-Preliminary-Injunction.pdf
** The memorandum in support is lengthy (33 pages) and full of important argumentation; so be sure to read the memo, at:
http://new.grassrootinstitute.org/wp-content/uploads/2015/08/47-1-Memo-in-support-of-Preliminary-Injunction.pdf
To see the original complaint, click here.
http://new.grassrootinstitute.org/2015/08/complaint-against-unconstitutional-election/
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On August 31 Dr. Keli'i Akina, President of the Grassroot Institute of Hawaii, broadcast a 5-minute video explaining that the silent majority of ethnic Hawaiians, and the silent majority of all Hawaii's people, oppose OHA's effort to hold a race-based election to create a phony Hawaiian tribe. See the video at:
https://www.youtube.com/watch?v=P43xPunUons
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http://www.westhawaiitoday.com/news/local-news/opponents-file-injunction-stop-native-hawaiian-election
West Hawaii Today [Kona], September 1, 2015
and
http://www.hawaiitribune-herald.com/news/local-news/opponents-file-injunction-stop-native-hawaiian-election
Hawaii Tribune-Herals [Hilo], September 1, 2015
Opponents file injunction to stop Native Hawaiian election
By Nancy Cook Lauer
West Hawaii Today
ncook-lauer@westhawaiitoday.com
The plaintiffs in a lawsuit challenging a Native Hawaiian voter roll and constitutional convention have asked a federal judge to halt an election of delegates while the case is being considered in court.
The motion for preliminary injunction, filed in U.S. District Court on Friday, argues that the plaintiffs are likely to succeed on the merits of their claims that the election violates the First, Fourth and 15th Amendments and the Voting Rights Act. They contend the election will cause the citizens of the state "irreparable harm" because their constitutional protections will have been infringed upon simply by the vote taking place.
In addition, the lawsuit contends, exclusion of non-Native Hawaiians from voting violates the 14th Amendment's Equal Protection Clause.
"It is axiomatic that the Equal Protection Clause prohibits discrimination on the basis of race in voting," plaintiffs said in filings supporting the injunction.
A spokesman for the state attorney general, who is defending the case, said the office has not yet had an opportunity to review the motion and can't comment.
The plaintiffs include two non-Hawaiians who aren't eligible for the roll, two Native Hawaiians who say their names appear on the roll without their consent and two Native Hawaiians who don't agree with a declaration to "affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination," that is part of the registration process.
The case was brought forward by the Washington, D.C.-based public interest law firm Judicial Watch, working with the Honolulu-based Grassroot Institute. Former Hawaii Attorney General Michael Lilly is providing local representation.
"There is no doubt that Hawaii is abusing tax dollars on a separatist campaign that discriminates on the basis of race and viewpoint," Tom Fitton, Judicial Watch president, said in a statement. "Right now, U.S. citizens are being denied access to the right to vote explicitly because of their race and their points of view. This dangerous, divisive scheme can't be halted soon enough by the courts."
Thousands of people on the roll were listed without their consent when their names were transferred from other lists containing Native Hawaiians, the lawsuit said.
"Many Native Hawaiians have come forward to state their objections to being put on the roll without their permissions," said Kelii Akina, president of the Grassroot Institute and one of the Native Hawaiian plaintiffs. "Others, like I, object to the roll's effort to exclude those who do not endorse a specific set of beliefs about Hawaiian sovereignty. To pretend that this election represents an honest effort to embody the voice of Native Hawaiians is disingenuous."
The Native Hawaiian Roll Commission was launched in 2012 as part of a state law recognizing Native Hawaiians as the only indigenous people of the islands. The roll is a list of Native Hawaiians interested in participating in their own government. There were 95,656 names registered as of Monday, according to Hawaii Island Commissioner Lei Kihoi.
"We're continuing to add Native Hawaiians every day," Kihoi said.
Kihoi, who is an attorney and a defendant in the lawsuit, said she wasn't surprised by the injunction.
"We were expecting that," she said Monday. "I'm surprised that it wasn't filed sooner."
Kihoi said she hopes the lawsuit helps bring the various factions of Native Hawaiians together.
The commission expects to issue a list of qualified delegate candidates by the end of this month. Voter registration is slated to end on Oct. 15, with ballots sent to voters certified by the Roll Commission on Nov. 1. Voting will end Nov. 30, under the plan.
The convention, known as an "aha," is scheduled to last eight weeks, beginning in February. Its purpose is to decide if a Native Hawaiian government should go forward, and if so, recommend a governance document to be ratified by eligible Native Hawaiian voters.
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http://www.civilbeat.com/2015/09/peter-apo-who-are-we-building-a-nation-for/
Honolulu Civil Beat, September 3, 2015
Who Are We Building a Nation For?
A Hawaiian nation might exist as early as next April. But who would be its citizens?
By PETER APO
The decades of excruciating confusion over what Hawaiians mean by nationhood or "restoring the nation" is nearing an end.
A path is becoming clear that leads toward Hawaiians formally defining a political proposal that brings specificity to the vision of a restored Hawaiian nation.
Na'i Aupuni, an organization independent of government and made up of a volunteer board of directors, is moving forward with a Hawaiians-only election of 40 delegates from around the state. Election ballots will be sent to voters by Oct. 15. The election is scheduled to be complete by Nov. 30.
Delegates will then convene in what Hawaiians refer to as an 'Aha, which is a form of constitutional convention, and are expected to emerge with a document defining the political path toward restoring a Hawaiian nation by April, 2016.
If a nationhood proposal emerges -- and there's no guarantee -- it will have to be ratified by a majority of Native Hawaiian voters to be seriously considered as representing the "will of the people." In other words, it will need to be validated by a democratically constituted process.
The politics of nationhood, though, are rarely straightforward.
So where are some of the potholes in the road? First, there is a legal hurdle launched by the Grassroot Institute of Hawaii, a libertarian group, that is challenging the Hawaiians-only election by arguing that the process is a violation of a number of U.S. constitutional amendments dealing with equal protection and voting rights.
Second, there is the controversial voter registration process known as Kanai'oluwalu, which is often referred to as the "roll," that was triggered by the Legislature in 2012 and funded by the Office of Hawaiian Affairs. Hawaiian nationals -- a sometimes strident segment of the Hawaiian community that does not recognize state or federal authority -- argue that state involvement in creating the roll is a breach of Native Hawaiian self-determination, not to mention a contamination of the election process. It remains unclear to what degree these Hawaiian Nationals will participate in or oppose the election process.
Despite the confusion related to both of these complicated issues, which I cannot fully address in this column, I expect challenges to the election and the convening of the 'Aha to be overcome.
Many members of the Hawaiian community have made clear they want the electoral process, as well as any proposals that emerge from the 'Aha, to be free of government influence or intervention by Na'i Aupuni. That organization does not answer to OHA or the authorities of the state of Hawaii.
OHA funds that were given to Na'i Aupuni were not state funds, as they are drawn from the Native Hawaiian Trust Fund portfolio of private investments on behalf of OHA's Native Hawaiian beneficiaries. OHA, it is worth remembering, is a semi-autonomous state agency with a foot planted in both state government and the private sector, which is as the Legislature intended it to be.
Citizens of a Hawaiian Nation
So what happens once the delegates are chosen?
Delegates are expected to debate and choose between two critical distinct approaches to shaping a nationhood proposal. One is to seek federal recognition and negotiate a government-to-government relationship with the United States. This has long been the preferred option that sprang out of the Hawaiian activism of the 1970s, and it has been supported for decades by Hawaii's congressional team and state leaders, with widespread support from the pantheon of Hawaiian institutional leaders.
The Akaka bill -- named after retired U.S. Sen. Daniel Akaka, and formally titled the Native Hawaiian Government Reorganization Act of 2009 -- would have created a process for Native Hawaiians to gain federal recognition and negotiate a nation-within-a-nation governance model similar to Native American and Alaska Native tribes. But the bill failed to pass the U.S. Senate and the congressional opportunity collapsed, leaving a political vacuum.
The second option is one that I expect to be driven by Hawaiian nationals, who have grown into an aggressive and viable constituency over the years. This option would have the 'Aha adopt the position that Hawaii is an illegally occupied nation whose sovereignty was usurped in a coup d'état staged by U.S. businessmen who were aided and abetted by American Marines. This option would amount to an end-run around the U.S. government and seek direct redress under international law. The goal is the restoration of a Hawaiian nation by some international process, although many details remain murky. Much separates these two groups.
From my perch it seems the ship of nationhood is about to set sail without a rudder, a captain, or a crew. The failure of the Akaka bill and the vacuum that failure has left since 2009 have had the chilling effect of denying the emergence of any present-day center of political gravity or clearly defined leadership. That is true both within and outside the Hawaiian community.
Of all the political challenges faced by the 'Aha, the single most critical question is about who will constitute the citizenry of this nation?
While the current nation-building process is intentionally limited to Native Hawaiians, it is not likely that a Hawaii nationhood model limited exclusively to Native Hawaiians would stand a political test that is unofficially referred to as "continuum." A continuum means that if a nation is to be restored, the construct of the nationhood model must have existed at the time its sovereignty was usurped. So pursuing the restoration of a nation is not likely to succeed if the nationhood model being proposed is different from the original. However, once the restored nation is recognized by the U.S., or under international law, it can then proceed to make constitutional changes to the national model.
The concept of continuum is critical to the process of restoring a Hawaiian Nation. At the time of the coup d'etat in 1893, the Hawaiian Nation was a multi-ethnic one. It remained a multi-ethnic nation in 1898, when Hawaii was annexed to the U.S.
So it would be disingenuous for delegates to emerge from the 'Aha with a proposal for a Hawaiians-only nation that never existed going back to the time when Kamehameha I united the kingdom in 1795.
Some scholars may disagree, but academic scholarship aside, I do not believe a Hawaiians-only nationhood proposal would survive the political vetting process of U.S or international scrutiny.
In the end, the most important reality check is whether the people of Hawaii will accept and support the nationhood model that is proposed.
A former legislator, Peter Apo is a trustee of the Office of Hawaiian Affairs and the president of the Peter Apo Company LLC, a cultural tourism consulting company to the visitor industry. He has also been the arts and culture director for Honolulu, the city's director of Waikiki Development and served as special assistant on Hawaiian affairs to Gov. Ben Cayetano. His opinions are his own and do not necessarily reflect the views of OHA or other organizations he is involved in.
** Online comment by Ben Cayetano, attorney and former Governor of the State of Hawaii:
Peter Apo wrote: "OHA, it is worth remembering, is a semi-autonomous state agency with a foot planted in both state government and the private sector, which is as the Legislature intended it to be." Incorrect. OHA is entirely a state agency which -- much like the University of Hawaii -- was given a high degree of autonomy by the legislature. The funds mentioned are state funds and cannot be used legally for race based purposes -- anymore, for example, than Congress or the State of Texas can legally provide funding to the Sons of the Confederacy for the establishment of "nation within a nation" for white people only.
** Online comment by Ken Conklin
Peter Apo says "Na'i Aupuni ... does not answer to OHA or the authorities of the state of Hawaii.
OHA funds that were given to Na'i Aupuni were not state funds, as they are drawn from the Native Hawaiian Trust Fund portfolio of private investments on behalf of OHA's Native Hawaiian beneficiaries." Wrong! Every gang involved in this process is a state government agency -- Office of Hawaiian Affairs, the Native Hawaiian Roll, the Akamai Foundation and Na'i Aupuni. It began with Act 195 passed by the STATE legislature; then OHA, a STATE government agency; then the Roll Commission created and paid for by OHA using Act 195 as its authority; then Akamai Foundation and Na'i Aupuni, all created by and funded entirely by OHA or OHA's wholly-owned subsidiary the Roll Commission. See a webpage proving that OHA, the new Act 195 state recognized tribe, and any future federally recognized Hawaiian tribe are government-created agencies and therefore must all comply with the 15th and 14th Amendments to the U.S. Constitution. If it walks like a duck, quacks like a duck, etc.; then it is a duck.
http://tinyurl.com/3qtycqs
The title of Mr. Apo's essay is "Who Are We Building a Nation For?" Well, I have the answer. We already have a nation. It's called the United States of America. We the people of Hawaii do not want to break apart our State along racial lines to create an apartheid regime. Please read the book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" 27 copies are available in various branches of the Hawaii public library system; additional copies at UH Manoa and several community colleges; portions available for free on a webpage where you can also order a personal copy:
http://tinyurl.com/2a9fqa
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http://news.investors.com/ibd-editorials-on-the-right/090415-769842-obamadislike-of-mckinley-is-deep.htm
Investors Business Daily, August 4, 2015
Obama Is Removing McKinley's Legacy From Hawaii, Not Just An Alaskan Mountain
BY PAUL SPERRY
There's been no Hawaiian nation since 1898, when President McKinley abolished the monarchy and annexed the islands as a U.S. territory. That may soon change, however, thanks to the Hawaiian sitting in the Oval Office.
As our first anti-colonialist president, Barack Obama is no fan of McKinley, who practically overnight turned America into a "colonial power." Winning the Spanish-American War, the Republican leader took control of Puerto Rico, the Philippines, Guam and effectively Cuba, which became a U.S. protectorate.
While none of these acquisitions sits well with Obama, he views McKinley's war-time overthrow of the Hawaiian kingdom as unforgivable.
"As American soldiers and settlers moved steadily west and southwest, successive administrations described the annexation of territory in terms of 'manifest destiny' -- the conviction that such expansion was preordained, part of God's plan," Obama wrote in his book, "The Audacity of Hope."
"Of course," he added, "manifest destiny also meant bloody and violent conquest -- of Native American tribes forcibly removed from their lands. It was a conquest that, like slavery ... tended to be justified in explicitly racist terms."
After McKinley and other "imperialists" turned their attention overseas, "Hawaii was annexed, giving America a foothold in the Pacific," Obama lamented, comparing it to the "colonization" practiced by Europe. "The Spanish-American war delivered Puerto Rico, Guam and the Philippines into U.S. control."
In his 1995 memoir, "Dreams From My Father," Obama expressed his anti-colonial sentiment in angrier tones. He described McKinley's annexation of Hawaii as an "ugly conquest."
The resentment runs deep: McKinley represents everything Obama's anti-colonialist father, who met his mother at the University of Hawaii, and his anti-colonialist mentor, Hawaiian communist Frank Marshall Davis, told him was bad about America. And this anti-colonialist agenda explains Obama's mysterious decision last month to strip McKinley's name from America's tallest peak after more than 100 years there. Mount McKinley is now "Mount Denali," in deference to Native Americans.
But the president isn't just renaming McKinley's mountain; he's essentially de-annexing McKinley's islands.
Last month, the Obama administration took a major step toward "re-establishing a government-to-government relationship" with Hawaii. The Interior Department's spokeswoman has confirmed it is drafting a rule to help native Hawaiians create a separate and independently sovereign nation with rights to their own land and rule -- while still maintaining federally tax-supported welfare benefits and other privileges, such as gaming rights afforded Indian tribal territories.
"The benefits of the government-to-government relationship have long been denied to one place in our nation, even though it is home to one of the world's largest indigenous communities: Hawaii," deputy Interior Secretary Michael Connor stated in a recent rule-making notice published in the Federal Register.
** Ken Conklin's comment. The article is useful to warn America's people about what Obama is doing to create a Hawaiian tribe and possibly promote secession; but it is filled with outrageous falsehoods about Hawaii's history such as saying that McKinley overthrew the monarchy (the monarchy was overthrown in 1893, 4 years before McKinley became President).
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http://www.civilbeat.com/2015/09/silent-majority-of-hawaiians-gain-voice/
Honolulu Civil Beat, September 8, 2015
Silent Majority of Hawaiians Gain Voice
After spending three years and over $4 million to create a list of Native Hawaiians more than 84 percent of all Native Hawaiians remain un-registered.
By KELI'I AKINA
Recently, four Native Hawaiians and two non-Hawaiians filed suit in federal court to stop the Office of Hawaiian Affairs and the Native Hawaiian Roll Commission from conducting a race-based election to create a racially exclusive nation of Native Hawaiians. The suit finally gives voice to the silent majority of Native Hawaiians who have chosen not to take part in this racially divisive, government-sponsored process.
How do we know the majority of Native Hawaiians do not share the vision that a small group of government officials have crafted? The numbers speak for themselves. After spending three years and over $4 million to create a list of Native Hawaiians who "…affirm the unrelinquished sovereignty of the Native Hawaiian people…," more than 84 percent of all Native Hawaiians remain un-registered!
The Commission originally targeted more than half a million Native Hawaiians across the country based on U.S. Census data, which now counts 560,000 Native Hawaiians. When only 40,000 signed up, the Roll Commission then dumped at least 87,000 names of individuals collected from other lists of Hawaiians without the consent of those individuals. Currently, the Commission reports it has certified approximately 95,000 names on the Roll.
There are three problems the silent majority of Native Hawaiians have with OHA and the Roll Commission. First, many individuals who have discovered that their names were placed on the Roll without their consent are angered. One Native Hawaiian woman, puts it this way: "I saw my name on the list, and that's when I knew they (OHA and the Roll Commission) are not totally honest."
A Maui man living on Hawaiian Homestead land says, "When I found out that my name was on that list, it made me feel very uncomfortable. When you start off… by doing things without people's consent, it's not right."
Another woman has reported: "I feel betrayed."
The second problem that many Native Hawaiians, including myself, have with the process is being excluded for not affirming the Declaration of "unrelinquished sovereignty." Like my father and uncle who are buried respectively at Kaneohe and Punchbowl military veterans cemeteries, we are Hawaiians who cherish and are proud of our American citizenship.
The third problem for many native Hawaiians is the total exclusion of non-Hawaiians from decisions that will affect everyone in the state. This is not only unconstitutional behavior by our state agencies OHA and the Native Hawaiian Roll, it is blatantly non-Hawaiian. Hawaiian citizenship, even before we were part of United States, was never based upon race.
The silent majority of Native Hawaiians practice inclusiveness as part of the Aloha Spirit. We seek to live by the words of the 1840 Constitution of the Hawaiian Kingdom that welcomes all, stating: "God hath made of one blood (koko) all nations of men to dwell on the earth in unity and blessedness."
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 silent majority of Native Hawaiians are also of Japanese, Chinese, Caucasian, Filipino, and countless other racial backgrounds.
All of us in Hawaii are the reason Martin Luther King and hundreds of 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."
The silent majority of native Hawaiians want a future where King's dream is realized by everyone's keiki.
About the Author
Keli'i Akina, Ph.D., is President/CEO of the Grassroot Institute of Hawaii and a former candidate for Trustee in the Office of Hawaiian Affairs. He writes as an individual, not as a representative of the other plaintiffs nor on behalf of the suit he references.
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15897/Who-is-running-for-the-Aha-Candidate-List-Secret-until-too-late.aspx
Hawaii Free Press, September 10, 2015
Who is running for the 'Aha? Candidate List Secret until too late
By Andrew Walden
Who is running for the 'Aha? It's a secret until its too late.
Contacted by Hawai'i Free Press, Na'i Aupuni press spokesman Lloyd Yonenaka says Na'i Aupuni has no intention of announcing the names of 'Aha candidates until after the September 15 deadline to file has passed. Says Yonenaka, "That information is with Elections America and will be announced at the end of September."
Na'i Aupuni is an OHA subcontractor running a State of Hawaii election for delegates to an 'Aha (convention) as part of a process to establish a fake Hawaiian Indian tribe which the Obama administration could then 'recognize'. The Hawaii State Constitution Article IV, Section 3 mandates that State elections shall be supervised by the State Office of Elections, not by an OHA subcontractor. During the candidate filing period for other State of Hawaii Elections, the Office of Elections regularly updates its list of candidates who have pulled papers and candidates who have filed. This allows candidates to avoid blindly bumbling into election contests against political allies while leaving political opponents unchallenged.
But for Na'i Aupuni, secrecy is at the core of the process. Na'i Aupuni's website explains: "Na'i Aupuni's meetings are not public. Information is available on this site and Na'i Aupuni will continue to provide information on the processes and decisions as they unfold."
Yonenaka claims: "Na'i Aupuni does not know who has pulled papers or filed to run for the 'Aha." But others seem to have an idea.
Star-Advertiser columnist David Shapiro reports sovereignty activist Bumpy Kanahele, "is urging nationalists to focus on 'taking over' the upcoming constitutional convention sponsored by the state Office of Hawaiian Affairs."
The Council for Native Hawaiian Advancement has formed a new group, "Ho'o Ekolu Initiative," to boost 'Aha candidates.
But at a July 29 meeting of the Native Hawaiian Bar Association, lawyers showed skepticism of the upcoming elections.
The August 18 Star-Advertiser editorialized: "(Na'i Aupuni) organizers are not giving equal access to voting to all Native Hawaiians...."
Star-Advertiser columnist Richard Borreca points out: "OHA has come up with a tortured process for conducting the election."
And in a September 3 column, OHA Trustee Peter Apo complains: "...the ship of nationhood is about to set sail without a rudder, a captain, or a crew...."
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http://www.staradvertiser.com/editorialspremium/20150911_kelii_akina.html?id=326594651
Honolulu Star-Advertiser, September 11, 2015, NAME IN THE NEWS
KELI'I AKINA
The president of the Grassroot Institute of Hawaii states the case against a race-based election for Native Hawaiians
By Mark Coleman
Keli'i Akina is one of six plaintiffs in a lawsuit filed recently against the state of Hawaii and others seeking to stop an election and convention that possibly would help establish a sovereign Native Hawaiian government.
Among other things, the complaint filed in U.S. District Court alleges that the election and convention are state-related and would be race- and viewpoint-based, and thus violate the U.S. Constitution. The race-based aspect is that voting would be restricted to Native Hawaiians; the viewpoint aspect is that voters registering with the Native Hawaiian Roll Commission must affirm that they believe in "the unrelinquished sovereignty of the Native Hawaiian people."
Akina, who is president of the Grassroot Institute of Hawaii and part-Hawaiian himself, doesn't go along with either of those conditions, and generally thinks there are better ways to help Native Hawaiians than to set up a separate government.
He added that the issue is just one of many that he and the institute are concerned about.
"I can honestly tell you that at least 80 percent of what we do is in the broader areas of economics, government and society, and what hit the newspapers with the lawsuit happens to be just one of those areas," he said.
Akina took over the helm of the institute in March 2013 from Dick Rowland, who founded the think tank in 2001. Akina also is an adjunct faculty member at Hawaii Pacific University, and president emeritus of Youth for Christ Hawaii.
He earned a doctorate in East-West philosophy and ethics in 2010 and a master's degree in philosophy in 2000, both from the University of Hawaii, and a bachelor's degree in the history of religion and economics from Northwestern University, in 1992. A graduate, too, of Kamehameha Schools, Akina was a candidate twice to be a state Office of Hawaiian Affairs trustee, garnering 93,000 votes in a run-off in 2014.
Age 57, Akina is married to the former Tseng-Fan Patty Hsieh, with whom he has four children and lives on Punchbowl Crater, overlooking downtown Honolulu.
Question: I take it that, though you are part Native Hawaiian, you will not be among the candidates for election to the constitutional convention being organized by Na'i Aupuni to establish some sort of independent Hawaiian government, right?
Answer: That's right.
Q: And why not?
A: I'm very proud of my Hawaiian heritage, and I'm very involved with helping to craft the future for Native Hawaiians as individuals and as a people.
But I think it's important to realize that we are not a tribe or a single mass of people who think the same way. There's tremendous diversity among Native Hawaiians. We are Democrats and Republicans and Libertarians. We are people who believe in a future sovereign nation of Hawaiians and people who don't believe in that.
So my major concern is when a small group of people uses government resources to represent Hawaiians as one entity. That's simply not the case.
There's a growing stereotype today of Native Hawaiians as being in opposition to all things American or all things dealing with technological progress. That's a false stereotype. The truth is that Native Hawaiians can be found along the entire range of positions on the key issues in Hawaii today.
Actually I believe that there is a silent majority of Native Hawaiians who are very glad for our relationship with the United States, and at the same time very proud of our cultural heritage as Hawaiians. And I think that the numbers bear out, when we pay close attention to efforts such as the Native Hawaiian Roll.
Q: How is that?
A: Millions of dollars over a four-year period were spent trying to create a tribal list of Native Hawaiians. At this stage, clearly more than 85 percent of Native Hawaiians have chosen not to be part of this.
Q: Is that because they chose not to, or could it be it was failure of their outreach programs or whatever?
A: (Laughs) The outreach programs have spent more money and put more energy and engaged more public relations efforts than any voter registration drive in the history of Hawaii.
They originally targeted more than 500,000 Native Hawaiians across the nation, according to census data, which now shows that figure is 560,000. When little more than 40,000 signed up, the Native Hawaiian Roll decided to go to prior lists of Hawaiians and dumped them, by the tens of thousands, in order to achieve the numbers that they have today. Currently they state approximately 95,000 Native Hawaiians have been certified. Just taking that figure itself, you're clearly dealing with a minority of Hawaiians, and a minority of all people in the state of Hawaii.
Q: In that regard, too, were you disappointed in how the Native Hawaiian Roll Commission handled providing you with the names on the list that it produced of Native Hawaiians deemed eligible to vote for its planned constitutional convention -- you know, how they produced it in paper, and late and everything else?
A: Since Grassroot Institute began exposing the fact that the Native Hawaiian Roll Commission dumped names of individuals who had not given their consent to be put on the roll, we have been contacted by large numbers of individuals through email, mail, phone calls and in person who've expressed their anger and disappointment in OHA and the Roll Commission.
One woman identified several deceased relatives on the list, and these are individuals who passed away prior to the list coming into existence. Another gentlemen, a Native Hawaiian gentlemen, called our office and broke down into tears as he read off the names of relatives of his whose names had been put on the list -- deceased relatives who'd been put on the list -- without their consent. The responses have ranged from anger to cynicism to a sense of betrayal that organizations that should be looking after the welfare of Hawaiians have betrayed them.
Q: Some Native Hawaiians have called your lawsuit divisive, and that Native Hawaiians need to stand together and have some sort of government of their own to finally address these perpetual problems that they've been facing for so many years. How do you see it?
A: Native Hawaiians do have a government already, one which follows principles established under the constitutional monarchy of the kingdom, and that government is the government of the United States, which ensures a far greater level of rights, privileges and opportunities than were ever available under the Hawaiian kingdom.
I have no problem with individuals organizing and protesting against the government of the United States. That's a constitutional right, ensured by the First Amendment. But I do have a problem when a small number of government officials uses resources that belong to all the people of Hawaii in order to pursue such a political campaign.
Q: Is there a crass motive, do you think, in all of this, or do you think even though it's small minority, that they are sincere, and that some sort of fundamental change really is needed?
A: The biggest problem is that the vast resources that the Office of Hawaiian Affairs and other Hawaiian agencies have had to serve the Native Hawaiian people have not gone to solve the problems of homelessness or education, low job opportunity or health. Instead, tens of millions of dollars have been spent over the last 20 years in the pursuit of a political campaign for sovereignty when that money would have better been spent directly serving the needs of Native Hawaiians. My goal is to see that priority of serving Native Hawaiians is restored, and that it is done so in a way that it doesn't divide the population of the state on the basis of race.
Q: What do you think about OHA? I know you ran a couple of times as a candidate to be a trustee of OHA. Does that suggest that you think that OHA actually makes sense in some way?
A: OHA could be a valuable organization for the sake of preserving the aloha spirit in Hawaii and for seeing that the needs of Native Hawaiians are met. But in order to be valuable, OHA needs to quit wasting funds on political sovereignty and instead serve the real needs of Native Hawaiians. Additionally OHA needs to do that in a way that does not divide people on the basis of race, but unite all people in the state of Hawaii.
Q: I wanted to ask you about this notion of having a convention to set up a new sovereign nation. The whole premise, it seems, is that the kingdom was illegally overthrown, then America illegally annexed it. So you would think that the proposal to reestablish sovereignty would have something to do with going back to that point in time, rather than starting from scratch. Has that ever occurred to you?
A: Hypothetically, if we were to return lands to the citizenry of the Kingdom of Hawaii before 1893, those lands would not be returned to people of a single race but they would be returned to people of multiple races -- Hawaiians, Caucasians, Chinese, Japanese, and others. Because Hawaii, from the inception of the kingdom, practiced open and inclusive citizenship, not a race-based citizenry. So efforts today to create a race-based sovereign nation are not in keeping with Hawaiian values and the history of the Hawaiian kingdom, which from Kamehameha I through Liliuokalani was a kingdom of citizens of multiple races.
The efforts by OHA and Native Hawaiian Roll to create a race-based tribe, in order to qualify for federal recognition as an American Indian tribe, are at odds with what the Hawaiians are. Hawaiians are not and never were a tribe.
Two of the major criterion for Native American tribes, for the definition of a Native American tribe, are, No.1, citizenry based on a single race, and 2, a continuous form of government. Neither of these things describes the Hawaiian people.
Q: Has the Grassroot Institute produced any research regarding what should be done with Department of Hawaiian Home Lands, which after a hundred years still has thousands of Native Hawaiians waiting for housing, for example?
A: That's a separate issue altogether from the OHA-Native Hawaiian Roll sovereignty issue.
The Hawaiian Home Lands were set aside so Native Hawaiians could practice homesteading. Prince Kuhio felt that what made Americans great was that they could stake a claim to private property and pass on real property to their heirs. ... Unfortunately, in 1920, a scheme for 51 percent blood quantum was set up so that ultimately Native Hawaiians are not able to build long-term generational wealth. They can lease it so long as the blood quantum is met. Consequently, in the long run, land will return to the state, rather than build generational wealth.
Q: Do you think that was a paternalistic thing or a crafty thing? What do you think was going on there?
A: Well, I don't judge motives, but the blood quantum concept and leasehold land has been used, and had been used elsewhere, in order to maintain control over the land by the landlord. And basically -- you asked about Grassroot -- what we have researched and what we do promote is private property ownership, and believe that the Native Hawaiians would be better served by a program that converts leasehold land into fee simple.
Q: Besides this issue, what other concerns are you focusing on?
A: Issues that are front-burner for us are those that deal with building a better economy, operating a more transparent government and strengthening society.
In terms of the economy, our heartbeat is for those who benefit least in today's economy, particularly the homeless and the poor. We believe that Hawaii's homelessness situation ... is directly related to failed government policies toward the economy. We believe that a freer market economy with less interference by centralized government control would allow for a more prosperous Hawaii that would benefit all individuals.
Some of our current projects include the development of free market solutions to the housing crisis, which means we're not looking merely at the ground-level attempts to relocate or meet the immediate needs of the homeless, but also at policies that have to do with the investment climate of Hawaii, the land and zoning laws in Hawaii, business regulations as they affect affordable housing, the impact of minimum wage laws, the regressive nature of the GET (general excise tax), ... and even reform of shipping laws such as the Jones Act of 1920.
In terms of government, I'm really excited about the team of men and women at the Grassroot Institute who are engaged as watchdogs, putting government spending, pension programs, overtime, procurement decisions and so forth under a microscope. We frequently challenge government agencies, and even go to court to obtain hard-to-get information and make that available to journalists and the public on our OpenHawaii.org website.
With respect to society, the lead issue here for us is the improvement of education in Hawaii. We actively attempt to apply free market principles such as developed by Milton Friedman to the management of our public school system. The key thing is to increase the power of parents and principals at the local level, and hold central government control accountable here.
... Then there's the protection of the aloha spirit, which is why we are so concerned about the actions of government agencies representing Native Hawaiians, because we feel that the aloha spirit is the most important thing that binds us together in Hawaii, unites us, and it is completely consistent with the Constitution and Bill of Rights.
But when government acts in ways that are harmful to the aloha spirit, by splintering people on the basis of race, we need to speak up.
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http://america.aljazeera.com/articles/2015/9/13/Native-Hawaiians-want-new-government.html
Al Jazeera U.S., September 13, 2015
Protests over giant telescope put concerns of Native Hawaiians into focus
Letting Big Science take over a sacred mountain space pushes many indigenous islanders to tipping point for sovereignty
by Brittany Lyte
ANAHOLA, Hawaii -- The world's tallest mountain from seafloor to summit is Mauna Kea, a 32,000-foot volcano on the Big Island of Hawaii where ancient Hawaiians believed the gods dwelled at the intersection of sky and peak.
In the last five months this sacred summit has also become a battleground. After plans were announced to build the world's most powerful telescope atop the mountain, hundreds of protesters calling themselves protectors blocked Thirty Meter Telescope (TMT) construction crews and equipment from accessing the summit, resulting in shutdowns and dozens of arrests.
The TMT project -- a monster undertaking by the University of California, the California Institute of Technology and a consortium of international organizations -- has been in development for a decade, slowly raising funds, earning permits and polishing technologies to build an eye that will peer deeper into the universe than ever before.
Native Hawaiians, sovereignty
Critics argue, however, that the mountain's cultural significance is being sacrificed for the sake of Big Science. Gov. David Ige has conceded that the state and the University of Hawaii, which manage Mauna Kea, have failed to adequately act as cultural and environmental stewards, but he has also refused to stop construction.
The protests are not only responding to the mismanagement of the mountain, which hosts more than a dozen other aging telescopes, but are also are emblematic of a native people fed up with the under-prioritization of their interests, from the 1893 overthrow of the Hawaiian kingdom to the erosion of Hawaii's culture and natural environment. The case is now being heard by Hawaii's Supreme Court, and protesters are standing their ground.
A tipping point
"It's as if Hawaiians have reached a tipping point," said Michelle Kauhane, president and CEO of the Council for Native Hawaiian Advancement. "The protectors are angry and frustrated -- and rightfully so, as am I as a Hawaiian -- that the management plan has not been followed, that we are building on conservation land, that we are failing this sacred place. Yet we continue to build additional telescopes. We keep accepting the next telescope and the next telescope, and there have been Hawaiian voices at the table at these hearings talking about these concerns every step of the way. But we still got to this point. We're not being heard."
Halting construction of a $1.4 billion telescope likely won't result in any lasting empowerment of the Hawaiians' voice. But it has brought into focus a sense of political imbalance that native Hawaiian advocates say can only be defeated by the reorganization of a sovereign Hawaiian government. In November, an election is set to take place among an estimated 100,000 Hawaiians certified by the Native Hawaiian Roll Commission, led by former Hawaii Gov. John Waihee, to vote for delegates who will convene in Honolulu this winter at an eight-week constitutional convention for self-governance. The document these delegates draft will guide the creation of a new government by and for Hawaiians.
The U.S. Department of Interior announced in August that it will for the first time propose an administrative procedure through which a native Hawaiian government could seek a formal government-to-government relationship with the United States. The proposed rule would not attempt to reorganize a native government or dictate its structure. Rather, it would allow Hawaiians to reorganize their government as they choose, with the option of having it federally recognized.
Hawaiian sovereignty, once as seemingly out of reach as the stars the TMT proposes to view 13 billion light-years away, appears for the first time to be coming within reach.
"This is closer than we've ever been, and we're very, very thrilled and hopeful," Kauhane said.
Kings and currency
The Hawaiian sovereignty movement, which began in the 1970s, is fractious. There are Hawaiians who want a federally recognized native government that would afford its members the benefits of U.S. citizenship as well as the benefits of whatever self-governance structure they choose to create. Others want nothing to do with the U.S. government that robbed them of their independence when businessmen, backed by Marines, overthrew Queen Liliuokalani in 1893.
Congress formally apologized for the overthrow of the kingdom in 1993 with a joint resolution that "acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands." This document has become ammunition in a fight to dissolve the state of Hawaii and end the U.S. presence in the islands through recognition of Hawaiian sovereignty by international law.
"We are the inhabitants of an occupied state, and that is a war crime," said David Keanu Sai, a retired U.S. Army captain and political scientist who traveled to The Hague, Netherlands, in 2000 in an unsuccessful attempt to gain international recognition of the Hawaiian kingdom before the Permanent Court of Arbitration. "If we can get an international body to verify Hawaii is an independent state, then we can operate on that presumption until someone presents us with a treaty. We already are a country, our own country. We don't need to wait around for the U.S. to tell us that."
Then there are Hawaiians who are not waiting around for recognition by any political authority -- federal, international or otherwise. More than half a dozen sovereignty groups -- some with their own kings, compounds and currency -- claim sovereignty rights under for a kingdom they argue did not vanish just because the United States overthrew its government.
"I want to go back to Hawaiian laws, our laws," said Keo Kauihana, who educates locals and tourists about the fight for sovereignty at his popular roadside huli-huli chicken stand. "What's so outrageous about that? What's outrageous is what happened to us."
The legality of these groups and the activities of their members, some of whom are descended from immigrants and non-Hawaiians who lived under the kingdom, is disputed. Sai, for example, was convicted of first-degree theft and sentenced to five years of probation in 1990 for issuing bogus kingdom property titles as part of what he calls a political experiment. His company Perfect Title collected $1,500 from hundreds of homeowners who were later notified that the titles were worthless, and all property transfers conducted after the kingdom's overthrow are invalid.
While "the kingdom defense" hasn't typically held up in court, an attorney representing some of the Mauna Kea protesters facing criminal charges for obstructing access to the mountain has said he will argue that the charges should be thrown out because the kingdom still lawfully exists and the U.S. doesn't have jurisdiction over the matter.
Nostalgia doesn't help
Native Hawaiian advocate Robin Danner said those who wish to renounce their U.S. citizenship to realize a Hawaiian government completely independent from the U.S. -- a goal she calls far-fetched -- should be allowed to do so. But not at the expense of those who want a native government with federal recognition.
"The United States overthrew our kingdom illegally," said Danner, who is the statewide policy chairwoman for the Sovereign Council of the Hawaiian Homelands Assembly. "We all agree on our history. The difference is they want to reverse 120 years, undo the state, undo the federal presence, undo the military, and that's not going to happen.''
Danner said Hawaiians need to work within the paradigm they're in, which means the U.S. federal and state governments.
"We might not like how we got here, but we need to stop being angry about it and stop dwelling on it and look forward to our best future,'' she said. "The U.N. isn't coming to save us. The kingdom isn't going to save us. Real sovereignty, exercised sovereignty and recognized sovereignty by the most powerful government on the planet is going to save us.''
"We, as native Hawaiians, must save us, and to do so, we must reach for it, reach for the best tools, not nostalgia," she said.
Danner sees Hawaiians' best future as one in which they can obtain the kind of dual citizenship already enjoyed by the 566 American Indian and Alaska Native tribes that have a federally recognized form of self-governance. Word that the Department of Interior will open this pathway to Hawaiians -- when and if they create their own government -- means they will have a chance to perpetuate their culture and well-being without having to sacrifice the benefits of U.S. citizenship.
If that were to happen, Danner said, Hawaiian interests in Mauna Kea would be treated as equally to to those of the state.
Native Hawaiians, sovereignty, Mauna Kea
"We would be dealing with the federal government, across the table, government-to-government, and pushing the federal government to withdraw Mauna Kea from the state's ceded lands inventory for documented mismanagement and transferring it to the native Hawaiian government," Danner said. "I would much rather have access to that standing and conversation with the federal Department of Justice than begging a state Department of Land and Natural Resources board or the University of Hawaii to understand our feelings."
Kauhane said she believes Hawaiians who want a federally recognized government are a quiet majority, sometimes intimidated by those who participate in showy, flag-waving displays of kingdom allegiance. But she believes Hawaiians on both sides of the debate can work together. Even if a future Hawaiian government becomes federally recognized, it would not prevent that government from employing international law to seek independence from the United States.
"I think we've been framed as a people who aren't getting along, who are never going to move forward as a people because we just can't agree," Kauhane said. "I don't believe that. Different viewpoints are healthy. But we can't reverse history. It will only hurt us to continue to look back at the hurtful past."
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http://www.staradvertiser.com/editorialspremium/letterspremium/20150916_windmills_might_not_be_so_clean.html?id=327826001
Honolulu Star-Advertiser, September 16, 2015, Letter to Editor
Kudos to Akina for filing lawsuit
Mahalo to Keli'i Akina and the plaintiffs who filed a lawsuit that will hold organizations and individuals accountable for claiming that they serve to benefit the majority of Hawaiians when, in reality, they do not ("Federal lawsuit filed to block Native Hawaiian election," Star-Advertiser, Aug. 13).
This lawsuit is not divisive. We're divided because we discovered that we are either the "haves" or the "have nots," and the vast majority fall into the latter group. Many kanaka maoli are outraged but feel powerless to initiate change.
Kana'iolowalu and Na'i Aupuni present specious claims at best. Tens of thousands of Hawaiians, despite stating objections, had their names involuntarily placed on their roll call. I confirmed that without permission, they used my identity to legitimize their existence.
In violation of my constitutional rights, I was subjected to "compelled speech" as the appearance of my name meant I made declarations against my will. This lawsuit is necessary to protect us, and it's long overdue.
Kahala Motoyama
Manoa Valley
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http://thegardenisland.com/news/local/native-hawaiian-election-set/article_ec9d650e-69e6-53e1-9f37-097a3d629d79.html
The Garden Island (Kaua'i), September 16, 2015
Native Hawaiian election set
Kauai County to have 2 delegate candidates announced at end of the month
Brittany Lyte - The Garden Island
LIHUE — One of the biggest elections for Native Hawaiian self-governance is set to take place in November, and certified Kauai County voters will have a chance to elect two representatives in a 40-member delegation.
Nearly 100,000 Hawaiians have been certified by the state-sanctioned Native Hawaiian Roll Commission to vote in a private election for delegates who will gather in Honolulu this winter at a constitutional convention. The governing document these delegates write will form the foundation of a new government by and for Native Hawaiians.
The nation building process is being organized by Na'i Aupuni, a private nonprofit.
Robin Danner, the Kauai commissioner on the governor-appointed commission established in 2011 to collect and verify names of eligible Native Hawaiian voters, said the opportunity to reorganize a native government is monumental for Hawaiians and Hawaii residents alike.
"Just as it would be chaos for the residents of Kauai to not have a government called the County of Kauai to be entirely focused on the issues and needs of Kauai, it has been a bit chaotic for us as native people to focus on the issues and needs of making sure our native community — our youth, our kupuna, and the host culture, our language, our traditions, and all that we know about Hawaii — survives," Danner said.
Danner added that everyone else in Hawaii will also benefit. For the first time in over 100 years there will be a definitive voice on Native Hawaiian issues instead of county or state government attempting to have a subcommittee within their agencies or structures, which hasn't worked well.
"Mauna Kea is a prime example of that," she said.
Adding to the momentum is an announcement by the U.S. Department of Interior last month that it will for the first time propose an administrative process by which a Native Hawaiian government could seek a formal government-to-government relationship with the United States. All told, there are 566 American Indian and Alaska Native tribes that have a federally recognized form of self-governance.
Citizens of a federally recognized Native Hawaiian government would be eligible for a special kind of dual citizenship, according to Danner. They would be able to become citizens of whatever form of native governance the Hawaiian community decides to create while retaining all the rights and responsibilities of American citizenship.
Not all Hawaiians, however, are supportive of federal recognition. Some want nothing to do with the U.S. government that overthrew Queen Liliuokalani in 1893.
Congress formally apologized for the overthrow of the Hawaiian kingdom in 1993 in a joint resolution that acknowledges that Native Hawaiians never relinquished their sovereignty when the U.S. government took over the islands. Today, there are several sovereignty groups across the state seeking to reinstate the Hawaiian kingdom and do away with the United States.
"U.S. law doesn't belong here," said Keo Kauihana, an Anahola resident who said he is fighting several citations for driving his vehicle with a license administered by the Kingdom of Hawaii. "If you have any heart for Hawaii, you support the kingdom and you teach your kids that."
The planned election is also under fire by a lawsuit that argues it is unconstitutional to restrict voter eligibility by race, according to Associated Press reports. The plaintiffs include two non-Hawaiians who aren't eligible for the roll, two Native Hawaiians, who say their names appear on the roll without their consent, and two Native Hawaiians who don't agree with a declaration to "affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination."
Thousands of people on the roll were listed without their consent when their names were transferred from other lists containing Native Hawaiians, the lawsuit said.
The issue is set to be heard in federal court Oct. 20, 10 days before voting is scheduled to start.
Meanwhile, the buildup to the election continues. Tuesday was the deadline for prospective delegates to nominate themselves for candidacy. Qualified candidates will be announced Sept. 30. Voting will be open for the entire month of November. Election results will be announced Dec. 1.
Mauna Kea Trask, who said he seriously considered but ultimately decided against throwing his hat in the ring to be in the running for one of the Garden Isle's two delegate seats, said he thinks Hawaiians who align themselves with kingdom groups, such as Kauai's Kingdom of Atooi, and those who support the Na'i Aupuni election, should be free to pursue separate means of achieving sovereignty without thwarting one another's efforts.
"I don't think this particular election denigrates the Kingdom of Atooi or goes against the Hawaiian Kingdom," said Trask, who is the Kauai County attorney. "It's just another opportunity for Native Hawaiians to move forward toward the promised land. I support this and I support all of (the sovereignty groups). I think all of them have a place."
Since deciding not to seek a delegate seat, Trask said he will focus his energy on throwing his support behind those who do.
One of those potential candidates Trask said he will support is Kanani Kagawa Fu.
The 34-year-old Hanamaulu resident said she wants a seat at the constitutional convention because she wants to ensure that the younger generation has a voice in the nation building process.
"There are two seats for Kauai and I want one of them," she said. "I don't want just kupuna making decisions, I want to influence some of those decisions as well. At the end of the day, I don't want to look back and say I missed an opportunity."
Kagawa Fu grew up in Anahola, where she developed at an early age a passion for Native Hawaiian culture, she said. She attended and later worked for Kamehameha Schools before becoming a community resource coordinator for the Office of Hawaiian Affairs. In 2012, she made an unsuccessful bid for the Kauai seat on the OHA Board of Trustees in a crowded race against 10 other candidates. Today, she works for Kauai County as the assistant to the housing director.
Despite the lack of consensus on how Hawaiian self-governance should be achieved, Kagawa Fu said the upcoming election could help bring the native community closer together.
"Hawaiians are actually the most cohesive they've been in a really long time and an example is the Mauna Kea telescope protests," she said. "Some people are saying this Na'i Aupuni election could tear them apart because some are for it and some are against it, but I disagree. I think this is another initiative in the community that will unify us. We have to get to that point where we are all in the room to discuss (self-governance). We have never had the opportunity to get this many people together in a room to discuss it."
The deadline to register to vote in the Na'i Aupuni election is Oct. 15. Registrants must be Native Hawaiian and at least 18 years old to be eligible to vote. Registration forms can be completed online at kanaiolowalu.org.
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http://www.civilbeat.com/2015/09/law-recognizes-native-hawaiians-as-indigenous-people-with-special-rights/
Honolulu Civil Beat, September 18, 2015
Law Recognizes Native Hawaiians as Indigenous People With Special Rights
Legal rulings dating back to 1863 and ongoing global recognition today confirm the appropriateness of laws that apply only to indigenous Native Hawaiians.
By Derek Kauanoe
Keli'i Akina misrepresented Hawaiian Kingdom legal history in his recent Community Voice piece, "Silent Majority of Hawaiians Gain Voice." Akina wrote, "We seek to live by the words of the 1840 Constitution of the Hawaiian Kingdom that welcomes all, stating: 'God hath made of one blood (koko) all nations of men to dwell on this earth in unity and blessedness.' "
In the context of the entire column, Akina's use of this language ignores the Hawaiian Kingdom's actual interpretation of those same words. He also disregards the fact that Native Hawaiians historically were, and continue to be, recognized as an indigenous people with special rights, which is distinct from being just a minority group.
Civil Beat's readers should know that a 152-year-old Hawaiian Kingdom Supreme Court decision instructs us precisely to interpret the "constitutional" language differently than Akina suggests we should. Although the kingdom had a multi-ethnic citizenry, it had several laws that applied only to indigenous Native Hawaiians that were also deemed constitutional by its own Supreme Court.
Rex v. Booth
In 1863, the Court was asked in Rex v. Booth to determine the constitutionality of a law that only applied to indigenous Hawaiians. The 1852 Constitution, however, succeeded the 1840 Constitution. The newer constitution's First Article read, "God hath created all men free and equal and endowed them with certain inalienable rights …" Writing for the court, Justice George Morison Robertson explained that the newer Article 1 language originated from the 1840 language -- the same language recently used by Akina to suggest Native Hawaiians are not a unique group of people. Robertson described those specific words as announcing a political principle and further explained that particular language is not "in an absolute and unlimited sense. That language must be interpreted ... by the succeeding provisions of the Constitution -- by the expressed or clearly implied requirements, authorizations and limitations of the instrument, regarded as a whole."
Then, Justice Robertson cautioned against adopting an unsophisticated interpretation of the Constitution's First Article, "[t]he bare recognition of those principles is by itself of no practical value without their authoritative application."
Here, the Court directs us to look beyond the plain language of the constitution; Akina does the exact opposite.
The Court authoritatively acknowledged that a law, applicable only to indigenous Hawaiians, "assist[ed] in promoting the material interests and general welfare of the nation at large." This sentiment held true in 1863 and is equally true today.
19th Century Indigenous Self-Determination
Chief Justice Elisha Allen took the liberty of discussing the Hawaiian government's unique treatment of its aboriginal (indigenous) people in a separate opinion. This opinion is remarkable because it explains how aboriginal Hawaiians exercised indigenous self-determination within a recognized nation-state in the 19th century.
After explaining that aboriginal Hawaiians were vested with legislative power to pass laws exclusively applicable to themselves, the chief justice clarified, "The aboriginal race would have never surrendered this power, because they always have been aware … that there were some laws which were regarded as wise for them… ." The chief justice also briefly detailed other laws that only applied to indigenous Hawaiians and were passed over a near 20-year period through legislative processes.
Legal History, Recognition of Indigeneity
Akina cannot claim with any meaningful authority that laws and processes addressing the unique needs of indigenous Hawaiians "is blatantly non-Hawaiian."
If Hawaiian-ness is rooted in our history, then we need look no further than the Rex v. Booth case to see that the historical government of the Hawaiian people supported a policy of Native Hawaiians being treated as an indigenous people with unique circumstances and special rights. If we wanted to look further, we may examine the other individual laws the court mentioned that applied only to Native Hawaiians and still find that such an approach is very Hawaiian today.
While the State of Hawai'i and the United States recognize Native Hawaiians as an indigenous people (just as the Kingdom did), Akina would rather reclassify Native Hawaiians as only a minority group without the rights other indigenous peoples have.
Civil Beat readers should also know that more than 140 countries throughout the world support the United Nations Declaration on the Rights of Indigenous Peoples. The declaration makes clear in Article 3, "Indigenous peoples have the right to self-determination." President Obama included the Native Hawaiian people in his endorsement of the declaration. Native Hawaiians have a right to self-determination and with the declaration developing as an international legal norm, the United States is expected to provide processes for the exercise of Native Hawaiian self-determination.
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Online comment posted by Ken Conklin
Derek Kauanoe notes that there were a few laws during the Kingdom which singled out natives for special treatment. But such laws did not give natives special rights -- on the contrary, those laws actually stripped natives of rights which non-natives freely enjoyed. The purpose was paternalism -- the belief that somehow natives were lacking in the self-restraint or moral virtue of Europeans and Asians, so the natives needed to be protected against their own tendency toward immorality or poor judgment. The law at issue in Rex v. Booth had exactly that purpose -- it prohibited merchants from selling imported booze to natives. Most civilized nations have laws prohibiting the sale of booze to children, because children lack self-control and good judgment -- the law at issue in Rex v. Booth essentially treated adult natives as though they were children who should not be trusted with booze; and the Kingdom Supreme Court upheld the law as being permissible under the Kingdom's Constitution at that time. I think ethnic Hawaiians today would not like being characterized as being inferior to people of European or Asian ancestry in their ability to behave as adults and make decisions freely for themselves.
Neither the word nor the concept "indigenous" can be found in Rex v. Booth nor in any Kingdom laws nor in so-called "international law" at the time. Kingdom law did not give natives special rights or privileges for self-government or for granting them racial preference. The special laws applicable solely to natives paternalistically took away particular rights which other races enjoyed but which government leaders believed natives were incapable of exercising responsibly.
Mr. Kauanoe, like other supporters of the Akaka bill and the Department of Interior's plan to create a phony Hawaiian tribe, feels a need to portray ethnic Hawaiians as having a history and continuing need of government paternalism -- a need to be treated as wards of the government just like Indian tribes -- a need to have the federal government exercise plenary power over them because they are incapable of managing their own affairs. For example, many who support the concept of the Department of Hawaiian Homelands say ethnic Hawaiians cannot be trusted to own their house lots in fee simple, for fear they would sell the land; so they can only be trusted with a lease which ultimately reverts to DHHL.
What was lacking in the Constitution of Hawaii in effect in 1863 (Rex v. Booth) was the 14th Amendment equal protection clause, which thank goodness we have in the U.S. Constitution which governs us today -- interestingly, the 14th Amendment was adopted in 1868, only 5 years after Rex v. Booth. Ethnic Hawaiians today have fully equal rights with everyone else (unless they own houses on DHHL land or unless they choose to join a Hawaiian tribe and be governed by the laws passed by Rowena Akana, Peter Apo, et. al.), unlike the situation in the Kingdom. Mr. Kauanoe can cite Kingdom law all he wants; but today Kingdom law has been superseded.
I must add that Rex v. Booth (decided 1863) strongly affirms that neither native Hawaiians, nor the subjects of the Kingdom of whatever race, possessed any sort of communal sovereignty. Rex v. Booth compares the history of the Kingdom of Hawaii against the history of England; and specifically the history of the Hawaii Constitution against the history of the Magna Carta. Rex v. Booth clearly states that all sovereignty rests with the monarch and not with the people. And history shows that the monarchs throughout the Hawaiian Kingdom regarded the Constitution as a document they had unilaterally proclaimed and which they could unilaterally change or abolish -- indeed, that's exactly what Kauikeaouli Kamehameha III did twice (1840 and 1852), and also Lot Kamehameha V (1864), and also Kalakaua (1887 because an entirely local revolution forced him to sign it), and also what Lili'uokalani tried to do which got her overthrown in the revolution of 1893. Let me say it again -- neither the subjects of the Kingdom all together, nor the native Hawaiians as a racial group, possessed sovereignty at any time during the Kingdom, because sovereignty resided entirely with the monarch. Below are two quotes from Rex v. Booth confirming that fact:
"The Hawaiian Government was not established by the people; the Constitution did not emanate from them; they were not consulted in their aggregate capacity or in convention, and they had no direct voice in founding either the Government or the Constitution. King Kamehameha III originally possessed, in his own person, all the attributes of sovereignty."
The court reviewed Kamehameha III's promulgation of the 1840 Constitution and its 1852 successor and explained that by these documents the king had voluntarily shared with the chiefs and people of the kingdom, to a limited degree, his previously absolute authority. The court explained:
"Not a particle of power was derived from the people. Originally the attribute of the King alone, it is now the attribute of the King and of those whom, in granting the Constitution, he has voluntarily associated with himself in its exercise. No law can be enacted in the name, or by the authority of the people. The only share in the sovereignty possessed by the people, is the power to elect the members of the House of Representatives; and the members of that House are not mere delegates."
So in 1863, in Rex v. Booth, the Supreme Court of the Kingdom ruled that all sovereignty resided with the King and none resided with the people in general nor with the natives; and then the following year, 1864, Lot Kamehameha V proved it once again by dissolving the Legislature which refused to pass the new Constitution he wanted and then the King unilaterally proclaimed the Constitution they had rejected.
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http://www.hawaiitribune-herald.com/news/local-news/native-hawaiians-plan-election-convention
Hawaii Tribune-Herald (Hilo), September 19, 2015
Native Hawaiians plan election, convention
By NANCY COOK LAUER West Hawaii Today
An election for delegates to a Native Hawaiian constitutional convention will proceed as planned, despite a challenge in federal court.
"Our plan is to keep to the schedule," Bill Meheula, attorney for Na'i Aupuni, a nonprofit organization that is organizing the election and will oversee the aha, or convention, said Friday.
Deadline for Native Hawaiians to register to vote is Oct. 16 and voting is scheduled to begin Nov. 1 for delegates to the convention. Registration information is on the group's website,
http://www.naiaupuni.org/.
Forty delegates, once elected in a postal and email election, will spend eight weeks in Honolulu beginning in February, deciding what type of nation or government, if any, will be created or reorganized. Half of the delegates will come from Oahu, seven from Hawaii Island, seven representing out-of-state Hawaiians, three from Maui, two representing Kauai and Niihau and one representing Molokai and Lanai.
The process and convention is funded by the state Office of Hawaiian Affairs, with the election handled by the New York-based election management company Election-America.
Meheula said Na'i Aupuni is taking no stance on what form, if any, of government Native Hawaiians should create.
"We don't have a preconceived or desired result," he said. "Na'i Aupuni is just providing a path for Native Hawaiians to vote in leaders ... broadly relating to self-determination and self-governance."
Meheula said the delegates could decide whether to work with the U.S. Department of the Interior, which is currently drafting a rule that establishes an administrative procedure to use if the Native Hawaiian community forms a unified government that seeks a formal government-to-government relationship with the United States.
The Native Hawaiian Roll Commission was launched in 2012 as part of a state law recognizing Native Hawaiians as the only indigenous people of the islands. The roll is a list of Native Hawaiians interested in participating in their own government. There are more than 95,000 names on the list to date.
The election has been challenged in U.S. District Court in Honolulu by a group of Hawaiians and non-Hawaiians who contend a race-based election is contrary to the federal Voting Rights Act and the Constitution. The case was filed by the Washington, D.C.-based public interest law firm Judicial Watch, working with the Honolulu-based Grassroot Institute.
U.S. District Judge Michael J. Seabright has scheduled an Oct. 20 hearing on a motion for preliminary injunction, which asks that the election be halted until the case in chief can be decided.
The plaintiffs include two non-Hawaiians who aren't eligible for the roll, two Native Hawaiians who say their names appear on the roll without their consent and two Native Hawaiians who don't agree with a declaration to "affirm the un-relinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-determination," that is part of the registration process.
The Aug. 28 motion argues that the plaintiffs are likely to succeed on the merits of their claims that the election violates the First, Fourth and 15th Amendments and the Voting Rights Act. They contend the election will cause the citizens of the state "irreparable harm" because their constitutional protections will have been infringed upon simply by the vote taking place.
In addition, the lawsuit contends, exclusion of non-Native Hawaiians from voting violates the 14th Amendment's Equal Protection Clause.
"It is axiomatic that the Equal Protection Clause prohibits discrimination on the basis of race in voting," plaintiffs said in filings supporting the injunction.
But Na'i Aupuni contends the enrollment process satisfies concerns raised in the 2000 Rice v. Cayetano case. It's based, the organization says, on valid law, including Act 195 and the Apology Resolution affirming that Native Hawaiians have a special political and legal status under state and federal law.
"Na'i Aupuni states that although its election of delegates and its convention process is limited to Native Hawaiian voters and delegates, the election of delegates itself is not a state election because Na'i Aupuni is not performing a state function, the state does not control Na'i Aupuni, and the federal government has authorized the state to assist Native Hawaiians in their self-determination efforts," attorneys said in an answering brief filed Tuesday.
In addition, attorneys said, any harm to the plaintiffs "is less than the continued harm Native Hawaiians have suffered from lack of self-governance since the overthrow."
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http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15954/Nai-Aupuni-We-are-Legal-Because-we-are-Organizing-an-Indian-Tribe.aspx
Hawaii Free Press, Sunday September 20, 2015
Nai Aupuni: We are Legal Because we are Organizing an Indian Tribe
By Andrew Walden
In Federal Court September 15, OHA contractor Na'i Aupuni -- which is using the State of Hawaii's Kanaiolowalu Roll to organize an 'Aha election -- filed its response to the lawsuit seeking to shut it down, Akina vs Hawaii.
http://www.hawaiifreepress.com/ArticlesMain/tabid/56/ID/15830/categoryId/42/Plaintiffs-Ask-Court-to-Shut-Down-Nai-Aupuni-Immediately.aspx
In their brief, Na'i Aupuni's lawyers claim again and again Na'i Aupuni is not "a state actor" and therefore immune from the US Supreme Court's Rice v Cayetano decision which prohibits the State of Hawaii from organizing racially exclusive elections such as the 'Aha election. But rather than arguing that Na'i Aupuni's 'Aha is legal because it is a private, nonprofit organization, the lawyers argue that Na'i Aupuni, OHA, and NHRC are authorized by the federal government:
"...the federal government has properly exercised its plenary power by adopting the Admission Act, over 150 Congressional acts providing assistance to Native Hawaiians, including the Hawaiian Homelands Act, Native Hawaiian Education Act - 20 USC § 7512 and the Native Hawaiian Healthcare Act, 42 U.S.C. § 11701, the Apology Resolution, and Department of Interior's current process to promulgate an administrative rule to facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community - 79 FR 355296-02. These federal laws have authorized the State to assist Native Hawaiians in their self-determination efforts. Thus, the Roll's development of a Native Hawaiian registry to assist Native Hawaiian self-determination, and OHA's grant of public land trust funds to fund Na'i Aupuni's election process do not violate constitutional or federal safeguards. ..." (Para 59)
"Na'i Aupuni states that OHA's intentions are consistent with the federal government's authorization of the State to assist Native Hawaiians in their self-determination efforts." (Para 62)
"Plaintiffs have not sustained their burden of establishing the requisite public interest in its position to be entitled to injunctive relief as demonstrated by the State of Hawaii's passage Act 195, the fact that the Roll certified over 95,000 Native Hawaiians in July 2015, and that the Department of the Interior is currently moving forward with rule-making to support Native Hawaiian self-determination." (Para 5 on page 34)
In other words: It is legal for State of Hawaii agencies such as OHA and NHRC to sponsor the Na'i Aupuni elections -- but only because Na'i Aupuni, OHA and the NHRC are organizing for federal recognition.
The State of Hawaii has an obligation to act for "the betterment of Native Hawaiians," according to the Admission Act. To amend the Admission Act and transfer this responsibility to the federal government via a fake Hawaiian Indian tribe requires the agreement of both the state legislature and the US Congress.
Na'i Aupuni is effectively arguing that the Hawaii Legislature agreed to transfer the State's obligation to act for "the betterment of Native Hawaiians" to the Tribe by passing Act 195. They are also arguing that the US Congress -- which protected Hawaiians from the Akaka Bill for years and years -- has already exercised its "plenary power" and authorized the creation of a fake Hawaiian Indian tribe by passing "over 150 Congressional acts providing assistance to Native Hawaiians."
This is also the Obama Administration's justification for bypassing Congress and administratively recognizing a fake Hawaiian Indian tribe.
If a Federal Judge were to uphold Na'i Aupuni's tortured interpretation of the legislative history, the path would be cleared for the Obama Administration to act.
The 1996 Native Hawaiian Convention was de-funded by OHA when delegates failed to go along with "federal recognition".
Does anybody really believe the 'Aha will be open to any other result?
FULL TEXT: Na'i Aupuni response
http://www.hawaiifreepress.com/Portals/0/Article%20Attachments/67%20-%20ANSWER%20filed%20by%20Nai%20Aupuni%20(F%209-15-15).pdf
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http://www.hawaiiankingdom.info/?p=2143
Hawaiian Kingdom blog (Scott Crawford)
Fox News is worried about the Kingdom of Hawaii
** Kens Conklin's note: One-minute video of a segment of Fox News business report with Charles Payne, identifying likely Obama executive orders --
An onscreen list says these 3 are the most
Infuriating Executive Orders
* Immigration
* [corporate] Inversions
* Kingdom of Hawaii
** Mr. Payne says
"Now this last one you haven't heard of, right? Now the Kingdom of Hawaii. It's gonna blow you away 'cuz essentially they're gonna turn the State of Hawaii into a de-facto separate nation much like a giant Indian reservation giving the indigenous people a lot more federal government benefits, a tremendous amount of autonomy, and they have to put in less skin in the game, fewer taxes ..."
While Mr. Payne is speaking, Onscreen list says
Kingdom of Hawaii
Indigenous people to receive
* More government benefits
* More autonomy
* Less taxes
** Ken's note: Direct link to 52-second video on Fox News website is
http://video.foxbusiness.com/v/3774090888001/kingdom-of-hawaii/?#sp=show-clips
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http://www.staradvertiser.com/newspremium/20150921_nai_aupuni_mum_on_candidates.html?id=328470151
Honolulu Star-Advertiser, Monday September 21, 2015
Na'i Aupuni mum on candidates
The group says a list of those in the running will be released soon
By Timothy Hurley
The deadline for Native Hawaiians to sign up for a chance to run as a delegate to next year's Na'i Aupuni nation-building convention has passed, but officials handling the election aren't saying who or how many people put their hat in the ring.
A full list of certified candidates will not be announced until the end of the month, said Lloyd Yonenaka, spokesman for the nonprofit set up to oversee the election as part of the state-mandated effort to help establish a path for Hawaiian self-determination.
Meanwhile, the process still faces a legal challenge from the Grassroot Institute to what it calls a "race-based" and "viewpoint-based" election.
Some Hawaiians have condemned the nation-building process, saying it's corrupted by the fact its origin is in the state Legislature's Act 195, has taken Hawaiian names from various lists and has the fingerprints of the state Office of Hawaiian Affairs all over it.
What's more, hard-liners suspect that federal recognition and the nation-within-a-nation form of government -- blasted during last year's federal Department of Interior hearings -- is the predetermined outcome.
While a list of would-be delegates has not been made public, some have made their candidacies known in social media, including longtime Hawaiian independence advocates Walter Ritte and Dennis "Bumpy" Kanahele.
Kanahele maintains this is the first time Hawaiians really have their fate in their own hands.
"The first action is not necessarily what government we want," he said. "It's to proclaim the restoration of national sovereignty."
Also running are Lanakila Mangauil, a leader of the Thirty Meter Telescope protests, and Clarence Ku Ching, who is part of the Mauna Kea Hui, which is challenging the telescope project in court.
Mangauil, from Hilo, said he only found out his name was on the Native Hawaiian Roll a couple of weeks ago, and he decided to take advantage of it in an effort to closely scrutinize a process he doesn't trust.
He said, if elected, he would serve with an open mind but with an extremely watchful eye, considering the history of an effort that isn't "pono."
"I'm going to make sure what's going on doesn't threaten the rights of the people," he said.
Ching, also from Hawaii island, labels himself a "Hawaiian Nationalist" candidate who opposes federal recognition. On his website at unclekuching.com, the retired attorney and former OHA trustee said he would advocate for and vote for the restoration of a Hawaiian kingdom.
Certified candidates will vie to become one of 40 delegates -- 20 from Oahu, seven from Hawaii island, three from Maui, two from Kauai and Niihau, one from Molokai or Lanai, and seven from out of state.
The Na'i Aupuni commission had decided that the representation would reflect the geographic distribution of population within the current registry.
Certified voters will select delegates from their own area. For example, if a voter lives on Oahu, he or she will get to vote for the candidates running for the 20 Oahu seats.
Hawaiians who want to participate in the election have until Oct. 15 to become certified. Unregistered Hawaiians can sign up at the OHA website at
oha.org/registry
or the Native Hawaiian Roll Commission website at
kanaiolowalu.org.
The delegates of the convention are expected to consider options for Hawaiian self-determination. If the delegates create a governance document for ratification, that document may go to a vote by all certified Hawaiian voters depending on any instructions from the delegates.
More than 95,000 people so far have been certified to participate in the elections by the Native Hawaiian Roll Commission.
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http://www.civilbeat.com/2015/09/oha-agency-at-a-crossroads-is-caught-in-a-power-struggle/
Honolulu Civil Beat, Monday September 21, 2015, ** EXCERPTS related to building a Hawaiian tribe
OHA: Agency at a Crossroads Is Caught in a Power Struggle
Mauna Kea, ceded lands and internal battles occupy the quasi-state agency as Native Hawaiian nation-building looms.
By Chad Blair
The trustees for the Office of Hawaiian Affairs heard an earful from a half-dozen or so constituents at a board meeting in Waimea on the Big Island earlier this month.
But an internal struggle unfolded mostly unnoticed despite a controversial vote to merge two committees into a single new one in a move that one trustee says was designed to weaken her and another trustee and consolidate power within the OHA staff rather than its elected leaders. ...
The fourth item raised at the Waimea meeting -- nation-building -- is largely out of OHA's authority.
OHA is at a historic crossroads, a transition period that could lead its dissolution as a public agency and its absorption into a new, as yet unidentified Native Hawaiian government.
Although it is helping to fund the elections process being coordinated by Nai Aupuni, a nonprofit group formed last December, Nai Aupuni is separate and independent from OHA and the state. And yet, should the election referendum, or aha, proceed as planned next spring on Oahu, delegates could recommend a form of Hawaiian government, one that would be subject to a ratification vote by all certified Hawaiian voters.
Conceivably, that could eventually lead to the end of the Office of Hawaiian Affairs and the beginning of a new, unchartered era in the islands.
OHA is at a historic crossroads, a transition period that could lead to its dissolution as a public agency and its absorption into a new, as yet unidentified Native Hawaiian government that would have formal relations with the government of the United States.
That would bring the end to a controversial and influential organization that was formed in 1978 through a constitutional convention with the express purpose of righting the wrongs suffered by the indigenous population dating to the arrival of Captain James Cook 200 years before. ...
The Coming Election
Attention on OHA may ease as the Nai Aupuni election and aha process gear up this fall and spring.
Nai Aupuni heavily advertised the Sept. 15 deadline to file as a delegate candidate -- a deadline that was extended for a few days to accommodate about 50 people who had not yet been certified to run by the Native Hawaiian Roll Commission -- and the Oct. 15 deadline to be certified to vote in the election period, which runs throughout November.
Election results are due Dec. 1 and the aha process is set to be held on Oahu from next February to April, right in the middle of the 2016 legislative session and just as a major election year unfolds.
"Why should Hawaiians seriously consider this opportunity to form a Hawaiian government?" asked a full-page ad that ran in the Sept. 6 issue of the Honolulu Star-Advertiser. "Hawaiians have historically been frustrated by federal, state and/or local governments exercising decision-making authority over issues that are of grave concern to them. These issues involve ceded lands, water rights, gathering rights, TMT and even OHA and the Hawaiian Roll Commission."
A Hawaiian government formed by "a majority or near majority" of Hawaiians who reside in Hawaii, the add states, "will be a government that has standing to represent all Hawaiians who reside in Hawaii and thus will be in a position to secure the authority to make decisions to address these kinds of issues."
A total of 40 delegates will be chosen in November's election: 20 from Oahu, seven from the Big Island, seven from residents outside Hawaii, three from Maui, two to represent Kauai and Niihau and one to represent Molokai and Lanai.
Kuhio Asam, Nai Aupuni's president, says about $2.6 million is being spent on the election process, supported by OHA grant funds to the nonprofit Akamai Foundation, a fiscal sponsor of Nai Aupuni. Asam said OHA has been approached for an additional $500,000, money that would also go to the foundation.
"Almost a a majority of Native Hawaiian adults living in Hawaii are participating in this process, and that's a significant number, under most standards." -- Bill Meheula, Nai Aupuni legal counsel
Neither OHA nor Nai Aupuni has any "direct or indirect influence" on the election of delegates and the convention and possible ratification of a governing entity. That responsibility lies with Nai Aupuni's five-member board of directors, of which Asam is a member.
About 95,000 qualified voters have been certified by the Native Hawaiian Roll Commission (or Kana'iolowalu), a figure that Nai Aupuni officials say could be closer to 100,000 by the time voting starts.
Bill Meheula, Nai Aupuni's legal counsel, says 95,000 voters represents a significant number of Hawaiians participating in the self-governance process. While the 2010 census reflects a Hawaiian population of 525,000 throughout the United States, Meheula says the "real important metric" is the number of Hawaiian adults residing in the state of Hawaii.
"That number is 185,000, and we've got 85,000 to 100,000 of them," he said. "So you almost got a majority of Native Hawaiian adults living in Hawaii participating in this process, and that's a significant number, under most standards. We have got a lot of Native Hawaiian interest in this process to select their leaders to discuss and propose a plan for Native Hawaiian self-determination, and perhaps even creating or reorganizing a Native Hawaiian governing entity."
Meheula acknowledges that OHA's dissolution may come from the formation of a Native Hawaiian government, but he described it as just one possible outcome.
"That is something for delegates to consider," he said. "There are a number of possibilities that can come out of this. They are wide-ranging."
Meheula is also dismissive of a pending lawsuit filed by Judicial Watch and the Grassroot Institute of Hawaii that challenges the constitutionality of Nai Aupuni. He says a major distinction between OHA elections, which the courts under Rice V. Cayetano and Arakaki v. Lingle allowed non-Hawaiians to vote in and run for its membership, is that the Nai Aupuni election is a private one that does not involve a state agency.
Asked about Nai Aupuni, OHA's Lindsey said, "We cannot be involved in that process at all."
But, he added, as a Native Hawaiian leader he is excited about the election.
"Since our government was overthrown in 1893, we have been waiting 123 years to have a process to have direct conversation with the federal government," he said. "This is our time, I feel, to have that conversation. This process will give us the capacity to be able to do that."
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http://www.civilbeat.com/2015/09/setting-the-record-straight-hawaiians-are-an-inclusive-people/
Honolulu Civil Beat, September 24, 2015
Setting the Record Straight: Hawaiians Are an 'Inclusive People'
Citizenship in the Hawaiian Kingdom was never confined to one race. So a race-based election to create a race-based nation would be blatantly non-Hawaiian.
By Keli'i Akina
Derek Kauanoe's recent Community Voice, "Law Recognizes Native Hawaiians as Indigenous People With Special Rights," addresses my Community Voice article, "Silent Majority of Hawaiians Gain Voice." While I agree with much that Mr. Kauanoe says, I need to correct his interpretation of some statements in my article.
At the outset, I clearly do not dispute the fact that the law provides special benefits or what some may call rights for individuals with Hawaiian blood. Everyone does not agree that this should be the case, but it is important to recognize that it is the case. In fact, I would add to Mr. Kauanoe's examples the two most important resources for Hawaiian beneficiaries, the Hawaiian Homelands and a portion of the value of the Ceded Lands.
While the administration of these resources throughout most the 20th Century did not optimally serve the beneficiaries, they are secured by several important pieces of legislation, particularly the Hawaiian Statehood Act of 1959. Although there is debate over whether any special resources should ever be accorded to individuals on the basis of race, the fact is that Hawaii's admission to the United States required the state to guarantee that special resources would be used to serve those with Hawaiian blood.
From the beginning of the Kingdom of Hawaii, under Kamehameha I through the rule of Hawaii's last monarch, Lili'uokalani, citizenship in the kingdom was never confined to one race.
Moreover, the Statehood Act is an affirmative and substantive response to the question of whether the United States has ever made reparations to descendants of Hawaii's indigenous people. Again, this does not address the question of whether such reparations should be made, nor does it address the question of what may be due to non-ethnic Hawaiian descendants of the Kingdom, but it does establish a class of beneficiaries.
To eliminate or reduce the rights and benefits of Native Hawaiians pertaining to the Hawaiian Homelands and Ceded Lands trust would require the agreement of both the Hawaii Legislature and the U.S. Congress in an unprecedented effort to alter the Admission Act, the State Constitution and the Hawaiian Homes Commission Act. In fact, these Native Hawaiian rights and benefits are so secure that there is simply no need for federal recognition or any other form of state-sponsored sovereignty. Despite this, some are trying to frighten Native Hawaiians into taking political action with the illusion that their rights and benefits are at stake.
Mr. Kauanoe refers to my quotation from the preamble of the 1840 Hawaiian Constitution and explains that it cannot be used as a legal basis for denying any rights or privileges to those of Native Hawaiian blood. Again, I agree with him and did not use that document as he asserts.
To eliminate or reduce the rights and benefits of Native Hawaiians pertaining to the Hawaiian Homelands and Ceded Lands trust would require unprecedented agreement and action of both the Hawaii Legislature and the U.S. Congress.
I wrote: "The silent majority of Native Hawaiians practice inclusiveness as part of the Aloha Spirit. We seek to live by the words of the 1840 Constitution of the Hawaiian Kingdom that welcomes all, stating: 'God hath made of one blood (koko) all nations of men to dwell on the earth in unity and blessedness.'" My statement is not intended as a legal argument to deny Hawaiian rights, but an expression of an important cultural fact and an important historical fact embodied in the words of King Kamehameha III as quoted from the Hawaiian Bible (Acts 17:26).
The cultural fact is that Hawaiians are traditionally inclusive people, welcoming individuals regardless of race into our families and society. The practice of hanai or adoption is an example of this. The historical fact is that from the beginning of the Kingdom of Hawaii, under Kamehameha I through the rule of Hawaii's last monarch, Lili'uokalani, citizenship in the kingdom was never confined to one race.
It is for these reasons that I described the actions of our state government agencies OHA and the Native Hawaiian Roll Commission, to establish a race-based election to create a race-based nation, as "blatantly non-Hawaiian." I also stated in my original piece that, "Hawaiian citizenship, even before we were part of the United States, was never based upon race."
I thank Derek Kaunoe for the opportunity to interact with him on this important issue and to parse out some of the subtleties that will require further consideration by reflective individuals. Many voices should participate in the future direction of our shared Hawaii, and I believe that none should be excluded. E hana kākou ... let's work together!
About the Author
Keli'i Akina, Ph.D., is President/CEO of the Grassroot Institute of Hawaii and a former candidate for Trustee in the Office of Hawaiian Affairs. He writes as an individual, not as a representative of the other plaintiffs nor on behalf of the suit he references.
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http://www.civilbeat.com/2015/09/peter-apo-defining-the-hawaiian-community/
Honolulu Civil Beat, September 24, 2015
Defining the Hawaiian Community
There are many institutions and organizations that make up the Hawaiian community. But its heart may be harder to define.
By Peter Apo
It is not uncommon for Hawaiian political leaders, when engaged in arguing hot topic issues such as nationhood or the Thirty Meter Telescope, to have their views publicly challenged by self-appointed leaders laying claim to speaking for the vast majority of the Hawaiian community.
So, I gave pause to really think about it. Who do we mean when we say the Hawaiian community? How does one qualify and quantify the sprawling constituencies that make up the Hawaiian community?
This column attempts to put a face on what is meant by the Hawaiian community by defining its boundaries and assembling a framework of Hawaiian organizations, geo-cultural communities, their economic capacity, and leadership structure. It's also an opportunity to see just how far along we are as a community in our recovery from near extinction and transgenerational cultural trauma.
National Consciousness
My first observation is that there exists a deep and abiding national consciousness among Hawaiians. It is a palpable consciousness such that in spite of the political divide between those Hawaiians advocating separating from the United States and those who support federal recognition, I sense they share a strong emotional bond rooted in the common desire for a full measure of self-determination in shaping a Hawaiian future.
This sense of a national consciousness shared by so many Hawaiians suggests perhaps a mental push back when defined as beneficiaries of a number of major private and publicly funded Hawaiian organizations. Many think of themselves more as citizens of a Hawaiian nation waiting to be restored.
"Beneficiary" suggests being a social statistic and dependent on a third party for one's well-being. "Citizen" is the language of dignity, pride and political standing. This is an important mental distinction of how the community wants to see itself.
The Big 5
There is a pantheon of Hawaiian institutions that form a sort of socio-cultural-economic umbrella that hovers over the Hawaiian population as primary dispensers of beneficiary services. The five are the Department of Hawaiian Home Lands, Office of Hawaiian Affairs, Kamehameha Schools, Queen Liliuokalani Trust, and the Queen Emma Foundation (Queen's Hospital systems).
These five institutions have an enormous combined economic capacity. They also hold title to vast acreages of land that provide an impressive portfolio of a Hawaiian-controlled land base around the state.
While these five organizations are separately governed, each with a different mission and legal operating authority, all are perceived by Hawaiians as "their" institutions. In terms of nationhood, it's hard to conceive of a Hawaiian nation that would not somehow include these institutions. Any nationhood model would seem unlikely to occur without them although there is little dialogue about how any of it might work.
Royal Societies
An important part of the institutional community is a phalanx of royal societies, ceremonial in function, regal in stature, serving as powerful reminders of days of the monarchy. Adorned in their royal colors, their processional entrances to important public functions lift hearts and put an exclamation point on the sense of nationhood without having to say a word.
Government Programs
I call attention to a network of Hawaiian organizations that form a tier of federally supported entitlement programs providing beneficiary services in health care, education, jobs and other services. This network is a critical institutional layer of organizations making strategic contributions to the economic capacity to deliver important services to Hawaiians. Examples of these programs are Papa Ola Lokahi for health care and Alu Like for job training and placement.
Community-Based Organizations
The state is blanketed by grassroots community-based organizations embedded throughout the islands that exude an impressive presence and real sense of community. Some of the higher profile organizations are The Association of Hawaiian Civic Clubs, Native Hawaiian Chamber of Commerce, Council for Native Hawaiian Advancement, Hawaiian Homestead Associations, and the Sovereign Councils of the Hawaiian Homelands Assembly, just to name a few.
These organizations are politically very active and good sounding boards for the pulse of the community. If one were to embed pin lights on a map of the islands of these organizations and their chapters the map would light up like a Christmas tree.
Educational Institutions
Then there is the loose network of Hawaiian-centered education programs in a vertical ladder that start with early education/family learning centers, Department of Education Hawaiian language immersion schools, Hawaiian charter schools, community college-based Hawaiian education initiatives, degree granting programs at University of Hawaii Manoa and UH Hilo.
Cultural Organizations
There is also an incredibly rich assemblage across the state of the Hawaiian cultural organizations which include a plethora of distinguished hula schools, visual arts organizations, literary organizations, martial arts, the voyaging community, canoe associations, and a host of culturally based initiatives in every discipline. This sector, more than any other, has produced an inspiring vision of a Cultural Nation of Hawaii. The cultural soul of the nation resides in these institutions.
Residential Communities
Finally, there is the geo-cultural residential communities spread across the state. Waimanalo, Molokai, Hana, Waianae-Nanakuli, Kekaha, Ka'u, Miloli'i just to name a few. These places have long community memories as Hawaiian places with an unbroken cultural behavior system and a sense of celebration of who they are and what it means to be a Hawaiian.
In ancient Hawaii, where you were from was more important than your name because your community of origin said everything one needed to know about you. That basically has not changed with these places.
The Mainland Hawaiians
One of the most interesting aspects of defining the Hawaiian community is that the federal census data places half of the Hawaiians (250,000) on the mainland. As I've had the opportunity to engage them I find them feeling very vested in what's happening at "home."
Over the years, many left in search of a more affordable quality of life. But they stay connected through friends and relatives and have institutions of their own that help them perpetuate Hawaiian culture and a sense of belonging to the "nation."
They are politically engaged -- even from a distance -- in the dialogue on nationhood. In fact, the delegate candidate field for the anticipated Hawaiian election known as Naiaupuni includes seats assigned to the mainland.
Hawaiian Leadership
The most difficult community condition to describe is that of Hawaiian leadership. There seems absent any center of gravity or go-to leadership structure for the broader Hawaiian community. There's no one set of names that would pop up. It depends on who you ask.
I observe one interesting phenomenon that Hawaiians are not necessarily attracted to their leaders because of political or business credentials. Although there are exceptions Hawaiians seem more prone to emotionally connect to cultural leaders.
In fact, sometimes, political and business credentials can be a negative. To be sure, there are many Hawaiians who hold leadership titles in government and business who perform well and some have outstanding records of achievement.
A Hawaiian leadership discussion has to include the matter of gender equity with respect to discrimination against females and access to leadership opportunities. It is a distinguishing characteristic of Hawaiian society that gender equity was never an issue from pre-contact through post-colonization when it came to females assuming the highest mantle of leadership. In fact, if there were a Hawaiian hall of fame that cited Hawaiian leaders who have risen to greatness it's likely that there would be more women than men.
The other observation I would share is that I often wonder whether Hawaiians are suited to democracy. We seem to struggle in making the adjustment from a chief system of rule and the centuries-old tradition of deferring to the ali'i to make the decisions for us.
I may be on shaky ground on this perspective but democratic processes and Western political tools such as Robert's Rules of Order always seems to trigger frustration and uneasiness in our deliberations.
Hawaiians consistently post the lowest voter turnout in political elections, which may be a cultural statement toward elections as a way to pick our leaders.
Closing Comment
The Oxford American Dictionary defines nation as a large aggregate of people united by common descent, history, culture and language. While this definition does not rise to the standard that would qualify Hawaiians for nation status by international political standards, it speaks directly to an inside-out view of what the word "nation" means to many Hawaiians.
I believe the national consciousness I speak of is a real condition. It is a condition that is important for its unwillingness to defer nationhood status as a political question and third party anointments. I believe Hawaiian nationhood to be a condition of the heart.
About the Author
A former legislator, Peter Apo is a trustee of the Office of Hawaiian Affairs and the president of the Peter Apo Company LLC, a cultural tourism consulting company to the visitor industry. He has also been the arts and culture director for Honolulu, the city's director of Waikiki Development and served as special assistant on Hawaiian affairs to Gov. Ben Cayetano. His opinions are his own and do not necessarily reflect the views of OHA or other organizations he is involved in.
----------------
Ken Conklin's online comment to both the Akina and the Apo essays
There's a stark contrast between Keli'i Akina's essay and Peter Apo's essay. Akina focuses on what brings us together regardless of race. Apo focuses on drawing a line of racial separation between ethnic Hawaiians vs. those who lack a drop of the magic blood. Dr. Akina celebrates the unity of all Hawaii's people regardless of race; Mr. Apo tries to invent a false unity of ethnic Hawaiians as a racial group seeking separateness from everyone else.
Peter Apo identifies only the two most radical concepts for Hawaiian sovereignty and nationhood -- "the political divide between those Hawaiians advocating separating from the United States and those who support federal recognition." Apo portrays those as the only two options worthy of consideration; the only two choices available for the "national consciousness" of ethnic Hawaiians.
But Apo is badly mistaken, both factually and morally, in asserting that those are the only two choices. I believe, and Dr. Akina has stated, that there is a silent majority of ethnic Hawaiians who are proud to be Americans and who are glad to be fully integrated as members of Hawaii's multiracial society. At this time the Census bureau acknowledges there are nearly 600,000 people who identify themselves as "Native Hawaiian" -- but fewer than 100,000 of them are on the Na'i Aupuni certified list of people who signed up directly in the past three years or who ever signed up with any racial registry during 13 earlier years. The silent majority of more than 80% of ethnic Hawaiians have voted with their feet by walking away from perhaps $20 Million in propaganda through newspaper ads, community meetings in Hawaii and on the mainland, free T-shirts, etc.
We all live, work, play, and pray together. This is the third choice for the future of ethnic Hawaiians and for all Hawaii's people regardless of race -- what I call the Aloha choice -- to reaffirm our patriotism toward the nation we have already built, the United States; and to celebrate our multiethnic society unified by the Aloha Spirit under the single, undivided sovereignty of the State of Hawaii.
We do not need or want a new nation. We reject both of the extremist, radical options which Peter Apo claims are the only two choices -- racial separatism (the tribal concept of the Akaka bill and the Department of Interior), and ethnic nationalism (reinventing Hawaii as an independent nation with an overlay of racial supremacy in the name of "indigenous rights"). Please read my book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State." 27 copies are available scattered among various branches of the Hawaii public library system; more are available in libraries of University of Hawaii and its community colleges; and portions are available for free on the internet at
http://tinyurl.com/2a9fqa
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http://www.thedailybeast.com/articles/2015/09/24/russia-wants-texas-and-puerto-rico-to-secede.html
The Daily Beast, September 24, 2015
Russia Wants Texas and Puerto Rico to Secede
A sham conference held in Moscow this week was all about getting Western regions to break away.
by Casey Michel
It's an open secret that the current Kremlin coterie has an obsession with "sovereignty." Moscow may push the oddest version of sovereignty in the international arena. Not only was the country the progenitor of the notion of "sovereign democracy" -- the ability to entrench autocracy, disguised as democracy, without foreign interference or pushback -- but Moscow's also lobbed recognitions of sovereignty far more frequently than any of its nearest competitors.
Are you a Georgian seaside region tired of Tbilisi's demands? Are you a forested stretch of eastern Moldova, grating under Chisinau's Western approach? Are you a landlocked Caucasian enclave, heaving with an independent streak? Then here you are, Abkhazia, Transdnistria, South Ossetia -- here's the recognition you wanted, courtesy of your patrons in Moscow. Here's the independence, here's the special status, you desired. Don't worry about Western opposition, about the Westphalian order propping the decades-long streak of peace. If you want recognition, Moscow can provide it in droves.
Of course, there's a double standard to Moscow's call to break away. While these enclaves wishing recognition find a Kremlin ready to help, the sovereignty card becomes unplayable the moment they appear within Russia's borders.
On Sunday, the Anti-Globalization Movement of Russia hosted the first "Dialog of Nations" conference in Moscow. Seeking to represent the "many small nations that have historical experience of political independence" and who "think about their revival" -- and including a shot of shredding the U.S. flag -- the conference was helmed by Alexander Ionov, a supporter of Western secession with ties to both a fundamentalist Orthodox party, Rodina, and Russia's Anti-Maidan movement, a wellspring of pro-Moscow voices seeking to combat anti-Putinist ferment in Russia.
The conference hosted separatists from multiple Western nations -- Ireland, Italy, Spain -- in addition to a Western Sahara contingent. The greatest plurality of representatives, however, came from the United States. Russia has prior cultivated relations with separatists in Texas -- who are attempting to land the question of secession on Texas's GOP ballot -- but Ionov and his organization have since expanded their reach among American separatists. (Ionov also lists the U.K.'s Stop the War Coalition, linked to Labour leader Jeremy Corbyn, as one of his group's foremost partners; a representative from Stop the War denied the partnership, saying they have "never had any dealings with it.")
While the Texas contingent slotted for the conference did not arrive, and while no Native American representatives originally planned ended up showing -- although Ionov met with a Native American representative this summer -- the meeting saw leaders of independence movements from Hawaii, Puerto Rico, and the "Uhuru" black nationalist movements in attendance.
Out of Hawaii, Lanny Sinkin, representing the "Independent and Sovereign Nation State of Hawaii," lobbied for the return of the erstwhile Hawaiian monarchy. (The proposed king, as it is, happens to be a felon with some 13 years behind bars.) Out of Puerto Rico, Ramon Nenadich, who had prior threatened to investigate the United States for "crimes of war and genocide ... in its occupation of Puerto Rico," staked his case. (Nenadich has his work cut out for him -- in 2012, 61 percent of Puerto Rico's populace opted for statehood, and only 5 percent sided with independence.) And representing the Uhuru movement, Chairman Omali Yeshitela called on Russia to push the claim before the United Nations that the United States had committed genocide against African Americans. "We've come to Moscow because it gives us an opportunity to break out of the encirclement that has been imposed on the struggle of African people in the United States," Yeshitela said, before busting out Moscow-inspired rhetoric about U.S. bases "encircl[ing]" Russia and a "U.S. coup in Ukraine."
Suffice it to say, the conference has thus far failed to galvanize any overwhelming separatist sentiment out of Honolulu, San Juan, or Austin. But outright secession isn't Moscow's immediate goal.
"The separatist conference in Moscow is part of the wider Kremlin strategy to undermine the West through supporting movements and organizations that aim at destabilizing state structures," Anton Shekhovtsov, a researcher on Moscow's links to far-right movements, told The Daily Beast. "This strategy is anything but new -- the Soviet Union adopted the same tactics during the Cold War."
Further, when Yeshitela, nominally representing the U.S.'s African-American population, says that "Russia is under assault right now by the U.S. and imperialist powers," Moscow's domestic propaganda engine has further fodder to push its message.
Still, while the conference pushed nominal support for international secession movements, its crass geopoliticking shone through. You can tell the conference was a farce not simply because of who attended, but because of who wasn't even invited. No representatives from East Turkestan or Tibet. None from West Papua or Baluchistan. This dearth helps highlight the second parameter for Russia's willingness to recognize claims to sovereignty: Such secession movement, if it wants Russia's support, exist in the West, or in those nations -- say, Morocco -- that remain firmly ensconced in the West's camp. There's no sense, from Moscow's perspective, in supporting movements under the thumb of nations Russia could theoretically woo. In its lack of support for Karakalpak (an Uzbek ethnic group prone to restiveness) or Kashmiri movements, in its avoidance of touching the topics of Cabindan or Anjouan separatists, we can witness the fallacies -- further hangover from Soviet declamations -- within these claims of supporting sovereignty and secession.
And, of course, there's no sense in looking for any Russian representatives in the conference. None from Tatarstan or Siberia. None from the Crimean Tatar population the Russian government so readily represses. None from Chechnya -- odd, considering the pair of wars fought within recent memory to combat Chechen secession. The conference hosted none who would, in any way, call into question the territorial integrity of Russia. Such call would find any individual liable for a prompt, years-long prison sentence.
As such, if you're a secession movement in the West, you'll find a ready, willing audience in Moscow -- but if you expect to find any Chechens, Tatars, or Siberians seeking their own sovereignty, your disappointment will find a transom of hypocrisy too thick to cross.
==============
https://www.doi.gov/pressreleases/interior-department-proposes-pathway-re-establishing-government-government
U.S. Department of Interior Press release, September 29, 2015
Interior Proposes Path for Re-Establishing Government-to-Government Relationship with Native Hawaiian Community
OFFICE OF THE SECRETARY
Contact: Jessica Kershaw, Interior_Press@ios.doi.gov
WASHINGTON -- The U.S. Department of the Interior announced today a proposal to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. Under the new proposal, the Native Hawaiian community -- not the Federal government -- would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.
"The United States has a long-standing policy of supporting self-governance for Native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation's largest indigenous communities," said U.S. Secretary of the Interior Sally Jewell. "Today's proposal is testament to the Obama Administration's strong support for our nation's Native peoples' right to self-determination."
The proposal, which takes the form of a Notice of Proposed Rulemaking (NPRM), builds on more than 150 Federal statutes that Congress has enacted over the last century to recognize and implement the special political and trust relationship between the United States and the Native Hawaiian community. The NPRM comes on the heels of a robust and transparent public comment period as part of an Advance Notice of Proposed Rulemaking (ANPRM) process that began last year and included public meetings. More than 5,000 members of the public submitted written responses to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.
"We've listened to the feedback we received during the public meetings and in writing and worked to improve the proposal to reflect those comments," added Jewell. "We appreciate the many voices on this topic and look forward to hearing from the public on this proposal."
If a government-to-government relationship is reestablished, it can provide the community with greater flexibility to preserve its distinct culture and traditions and special status under Federal law that enables the community to exercise powers of self-government over many issues directly impacting community members.
The Native Hawaiian community has not had a formal government since the overthrow of the Kingdom of Hawaii in 1893. In 1993, Congress enacted the Apology Resolution, which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the Federal government to a process of reconciliation. As part of that reconciliation process, in 2000 the Department of the Interior and the Department of Justice jointly issued a report identifying as its lead recommendation the need to foster self-determination for Native Hawaiians under Federal law.
Today's proposal is available for review at
www.doi.gov/ohr
and public comments on it will be accepted for the next 90 days. Members of the public are encouraged to read the proposal and provide comments in writing by email to
part50@doi.gov
on
www.regulations.gov
(docket no. DOI-2015-0005), or by U.S. mail/hand delivery to the Office of the Secretary, Department of the Interior, Room 7228, 1849 C St. NW, Washington, DC 20240. The public is also encouraged to participate in teleconferences on the proposed rule, a schedule of which is available here.
https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/Public%20Meetings%20and%20Consultation%20Schedule.pdf
-------------------
https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/Public%20Meetings%20and%20Consultation%20Schedule.pdf
Public Meetings & Consultations to Discuss the Proposed Rule
The Department of the Interior will conduct four meetings by teleconference: two will be open to the public and the other two will target comments from Native Hawaiian organizations and federally recognized tribes in the continental United States. Details for each teleconference are listed below:
Public Meeting
Monday, October 26, 2015
2:00 pm - 5:00 pm Eastern Time / 8:00 am - 11:00 am Hawaii Time
Call-in number: 1-888-947-9025
Passcode: 1962786
Native Hawaiian Organizations Meeting*
Tuesday, October 27, 2015
3:00 pm - 6:00 pm Eastern Standard Time / 9:00 am - 12:00 pm Hawaii Standard Time Call-in number: 1-888-947-9025
Passcode: 1962786
Tribal Consultation
Wednesday, November 4, 2015
1:30 pm - 4:30 pm Eastern Standard Time
Call-in number: 1-888-947-9025
Passcode: 1962786
Public Meeting
Saturday, November 7, 2015
3:00 pm - 6:00 pm Eastern Standard Time / 9:00 am - 12:00 pm Hawaii Standard Time Call-in number: 1-888-947-9025
Passcode: 1962786
*Limited to organizations listed on the Native Hawaiian Organization Notification list, available at
www.doi.gov/ohr/nholist/nhol.
Please RSVP to
RSVPpart50@doi.gov
for this meeting only. No RSVP is necessary for the other meetings.
We strongly encourage Native Hawaiian organizations and federally recognized tribes in the continental United States to hold their own meetings to develop comments on the issues outlined in the proposed rule and to submit them to us for the record.
-------------
https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/FAQs%20on%20NPRM%20Part%2050%209.29.15%20%281%29.pdf
FREQUENTLY ASKED QUESTIONS ON
THE NOTICE OF PROPOSED RULEMAKING FOR PROCEDURES FOR REESTABLISHING A GOVERNMENT-TO-GOVERNMENT RELATIONSHIP WITH THE NATIVE HAWAIIAN COMMUNITY
SEPTEMBER 2015
What does the proposed rule say?
The Notice of Proposed Rulemaking ("proposed rule") would create a path for a reorganized Native Hawaiian government to reestablish a government-to-government relationship with the United States. The proposed rule would establish an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States.
The decision to reorganize a Native Hawaiian government and to reestablish a formal government-to-government relationship with the United States is a decision for the Native Hawaiian community. Therefore, the proposed rule does not attempt to reorganize a Native Hawaiian government or dictate the form or structure of that government.
Why did the Department decide to move forward with a proposed rule?
After reviewing more than 5,000 comments submitted for the written record, and over 40 hours of testimony received during the Federal consultations in Hawaii in 2014 on the Advance Notice of Proposed Rulemaking, the Department found that the public commenters overwhelmingly supported creating a pathway for reestablishing a formal government-to-government relationship between the Native Hawaiian community and the United States, as the next step in the reconciliation process set in motion by Federal law (the Apology Resolution) over 20 years ago. The Department believes that reestablishing such a relationship would allow the United States to more effectively implement the special political and trust relationship that Congress has long recognized with the Native Hawaiian community.
How did the Department arrive at its decision to move forward with a proposed rule?
The Department of the Interior is the lead Federal agency on Native Hawaiian affairs. It applies its expertise to administer the special political and trust relationship between Native Hawaiians and the United States. In deciding to propose a rule through the notice-and-comment process, the Department applied its expertise in Native Hawaiian affairs and analyzed the written and oral testimony submitted last year as part of the administrative record. The proposed rule, however, is only a proposal, and the Department will receive and consider further public comments before determining whether it should issue a final rule and, if so, what the final rule should say.
Why is the Department taking action now?
The Department believes that reestablishing a formal government-to-government relationship with the Native Hawaiian community would allow the United States to more effectively implement the special political and trust relationship that Congress has established with that community.
We are proposing an administrative rule in response to calls to action from leaders within the Native Hawaiian community, as well as from Hawaii's elected political leaders. Members of the community have requested that the Department take this step for over a decade.
As the lead Federal agency for Native Hawaiian issues, it is within the Department of the Interior's purview and prerogative to consider such matters. Importantly, the overwhelming majority of those who commented on the Advance Notice of Proposed Rulemaking, issued in June 2014, urged us to move forward with a proposed rule that would set out a process for reestablishing formal government-to-government ties to the Native Hawaiian community.
What are the benefits associated with reestablishing a government-to-government relationship?
The Federal government has a longstanding policy of supporting self-determination and self- governance for Native peoples throughout the United States. Such self-government provides many Native populations enhanced economic development and greater ability to preserve their distinctive cultures and traditions.
A government-to-government relationship with the United States can significantly enhance a Native community's ability to exercise self-government by giving a Native government special status under Federal law. For example, if the Native Hawaiian government seeks and obtains a formal relationship with the United States, Federal courts would then accord greater weight to the laws enacted by that Native Hawaiian government and the decisions of the Native Hawaiian courts. That in turn will facilitate and support self-governance by enabling the community to exercise powers of self-government over many issues directly impacting community members. A government-to-government relationship also would provide a Native Hawaiian government with additional abilities to protect its members' interests by filing suit in Federal court.
Moreover, once a government-to-government relationship exists, Federal agencies would treat the Native Hawaiian government as the legal representative of the community. Many Federal agencies have procedures in place for regular communication and consultation with recognized Native governments.
Does the proposed rule alter the fundamental nature of the political and trust relationship established by Congress between the United States and the Native Hawaiian community?
No. Over many decades, Congress has enacted more than 150 statutes recognizing and implementing a special political and trust relationship with the Native Hawaiian community. These Federal laws help preserve and protect Native Hawaiian culture, language, and historical sites, as well as establish special Native Hawaiian programs in the areas of health care, education, loans, and employment, among others.
Does the proposed rule have any direct impact on the status of the Hawaiian home lands?
No. Nothing in the proposed rule, or granting a request submitted under it, would affect the status of Hawaiian Homes Commission Act (HHCA) beneficiaries or Hawaiian home lands.
Does the proposed rule authorize compensation for past wrongs?
No. The proposed rule does not authorize or in any way contemplate compensation for any past wrongs.
What is the impact of the proposed rule on Federal lands in Hawaii?
The proposed rule makes clear that reestablishment of a formal government-to-government relationship would not affect title, jurisdiction, or status of Federal lands in Hawaii.
Does the proposed rule determine who ultimately would be a member or citizen of a Native Hawaiian government?
Under the proposed rule, a Native Hawaiian government would have significant discretion to define its own membership criteria. Under principles of Federal law, however, only persons with Native Hawaiian ancestry could be members if a formal government-to-government relationship is reestablished. The proposed rule also requires that any person who is within Congress's definition of beneficiaries under the HHCA be eligible for membership.
Will the Secretary reestablish a government-to-government relationship with more than one Native Hawaiian government?
No. The proposed rule provides that the Secretary will reestablish a formal government-to- government relationship with only one sovereign Native Hawaiian government, but that it may include political subdivisions.
The structure of the Native Hawaiian government is left for the community to decide. Should the Native Hawaiian government seek to reestablish a formal government-to-government relationship with the United States, the proposed rule has a short list of requirements for that government's constitution or governing document. For example, the governing document must provide for periodic elections, guarantee civil rights protections, and protect rights and benefits arising under the HHCA.
Does the proposed rule determine the process for ratifying a constitution or other governing document in a ratification referendum? Does it limit who would be eligible to vote in a ratification referendum?
The proposed rule requires that a ratification referendum be free and fair, that there be public notice before the referendum occurs, and that there be a process for ensuring that those who vote are actually eligible to vote. To ensure that the ratification vote reflects the views of the Native Hawaiian community as a whole, there is a requirement that the turnout in the ratification referendum be sufficiently large to demonstrate broad-based community support.
Congress uses two approaches to defining the Native Hawaiian community. The definition appearing in the HHCA requires at least 50 percent Native Hawaiian ancestry; in other statutes, Congress defines the term more broadly, to include any U.S. citizen who descends from the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. Because Congress uses both definitions, the proposed rule requires that a majority of voters from each of these groups support the governing document in a ratification referendum. The proposed rule also considers the total number of affirmative votes cast in favor of the governing document to ensure that support is genuinely broad-based. The proposed rule creates a strong presumption of broad-based community support if the affirmative votes exceed 50,000, including affirmative votes from at least 15,000 Native Hawaiians who are within the HHCA definition of Native Hawaiian. At a minimum, the affirmative votes must exceed 30,000, including affirmative votes from at least 9,000 Native Hawaiians who are within the HHCA definition of Native Hawaiian.
Would reestablishment of a government-to-government relationship under the proposed rule make the Native Hawaiian government eligible for Federal Indian programs and services?
No. Congress enacted programs and services expressly and specifically for the Native Hawaiian community that are separate from the programs and services that Congress enacted for federally recognized tribes in the continental United States. Native Hawaiians are therefore not eligible for Federal Indian programs, services, or benefits unless Congress expressly and specifically declares them eligible.
Consistent with that approach, the proposed rule would not alter or affect the programs, services, and benefits that the United States currently provides to federally recognized tribes in the continental United States unless an Act of Congress expressly provides otherwise.
Will the Department go forward with reestablishing a formal government-to-government relationship if the Native Hawaiian community decides it does not want to do so?
No. If the community does not support a government-to-government relationship, no such relationship will be reestablished. The proposed rule sets a process under which the Native Hawaiian community can, through a democratic process, request a formal government-to- government relationship with the United States if the community chooses. Because the proposal provides for a referendum, broad-based community support will be a precondition for reestablishing a government-to-government relationship.
Would the proposed rule make a Native Hawaiian government eligible to invoke the Indian Gaming Regulatory Act (IGRA)?
No. The Department anticipates that IGRA would not apply to the Native Hawaiian government. Furthermore, because Hawaii state law prohibits gambling, the Native Hawaiian government would not be permitted to conduct gaming in Hawaii.
Has the Obama Administration previously supported reestablishment of a government-to- government relationship with the Native Hawaiian community?
Yes. The Obama Administration has a strong commitment to enhancing principles of self- determination and self-governance for Native communities, including Native Hawaiians. Notably, in 2010, Secretary of the Interior Salazar and Attorney General Holder sent Congress a letter strongly supporting legislation to reorganize a Native Hawaiian government to which the United States could relate on a government-to-government basis.
Who can submit public comments on the proposed rule?
Anyone may comment on the proposed rule. We are particularly interested in hearing from leaders and members of the Native Hawaiian community and of federally recognized tribes in the continental United States. We also welcome comments and information from the State of Hawaii and its agencies, other government agencies, and members of the public.
What types of public comments are being solicited?
We are seeking comments on the contents of the proposed rule. We welcome all comments from the public, but comments that deal directly with the proposal are most helpful.
The proposed rule has three subparts: General provisions (Subpart A); Criteria for reestablishing a formal government-to-government relationship (Subpart B); and Process for reestablishing a formal government-to-government relationship (Subpart C). Generally, Subpart B sets out the elements required in a request to reestablish a formal government-to-government relationship with the United States and the criteria the Secretary would use to review the request. Subpart C details the process for reestablishing a formal government-to-government relationship, including public comment on the request, and the implementation of that relationship.
The preamble to the proposed rule contains background information on aspects of the proposed rule, responds to comments received on the Advance Notice of Proposed Rulemaking, and summarizes the Department's approach to developing the proposed rule. We welcome comment on that discussion as well.
Will there be public meetings or consultations to discuss the proposed rule?
Yes. We will conduct four meetings by teleconference: two will be open to the public and the other two will target comments from Native Hawaiian organizations and federally recognized tribes in the continental United States. Details for each teleconference are listed below:
Public Meeting
Monday, October 26, 2015
2:00 pm - 5:00 pm Eastern Time / 8:00 am - 11:00 am Hawaii Time
Call-in number: 1-888-947-9025
Passcode: 1962786
Native Hawaiian Organizations Meeting*
Tuesday, October 27, 2015
3:00 pm – 6:00 pm Eastern Standard Time / 9:00 am - 12:00 pm Hawaii Standard Time Call-in number: 1-888-947-9025
Passcode: 1962786
Tribal Consultation
Wednesday, November 4, 2015
1:30 pm - 4:30 pm Eastern Standard Time
Call-in number: 1-888-947-9025
Passcode: 1962786
Public Meeting
Saturday, November 7, 2015
3:00 pm - 6:00 pm Eastern Standard Time / 9:00 am - 12:00 pm Hawaii Standard Time Call-in number: 1-888-947-9025
Passcode: 1962786
*Limited to organizations listed on the Native Hawaiian Organization Notification list, available at www.doi.gov/ohr/nholist/nhol. Please RSVP to
RSVPpart50@doi.gov
for this meeting only. No RSVP is necessary for the other meetings.
This information is also available at
www.doi.gov/ohr
and printed in the Federal Register.
We strongly encourage Native Hawaiian organizations and federally recognized tribes in the continental United States to hold their own meetings to develop comments on the issues outlined in the proposed rule and to submit them to us for the record.
Once the public comment period on the proposed rule closes, what are the next steps in the rulemaking process?
The public comment period for the proposed rule will last 90 days. The Department will then review and analyze those comments along with the testimony received during the scheduled teleconferences to determine if a final rule should issue.
--------------------
http://www.staradvertiser.com/news/breaking/329975781.html?id=329975781&src=em
Honolulu Star-Advertiser, September 29, 2015, Breaking news at 9:14 AM, updated at 10:44 AM, and further updated at 12:55 PM.
Feds propose rules for government-to-government relations with Native Hawaiians
By Star-Advertiser staff
The Obama administration announced today that it has proposed rules covering how the federal government would interact with any future Native Hawaiian government.
In making the announcement, the U.S. Department of the Interior stressed that Native Hawaiians -- not the federal government -- would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.
"The United States has a long-standing policy of supporting self-governance for native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation's largest indigenous communities," U.S. Secretary of the Interior Sally Jewell said in a news release. "Today's proposal is testament to the Obama administration's strong support for our nation's native peoples' right to self-determination."
The proposal takes the form of a Notice of Proposed Rulemaking that followed a series of public hearings across the islands last year. At those hearings, Interior officials heard from many people who cited the illegal overthrow of the Hawaiian kingdom as they opposed any U.S. government interaction with a future Native Hawaiian government if and when it is formed.
The move by the Obama administration comes after the so-called Akaka Bill, which would have established a path to federal recognition for a Native Hawaiian government, failed to pass Congress despite several attempts.
The Interior Department said the notice builds on more than 150 federal statutes enacted by Congress over the last century between the United States and Native Hawaiians.
Hawaii's Congressional delegation and Gov. David Ige unanimously hailed today's announcement.
Ige said, "This issue has been discussed for many years, and I support President Obama and the Department of the Interior's efforts to move it forward. I urge the public, particularly Native Hawaiians, to comment on this possible pathway for the United States and Native Hawaiians to establish a government-to-government relationship. The public comment period for the proposed rule is an invitation for the public to participate in the rule-making process."
"The Native Hawaiian community's ongoing work toward self-determination takes a significant step forward today, and I applaud the Obama administration for its commitment to this effort," U.S. Sen. Mazie Hirono said.
"Native Hawaiians have the right to reorganize a government that they determine is best for them," said U.S. Sen. Brian Schatz. "With today's publication of proposed rules from the Department of the Interior, I urge Native Hawaiians and other interested individuals to stay engaged and to contribute their comments and concerns as the process moves forward."
"These rules incorporate over 5,000 public comments submitted to the Department of Interior, and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government," said U.S. Rep. Tulsi Gabbard. "I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling."
U.S. Rep. Mark Takai thanked the Interior Department and Obama administration "for strengthening the U.S. government's relationship with the Native Hawaiian people. I have always supported Native Hawaiians and will continue to make sure the community's consensus is implemented in Washington at the federal level so that they may have more ownership of their own destiny at home."
But the Grassroots Institute, which opposes federal recognition and the Native Hawaiian constitutional convention, or aha, being planned for next year, questioned the Obama administration's motives for the new proposed rules.
"This is yet another attempt by the Department of the Interior to do an end run around Congress by assuming powers it simply does not have," said Keli'i Akina, president of the Grassroot Institute. "The Congress has clearly indicated that they — and not the DOI — have the power to recognize a Native Hawaiian government. On multiple occasions, they considered and decided not to pass the Akaka Bill, demonstrating that the Constitutional concerns in the creation of a race-based government were real and unavoidable."
Akina is one of the plaintiffs in a federal lawsuit seeking to stop a fall election of delegates to next year's aha.
"The timing of this proposed rule is troubling, as it comes during a Constitutional challenge to an already disputed election and can be seen as an attempt to lend legitimacy to that effort. The DOI was told in no uncertain terms that a large number of Native Hawaiians did not want federal involvement in their affairs. This proposed rule only serves to further confuse and politicize the issue," Akina said in a news release today.
** Website editor Ken Conklin's note: Department of the Interior proposed rule as provided at end of breaking news report:
https://www.scribd.com/document_downloads/283142162?extension=pdf&from=embed&source=embed
** Ken's note: A more permanent and secure link to download the 73 page proposed rule is on the Department of Interior website here:
https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/NPRM%20Part%2050%209.29.15.pdf
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http://us3.campaign-archive2.com/?u=f9a371d0547f107d938233d66&id=cf74b16dd5&e=4a7cf86850
Grassroot Institute press release, September 29, 2015
Grassroot Institute Raises Question About Proposed DOI Rule
Administrative effort to recognize Native Hawaiian government is divisive, Constitutionally problematic
HONOLULU, HAWAII -- Sept. 29, 2015 -- In response to an announcement of a proposed rule from the Department of the Interior purporting to lay out procedures for recognition of a government-to-government relationship with the Native Hawaiian community, the Grassroot Institute of Hawaii raised serious questions about the scope and intent of proposed rule. Specifically, the non-profit watchdog group expressed concerns about the DOI's authority to propose the rule as well as the rule's constitutionality and the tendency to treat Native Hawaiians as a single entity.
"This is yet another attempt by the Department of the Interior to do an end run around Congress by assuming powers it simply does not have," stated Keli'i Akina, Ph.D., President of the Grassroot Institute. "The Congress has clearly indicated that they--and not the DOI--have the power to recognize a Native Hawaiian government. On multiple occasions, they considered and decided not to pass the Akaka Bill, demonstrating that the Constitutional concerns in the creation of a race-based government were real and unavoidable. Those concerns have not disappeared, no matter how much the Department tries to dodge them by focusing on 'recognition' as opposed to 'organization.'"
Dr. Akina continued: "In addition, the continued references by the DOI to the 'Native Hawaiian community' are both perplexing and troublesome. They, of all people, should realize that there is no single voice or group that represents Native Hawaiians as a whole. If anything, the many efforts to create a Native Hawaiian government have revealed just how divided the community is on this issue. Many Native Hawaiians have stated that they will not be part of the state's nation-building process. Is the DOI referring to recognizing the result of the election being held through OHA, Nai Apuni, and Kanaiolowalu? Are they referring to a mobilization effort that could occur through the Hawaiian Home Lands? What about the community of sovereignty activists? The Department's vague use of the phrase 'Native Hawaiian community' is both divisive and culturally insensitive."
"The timing of this proposed rule is troubling, as it comes during a Constitutional challenge to an already disputed election and can be seen as an attempt to lend legitimacy to that effort. The DOI was told in no uncertain terms that a large number of Native Hawaiians did not want federal involvement in their affairs. This proposed rule only serves to further confuse and politicize the issue," Dr. Akina concluded.
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http://www.staradvertiser.com/newspremium/hawaiinewspremium/20150930_feds_yield_to_native_hawaiians.html?id=330059321
Honolulu Star-Advertiser, September 30, 2015
Feds yield to native Hawaiians
Rules proposed by the government would let the indigenous people decide on sovereignty
By Dan Nakaso
Proposed rules announced Tuesday by the U.S. Department of the Interior emphasize that Native Hawaiians -- not the federal government -- would decide how to reorganize a Native Hawaiian government and determine any relationship it would have with the United States.
The proposal follows repeated failed attempts to pass the so-called Akaka Bill, which would have established a path to federal recognition for a Native Hawaiian government. While the news was widely embraced, some Native Hawaiians remained steadfast Tuesday in their opposition to federal government involvement in the process -- interpreting the announcement as a disregard of the wishes of Native Hawaiians.
In outlining the formal Notice of Proposed Rulemaking, U.S. Secretary of the Interior Sally Jewell called Native Hawaiians "one of our nation's largest indigenous communities," who have long been denied a "government-to-government relationship."
"It's fantastic," said Robin Danner, past president of the Council for Native Hawaiian Advancement, who was just elected chairwoman of the Sovereign Councils of the Hawaiian Homelands Assembly.
"It's the news of a lifetime," she said. "The federal government is recognizing that this is our kuleana for the Native Hawaiian people to decide, not the federal government, not the state government. There's a doorway open to us if we want to have that relationship." ("Kuleana" means "responsibility.")
But Tuesday's announcement by the Obama administration also angered many who testified last year during a series of island-by-island hearings on what relationship, if any, the federal government should have with a future Native Hawaiian government.
Hundreds of critics across the state not only rejected the question, but also objected to the hearings and the process -- spurning federal involvement of any kind in re-establishing a Native Hawaiian government because of the illegal 1893 overthrow of the Hawaiian kingdom.
The hearings and subsequent proposed rules are "totally wrong," said Dennis "Bumpy" Kanahele, CEO of the Aloha First organization, which advocates for Hawaiian sovereignty. He argued against a relationship with the U.S. government in last year's hearings.
"I don't agree with any involvement of any kind, whether it's the federal government or the state of Hawaii," Kanahele said. "I cannot believe we're being totally ignored. I gotta believe the powers that be in the state are trying every effort to suppress the national sovereignty of the Hawaiian people."
Hawaii's congressional delegation, Gov. David Ige and the Office of Hawaiian Affairs unanimously hailed Tuesday's announcement.
Ige said, "This issue has been discussed for many years, and I support President Obama and the Department of the Interior's efforts to move it forward. I urge the public, particularly Native Hawaiians, to comment on this possible pathway for the United States and Native Hawaiians to establish a government-to-government relationship. The public comment period for the proposed rule is an invitation for the public to participate in the rule-making process."
In making Tuesday's announcement the Interior Department opened a 90-day comment period.
"The Native Hawaiian community's ongoing work toward self-determination takes a significant step forward today, and I applaud the Obama administration for its commitment to this effort," U.S. Sen. Mazie Hirono said.
"Native Hawaiians have the right to reorganize a government that they determine is best for them," said U.S. Sen. Brian Schatz. "With today's publication of proposed rules from the Department of the Interior, I urge Native Hawaiians and other interested individuals to stay engaged and to contribute their comments and concerns as the process moves forward."
U.S. Rep. Tulsi Gabbard said: "These rules incorporate over 5,000 public comments submitted to the Department of Interior, and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government.
"I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling."
U.S. Rep. Mark Takai thanked the Interior Department and Obama administration "for strengthening the U.S. government's relationship with the Native Hawaiian people. I have always supported Native Hawaiians and will continue to make sure the community's consensus is implemented in Washington at the federal level so that they may have more ownership of their own destiny at home."
But the Grassroot Institute of Hawaii, which opposes federal recognition and the Native Hawaiian constitutional convention, or aha, being planned for next year, questioned the Obama administration's motives for the new proposed rules.
"This is yet another attempt by the Department of the Interior to do an end run around Congress by assuming powers it simply does not have," Keli'i Akina, president of the Grassroot Institute, said in a statement. "The Congress has clearly indicated that they -- and not the DOI -- have the power to recognize a Native Hawaiian government. On multiple occasions, they considered and decided not to pass the Akaka Bill, demonstrating that the constitutional concerns in the creation of a race-based government were real and unavoidable."
Akina is one of the plaintiffs in a federal lawsuit seeking to stop this fall's election of delegates to next year's convention.
"The timing of this proposed rule is troubling, as it comes during a constitutional challenge to an already disputed election and can be seen as an attempt to lend legitimacy to that effort," Akina said. "The DOI was told in no uncertain terms that a large number of Native Hawaiians did not want federal involvement in their affairs. This proposed rule only serves to further confuse and politicize the issue."
But OHA CEO Kamana'opono Crabbe said the Interior Department's proposed rule represents "a momentous day for our Native Hawaiian community."
"It is clear the Department of the Interior agrees it will be the Native Hawaiian community -- and not the federal government -- that would decide whether to organize a Native Hawaiian government, and whether that government would seek to pursue a relationship with the United States," Crabbe said.
Q&A
Native Hawaiian nation-building
Question: What is being proposed?
Answer: The U.S. Interior Department has proposed creating a procedure that would facilitate the re-establishment of a formal government-to-government relationship with a reorganized Native Hawaiian government without involving the federal government in the Native Hawaiian community's nation-building process.
Q: What led to the proposal?
A: In June 2014 the Interior Department issued an Advance Notice of Proposed Rulemaking that resulted in 5,164 written comments from Native Hawaiian organizations, national organizations, Native Hawaiian and non-Native Hawaiian individuals, academics, student organizations, nongovernmental organizations, the Hawaiian Affairs Caucus of the state Legislature, legislators, Hawaiian civic clubs and their members, alii trusts, royal orders, religious orders, a federally recognized Indian tribe, intertribal organizations, Alaska Native Corps. and congressional members, including the Hawaii delegation and former U.S. Sen. Daniel Akaka. The department said that more than half of the written comments were identical postcards submitted in support of re-establishing a government-to-government relationship through federal rule-making.
Q: Would a re-established Native Hawaiian government allow gambling in Hawaii under the Indian Gaming Regulatory Act?
A: The Department of the Interior believes a new Native Hawaiian government would not meet the definition of an "Indian tribe" and thus would not be permitted to allow gambling in Hawaii.
Q: How would a new Native Hawaiian government be organized?
A: The proposed rule would authorize re-establishing a formal government-to-government relationship with a single representative sovereign Native Hawaiian government. But the Interior Department said that government could have a centralized structure or a decentralized structure with political subdivisions defined by island, geographic districts or historic circumstances, or organized in an otherwise "fair and reasonable manner."
Q: How would the proposal affect Hawaiian homesteaders, if at all?
A: The Hawaiian Homes Commission, Kapolei Community Development Corp.'s board of directors and several Native Hawaiian beneficiaries raised concerns that Hawaiian homelands would be "subsumed" by a Native Hawaiian government. The Interior Department said the proposed rule would not diminish any right, protection or benefit granted to Native Hawaiians by the Hawaiian Homes Commission Act. Further, the department said, a reorganized Native Hawaiian government must protect and preserve Native Hawaiians' rights, protections and benefits under the Hawaiian Homes Commission Act and the Hawaiian Home Lands Recovery Act.
Q: Aren't there concerns that re-establishing a Native Hawaiian government would be tantamount to creating a race-based government?
A: According to the Interior Department, four U.S. senators submitted comments generally opposing the rule-making on constitutional grounds and asserted that the executive authority used to federally acknowledge tribes on the mainland does not extend to Native Hawaiians. Another senator questioned the interior secretary's constitutional authority to promulgate rules and argued that administrative action would be race-based and thus violate the Constitution's guarantee of equal protection. But the Interior Department said that the U.S. Supreme Court has made it clear that legislation affecting Native Americans does not generally constitute race-based discrimination.
Q: Would the roll being used by the Native Hawaiian Roll Commission be used to determine who could vote for a new Native Hawaiian government?
A: The Interior Department permits use of the roll but does not require it. It believes that the roll may be one of several sources that could provide sufficient evidence that an individual descends from "Hawaii's aboriginal people." Among other things, the Interior Department said a list of potential voters should exclude all non-U.S. citizens and those under the age of 18 -- but must include all U.S. citizens who meet the provisions of Hawaii's Department of Hawaiian Home Lands.
Submit a comment
The U.S. Department of the Interior's Notice of Proposed Rulemaking can be found at
doi.gov/ohr.
The public has 90 days to comment by:
>> Sending an email to
part50@doi.gov.
Include the number 1090-AB05 in the subject line.
>> Writing or hand-delivering comments to Office of the Secretary, Department of the Interior, Room 7228, 1849 C St. NW, Washington, DC 20240.
Comments will be posted at regulations.gov.
Dan Nakaso, Star-Advertiser
** Website editor Ken Conklin's note: Department of the Interior proposed rule as provided at end of news report:
https://www.scribd.com/document_downloads/283142162?extension=pdf&from=embed&source=embed
** Ken's note: A more permanent and secure link to download the 73 page proposed rule is on the Department of Interior website here:
https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/NPRM%20Part%2050%209.29.15.pdf
---------------------
http://www.staradvertiser.com/editorialspremium/20150930_feds_offer_path_for_aha_result.html?id=330053141
Honolulu Star-Advertiser, September 30, 2015, EDITORIAL
Feds offer path for 'aha result
The Obama administration has opened a door to some form of federal recognition of Native Hawaiians but is leaving it up to the people whether to walk through it.
It's an encouraging advance of an idea that, while opposed by many in the community, is also backed by many as supporting Hawaii's indigenous people's interests.
The U.S. Department of the Interior on Tuesday issued the long-anticipated result of the contentious hearings held throughout the islands last year and has tendered what is plainly a compromise offer.
Under a new rulemaking process, Native Hawaiians can decide if they want to organize a government and in what form -- and then decide whether to establish a government-to-government relationship with the United States.
Critics of the action question its timing, given that there is now a federal lawsuit challenging plans next year for an 'aha, essentially a constitutional convention involving the election of delegates by Native Hawaiians.
And even supporters must concede that the Interior Department's announcement seems pegged to the 'aha.
But time is, in fact, short: Given the dwindling tenure of Hawaii-born Barack Obama in the White House, a president sympathetic to the cause of Native Hawaiian self-determination would need to act pretty soon.
And it would be beneficial to have federal recognition at the ready as an option for the delegates, and the government they may decide to form, to consider.
Of course, Tuesday's announcement was only the start of another round of what surely will be a rancorous discussion, though an exchange that will be conducted in written form.
Once the notice is published in the Federal Register, the public will have 90 days to submit comments on the proposal.
Commenters can go through the online portal (www.regulations.gov, using Docket ID DOI-2015-0005); send an email to part50@doi.gov (including the number 1090-AB05 on the subject line; or mail them to: Office of the Secretary, Department of the Interior, Room 7228, 1849 C Street NW, Washington, D.C., 20240.
The rule adapts some of the facets of the so-called Akaka Bill, the long-contested and ultimately failed legislation to enact federal recognition through Congress.
However, it seems less prescriptive, and that suggests that the federal authorities were sensitive to the stiff pushback they felt in the June 2014 hearings here.
For example, it would require some means of enumerating Hawaiian descent but does not require a specific form of roll.
A few other elements of the rulemaking process:
>> A governing document must be ratified in a referendum that is noticed in advance and is "free and fair," but the form of that referendum is not fixed.
>> Ratification must be by a voter turnout that is "sufficiently large to demonstrate broad-based community support."
Weighing various population data, the Interior Department "concludes that it is reasonable to expect that a ratification referendum among the Native Hawaiian community in Hawaii would have a turnout somewhere in the range between 60,000 and 100,000, although a figure outside that range is possible."
>> The governing document must provide for periodic elections, and for the protection of the rights of Hawaiian Homes Commission Act beneficiaries -- those of 50 percent Hawaiian ancestry who are eligible for a homestead.
The federal rulemaking process has the full support of the governor and the congressional delegation, who noted the rights of Native Hawaiians to pursue self-determination and control of their own resources.
The Star-Advertiser concurs with this basic concept.
Above all, those who have questions or concerns need to engage in the process.
That is the essence of democracy, and it's where self-determination begins.
-------------------
http://www.staradvertiser.com/news/breaking/20150930_List_of_candidates_released_for_Native_Hawaiian_constitutional_convention.html?id=330144011
Honolulu Star-Advertiser, September 30, 2015 Breaking News at 9:51 a.m. HST, updated at 10:46 a.m
List of candidates released for Native Hawaiian constitutional convention
By Star-Advertiser staff
Na'i Aupuni board president J. Kuhio Asam is in charge of running the November election for the 'aha constitutional convention and subsequent Native Hawaiian convention and ratification process.
Some 209 candidates will vie for 40 delegate positions across the islands for the Native Hawaiian 'aha constitutional convention.
Kuhio Asam, president of Na'i Aupuni, which is in charge of running the November election and subsequent Native Hawaiian convention and ratification process, said the candidates are "diverse in their age, backgrounds and purpose. They are representative of a good cross-section of the Native Hawaiian community."
The list of candidates was released today by Election-America, a private national company hired by the independent group Na'i Aupuni to conduct the election.
The delegates will be elected to represent Native Hawaiians who live in and out of Hawaii. They will meet next year at a constitutional convention to work on forming a Native Hawaiian government.
The election breakdown by area is: On Oahu, 110 candidates will vie for 20 delegate positions; Hawaii island, 32 candidates for 7 slots; Maui, 15 contenders for 3 positions; Kauai and Niihau, five hopefuls for two spots; Molokai and Lanai, four candidates for one position; and out of state, 43 contenders for seven slots.
Information on each candidate can be found at
www.naiaupuni.org
or at
https://vote.election-america.com/naiaupuni/bios.htm
Ballots to elect the delegates will be sent to certified voters on Nov.1, Election-America officials said. Votes can be cast by mail or electronically but must be received by Nov. 30.
Native Hawaiians who have not been certified can still apply with the Native Hawaiian Roll Commission (www.kanaiolowalu.org) or at the Office of Hawaiian Affairs (www.oha.org/registry).
Information about the election process can be found at
www.naiaupuni.org
or by emailing
naiaupuni@election-america.com.
The deadline to be certified is Oct. 15.
-----------------------
http://hawaiiindependent.net/story/aha-may-fail-to-give-hawaiians-true-self-determination
Hawaii Independent [secessionist blog], September 30, 2015
Aha may fail to give Hawaiians true self-determination
As OHA and Na'i Aupuni push forward toward the election of delegates to a Hawaiian government convention, the U.S. government is paving the way for Hawaiians to become federally recognized as a tribe.
by Will Caron
Throughout November of 2015, Native Hawaiians who have been registered by the Native Hawaiian Roll Commission will be able to vote for 40 delegates to attend an 'aha, or convention, in which those delegates will convene for the purpose of working out the details of a new Hawaiian government and determining what relationship the governing entity would have with the Hawaiian community, as well as with the State of Hawai'i and the United States of America.
On the morning of September 30, 2015, Na'i Aupuni -- the organization established at the request of the Office of Hawaiian Affairs (OHA) to guide the process along to an election of delegates, a constitutional convention and, if need be, a ratification vote by registered Native Hawaiians -- announced the names of 209 Native Hawaiian individuals who registered as delegation candidates.
"The nomination of delegate candidates is a milestone in the upcoming historic election for Hawaiians to determine if a reorganized Hawaiian government will be formed," said Kūhiō Asam, Na'i Aupuni president. "The candidates are diverse in their age, backgrounds and purpose. They are representative of a good cross-section of the Native Hawaiian community."
But activist Andre Perez believes there are significant problems with the process, starting with the method Na'i Aupuni used to come up with its list of Hawaiians eligible to run as candidates or vote for them. The organization is relying on data collected by the Native Hawaiian Roll Commission for the Kana'iolowalu roll list (as well as data from previous attempts at rolls, such as Kau Inoa).
"We have to remember that this process started with the State of Hawai'i, not the Hawaiian people," Perez told The Independent over the phone. "Hawaiians did not initiate or pass Act 195, which created Kana'iolowalu. The state legislature did, and gave the governor the power to appoint members to the commission. True self-determination does not come with a state-initiated, state-controlled process like this."
On July 7, 2011, Governor Neil Abercrombie signed Act 195 into law. OHA was required to fund the state initiative with Native Hawaiian trust funds, but was not authorized to direct or control the process by which the commission addressed and fulfilled its mandate. The law set out a time frame for Kana'iolowalu to achieve its mission: the registration of 200,000 Native Hawaiians by June 15, 2013. According to OHA, only 21,418 Hawaiians had signed up for the Roll as of September 27, 2013. The commission, headed by former governor John Waihe'e III, had spent $3.3 million of OHA resources and was requesting another $2.5 million when the trustees finally decided to scrap the project.
"So why is Na'i Aupuni using this failed, state-sponsored roll as the basis for their nation-building process?" Perez asks. "Why did OHA send trustee Machado to Washington, D.C., with commission head Waihe'e to meet in secret with the Department of the Interior? The commission's only job is to 'build a roll,' so why are they lobbying in D.C.?"
This is not the first time OHA has attempted a nation-building process, and legislation aimed at obtaining federal recognition has been introduced repeatedly, especially as the various incarnations of the Akaka Bill, named for recognition proponent and former U.S. senator from Hawai'i, Daniel Akaka. Before the Akaka Bill, there was the Native Hawaiian Convention ('Aha Hawai'i 'Ōiwi), the product of years of preparation including the election of delegates from each island, extensive community outreach, the creation of governance models to be considered at a Native Hawaiian constitutional convention and more. Sounds familiar, right?
Activist Leon Siu, in a March 2014 statement, recalled what happened to that attempt to build a nation: "When the state realized that there was a strong possibility that 'Aha Hawai'i 'Oiwi would choose the independence model, the state suddenly yanked the funding, essentially freezing the process in place. Since then, every other OHA/State-funded governance initiative got its plug pulled whenever it arrived at favoring independence."
Department of the Interior | Dawes Act
On September 29, the day before the candidate list was released, the U.S. Department of the Interior (DOI) announced a proposal to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community does, in fact, form a governing body out of the Na'i Aupuni process that then seeks a formal government-to-government relationship with the United States. (Also known as federal recognition, this is a system that has been used for many Native American tribes.)
"The United States has a long-standing policy of supporting self-governance for Native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation's largest indigenous communities," said U.S. Secretary of the Interior Sally Jewell. "Today's proposal is testament to the Obama Administration's strong support for our nation's Native peoples' right to self-determination."
"This issue has been discussed for many years, and I support President Obama and the Department of the Interior's efforts to move it forward," said Hawai'i Governor David Ige. "I urge the public, particularly Native Hawaiians, to comment on this possible pathway for the United States and Native Hawaiians to establish a government-to-government relationship. The public comment period for the proposed rule is an invitation for the public to participate in the rulemaking process."
According to the DOI, the new proposal allows the Native Hawaiian community—not the federal government—to decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.
"On behalf of Na'i Aupuni, we appreciate the U.S. Department of Interior's recognition on the first page of its proposed rule that 'the Native Hawaiian community itself would determine whether and how to reorganize its government,'" said William Meheula, legal counsel to Na'i Aupuni. "The Interior Department's announcement also validates our legal position that Na'i Aupuni's process does not violate the U.S. Constitution or federal law."
The proposal comes on the heels of a public comment period that began last year and included public meetings in Hawai'i, as well as on Native American reservations on the continent. According to the DOI, more than 5,000 members of the public submitted written responses during this process, and the responses overwhelmingly favored creating a pathway for reestablishing a formal government-to-government relationship.
"We've listened to the feedback we received during the public meetings and in writing and worked to improve the proposal to reflect those comments," added Jewell. "We appreciate the many voices on this topic and look forward to hearing from the public on this proposal."
The DOI says that, if a government-to-government relationship is reestablished, it can provide the Hawaiian community with greater flexibility to "preserve its distinct culture and traditions," as well as "special status under federal law that enables the community to exercise powers of self-government over many issues directly impacting community members."
In 1993, Congress enacted the Apology Resolution, which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the federal government to a process of reconciliation. As part of that reconciliation process, in 2000 the DOI and the Department of Justice jointly issued a report identifying, as its lead recommendation, the need to foster self-determination for Native Hawaiians—under federal law. And therein lies the problem for Perez and others who reject the Na'i Aupuni-Kana'iolowalu process.
"We should know the implications of the term 'roll' and the historical legal precedent of native rolls coming out of the Dawes Act," Perez said at an OHA meeting in April. "I've been saying for a long time now that we need to look at the implications that a roll has for our lāhui."
The Dawes Act of 1887 authorized the president of the United States to survey American Indian tribal land and divide it into allotments for individual purchase by Native Americans. Those who accepted the allotments would be granted United States citizenship. The stated objective of the Dawes Act was to stimulate assimilation of Indians into mainstream American society. Individual ownership of land in the European-American model was seen as an essential step. But the act also provided what the government would classify as "excess" Indian reservation lands remaining after allotments which could be sold on the open market to non-Native Americans.
The Dawes Commission registered Native Americans in what became known as the Dawes Rolls. The Curtis Act of 1898 completed the process by which the federal government no longer recognized tribal governments and abolished tribal communal jurisdiction of Indian land. During the ensuing decades, Native Americans suffered extreme dispossession of lands and other social ills. In recognition of this failure, Franklin D. Roosevelt signed the U.S. Indian Reorganization Act in 1934, ending allotment and reaffirming the right of Native Americans to organize and form their own governments.
"The DOI's newly proposed criteria to federally recognize a Hawaiian government exposes the massive contradictions and overarching failure embedded within Hawai'i's settler colonial state," said Hawaiian scholar and indigenous activist David Maile. "The language in these proposals attempts to normalize an uneven relationship: 'federal recognition expresses self-determination for Indigenous peoples.' Consider for a moment the remarks by Secretary Jewell:
The United States has a long-standing policy of supporting self-governance for Native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation's largest indigenous communities.
"If the U.S. had historically supported Native peoples' self-governance, why are these proposed rules necessary? Why would we need a 'pathway to sovereignty,' unless sovereignty had been stripped away by the United States? This is but one of many contradictions," continued Maile.
Another glaring contradiction is the outright dismissal of the overwhelming opposition by Hawaiians, demonstrated in public testimony inside and outside of Hawai'i. According to Maile, who attended meetings last summer on the continent, the DOI's characterization of the majority of testimonies as favoring federal recognition is false.
"The DOI proposal underwrites opposition by, instead, highlighting a legal genealogy of racist, colonial policies like Public Law 103-150, also known as the Apology Resolution, to articulate 'deep regret' in order to provide 'reconciliation' as a masquerade to control, incorporate and subordinate Hawaiian sovereignty," Maile said.
According to Maile, the continental DOI hearings were also attended by some Native American scholars and leaders, many of whom testified against federal recognition, urging Hawaiians to learn from the experiences of Indigenous Americans who gave up their sovereignty claims in exchange for the benefits of federal recognition that Secretary Jewell touts in her press release.
"Those of us who said 'no,' last summer, to the DOI proposal for new rules constituted a substantial portion of testimonies at the DOI's public meetings. We are saying 'no' yet again to this proposal. We say 'no' to federal recognition, and we say 'no' to the ongoing conditions of U.S. occupation, settler colonialism, institutional racism, astronomy-industry development, extractive capitalism, globalized tourism, militarization and much more," said Maile. "It is within these marginalizing and violent, but also refused, conditions that Secretary Jewell paternalistically claims Native Hawaiians are 'one of our nation's [U.S.] largest indigenous communities.' We weren't, aren't, and never will be. But yet, we are always already being made to be."
Moving toward the 'aha
Whether you support federal recognition or believe it to be just another form of control by the state over Hawaiian self-determination, the Na'i Aupuni process is moving forward. Looking through the names on the list of candidates for the 40 delegation seats, Hawaiian leaders from both sides of the federal recognition issue have stepped forward in an attempt to steer the convention either toward or away from it.
Some names of interest include current OHA trustee Rowena Akana, University of Hawai'i law professor Williamson Chang, Hawai'i Community Development Authority commissioner Mahealani Cypher, state senator Brickwood Galuteria, former state representative Faye Hanohano, current state rep. Kaniela Ing, pro-Thirty-Meter Telescope commentator Bronson Ka'ahui, former Abercrombie administration "Homelessness Czar" Collin Kippen, Joshua Lanakila Mangauil and Hina Wong Kalu, both activists and educators, freelance journalist Mary Ka'iulani Milham, and long time activist and sovereignty movement leader Walter Ritte Jr.
Some, like Galuteria, clearly support federal recognition. The senator released the following statement after the DOI announcement was made:
For decades, the United States has supported the indigenous rights of self-determination and self-governance at home and abroad. At the same time, it has neglected to recognize these rights for Hawai'i's indigenous people. Today, the Obama Administration has made good on the President's commitment to correct this injustice by publishing a proposed rule on reestablishing a government to government relationship with our Native Hawaiian people.
I commend Secretary Jewell and her staff for creating a pathway for recognizing a Native Hawaiian government. Like many of my colleagues, I have long believed in the Native Hawaiian ability to improve our own lives, and the shared future of our children. A government-to-government relationship between the Native Hawaiian people and the United States will clarify for the courts that our programs are not race-based, but based on our political status as an indigenous people. As the Native Hawaiian community rises, so does Hawai'i.
Others are seeking a seat in the delegation in order to be a voice for change in the process. "My intention is not to derail the agenda, but to throw some brakes on so we have more time as a lāhui to do our due diligence in determining the best path forward. I don't think we have done that," Milham told The Independent.
"My concern is that this process has alienated a large faction of our lāhui, who favor independence and restoration of our sovereignty, and is now proposing to go forward in nation-building without their participation and their free, prior and informed consent," continued Milham. "There is massive contention about where we want to go, and legitimate mistrust of the 'aha stemming directly from mis-steps along the way, like coercing kānaka to enroll in Kana'iolowalu by threatening to disenfranchise them as well as their keiki and mo'opuna. Those were big-time fighting words; the opposite of unifying.
Then of course, when Kana'iolowalu enrollment was a dismal failure, with only about 20,000 names after a year and millions of dollars spent, they rolled over all those names from past registries. That was another trust buster. And finally the claim of neutrality, neither favoring federal recognition or independence, from OHA has been mired in the obvious bias toward federal recognition in the organizing of the 'aha," said Milham. "The combined effect of all these violations of trust has been to alienate kānaka from this nation-building process. That's not democratic and, if it's not corrected, it will delegitimize the outcome of the 'aha. We need to make this process inclusive. We can never unify as a people if we don't do that first. Rather than suppressing these dissenting voices, it will, rightfully, make them louder."
For Perez, however, participating in the convention is inherently a pro-federal recognition move. "I believe that my activist friends that have decided to run for a delegate seat are doing so out of sincere effort to make things better," Perez told The Independent. "Their plan is to protect independence by preventing bad decisions from within. But I would say that, in this case, their analysis is incorrect. In order to get the outcome they want, they'll need a majority in the convention -- that means 21 delegates that are both independent of external pressures toward recognition and believe in holding out for true self-determination. I simply don't see that happening.
And even if they did achieve a majority, what then? They've participated in a state-sponsored process and, in doing so, have given it legitimacy," said Perez. "You cannot cook diner with food that is rotten. No matter how you dress it up with flavors and seasonings, you can't make good diner with bad food."
For Milham, she understands Perez' concerns but still believes participating is the right thing to do. "I think if our money is going to be used to create a space for nation building then, yes, we need to be in that mix where decisions are being made," she said. "Like it or not, decisions are going to be made there that affect all of our lāhui. I want to be there for that."
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http://www.hawaiinewsnow.com/story/30158275/more-than-200-people-running-for-40-spots-to-help-form-native-hawaiian-government
Hawaii News Now [3 TV stations], September 30, 2015
More than 200 people running for 40 spots to help form Native Hawaiian government
By Mileka Lincoln
HONOLULU (HawaiiNewsNow) -- 209 candidates are running for 40 spots to help form a Native Hawaiian government.
The long-awaited list of people wanting to participate in the landmark Na'i Aupuni election was released just one day after the Department of Interior announced a pathway toward federal recognition for Native Hawaiians -- which has some asking what impact, if any, it will have on the November vote.
"It doesn't change anything about the work Na'i Aupuni is doing. It doesn't change anything about the elections," said Robin Danner, who founded the Council for Native Hawaiian Advancement and was a roll commissioner for Kana'iolowalu, the enrollment list of registered Native Hawaiian voters for the upcoming Na'i Aupuni election.
"This is a huge opportunity not just for Native Hawaiians, this is a huge opportunity for all Hawai'i and we can choose to take it next year or the year after -- but that door will always be there. The action that President Obama and his administration has taken through the Department of Interior means that a doorway has been carved out, it means that the door has been unlocked and we can go through that door anytime they're ready," said Danner, who petitioned Obama for federal recognition in-person at the White House.
Bumpy Kanahele, one of the most recognizable names in the Native Hawaiian sovereignty movement, is less enthused about the Interior Department's proposal, but even though he says he's wary of broken promises he also believes this the closest Native Hawaiians have come to self-governance.
"I've been in this over 35 years now and I think this is the real shot we got just because President Obama is there," said Kanahele, one of the 209 candidates running in the Na'i Aupuni election.
"The first step to me is that we proclaim the restoration of our national sovereignty. Protect that and we're going to find out that a lot of doors are going to open in different ways that would allow us to govern ourselves and not pick a government," explained Kanahele.
Some have questioned whether the federal announcement undermines the upcoming Na'i Aupuni election, in which Native Hawaiians will choose delegates to craft their own government -- but roll commission officials disagree.
"Many people get confused about federal recognition or speak about federal recognition as if that is a type of governance and it is not. Federal recognition is a process to determine what kind of relationship your native government is going to have with the United States," said Danner, who believes the Interior Department's proposal will ensure success for whatever style government Native Hawaiians choose to ratify.
"If anything, the state and the federal government are going to see the power of the Hawaiian vote from all of us. They got to watch for the Hawaiians on every level," said Kanahele.
Voting for Na'i Aupuni delegates begins in November. They will then take part in a convention or 'Aha next Spring to decide what type of nation or government, if any, will be created or reorganized. Native Hawaiians who are registered to vote will then get to participate in a ratification process to accept or reject any document or constitution created at the 'Aha.
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