Tag Archives: Federal recognition

Response to Kaʻiulani Milham’s “A Game Changer for Kanaka Maoli”

Kaʻiulani Milham, a writer and participant in the Naʻi Aupuni constitutional convention, published a thoughtful editorial in Civil Beat about a topic very relevant to the readers of this blog, so I thought Iʻd give my line-by-line two cents. She often hits the mark, but sometimes, in my view, misses it.

With the election of Donald Trump as president of the United States, Kānaka Maoli face a vastly altered landscape in our pathway to self-determination and the question of whether or not to accept the Department of Interior’s final rule, for federal recognition.

Probably the main point that Milham misses for Fed-Rec, which is that itʻs dead. It was to be done by executive order, so even if Obama signs on Jan. 19th, Trump will unsign on the 20th.

The country we contemplated a nation-to-nation relationship with, is not the same nation we imagined last week.

But it is.The ill-will toward Hawaiians was always visible in Congress, which refused to consider the Akaka Bill for a dozen years (1999-2012). Anti-affirmative action sentiment (73%) was always going to be against us (if the Akaka Bill and Fed-Rec were something you wanted).

The aloha we uphold — kindness, welcoming and inclusion — are the polar opposite of Trump’s xenophobic essence and the underlying national spirit of exclusion his election revealed.

Yes and no. America is an incredibly divided country – thatʻs been clear for a while now.

His race-driven hatred for people of color, from Muslims to Mexicans, will be felt by Kānaka Maoli, too. Guaranteed.

I basically said this in my post “Hawaiians in Trump’s America.”

What’s worse is that the hatred he represents reflects the values of his share of U.S. voters who voted in this election.

Those who think as Trump does — as well as those willing to look the other way when he repeatedly showed himself to be a rampant racist and misogynist — have been empowered by his fascist rhetoric. They won’t be backing down from their bully pulpit any time soon.

The economic, health and social conditions of Hawaiians will not improve under a Trump presidency.

Probably true.

Nor can we afford to delude ourselves that federal recognition will protect our cultural and natural resources.

When I was on John Kane’s radio show, Letʻs Talk Native (WBAI, New York City), I read the litany of Hawaiian socio-economic ills, and he said “We have all those things with Federal Recognition!” Heʻs one Native American who gets it.

The shocking images from the Standing Rock Reservation in North Dakota, flooding our social media pages for weeks now, has shown just how far America’s corporatocracy will go to rape the natural resources, culture and sacred places of native people.

If Barack Obama has not had the moral courage to stop the atrocities being committed there in the name of Big Oil and Energy Transfer Partner’s Dakota Access Pipeline, we would be insane to believe Trump will do better.

And you were about to celebrate “Thanksgiving,” created to thank Native Americans who helped pilgrims survive their first winter, while Standing Rock was going on? Thereʻs another holiday on Monday, Nov. 28 – Lā Kuʻokoʻa, Hawaiian Independence Day – no guilt required in its celebration.

But the “status quo” also looms like a bogey man — with impossibly high-priced housing, a failing state education system, high incarceration rates and low graduation rates and countless other chronic social and health issues for Hawaiians.

Under the specter of Rice v. Cayetano and other anti-Hawaiian U.S. Supreme Court rulings, federal recognition advocates fret over the anticipated loss of federal funds Hawaiians have become dependent on to revive our still threatened ʻŌlelo Hawaii and other foundational pillars of our culture.

See above comments on affirmative action.

Fear of losing these programs and funds drove our trustees at the Office of Hawaiian Affairs to invest an estimated $43 million, on various attempts at federal recognition, that we now see has been spent for naught.

Gambling on a tag-team effort by back-to-back Obama and Hillary Clinton administrations to carry their federal recognition dream into reality, our trustees have been caught with their pants down.

How foolish to think tying our futures to the vagary of American politics was the safest course.

Yet Milham participated in Naʻi Aupuni. Is this an admission?

We are not safe.

Not on any level.

More importantly, as Haunani K. Trask famously declared on the 100th anniversary observance of the overthrow of the Hawaiian Kingdom in 1993, “We are not Americans!”

In a larger, pragmatic sense, none of us here are “Americans.”

Possibly true, but it misses the point that some really arenʻt Americans – oneʻs citizenship is not a matter of opinion. Some Hawaiians have no American ancestry and thus retain only Hawaiian citizenship.

Now, because of this election, and what it portends for American politics in the foreseeable future, we all must honestly consider how maintaining ties to America impacts all of us in Hawaii.

These islands are 2,471 miles away from the nearest American soil, a world a way culturally from Washington, D.C.

With a climate change denier entering the Oval Office, and scientists concluding that climate change-induced sea level rise will hit Hawaii harder than anywhere on Earth, we have to ask ourselves:

When did the deciders in Washington, D.C. ever prioritize the well being of Pacific Islanders?

I asked myself a similar question when I was looking for graduate programs – in university departments itʻs as if the Pacific does not exist.

Not in post WWII Hawaii when America used Kahoʻolawe for a half-century-long bombing campaign that broke the island’s water table and left it uninhabitable, littered with unexploded ordinance that largely remain below the surface after $400 million spent on clean up.

And only got 70% of the surface and 10% of the subsurface.

Not in 1946 when America began its 56-year bombing run on Bikini Atoll, or when it dropped a hydrogen bomb there in 1954, leaving the Marshall Islands toxic to this day.

Not for the last 45 years as America invited half the world’s armed forces to use Hawaiian waters for RIMPAC’s biennial exercises with their devastation of our marine resources.

Not in 1997 when America rejected the Kyoto Protocol on Climate Change, turning its back on sea-level rise impacts to Pacific peoples.

Not when Tuvalu began its evacuations, as sea-level rise inundated their islands, or when Kiribati bought land in Fiji in preparation for evacuations to come.

Not in 2014 when Obama announced the Pacific Pivot, further militarizing the Pacific and putting Pacific peoples firmly in the scatter-gun pattern of collateral damage from America’s future wars.

Not today when America’s reluctant signature to the Paris Climate Accord is threatened with abrogation by Trump.

If America puts this little value on protecting the Pacific, our Hawaiians Islands and Pacific Islanders in general, how can any of us here in Hawaii feel safe?

Does Trump think of Hawaii when he says he’s going to “Make America Great Again?”

More likely he’ll put Hawaii in the crosshairs of America’s enemies.

The reality for Hawaii is, this unbalanced, undisciplined, inexperienced American president will have unprecedented potential to fatally bungle foreign relations with North Korea, China or some other American enemy.

Hawaii, being the nearest target, will be attacked just like it was on Dec. 7, 1941.

Hawaiians, unquestionably, have suffered most from the imposition of American rule over our islands, but we’re NOT the only ones who will suffer if it continues.

Brown or white, we in Hawaii are all Pacific islanders.

Not exactly. Some people here think weʻre an annex of Southern California.

Whether Hawaii will survive for our future generations will depend on our resolve to form a unified independent Hawaiian government.

We can confront the challenges of restoring Hawaiian Independence together, wait to see what American politics will bring, or slowly sink beneath the waves of sea-level rise, climate change induced mass extinctions and the myriad other environmental threats that stand before us.

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Means and Ends: Process and Results Orientation

With the Naʻi Aupuni convention under way, different styles of negotiating are being brought to light. Professor Williamson Chang wrote a public grievance against one participant who he saw as being obstructionist and belligerent. I heard that the group adopted, and insisted on, Robert’s Rules of Order (I happen know that Pokā Laenui, a participant, is a strong advocate). But the “debates” in the movement, and even more tellingly – their after effects, have often been focused on outcomes at the expense of process.

The very fact that Naʻi Aupuni is meeting at all is the outcome of a results orientation. The US Supreme Court (whose jurisdiction the organizers accept!) enjoined the election pending review. Following the letter of the law, rather than its spirit, Naʻi Aupuni organizers simply sidestepped the ruling and cancelled the election but continued with the convention.

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Which mode Hawaiians should adopt and encourage comes down to one question: Do you believe in democracy? Even though the Hawaiian Kingdom was an emerging democracy, not all Hawaiians in either the independence or Fed Rec movement do. But many more claim to believe in democracy, while being unwilling to tolerate its slowness, and tendency to produce compromises-that is to say, compromised results. The current Republican style of “all out war” – against Obama, Democrats, and it seems, sanity – does not serve as an inspiring example.

But a simple question faces us: do we want our way, or an outcome that everyone involved can live with?

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The Rule Change

The effort for Federal recognition of Native Hawaiians for the purposes of creating a governing entity went through three stages, or attempts: The Akaka Bill, direct recognition by the Department of Interior and the rule change.

Dept. of Interior (DOI) Hearings:

https://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community

In this latest (and what seems to be the most successful) attempt DOI looked to reestablish government-to-government relationship between Federal government and Native Hawaiian community. On June 18, 2014, the DOI stated,

The Secretary of the Interior (Secretary) is considering whether to propose an administrative 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 purpose of this advance notice of proposed rulemaking (ANPRM) is tosolicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. In this ANPRM, the Secretary also announces several public meetings in Hawaii and several consultations with federally recognized tribes in the continental United States to consider these issues.

Secretary of the Interior, Sally Jewell stated “The Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” Public hearings throughout Hawaii, from June 23 to August 8, 2014, which I wrote about in the Nation magazine, asked 5 “Questions to be Answered:”

  1. Should the Secretary propose an administrative rule to recreate a government-to-government relationship with the Native Hawaiian community?
  2. Should the Secretary assist the Native Hawaiian community in reorganizing its government?
  3. What process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
  4. Should the Secretary instead rely on reorganization through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
  5. If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
Chang_Williamson _1

Prof. Williamson Chang

On September 29th, 2015, the DOI released the rule change. UH Law Professor Williamson Chang released the following statement in response:

The Department of Interior issued its long awaited proposed rule as to a Native Hawaiian Governing body. It was not much. The Federal Government is giving very little. If this is the last word on the federal government and Hawaiians, from the point of view of the United States’ the history of Hawaii ends with a “whimper not a bang”
1. It starts by noting that only the written comments counted, not the vehement oral testimony.
2. It is premised on false history: At page 6 of the long document, it states the Republic of Hawaii ceded its lands to the United States and that Congress passed a joint resolution annexing the Hawaiian Islands. Accordingly, all that follows flows from a flawed premise: The United States acquired the Hawaiian Islands and has jurisdiction. Moreover, it claims that the United States has title to the crown and government lands.
3. Even so, it gives very little. It would make a consenting Native Hawaiian government “just like” a tribe, but not a tribe.
4. The law that applies to tribes would not apply to the Hawaiian entity. Congress would have to explicit[ly] write Hawaiians in to Indian programs—just as it is today. No gain.
5. It admits that the purpose of the proposed rule is to protect Hawaiians from constitutional attacks on Hawaiian-only entitlement programs. The Department of the Interior, however, does not control the U.S. Supreme Court. The Court would still be free to strike down Hawaiian only programs if it so desired.
6. The Hawaiian governing entity gets no lands by this proposal
7. The proposal does not affect Federal holdings or title to the Crown and Government lands.
8. There is to be no compensation for past wrongs.
9. The rule limits the Hawaiian government to Hawaiians only.
10. Only one Hawaiian government can establish a relationship with the Federal Government under this proposal.
11. It precludes federal recognition of a restored Kingdom of Hawaii, or Provisional Government that would become a State either as a Kingdom or any other.
12. The Hawaiian Government cannot be in violation of “federal laws” such as the prohibition on ‘titles” in the U.S. Constitution—thus no quasi-Kingdom either.
In summary—and this is from a very brief reading. I may be in error, I may have overlooked various important sections, but in the name of getting this to you as soon as possible. Here is the link to the proposal, its supporting documents and frequently asked questions.

The Notice of Proposed Rulemaking read:

The U.S. Department of the Interior is proposing 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 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 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 comments to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.

Members of the Hawai’i Congressional delegation predictably responded in favor of the rule change, as did Governor Ige. Rep. Tulsi Gabbard’s statement was perhaps the most substantive:

Many indigenous groups in the U.S. have the right of self-determination, and today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country. These rules incorporate over 5,000 public comments submitted to the Department of Interior (DOI), 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.

The list of candidates for delegate to the constitutional convention was released by Na’i Aupuni the next day. It can be viewed here, but prominent candidates included John Aeto, Keoni and Louis Aagard, OHA trustee Rowena Akana, former Mayor Dante Carpenter, Prof. Williamson Chang, Jade Danner, Prof. Lilikala Kame’eleihiwa, Senator Brickwood Galleria, Adrian Kamali’i, Sovereignty leader Dennis “Bumpy” Kanahele, Colin Kippen, Prof. Daviana McGregor, former OHA administrator Clyde Namu’o, and Native Hawaiian Legal Corp. director Moses Haia, among many others.

There is a question of whether the rule change gives the kind of legal protection that was the point of Federal recognition, or if it is merely a Federal sanction of a process already happening. The Hawai’i Independent ran a story questioning the validity of the rule change:

“We have to remember that this process started with the State of Hawai‘i, not the Hawaiian people,” [Andre] 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.”

Keanu Sai happened to speak to my class the day after the rule change. As I pondered the question of whether this was a victory for the Fed Rec set, it seemed to have no effect on Sai’s view that it was simply more Federal legislation inapplicable in foreign (Hawaiian) territory.

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Media Coverage of DOI Hearings Off-Base

‘If they can get you asking the wrong questions, they don’t have to worry about answers.’

Thomas Pynchon, Gravity’s Rainbow

Randall Akee wrote in the Hawaiʻi Independent that media coverage prior to the Department of Interior hearings was “presumptuous.” Iʻm finding that the coverage during the hearings seems to miss the point. The Star-Advertiser lead article was headlined “Hawaiians Reject Federal Input.” While this is somewhat accurate if read in the right way, it could easily be misconstrued as Hawaiians rejecting the input of the Federal government. What Hawaiian rejected was the opportunity to give input on several questions pertaining to the relationship between their “community” and the Federal government. This was followed up with the headline “Conduct at Native Hawaiian Meetings Bemoaned.” Rather than conduct, the media should focus on content. Hawaiians are now asking the right questions, including “by what authority are you in Hawaiʻi?” This questions the process, their presence and undermines their assumptions – namely, that annexation was legal.

Civil Beat ran a negative headline: “Kanaka Maoli to Feds: ʻGet Out of Our House! Go Home!'” While this is also accurate in a sense, focusing on the aggressive delivery of a minority of the speakers undermines the quite valid and rational logic of the speakers (even the aggressive ones). Chad Blair writes: “’Get out of our house!’ several speakers told the Interior panel, which included Esther Kiaaina, a senior adviser to Interior Secretary Sally Jewell. ʻGo home!'”

Leona Kalima at the Honolulu hearing. Photo: Civil Beat.

Leona Kalima at the Honolulu hearing. Photo: Civil Beat.

Blair goes on: “they cited analyses of treaties, bills, acts, resolutions, petitions and law that led them to passionately believe that Hawaii is quite independent of the other 49 states.” Nevermind the actual content of the “treaties, bills, act, resolutions, petitions and law,” Hawaiians, according to Blair simply “believe … the U.S. government had no jurisdiction in the islands.” Perhaps Blair was exercising journalistic neutrality, but this is where such a practice may be misguided. The entire system is biased toward the Federal viewpoint and against the Hawaiian perspective. Attempting to balance these with judgement-free accounts is taking the side of power.

The only major media site that got it right was the Huffington Post, whose headline read “Hawaiians Say ‘This is Our Country.'” This sums it up very eloquently.

Written testimony can be submitted for 60 days from the start of the hearings at this site:

http://www.regulations.gov/#!submitComment;D=DOI-2014-0002-0005

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Sovereignty and Mental Models

When Office of Hawaiian Affairs CEO (Kapouhana) Kamanaʻopono Crabbe wrote his letter to US Secretary of State John Kerry asking what risks OHA might be incurring under international law, his framework for understanding, as well as that of the opposing Trustees, were examples of mental models.

OHA CEO Kamanaʻopono Crabbe

Crabbe’s questions were:

First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?

Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?

Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?

Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?

Chairperson Collette Machado’s response in the form of a letter stated that Crabbe does not understand the extent to which the US will hold on to Hawaiʻi – ostensibly for military purposes. But she offered no evidence of this “fact,” which in reality was not a fact at all, but a belief.

In The Power of Impossible Thinking, authors Yoram Wind and Colin Crook (2006, 5) note that:

Almost every aspect of our lives is shaped in some way by how we make sense of the world. Our thinking and our actions are affected by the mental models we hold. These models define our limits or open our opportunities. Despite their power and pervasiveness, these models are usually virtually invisible to us.  We don’t realize they are there at all.

What we have in the OHA crisis is a conflict of mental models. One side sees law as the driving force behind Hawaiʻi’s “limits and opportunities,” the other sees only power. According to Wind and Crook (2006, 9), we are awash with sensory data all the time, and are only able to make sense of the world by “choosing to ignore some of the external world.”

Clearly the majority of Trustees, like the majority of Americans, choose to ignore international law. But perhaps Crabbe’s side (and I’ve made my allegiance to this side quite clear) ignores power to some extent. Keanu Sai’s  Hawaiian Kingdom blog published a post asking “were these rhetorical questions?” This post explained the legal basis for asking the questions, but did not address the strategy behind Crabbe’s action. Perhaps this is intentional, but an explanation of strategy, in addition to the legal case might make Crabbe’s position more compelling.

By exposing the mental models both sides hold, people may be better able to make informed, rather than reflexive, decisions on their positions regarding Hawaiʻi’s present and future political status. Wind and Crook (2006, 52) point out that age is a decisive factor in openness to new ideas, and we see this in sovereignty politics, with older Hawaiians understandably wanting to see something in their lifetime. This is not to say that the young are entirely better positioned – their very openness makes them more prone to fads.

In The Race for Nationhood, I posited that these two sides (independence and Federal recognition) were racing to see their model implemented, but I came to think this is a race for the meaning of nationhood. In this race for meaning we need to be aware of how our own minds free or deceive us.

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The Race for Nationhood

There’s something happening here.

What it is ain’t exactly clear. 

Buffalo Springfield

I began to notice a little over a year ago that there was a kind of “race” on for nationhood – that is, for the kind of nation we as Hawaiians would be(come). At that time I was beginning to hear the whispers of a new strategy, post-Akaka and Inouye, for Federal Recognition through the executive branch. This was a race in itself, as Obama’s term was seen as the deadline for any action on Federal Recognition (although as the spouse of the signer of the Apology Resolution, HIlary Clinton may hold out hope for Fed Rec). But I also noticed an uptick in progress on the independence front, mainly in the work led by Keanu Sai. And it is this race between these two mutually exclusive forms of sovereignty that I focus on in this post.

This week, we hear of major developments on both fronts. This came from OHA in a joint statement by Board chair Collette Machado and CEO Kamanaʻopono Crabbe, ostensibly showing their unified stance after Crabbe’s memo to the State Department that seemed to indicate a preference for independence:

OHA’s top leadership also applauded the Obama Administration for reaffirming the special political relationship between the federal government and the Native Hawaiian people. The federal government is considering whether to take administrative action on reestablishing a government-to-government relationship with Native Hawaiians.
 “For decades, OHA and other Native Hawaiian organizations and individuals have advocated for the creation of a pathway to reestablish a formal government-to-government relationship with the United States, and to protect existing Hawaiian rights, programs, and resources,” said Machado and Crabbe.
Screen shot 2014-05-28 at 5.40.06 PM

“Prerule” on Dept. of Interior action facilitating “government-to-government” status for the Hawaiian “community” (via Trisha Kehau Watson)

On the independence front, we hear that the Geneva Academy of International Humanitarian Law will list Hawaiʻi in its War Report for 2013 as an occupied state (state is used here as in “nation-state” or country). The 2012 War Report listed nine “belligerent occupations,” i.e., occupations by warring states. Hawaiʻi is considered in this view as being occupied belligerently because it was a neutral country being pulled into the Spanish-American War in 1898. Other occupations in 2012 included:
Azerbaijan by Armenia; Cyprus by Turkey; Eritrea by Ethiopia; Georgia by Russia; Lebanon by Israel; Moldova by Russia; Palestine by Israel; Syria by Israel; and Western Sahara by Morocco (hawaiiankingdom.org/blog).
While a seemingly academic report, because the Academy is based in Geneva, it will certainly be read by United Nations officials, and thus has the potential to change the dialog on Hawaiʻi’s status. The video discusses the 2012 Report, but is instructive in terms of the agenda (or lack thereof) of its assemblers.
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It is possible that the Obama Administration’s sudden interest stems from the growing knowledge of the idea of occupation, and possibly even from the report itself. It is in this sense that I use the term “race” – a (probably unwitting) contest between two mutually exclusive approaches to nationhood, the stakes of which could well leave a permanent mark on the direction of Hawaiʻi’s status under national and international law.
The War Report is available from Oxford University Press for £39.99.

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