Tag Archives: Hawaii statehood

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?
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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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Filed under academia, Education, Globalization, Hawaiian history, intellect, law

Response to Gerald Smith’s “Host Culture in Hawaiʻi is just a Myth”

Gerald Smith was right and wrong in his Civil Beat article “Host Culture in Hawaiʻi is just a Myth.” Hawaiians may not be the “host” culture, and it’s true as he says, that neither Hawaiians nor other non-indigenous groups are here by choice, nor by invitation. In fact, Kamehameha II gave the first group of foreigners to ask permission, the Congregationalist missionaries in 1820, a probationary period of one year. The deadline for reviewing their stay was neglected and within a generation they were entrenched in government and the economy. I often wonder if the term “host culture” is merely a convenient one for the tourism industry, as it creates the impression – a questionable one – that tourist are welcome guests. Smith is wrong, however, on several counts. His claim that “Many Native Hawaiians would like us all to leave and restore the kingdom that was taken away by the United States,” is unsupported by any evidence. Just as the Hawaiian Kingdom never ejected even its most troublesome residents, the Hawaiian movement has not called for non-Hawaiians “all to leave.”

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Kūkaniloko march opposing Stryker brigade, 2006. Thatʻs me looking in the wrong direction as usual. Photo by Michael Puleloa

What is problematic is Smith’s assertion that everyone in Hawaiʻi is equal in the eyes of the law. Putting aside the quite valid claims of independence advocates for the moment, the State of Hawaiʻi recognized Hawaiians as the Indigenous people of Hawaiʻi in 2011. Over one hundred pieces of Federal legislation, beginning with the 1921 Hawaiian Homes Commission Act do the same. To simply brush aside these forms of recognition that Hawaiians are unique in the eyes of the law, is troublingly close to what has been called “white indigeneity.” What can be said of narratives of white indigeneity is that they are widespread. Such claims are seen in New Zealand, Australia, the US and elsewhere. What cannot be said is that they are taken seriously. I happened to observe the phenomenon in the New Zealand parliament: one conservative member cited the respected historian Michael King to support his contention that pakeha (Caucasians) were Indigenous. To this another member asked if the “honorable member” was familiar with the UN definition of Indigenous.

Smith establishes his kamaʻāina credentials by stating that he observed the attack on Pearl Harbor. If this is the case, he certainly did not take Hawaiian history in school, even if he went to school here, as it wasnʻt required until the 1970s. So one is left to wonder where his understanding of Hawaiian history comes from. Likely its from Gavan Daws’s Shoal of Time, still the most read general history of Hawaiʻi. The book’s chapter on Statehood is entitled “Now we are all Haoles.”

Smith’s contention that “the people who live here voted to become a state, so some will never accept their fate.” was roundly and very publically critiqued on its 50th anniversary in 2009, with very little in the way of counter- arguments.  The link in his article that ostensibly supports this “fact” takes the reader to history.com – as Hawaiian history is not well-known in Hawaiʻi, citing an external source does not inspire confidence in the reader. This was taken into consideration by the UN; in 1996 the Star bulletin headline read “UN may find statehood illegal.” It was even tacitly recognized by the local majority. There are fireworks in Waikiki every Friday, but none on the 50th anniversary of statehood. Apparently Friday is a more important event.

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The State of Hawaiʻi – Part 1

A few days ago, Hawaiʻi celebrated, or failed to celebrate, the fifty-third anniversary of Statehood. The seeming apathy that perennially surrounds this not-so-holy holiday provides a gauge on the political climate in the islands. Most people now know that the history behind statehood, annexation and overthrow is so contested that silence is a better response than engagement. I even find myself avoiding engagement on these topics in some situations.

Overall, there a few issues which come to forefront in the public consciousness today. In this post, I provide my reading of these front-burner issues as an overview of Hawaiʻi’s political landscape. The first, and probably foremost issue is surprisingly limited in scope in terms of the  proportion of people it affects: rail. I say limited – of course the tax burden is massive, but it only applies to Oʻahu, and the project only benefits West Oʻahu, but it dominates headlines in our statewide newspaper like few issues have in the past 20 years.

RAIL

Thereʻs no shortage of views on rail. The project revived the political career of one of most unpopular politicians in recent times, Ben Cayetano (though his tell-all book probably helped build sympathy for his record as Governor). The public has proved fairly fickle on the topic of rail, voting for the project in 2008, then voting in a plurality for the otherwise unpopular, single-issue Cayetano this month. Geography played a key role in the original vote, as the districts rail was to serve voted for the project and Windward and East Honolulu, and even Waianae voting against it (though Nanakuli voted for it). This breakdown shows the distribution of the population is heavily concentrated in the West suburbs -home of the nation’s worst traffic.

The plan for rail is something that few have probably looked at closely. The route snakes through Honolulu on Halekauila street next to the Federal Court house, and ends upstairs at Ala Moana. The station will be suspended above the bus terminal and will likely cause at least a year or two of massive disruptions at that terminal. The other end of the project is even crazier – it ends in the middle of an empty field in Kapolei. When they spoke of rail-based development, they weren’t kidding – they meant from scratch.

The fight over the development of (or paving over of) Hoʻopili farmland was basically a done deal by the time of the Land Use Commission’s (LUC) vote. The lone dissenter in that vote noted that Hoʻopili constituted a third of farmland on Oʻahu. On a side note, the approval of Koa Ridge the same week moved our island far in the direction of having no open space between Honolulu and (practically) the North Shore. UH West Oʻahu’s campus opening this week at least would bring population to the Kapolei area, as will Hawaiian Homes development adjoining the campus. But probably the thing that will be the most unpopular will be the development of the Pearlridge to Kapolei segment first, which will cause it to run empty for years while the “first” (or what should be first) segment is built from Pearlridge to Ala Moana. This plan is politically smart, however, in the most cynical sense, in that it locks the taxpayers into committing to the entire project, and avoids the project being stopped at Pearlridge as voters begin to resent the costs.

All of this makes it sound as if I’m anti-rail, but that’s not exactly the case. Unlike others, I don’t believe that people will continue to drive as they now do, because oil prices will almost certainly skyrocket to $9 – $15 per gallon. Rail will then look attractive, and possibly (though it’s hard to imagine) like a good deal in retrospect. Honolulu is actually a city in which it makes sense to have a mass transit system – itʻs long and thin, crammed between the ocean and mountains, snaking from downtown to Pearl City, before opening up in the central plain. But this geography would have been as well served by a bus rapid transit system, which Mayor Jeremy Harris proposed, no one noticed, and Mufi Hanneman killed. The costs would have been a fraction of rail’s cost, but would include a lost auto lane in each direction – a small cost that people, foolishly in my view, are unwilling to pay.

EDUCATION

Always present on the political agenda, always given lip service, but never put in the hands of capable people, is the public school system. The voting away of the public’s right (by the public) to select the Board of Education (BOE) was a mind-boggling use of the democratic process – we (though not I) used our very empowerment to disempower ourselves. It’s true that the candidates were weak, and maybe it would have worked out if the Governor would select authentic experts  to the new appointed board, rather than the business-oriented members that now sit on the BOE.

It’s too early to say exactly what the effect of the new board will be, but the programs already in motion have put incredible strain on the schools – some of which, but probably not all of which, they need. Apart from the BOE, the DOE’s organizational chart is so hierarchical that it takes a pamphlet (or something more like a small book) to merely display it. As an outsider, it’s difficult to say what exactly the effect of these layers is, but it’s clear that the gap between policy-makers (especially  on the federal level) and students in the classroom is a large one. In my years of observing the DOE from inside and out, many of the unnoticed aspects of institutional culture are where the problems lie: the relation between teachers (many of whom are brought in to fill in because of the high turnover of teachers), home life, and societal culture (how many people are actually reading these days?) are all factors that remain unmeasured for the most part, and contribute as much to student performance as teaching methodology.

The furloughs were a hot topic a couple of years ago, and Lingle’s campaign for Senate will hinge on the public perception of this decision. She was lucky, because test results actually went up that year, but public outrage was high and she was protected by being in her second term. My view is that history will look more kindly on her – she was being consistent, every department took a cut with no exceptions, but the public may still feel that their children’s schools should have been an exception.

POLITICS (I.E., POLITICIANS)

One political observer said to me recently that today’s local politicians have “no vision.” I think this is true, and it may be a result of the times. I mean that in two ways. On the one hand, few seem able to predict even the near future at this historical moment. Even fundamental assumptions such as the dominance of tourism, can’t be taken from granted as global warming threatens our beaches, and hotel executives pay no attention to the phenomenon. I’m no fan of Lingle, but at least she executed an agenda for developing an infrastructure for electric cars, the result of which we see at Kahala mall and Pearlridge in the free charging stations.

Today’s politicians, by contrast, are a cult of appearance and personality. Take Tulsi Gabbard’s stunning defeat of Mufi Hanneman. The only explanation is that the public soured of his egomania (though the singing probably didn’t help), and their attention was grabbed by her striking looks and mildly interesting backstory. Gabbard grew up in a political family and so it’s no wonder she’s good at it, but where’s the vision? Caldwell seems cut from the same cloth. Mazie is as entrenched in the status quo as it’s possible to be. Until we actually look  for leaders with vision, instead of just letting ourselves be distracted by them (on the side of the road mainly), we won’t find a John Burns, a Tom Gill or even a Jeremy Harris in this or the next election.

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