Tag Archives: Keanu Sai

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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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.
Screen Shot 2014-06-18 at 8.52.20 AM
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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The State of History

On May 4th at the Hawaiʻi Book and Music Festival I was on a panel, with three other Hawaiian history scholars, which focused on the use of sources in historical research. It asked the very pertinent questions:

What Are the Indispensible Resources for Hawaiian History?What are the existing must-read publications for those working in Hawaiian history, or simply interested in it? What important new resources will we have access to soon? What do Hawaiian-language sources offer those who can read them? Just how much are we really missing by not having access?

And concluded:

The four panelists are all currently conducting research into diverse nineteenth and twentieth century Hawaiian cultural and historical topics, and will share their own experience of finding their way through the whole range of materials, good and bad, now publicly available, and also how they deal with the inevitable gaps they encounter.

My remarks began with a stark assessment of the state of Hawaiian history as a field. I pointed out that there have only ever been three (or possibly four) people ever employed specifically as Hawaiian historians at a “research 1” university – Pauline King, Noelani Arista and John Rosa (one might count Ralph Kuykendall, M.A., but one would do so at oneʻs own peril). I stated that this is only true if one takes such disciplinary boundaries seriously – which I do and donʻt (such boundaries have significance, but so too do interdisciplinary studies). Rosa’s position had to be specially created by the State Legislature – thatʻs my point; it’s not automatic that there are Hawaiian historians.

Prof. John Rosa

As I mentioned in my debate with Ian Lind, it was confided to me that King was hired to “do in” Hawaiian history – she produced no original publications in her long career. Ronald Williams was the first PhD to graduate from a program specifically focusing on Hawaiian history (this is partly because they had only recently hired Arista and Rosa to supervise such a program). Of course there are those with history degrees who teach in Hawaiian Studies. Jonathan Osorio, who was the moderator of the program approached me afterward and said “you know that Lilikalā [Kameʻeleihiwa], Kanalu Young and myself all have history degrees and consider ourselves historians?” And of course I did know that, but the fact that he included the late Kanalu Young on the list only underscores my point. Add them and we have six, one deceased. And there are others, such as political scientists Keanu Sai or Noenoe Silva, who said in a class once “Iʻm not a historian but I may as well be.” But we are talking about a dozen scholars at best, compared to tens of thousands of scholars in US history, for example.

What this means is Hawaiian history as a field is, as I perhaps controversially stated, that is both in its infancy and is an amateur undertaking. It is only recently becoming professionalized as a field. The vast majority of books on Hawaiian history are written by amateurs and/or outsiders with little grasp of the nuances stemming from the dominance and suppression of the Territorial period. While the professional historians can only do what they are capable of given the slow pace of publication and constraints of academia, the effect in the community is that there is little “trickle down” of good research into the lower levels. With so few top-level researchers, there truly is nothing but a trickle of new historical perspectives. And in this case it truly is a top-down situation. Amateurs cannot be expected to devote the time and resources to study that are available to a professional historian.

The result is graduates who go on to high positions in government and the corporate sector who exhibit very shaky understandings of how we got where we are as a society. Many become interested in, even passionate about history as adults (by which time it’s too late), but in school it is, as portrayed in the film History Boys, “just one bloody thing after another.”

There is an infrastructure of knowledge, a “house of intellect” as Jacques Barzun called it, and reasons why we know what we know. We canʻt take this house for granted – the Lahainaluna scholars knew this, as did Kauikeaouli, who said “he aupuni palapala koʻu” [mine is a kingdom of learning]. This vision was invested in, as we still reap its rewards a century and a half later. There seems to be – across the board, not just in Hawaiʻi – a nonchalant squandering of the gains made over history in labor rights, environmental protections, civil liberties, and social justice by a generation of profit-seekers who ignore or are ignorant of history. These people, in whom most power is invested, imperil us all with their proclivity to proverbially “repeat history.” We must demand that history not be completely over shadowed by STEM (Science, Technology, Engineering and Math) fields in the name of “twenty-first century” skills, if we want that century to be better than the last.

UPDATE: Arnie Saiki had this response on the Statehood Hawaiʻi Facebook page, which raises very valid counterarguments and gives me a chance to clarify my position:

I think there are a lot of people who do contribute to the growing canon of Hawaiian history, and follow well disciplined methodologies, as well as pave the way for methodologies that speak to cultural, linguistic, customary practice.

What … strikes me about Hawaiian history is just how much work has been done for a place that boasts a little more than a million people. Although I have not done a full accounting of library catalogs, it seems that there is more historical work produced on Hawaiian history than most states. Granted there is likely a political reason as to why that is, an element that sought to make Hawaii “knowable” to colonial settlers, but it seems that in regard to Hawaii, everything that was recordable was recorded, and it is relatively easy to access. 

Its very true that there is a fascination with Hawaiian history that does not exist in other states – a fact evidenced by a Facebook group I started called Mooolelo: Hawaiian History, which grew to 500 members within a couple of months. But it’s important to remember that this is a national history, and should thus be compared to other national histories (I think of New Zealand, for example), than to other states. In the case of New Zealand, a close look at the historical work there shows a depth that Hawaiʻi could only envy. This is in a country that, while larger than Hawaiʻi, has the same population as the average US state.

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Press Release: Hawaiian Kingdom Deposits Instrument of Accession to the Jurisdiction of the International Criminal Court with the United Nations Secretary-General in New York

Hawaiians have had dealings with the UN for many years, but what is important about this development, similar to the UN Permanent Court of Arbitration proceedings in 1999-2001, is that this filing was accepted under the provision reserved for “non-[UN] member states” – i.e., reserved for states. This is the status that Palestine was granted a few weeks ago by vote of the general assembly, and is de facto recognition of sovereign status. Disclaimer: this is how it was described to me with ample evidence of the veracity of the statements. Sai was interviewed on South-South News in October, a United Nation’s news outlet, and I have given a presentation at TEDx Mānoa regarding this issue.

For Immediate Release – December 10, 2012
Contact: David Keanu Sai, Ph.D.

E-mail: interiorhk@hawaiiankingdom.org

David Keanu Sai, Ph.D.

NEW YORK, December 10, 2012 — This afternoon the Ambassador-at-large and Agent for the acting Government of the Hawaiian Kingdom, H.E. David Keanu Sai, Ph.D., filed with the United Nations Secretary General in New York an instrument of accession acceding to the jurisdiction of the International Criminal Court (ICC). The ICC is a permanent and independent tribunal in The Hague, Netherlands, that prosecutes individuals for genocide, crimes against humanity and war crimes. The ICC only prosecutes individuals and not States.

The instrument of accession was deposited with the United Nations Secretary-General in accordance with Article 125(3) of the ICC Rome Statute, which provides, “This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.” The instrument of accession was received and acknowledged by Mrs. Bernadette Mutirende of the United Nations Treaty Section, Office of Legal Affairs, at 380 Madison Avenue, New York.

By acceeding to the ICC Rome Statute, the Hawaiian Kingdom, as a State, accepted the exercise of the ICC’s jurisdiction over war crimes committed within its territory by its own nationals as well as war crimes committed by nationals of States that are not State Parties to the ICC Rome Statute, such as the United States of America. According to Article 13 of the ICC Rome Statute, the Court may exercise its jurisdiction if a situation is referred to the ICC’s Prosecutor by the Hawaiian Kingdom who is now a State Party by accession.

The current situation in the Hawaiian Islands arises out of the prolonged and illegal occupation of the entire territory of the Hawaiian Kingdom by the United States of America since the Spanish-American War on August 12, 1898, and the failure on the part of the United States of America to establish a direct system of administering the laws of the Hawaiian Kingdom. The United States disguised its occupation of the Hawaiian Kingdom as if a treaty of cession annexed the Hawaiian Islands. There is no treaty.

On August 10, 2012 a Protest and Demand of the prolonged occupation of the Hawaiian Kingdom, being a non-Member State of the United Nations, was deposited with the President of the United Nations General Assembly pursuant to Article 35(2) of the United Nations Charter. The Protest and Demand was acknowledged and received by Mrs. Hanifa Mezoui, Ph.D., Special Coordinator, Third Committee and Civil Society, Office of the President of the Sixty-Sixth Session of the General Assembly.

Hanifa Mezoui, Ph.D. – Office of the President of the General Assembly, United Nations

Individuals of the State of Hawai‘i government who have committed a war crimehave been reported to the United States Pacific Command and the United Nations Human Rights Commission in Geneva, Switzerland, for deliberately denying a fair and regular trial to Defendants, irrespective of nationality, and with the Hawaiian Kingdom’s accession to the jurisdiction of the ICC, these alleged war criminals will now come under the prosecutorial authority of the Prosecutor of the ICC.

Regarding the occupation of Hawaiian territory, the ICC is authorized under the Rome Statute to prosecute individuals for:

• war crime of destruction and appropriation of property;

• war crime of denying a fair trial;

• war crime of unlawful deportation and transfer of persons to another State;

• war crime of unlawful confinement;

• the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies;

• war crime of destroying protected objects dedicated to religion, education, art, science or charitable purposes, historic monuments;

• war crime of destroying or seizing the property of the Occupied State;

• war crime of compelling participation in military operations;

• war crime of outrages upon personal dignity;

• war crime of displacing civilians.

H.E. David Keanu Sai, Ph.D. represented the acting Government of the Hawaiian Kingdom in arbitral proceedings before the Permanent Court of Arbitration, Larsen v. Hawaiian Kingdom, (119 International Law Reports 566), at The Hague, Netherlands, and also did an interview with South-South News, a news agencey of the United Nations, regarding the prolonged occupation of the Hawaiian Kingdom.

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