Hawaiian Racial Entitlement and Sovereignty Legislation, State of Hawaii Legislature, Regular Session of 2003

On this webpage are presented some Hawaiian racial entitlement and sovereignty bills and resolutions in the State of Hawai'i Legislature, regular session of 2003; together with testimony in opposition by H. William Burgess, Kenneth R. Conklin, or Paul M. Sullivan. The purpose of this webpage is to provide a look at the greed of advocates for racial entitlements, and the zealousness of advocates for racial separatism and ethnic nationalism. Not all of this legislation will pass. But much of it probably will. The mere fact that the legislation is introduced and given a hearing indicates that it is taken seriously. Many bills and resolutions that are submitted by constituents to Legislators never get formally introduced, and many of those that do get formally introduced are killed by committee chairs and never get a hearing. Every item on this webpage received a hearing and was taken seriously enough that testimony was submitted. On most of the items below, the testimony copied here was the only testimony in opposition, while five or ten or several dozen testimonies in support were provided. Furthermore, the bills and resolutions being watched were only those referred to the committees dealing with Hawaiian affairs or education. Perhaps 90% of the legislation given a hearing was not even glanced at by the author of this webpage. For example, there were bills to set aside parcels of land for ethnic Hawaiian cultural preservation, or to give economic incentives to ethnic Hawaiian businesses, or to change the name of some buildings or land to something more politically correct. This legislative "snapshot" was compiled on February 9, 2003, at a time when the legislative session for 2003 is only about 25% completed. There is ample time for much more crazy legislation to surface.

A few of the Hawaiian racial entitlement programs have come under attack in the courts. Most have not yet been attacked. So many targets, so little time and money to attack them! For an analysis of how affirmative action leads to racial entitlements followed by balkanization and demands for independent sovereignty, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/afacracentakaka.html

Each year the Legislature creates lots of new legislation that would be found unconstitutional if challenged. The simple fact is, that the Legislature can create unconstitutional programs faster than the lawyers can challenge them. This unfortunate way of life will continue until there is a sea change in public awareness and public opinion. Actually, what's needed is a sea-change in the way the Legislature translates the will of the people into laws and spending programs. As it turns out, both ethnic Hawaiians and the general population of Hawai'i give very low priority to so-called "native Hawaiian" issues, giving ceded land revenues to OHA, building a race-based nation, etc. Two polls recently taken by OHA and by the Honolulu Advertiser confirm that both ethnic Hawaiians and the general population give high priority to education, healthcare, housing, clean environment, and improving traffic congestion; and very low priority to "native Hawaiian issues" and ethnic nation-building. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/prioritieshawnonhaw.htm

There are literally Billions of dollars (yes, with a B!!) in racially exclusionary programs benefitting ethnic Hawaiians. To see a list of about 170 of these programs , and how much money was spent on each in year 2000 and a few immediately preceding years, go to:
https://www.angelfire.com/hi2/hawaiiansovereignty/listhawnentitlements.html

The Legislature had opening day ceremonies on January 15, 2003. But starting in September and October, Hawaiian activists began making their demands known. Here are excerpts from a Honolulu Star-Bulletin newspaper article of December 4 describing a vigorous campaign already underway to extort money for racial entitlement programs.

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http://starbulletin.com/2002/12/04/news/story4.html

OHA asks governor for land revenue -- Lingle's aide says she intends to honor her campaign promise

Holding Gov. Linda Lingle to a campaign promise, the Office of Hawaiian Affairs this week will ask her for immediate payment of at least $10.3 million in undisputed revenue from ceded land.

Lingle, during a OHA-sponsored gubernatorial debate in early November, said if elected, she would immediately move to transfer that money to OHA. "She does stand by that line and she is going to live up to that statement," said Lenny Klompus, Lingle's communications director, yesterday. OHA administrator Clyde Namuo said yesterday the agency, whose mission is the betterment of conditions for Hawaiians, will send the governor a letter today or tomorrow asking that tab be paid. "It would ask for an immediate payment and it would also indicate that ongoing payments should continue to be made until such times that the ceded lands issue are resolved in the long term," Namuo said.

The $10.3 million in revenue OHA wants covers the period from July 2001 to September 2002. It is called undisputed money because it does not include controversial unpaid revenue from community hospitals, state affordable housing and duty-free concession leases that sit on ceded land.

OHA sued the state in 1994 for back payments from these additional sources of revenue and a July 1996 ruling by then-Circuit Judge Daniel Heely ruled in favor of OHA. The state appealed the Heely decision to the Hawaii Supreme Court, which, after failed negotiations between OHA and the state, ruled in September 2001 that the 1990 state law that calculated OHA revenue payments is moot. That ruling put a stop to state payments to OHA that ranged from $10.8 million in 1991 to $25 million in 1995 to $8.2 million in 2001.

Namuo, however, believes Lingle doesn't need legislative authority to disburse those undisputed funds and she can just order her departments to resume making quarterly payments to OHA from money they collect from these former public trust or crown land.

Trustee Rowena Akana, who led OHA's negotiation team in 1998, said she's begun briefing Aiona's office on the history of the dispute and is hopeful for a resolution.

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On opening day at the Legislature there was a massive demonstration by Hawaiian activists demanding money and power. Here are excerpts from an article in the Honolulu Advertiser of January 16, 2003. The full article can be seen at:
http://the.honoluluadvertiser.com/article/2003/Jan/16/ln/ln29a.html

Marchers welcome news of ceded-land payment

By the end of the day, Native Hawaiians had received some good news. Legislative leaders agreed to pay $10.3 million in ceded lands revenue to the Office of Hawaiian Affairs.

About 1,000 people — busloads of schoolchildren, elders in wheelchairs and groups carrying flags and placards — braved yesterday's gusty winds and a downpour for a march around the Capitol demanding control of ceded lands from the state and recognition of Hawaiian nationhood from the federal government.

The rally, sponsored by OHA, was part of Na 'Oiwi 'Olino, OHA's program aimed at educating Hawaiians and the general public about the nationhood campaign. It was also one of the events in the weeklong "Living Nation" observance that culminates at 8 a.m. tomorrow in another march marking the 110th anniversary of the overthrow of the Hawaiian monarchy.

Victoria Holt Takamine, president of the 'Ilio'ulaokalani Coalition of Hawaiian cultural and political groups, contrasted the Living Nation observance with the centennial of Korean immigration also being celebrated this week. "We forget that we're celebrating 1,500 years of our people coming to this land," Takamine said. "Our people migrated here in A.D. 500, and the second wave came in 1000. Nobody has that history but us."

Myron Thompson, son of the late Myron "Pinky" Thompson, former Kamehameha Schools trustee, said Hawaiians today are enduring an assault comparable to the overthrow. "The weapon is different, but the reasons are the same," Thompson said. "The primary weapon now is the courts, but the reasons are greed, power and control by a small group of people for their own personal gain."

Frenchy DeSoto, one of the original OHA trustees, expressed mixed emotions about the rally: "Tears come to my eyes as we continually do this," DeSoto said. "We come together in a rally. We make half commitments to lokahi (work together). We're in a crisis. So many years, and still we are on our knees, begging for some kind of recognition, begging for what's rightfully ours, and always we turn the other cheek. After 110 years, we're still marching," DeSoto said. "Is that what we want for our children's children?"

"We stand in the rain, we stand in the sun, we will stand for 100 years," said Lilikala Kame'eleihiwa, director of the University of Hawai'i Center for Hawaiian Studies. "We want our land, we want our country, we want our government."

Inside the Capitol, House Speaker Calvin Say announced at the opening session of the 2003 Legislature that the deferred payment to OHA, which in November was estimated at $10.3 million, could be made without new legislation.

Gov. Linda Lingle said yesterday that the debt can be paid immediately because the revenue produced by harbors and other ceded lands already is "accounted for in various special funds. It's not new money that needs to be generated or found," Lingle said. "The money is there; it's just waiting to be paid."

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Table of Contents, in order of appearance: scroll down to find the one(s) that interest you. Some items indicate only one bill number for either the House or the Senate; but the same items might eventually appear in the other chamber either through crossover or independent introduction. Internet URLs for each bill are provided at the beginning of each testimony, so the content of the bills can be read.

SB1151 -- Defining the public trust lands (also known as the ceded lands), and the revenues they produce, and setting aside 20% of ceded land revenues for the Office of Hawaiian Affairs for its racially exclusionary beneficiaries

SB1158 -- Sets "interim revenue" for each of two years at $10,000,000.00 for the Office of Hawaiian Affairs, providing benefits only to a racially exclusionary group. (In oral testimony later, OHA Administrator Clyde Namu'o stated that there was a typographical error and the figure of ten million was supposed to be twenty million, per year)

SB476 -- Airport ceded land revenues: Requires the State to pay an amount equivalent to the pro rata share of ceded land revenues obtained from the Honolulu International Airport to the Office of Hawaiian Affairs, to benefit a racially exclusionary group

SB640 -- Requires the University of Hawaii board of regents to grant tuition waivers to native Hawaiian students.

HB1335, HD1 -- A bill as submitted in the House was originally identical to the Senate SB640 above; however, it was amended at its first hearing, resulting in a new bill with a historical and victimhood preamble, and including a needs test along with the racial entitlement. The new proposal says all racial Hawaiians who are needy get free tuition at the University of Hawai'i (but gives no such entitlement to needy students lacking Hawaiian blood). The testimony for the Senate bill was changed to reflect the changes in the House revisised version.

HCR21 -- Apologizing to ethnic Hawaiians for the overthrow of the monarchy in 1893 (even though Hawai'i was not annexed to the United States until 1898 and there was no State of Hawai'i until 1959). Testimony refutes some portions of the federal apology bill used as contents of most of this Hawai'i proposed apology.

HCR10 and HR10 -- Supporting the Native Hawaiian Recognition bill (a bill in Congress to create and recognize a phony Indian tribe consisting exclusively of ethnic Hawaiians, to protect racial entitlement programs from legal attack under the 14th Amendment).

HB89 -- Establishes a temporary Hawaiian issues office within the office of the lieutenant governor to monitor federal legislation affecting Hawaiians and to promote federal recognition of native Hawaiians and right to self-governance; office may be located in Washington, District of Columbia; appropriates funds. (HB89 HD1)

HB1305 and SB1156 -- Requires the State of Hawai'i Office of Hawaiian Affairs to establish and maintain a racial registry of all persons of Hawaiian ancestry, regardless of place of residence.

HB633 and SB636 -- Hawaiian Language Immersion Classes and Schools: establishing a separate bureaucracy, clarifying which students can enroll, indicating that Hawaiian language is a special prerogative of ethnic Hawaiian people, and that the State should pay for transportation across long distances for students attending Hawaiian language immersion schools.

SB1597 -- Hawaiian Focused Charter Schools: Establishes a noncontiguous separate "public" school system consisting of all taxpayer-supported charter schools whose curriculum and methods are focused on ethnic Hawaiian culture and serving neighborhoods that are overwhelmingly populated by ethnic Hawaiians; provides authority to create and certify additional such schools and to govern them separately from the Department of Education.

SB638 -- Provides for election of members to the Hawaiian Homes Commission; specifies qualification for eligibility and to vote (only ethnic Hawaiians with blood quantum 50% eligible to vote and/or run); specifies length of term of office; provides for filling vacancies with special election. No testimony was submitted regarding this bill. The racial restriction on voting for this state government agency's trustees is unconstitutional for the same reasons as decided by the U.S. Supreme Court in Rice v. Cayetano, and the racial restriction on candidacy is unconstitutional for the same reasons as decided by the U.S. District Court in Honolulu and the 9th Circuit Court of Appeals in San Francisco in the case Arakaki v. State of Hawai'i. The unconstitutionality of this bill should be so obvious that no testimony is needed. But if the bill is passed, the same attorneys who prevailed in the Rice and Arakaki cases will easily prevail again, and again at taxpayer expense.

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Testimony by H. William Burgess on his own behalf and on behalf of Aloha for All (a multi-ethnic group of men and women, all residents, homeowners and taxpayers of Hawaii, including persons of Hawaiian ancestry, who believe that Aloha is for everyone and every citizen is entitled to the equal protection of the laws whatever his or her ancestry)

Aloha and good morning Chair Hanabusa and members of the Committee on Judiciary and Hawaiian Affairs:

My first reaction when I read this bill was, "Don't they ever learn?"

This bill proposes to do what the Hawaii Supreme Court has twice said the legislature cannot do: Commit the state to transfer an indeterminable amount each year to OHA as "income and proceeds from" a "pro rata portion of" the public land trust without the legislature's express consideration and appropriation of those funds. See Hawaii Constitution, Article XII, §§4 & 6 and §§5(b) & (f) of the Admission Act.

In 1980 the legislature decided that "twenty per cent of all funds derived from the public land trust" would be expended by OHA for the betterment of conditions of native Hawaiians (50% or more blood quantum). In Trustees of OHA v. Yamasaki, 69 Haw. 154, 174 (1987) the Hawaii Supreme Court noted the Legislative Auditor's Final Report on the Public Land Trust issued in December 1986 that "the uncertainties surrounding the trust and funds derived therefrom cannot be resolved without further legislative action." and said, "Our inquiry … leads us to a similar conclusion." The court therefore reversed the circuit court's decision and OHA's suit was dismissed.

In response, the legislature enacted Act 304, SLH 1990 amending §10-13.5 HRS to provide, "Twenty percent of all revenue derived from the public land trust shall be expended by [OHA] for the betterment of the conditions of native Hawaiians." Act 304 defined "revenues" broadly excluding only amounts derived through the exercise of certain enumerated sovereign functions.

However, Act 304 did not address one of the major uncertainties pinpointed by the Legislative Auditor: Whether the 20% is applied to the gross or the net income and, if it applies to the gross, the adverse effect on important governmental programs and the need to raise fees or make additional subsidies from the general fund.

The Legislative Auditor in the Final Report on the Public Land Trust, beginning at 116, discussed one of the major uncertainties under the heading Gross versus net income, "neither the Admission Act nor Chapter 10 is explicit as to whether "income" means "gross income" or "net income," and, if it means "net income," how the net is to be determined. There are important implications for OHA in the way income is defined…. Defining 'income' as gross income could adversely affect important governmental programs." … "a public enterprise is generally intended to be no more than self supporting. The revenues of the enterprise are expected to do no more than defray the cost of its operation and maintenance and the cost of making improvements to the facilities of the enterprise. Government strives to set fees at a level sufficient to enable the enterprise to break even. However, the fees set are often insufficient to cover costs, and many public enterprises are subsidized from the general fund of the State or county…. If the 20 percent provision of chapter 10 is applied to the gross income of these enterprises, the fees will need to be raised or additional subsidies will need to be made."

In OHA v. State, 96 Haw. 388 (2001), the Hawaii Supreme Court held that Act 304, because it conflicted with Federal law, was repealed by its own terms. In that case, OHA argued that Act 304 did not conflict with the Federal law because the savings clause in the Forgiveness Act and "the 'equivalent to' language in HRS chapter 10 dictate that the State pay the past due amounts from a different funding source." But the court noted that the State has "in the past paid OHA directly from the airport revenue fund. Had the legislature instead contemplated paying an amount from other sources, such as the general fund, the legislature would likely be abdicating its constitutional and statutory duty to control the public fisc."

S.B. 1151 nevertheless proposes nothing that requires the State to pay or provide for the expenses of the public land trust before making the distribution of 20% to OHA. To the contrary it proposes to re-enact the identical language of Act 304 omitting only the severability clause but leaving in the "equivalent to" language which dictates that the 20% for OHA be calculated on all the revenue (including even the airport revenue which under federal law must be used for the airport only). As the Hawaii Supreme Court said, if the legislature "contemplated paying an amount from other sources, such as the general fund, the legislature would likely be abdicating its constitutional and statutory duty to control the public fisc… because the legislature cannot know or control how much airport revenue will be due to OHA in any given year."

Thus, if S.B. 1151 becomes law, it will recreate the same depletion of the general fund, adverse effect on important governmental programs, false hopes and black cloud of uncertainty that hung over Hawaii's economy from 1996 when Judge Heely made his decision until September 12, 2001 when the Hawaii Supreme Court reversed it.

Conclusion. Heed the words of the Hawaii Supreme Court. Don't abdicate your duty to control the State fisc.

Heed also the good advice of the State Auditor. The State holds the ceded lands in trust. The public or ceded land trust is to "benefit all the people of Hawaii. The [Admission] Act specifies that the land is to be used for the education of, the development of homes and farms for, the making of public improvements for, and public use by, all of Hawaii's citizens, as well as for the betterment of those who are 'native.' Admission Act § 5(f)." J.J. Breyer and Souter, concurring opinion, Rice v. Cayetano, 528 U.S. 495, 525 (2000). Allow and require the State to perform its fiduciary duties as trustee of the public land trust.

Revenue does not just fall like rain from heaven upon the ceded lands. It takes State money to make the State money from the ceded lands. Under basic principles of trust law, revenue must be used to pay trust expenses and only the net income after expenses may be distributed to beneficiaries. HRS §557A-102 ("Income beneficiary" means a person to whom a trust's net income is or may be payable.); HRS §557A-103 (A fiduciary shall administer a trust in accordance with this chapter and "impartially based on what is fair and reasonable to all of the beneficiaries.") Don't expose State officials, including yourselves, to charges of misapplication of entrusted funds.

If the legislature takes any action with respect to the ceded lands this session, it should specify that all costs of administration of the public land trust and of the operation and maintenance and the cost of making improvements to the buildings and facilities of the ceded lands as well as debt service be paid or provided for before any distribution to OHA. Also, any distribution of 20% to OHA should contemporaneously distribute the remaining 80% or an amount equivalent to 80% exclusively for the benefit of all other citizens.

Unnecessary. There is no compelling reason for legislators to rush to abdicate their duty to protect the State fisc. OHA already is holding (and mismanaging) over $250 million previously financed by the general fund and transferred to it as "the equivalent of" ceded lands revenues under the now defunct Act 304.

Use taxpayer money where it is needed now. Prudence says to use the money in the general fund where it is needed now: in public schools; or to protect our state and cities and homes and children from terrorists; resolving the State's current economic crisis; and making Hawaii once again the best place in the world to live.

Aloha for All,

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SB1158 -- Sets "interim revenue" for each of two years at $10,000,000.00 for the Office of Hawaiian Affairs, providing benefits only to a racially exclusionary group.
http://www.capitol.hawaii.gov/sessioncurrent/bills/sb1158_.htm

Aloha Chair Hanabusa and members of the Committee on Judiciary and Hawaiian Affairs:

Enactment of this bill would cause the State of Hawaii to violate its fiduciary duty as Trustee under the Public Land Trust (i.e., the Ceded Lands Trust); would abdicate the legislature's constitutional and statutory duty to control the public fisc, is unnecessary and would be imprudent.

The Public Land Trust. The proposed S.B. 1158 says "income and proceeds" from the pro rata share for expenditure by OHA for each of years '03 and '04 "shall be" $10 million. It gives no indication of how that amount was calculated nor does it require that the trust expenses be paid or provided for before the distribution to OHA.

The public or ceded land trust is to "benefit all the people of Hawaii. The [Admission] Act specifies that the land is to be used for the education of, the development of homes and farms for, the making of public improvements for, and public use by, all of Hawaii's citizens, as well as for the betterment of those who are 'native.' Admission Act § 5(f)." J.J. Breyer and Souter, concurring opinion, Rice v. Cayetano, 528 U.S. 495, 525 (2000).

If the governor or other state officials distribute revenues or gross income to some beneficiaries before trust expenses are paid or provided for, as SB 1158 apparently contemplates, they will breach their fiduciary duty to the other beneficiaries because all the trust expenses will have to be paid from their share and nothing will be left for them. Moreover, making distributions of gross income "could adversely affect important governmental functions" because the expenses of generating the ceded lands revenues will have to be subsidized by the general fund which comes from taxpayers. (See discussion of Gross versus net income, Final Report on the Public Land Trust, Legislative Auditor December 1986 at 116 - 121.)

The proposed S.B. 1158, by appropriating the $10 million for each of the years out of the general revenues of the State of Hawaii, implicitly acknowledges that there is no net income from the ceded land trust available to distribute to any of the beneficiaries. This is no doubt because, as the Legislative Auditor says, "a public enterprise is generally intended to be no more than self supporting. The revenues of the enterprise are expected to do no more than defray the cost of its operation and maintenance and the cost of making improvements to the facilities of the enterprise." Id. at 116.

Unnecessary. Nor is there any compelling justification for legislators to abdicate their duty to protect the State fisc. OHA already is holding (and mismanaging) over $250 million previously financed by the general fund and transferred to it as "the equivalent of" ceded lands revenues under the now defunct Act 304.

The validity of OHA will be determined soon enough. There are presently three federal lawsuits challenging the validity of OHA and Hawaiian Homes. Those suits will be decided in due course. One of those suits or other similar suits will ultimately prevail simply because every citizen of Hawaii is entitled to the equal protection of the laws without regard to ancestry. Paying more taxpayer money to OHA now, as if it were ceded land money, would be like buying a dead horse. Prudence says to put the $10 million per year from the general fund where it is needed now, in public schools or to protect our state and cities and homes and children from terrorists; resolving the State's current economic crisis; and making Hawaii once again the best place in the world to live.

Aloha for All

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COMMITTEE ON JUDICIARY AND HAWAIIAN AFFAIRS

TESTIMONY Regarding SB476

Aloha kakou,

This bill should be rejected, or at least substantially amended. Following is a hierarchy of reasons why it should be rejected, or amended, in order from general to specific:

(1) The Office of Hawaiian Affairs is unconstitutional under the 14th Amendment equal protection clause of the United States Constitution, because it is a government agency awarding benefits entirely to a racially exclusionary group of beneficiaries; and members of the Legislature have taken an oath to support and defend the Constitution of the United States. Note the lawsuit Arakaki v. Cayetano currently pending before Judge Susan Oki Mollway in the U.S. District Court in Honolulu:
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html

(2) OHA does not deserve any additional funding during this difficult economic period of retrenchment. According to media reports OHA has lost $80 Million in the valuation of its stock market investment portfolio, and still has $250 Million remaining in the stock market. Putting aside questions about mismanagement of OHA's money, Legislators should demand to know why OHA has such an enormous amount of money invested. OHA's mission is to help native Hawaiians. OHA constantly proclaims the allegedly dire circumstances of the people it is supposed to serve. If OHA's beneficiaries are so needy, then why is OHA investing in the stock market instead of helping them? That money invested by OHA has been sucked out of Hawai'i's economy and sent to New York where it is helping nobody but the stockbrokers. OHA's remaining balance of $250 Million would provide more than ten years of full funding for OHA's current expenditures, including its bloated overhead and bureaucracy, even if there were zero earnings from investments. Let OHA put its current assets to good use before sending it any more money.

(3) But if the Legislature nevertheless chooses to provide funding to OHA, such funding should be by annual appropriation from general funds rather than by permanent linkage to ceded land or airport revenues, because:

(3a) Annual appropriations will come to the attention of the Legislature annually, providing greater public visibility and greater accountability to the Legislature;

(3b) Ceded land revenues belong to all Hawai'i's people and there is no obligation for the State of Hawai'i to provide any ceded land revenues to any particular agency or ethnic group: see https://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

(3c) Linkage to ceded lands requires producing an inventory of ceded lands, which is expensive and would be of only historical interest in view of item (3b);

(3d) Act 304 was nullified by decision of the Hawai'i Supreme Court on September 12, 2001, primarily because it conflicted with a federal law prohibiting the use of airport revenues for anything other than airport functions; and SB476 is an unethical and ill-advised attempt to evade the intent of that federal law and the decision of the Hawai'i Supreme Court.

(4) But if the Legislature nevertheless decides to provide funding to OHA and to do so through money gererated from ceded lands, then the pro-rata share given to OHA should be based NOT on gross revenue but on net income generated from ceded lands. Honolulu Airport was very expensive to build, resulting in enormous bonded indebtedness and annual debt service. The airport is also very expensive to operate.

IF OHA IS TO RECEIVE A SHARE OF MONEY GENERATED BY HONOLULU AIRPORT, THAT MONEY SHOULD BE BASED NOT ON GROSS REVENUE BUT ONLY ON NET INCOME AFTER DEDUCTING FOR CAPITAL AND OPERATING EXPENSES. Otherwise, OHA's pro-rata share of gross revenue is likely to exceed 100% of net income, thereby unduly burdening Hawai'i's people and creating a situation where the 80% of Hawai'i's people who are racially excluded from receiving benefits from OHA would also be excluded from their 80% pro-rata share of Honolulu Airport money.

(5) Legislators should not be fooled into thinking that diversion of money from ceded land revenue to OHA does not burden taxpayers. The budget of the State of Hawai'i uses money from ceded lands and from taxes. If ceded land money is diverted to a special purpose serving only a portion of Hawai'i's people (or, in fact, invested in the stock market!), then either the general budget serving all Hawai'i's people must be cut, or else taxes must be raised, to make up the difference. The language of SB476 makes it abundantly clear that the taxpayers of Hawai'i will be expected to assume bonded indebtedness and/or to pay taxes to support the diversion of airport ceded land revenue to OHA. The bill is written that way because 20% of gross revenue probably exceeds 100% of net income, and also because it would be burdensome if not impossible to actually calculate exactly which lands and how much revenue are involved. If OHA demands revenues specifically tied to the ceded lands and specifically tied to Honolulu Airport, then let OHA pay for providing an exact accounting of which lands and how many dollars are required, subject to later audit by the State Auditor.

(6) But if the Legislature nevertheless chooses to provide funding to OHA, and to do so through a linkage to ceded land airport revenue, then SB476 should be amended to provide for offsetting repayment by OHA to the State of Hawai'i general fund for all moneys improperly paid to OHA under terms of Act 304, plus interest. The Hawai'i Supreme Court ruled that Act 304 is void because it is in conflict with a federal law. That federal law was passed in 1998. Thus Act 304 was contrary to law at least since the federal law was passed in 1998; and arguably Act 304 may have been contrary to law even from the time it was initially enacted. OHA should repay the State of Hawai'i general fund for all moneys OHA received under the terms of an illegal Act 304.

Submitted on behalf of myself and Aloha For All

Kenneth R. Conklin, Ph.D.

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SB640 -- Requires the University of Hawaii board of regents to grant tuition waivers to all native Hawaiian students, regardless of financial need or academic qualifications or residency in the State of Hawai'i
http://www.capitol.hawaii.gov/sessioncurrent/bills/sb640_.htm

Aloha kakou,

This bill should be rejected. Not amended. Not deferred. Not held. Rejected outright. A strong message must be sent.

In the Rice v. Cayetano decision 528 U.S. 495 (2000), the U.S. Supreme Court explained in plain, simple language why the definitions of "native Hawaiian" and "Hawaiian" in Hawai'i's law created a racial classification. The definition of "native Hawaiian" in this bill, exactly like the definitions analyzed in Rice, uses ancestry as a proxy for race and creates a racial classification. Like those definitions, it would erect a race-based wall between Hawai'i's citizens. It would have the same evil result; that is, it would allocate benefits among our citizens on grounds which the Supreme Court reminded us are "odious to a free people." There is no reason or justification given for this racial segregation of the university community, and no good reason can be imagined.

Few families can send one or more children to the University of Hawai'i without financial sacrifice. This bill would provide a free education as a matter of right, without regard to need or merit, to students who can pass the racial test of Hawaiian ancestry, but it would deny that free education to students who cannot pass that test, no matter how deserving they might be, and force those students to compete against other deserving students for limited and uncertain scholarship funds. For those who lose, the loss may last a lifetime.

We know that the U. S. Supreme Court has reluctantly approved some race-conscious statutes, but only when the legislative body pointed out a compelling need for the racial discrimination and tailored it as narrowly as possible to meet the need. This bill gives no reason at all for the racial barrier which it erects against assured educational assistance for non-native Hawaiians. It is not based on merit, or need. It is not based on anything, as far as one can read. It is not narrow in any sense.

So when this bill is challenged, as it will be if it is enacted, it will fail the test of constitutionality.

But that is not the bill's only failing. It also fails the tests of fairness and justice. The Court in the Rice decision offered guidance not only on law, but also on political and social morality, as follows:

"One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens. . . The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.'"

Tuition waivers based on need or merit are justifiable and can help deserving students achieve their fullest potential. Free tuition for everyone is a more ambitious and expensive goal, but it may be wise. It is neither wise nor constitutional nor just, however, to give one racially-defined group an entitlement to free education and to deny this entitlement to all our other children, however meritorious or needy, solely on grounds of ancestry.

This bill should not pass.

Testimony submitted by Kenneth R. Conklin, Ph.D., on behalf of himself and Aloha For All

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HB1335 -- This bill as submitted in the House was originally identical to the Senate SB640 above:
http://www.capitol.hawaii.gov/sessioncurrent/bills/hb1335_.htm

However, it was amended at its first hearing, resulting in a new bill with a historical and victimhood preamble, and including a needs test along with the racial entitlement.

HB1335, HD1 The new proposal says all racial Hawaiians who are needy get free tuition at the University of Hawai'i (but gives no such entitlement to needy students lacking Hawaiian blood).
http://www.capitol.hawaii.gov/sessioncurrent/bills/hb1335_hd1_.htm

The testimony for the Senate bill was changed to reflect the changes in the House revisised version.

Aloha kakou,

This bill should be rejected; not amended, deferred, or held. Its fundamental concept is historically, legally, and morally wrong.

In the Rice v. Cayetano decision 528 U.S. 495 (2000), the U.S. Supreme Court explained in plain, simple language why the definitions of "native Hawaiian" and "Hawaiian" in Hawai'i's law created a racial classification. The definition of "native Hawaiian" in this bill, exactly like the definitions analyzed in Rice, uses ancestry as a proxy for race and creates a racial classification. Like those definitions, it would erect a race-based wall between Hawai'i's citizens. It would have the same evil result; that is, it would allocate benefits among our citizens on grounds which the Supreme Court reminded us are "odious to a free people." There can be no valid reason or justification for giving race-based tuition waivers automatically to all needy students of one racial group when most students of other groups who meet the same tests of neediness and academic merit are denied solely because they are not of the favored race.

Few families can send one or more children to the University of Hawai'i without financial sacrifice. There are needy students of all ethnicities who meet the requirements for UH admission and continuation. It is immoral and illegal to single out deserving students not of a favored race and deny them the same government assistance they could expect if only they had the magic blood.

We know that the U. S. Supreme Court has reluctantly approved some race-conscious statutes, but only when the legislative body pointed out a compelling need for the racial discrimination and tailored it as narrowly as possible to meet the need. This bill gives no reason at all for the racial barrier which it erects against assured educational assistance for non-native Hawaiians. It is not based on merit, or need. It is not narrow in any sense. So when this bill is challenged, as it will be if it is enacted, it will fail the test of constitutionality.

Tuition waivers based on need or merit are justifiable and can help deserving students achieve their fullest potential. Free tuition for everyone would be an ambitious and expensive goal, but one which might be wise. It is neither wise nor constitutional nor just, however, to give one racially-defined group an entitlement to free education and to deny this entitlement to all other students, however meritorious or needy, solely on grounds of ancestry.

The bill's preamble refers to the ceded lands, and mentions that the University and its assorted facilities and research institutions control sixteen thousand acres of ceded lands. But of course there is nothing improper about that -- education is one of the explicitly stated purposes for which ceded lands and revenues can be used. There is no racial entitlement to any section 5(f) lands or revenues, and certainly no entitlement to any racial division of lands or revenues from any particular parcels. All Hawai'i's people, including native Hawaiians, benefit from the economic productivity and intellectual enlightenment generated by a thriving University. It would be foolish indeed to demand that a University heavily subsidized by all Hawai'i's people must somehow provide ceded land revenue to be handed over to a racially exclusionary group of beneficiaries.

The astronomical facilities on Mauna Kea and Haleakala generate no revenues at all, nor should they be expected to do so. At this time when our nation mourns the loss of the space-shuttle crew, let us remember that the greatness of our people is measured not merely by hoarded money but by the nobility of our dreams and aspirations. Ancient Hawaiians navigated by the stars. Humanity in the future will navigate among the stars, using knowledge gained from observatories hosted on our University's land. Mauna Kea was also known as Mauna-a-Wakea -- the mountain sacred to Sky-Father. Ho'ohokuikalani (she who placed the stars in the heavens) mated with Wakea, producing Haloa, the ancestor of all kanaka maoli. Thus native Hawaiians owe special reverence to the stars, and Mauna Kea is sacred precisely because of its relationship with Wakea and his heavens. All people of Hawai'i, and especially native Hawaiians, are privileged that the world comes here to do astronomy -- a form of worshiping Wakea from the platform provided by Papa. Efforts to extort money from the astronomical observatories are mean-spirited (and perhaps blasphemous).

Thus for historical, legal, and moral reasons, this bill should not pass.

Testimony by Kenneth R. Conklin, Ph.D., on behalf of himself and Aloha For All

=====================

HCR21 -- Apologizing to ethnic Hawaiians for the overthrow of the monarchy in 1893 (even though Hawai'i was not annexed to the United States until 1898 and there was no State of Hawai'i until 1959)
http://www.capitol.hawaii.gov/sessioncurrent/bills/hcr21_.htm

Testimony by Paul M. Sullivan, as an individual.

Representative Ezra Kanoho, Chair
Committee on Water, Land Use and Hawaiian Affairs
Dear Representative Kanoho:

This letter is submitted as testimony in OPPOSITION to HCR 21, ACKNOWLEDGING THE ILLEGAL OVERTHROW OF THE KINGDOM OF HAWAI'I

Let me start by saying that the views in this testimony are my own. They do not necessarily represent the views of my employers or of any organizations to which I belong.

The purposes and likely results of this proposed resolution are not clear, and for that reason alone it should not pass. It purports to acknowledge the historical significance and ramifications of the overthrow of the Kingdom of Hawai'i, but it does not say what that significance is, or what those ramifications are, today. It makes vague references to "reconciliation" with "the Native Hawaiian people," but it offers nothing in the way of specifics. Like the so-called Apology Resolution passed by Congress as Public Law 103-150, this bill neither makes nor proposes any changes in existing law. Without some clear idea where this Resolution might lead and how it might be used in the courts and elsewhere, it should not be adopted.

It is a near-certainty, however, that any effort to implement this proposed resolution through legislation targeted to the "Native Hawaiian people" will fail on constitutional grounds. The proposed resolution does not define the term "Native Hawaiian," but it would appear that the term is used in the same way as the same term in the Apology Resolution. In that resolution, "Native Hawaiian" was defined exclusively in terms of ancestry and in a manner indistinguishable from the definition of "Hawaiian" which the U. S. Supreme Court in Rice v. Cayetan /n1 held to be racial.

There is no group in Hawai'i composed of people meeting that definition which could fairly be called "the Native Hawaiian people." The proposed resolution appears to use the term "people" in the sense defined in Webster's Third New International Dictionary (Unabridged) (1993), p. 1673 as "a body of persons that are united by a common culture, tradition, or sense of kinship though not necessarily by consanguinity or by racial or political ties and that typically have a common language, institutions, and beliefs." The group consisting of "Native Hawaiians" as defined in this proposed resolution cannot claim such a status. As one prominent Hawaiian scholar has put it:

"These are the modern Hawaiians, a vastly different people from their ancient progenitors. Two centuries of enormous, almost cataclysmic change imposed from within and without have altered their conditions, outlooks, attitudes, and values. Although some traditional practices and beliefs have been retained, even these have been modified. In general, today's Hawaiians have little familiarity with the ancient culture. Not only are present-day Hawaiians a different people, they are also a very heterogeneous and amorphous group. While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary Hawaiians are highly differentiated in religion, education, occupation, politics, and even their claims to Hawaiian identity. Few commonalities bind them, although there is a continuous quest to find and develop stronger ties." /n2

George Kanahele's observations explain why the "society" of today's Native Hawaiians as defined in this bill, is fundamentally the "society" of the State of Hawai'i and the United States. Persons of Hawaiian ancestry are part of this intermingled society. They may be found throughout the state's social, economic and political fabric in positions of power and influence. Neither language nor religion nor a territorial boundary separates them from their neighbors of different backgrounds. They are not segregated by prejudice or by tradition or by a voluntary decision to live apart. There is no Hawaiian government other than our state and municipal governments. As Mr. Kanahele correctly observes, people of Hawaiian ancestry are fully and completely integrated into the larger social and economic life of the state of Hawai'i and the nation. They hold positions of power and respect at all levels of society including business, government and the arts; for example, in the past several years, Hawai'i has seen persons of Hawaiian ancestry serve as its Governor (John Waihee), as the state supreme court's chief justice (William S. Richardson), as a Federal District Court judge (Samuel King), as a U.S. Senator (Daniel Akaka) and in other state executive, judicial and legislative offices.

If HCR 21 is intended to promote legislation which will give special status or benefits to a group of persons defined by ancestry alone, it would set the state on an unconstitutional course and it should be rejected.

HCR 21 is also factually inaccurate. Its many "whereas" clauses make up a complex tapestry of allegations which range from the irrelevant to the misleading to the wholly false. In the tenth chapter of his book "Hawaiian Sovereignty: Do the Facts Matter?" Mr. Thurston Twigg-Smith refutes in scholarly detail the corresponding provisions of the Apology Resolution. That chapter should be read with care by every legislator called upon to vote on this proposed resolution.

Two factual errors in HCR 21 compellingly illustrate its historical bias and inaccuracy.

Inherent sovereignty

HCR 21 refers to the "sovereignty" or the "inherent sovereignty" of the "Native Hawaiian people" which was somehow taken from them at or about the time of the overthrow of the monarchy in 1893 and which has somehow persisted to the present day. There is no historical or legal basis for these assertions. "Native Hawaiians," under the kingdom, never had "inherent sovereignty" to lose. /n3

Sovereignty, in the Hawaiian kingdom, resided inherently in the monarch, not the "people." In this respect, the monarchy was very different from a republic like the United States, where sovereignty--the supreme political authority within an independent nation--is with the people.

This difference was clearly set out by the Hawaiian kingdom's supreme court in the case of Rex v. Booth. /n4 A law of the kingdom prohibited sales of liquor to "native subjects" of the kingdom, but not to other inhabitants or visitors. Booth was charged with violating this law, and in his defense, he argued that the law was unconstitutional under the Kingdom's 1852 Constitution as discriminatory class or special legislation. He asserted that in constitutional governments, legislative authority emanates from the people, and that the legislature acts as agent of the people, and that "it is against all reason and justice to suppose . . . that the native subjects of this Kingdom ever entrusted the Legislature with the power to enact such a law as that under discussion." The court responded:

"Here is a grave mistake—a fundamental error—which is no doubt the source of such misconception. . . . 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."

It would appear that both Kamehameha V and Queen Lili'uokalani believed that this sharing of sovereignty could be revoked or modified by the monarch who granted it, or by his or her successor. In 1864, when Kamehameha V became frustrated with the inability of the legislature to agree on amendments to the 1852 Constitution, he simply dissolved the legislature and promulgated a new Constitution on his own authority with the statement:

"As we do not agree, it is useless to prolong the session, and as at the time His Majesty Kamehameha III gave the Constitution of the year 1852, He reserved to himself the power of taking it away if it was not for the interest of his Government and people, and as it is clear that that King left the revision of the Constitution to my predecessor and myself therefore as I sit in His seat, on the part of the Sovereignty of the Hawaiian Islands I make known today that the Constitution of 1852 is abrogated. I will give you a Constitution." /n5

Of like mind was Queen Lili'uokalani, who stated:

"Let it be repeated: the promulgation of a new constitution, adapted to the needs of the times and the demands of the people, has been an indisputable prerogative of the Hawaiian monarchy." /n6

To these Hawaiian leaders of the past, a claim that the "Hawaiian people" had "inherent sovereignty" would indeed have been viewed as revolutionary.

Nor was the government of the Hawaiian Islands, in the decades immediately before the ending of the monarchy, "Hawaiian" or "Native Hawaiian." As early as 1851, foreign-born subjects of the kingdom sat in the legislature /n7 and held various degrees of control during the monarchy period. /n8 Westerners as well as natives sat as judges in the courts of the kingdom /n9 and as members of the cabinet along with natives and part-Hawaiians. Westerners had been trusted advisors of the monarchs from the time of Kamehameha I. During the reign of King David Kalakaua (1874-1891), many who lacked Hawaiian ancestry were appointed to the King's cabinet; at one point in his reign, he had made a total of thirty-seven ministerial appointments of which only eleven had gone to men of Hawaiian "blood." /n10

By 1893, when the monarchy was replaced by a provisional government, natives and foreigners alike had long participated extensively in the political, social and economic life of the nation, and continued to do so. Racial tension was often high, but the government was not a government of, by or for a particular race. /n11

To the extent that HCR 21 is based on the idea that persons of Hawaiian ancestry had "inherent sovereignty" under the monarchy, it is based on a false premise.

Ceded Land Claims

HCR 21, like the Apology Resolution, refers to "ancestral lands" and "national lands" of "the Native Hawaiian people." If those terms refer to what are today called the "ceded lands," then Native Hawaiians as defined in the bill have no special claim to those lands.

Native Hawaiian advocates have long asserted that Native Hawaiians have some special rights in the former Crown and government lands of the kingdom, sometimes referred to as the "ceded lands" because they were granted or "ceded" to the United States upon Hawai'i's annexation in 1898. These claims were examined in detail by the Congressionally-chartered Native Hawaiians Study Commission in 1983 and were found to have no legal basis. /n12 They were examined again, based on a thorough examination of Hawai'i's history, in 1995 in an environmental impact statement for land use changes at the Bellows Air Force Station in Waimanalo, Oahu. /n13 The Record of Decision therein concluded that these claims had no legal or historical validity. /n14 These findings were not novel; they were fully consistent with the 1910 decision of the U.S. Court of Claims denying ex-Queen Lili'uokalani's claim for compensation for the loss of her interest in the Crown lands and holding that both the Crown and the government lands of the kingdom were, in essence, "public lands." /n15

There is absolutely no legal support whatsoever for the notion that at the time of the overthrow of the monarchy or at any time after the land revolution which began in 1848, Native Hawaiians held any interest, directly or as beneficiaries of some sort of implied trust, in the ceded lands. Legal authority is to the contrary. /n16

Conclusion

HCR 21 should not be passed. It is unnecessary and dangerous. Its recitation of history is inaccurate and biased. It perpetuates mythical and divisive ideas concerning the 1893 revolution and the annexation of Hawai'i to the United States. It would lead the state down a path of unconstitutional racial separatism.

notes

1 528 U.S. 495 (2000)

2 George S. Kanahele, The New Hawaiians, 29 Social Process in Hawai'i 21 (1982).

3 The following discussion on sovereignty under the Kingdom of Hawai'i is taken in substantial part from Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99, 152-53 (1998).

4 2 Haw. 616 (1863).

5 Quoted at 2 Kuykendall, The Hawaiian Kingdom 132 (1953).

6 Lili'uokalani, Hawai'i's Story by Hawai'i's Queen 21 (1898).

7 3 Kuykendall, The Hawaiian Kingdom 191 (1967).

8 See, e.g., id. at 401-402, 406-410, 448-455.

9 See, e.g., 2 Kuykendall, The Hawaiian Kingdom 241(1938).

10 Gavan Daws, Shoal of Time 214 (1968).

11 See generally 3 Kuykendall, The Hawaiian Kingdom (1967) ch. 19 - 20; Patrick W. Hanifin, To Dwell on the Earth in Unity: Rice, Arakaki, And The Growth of Citizenship And Voting Rights In Hawai'i, 5 Hawai'i Bar Journal (No. 13) 15 (2001).

12 See "Existing Law, Native Hawaiians and Compensation," 1 Final Report of the Native Hawaiians Study Commission (1983), pp. 333-370; but see dissenting view in 2 Final Report of the Native Hawaiians Study Commission (1983) 7-11, 80-99 (proposing moral rather than legal bases for reparations).

13 U.S. Pacific Command, Final EIS for Land Use Development at Bellows Air Force Station, Waimanalo, HI (1995), section 6.6.

14 61 Fed. Reg. 28568, June 5, 1996.

15 Lili'uokalani v. U.S., 48 Ct. Cl. 418 (1910).

16 See, e.g., Jon J. Chinen, The Great Mahele, Hawaii's Land Division of 1848 15-20 (1958); Louis Cannelora, The Origin of Hawaii Land Titles and of the Rights of Native Tenants (1974). See generally Paul M. Sullivan, Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai'i, 20 U. Haw. Law Rev. 99 (1998).

Sincerely,

Paul M. Sullivan

=====================

COMMITTEE ON WATER, LAND USE & HAWAIIAN AFFAIRS

TESTIMONY Regarding HCR 10 AND HR 10

Aloha kakou,

This resolution should be rejected.

Hawai'i is known throughout the world for our beautiful rainbow of races and cultures. We celebrate our diversity within a framework of unity and equality under the Aloha Spirit.

The Native Hawaiian Recognition bill is a form of racial separatism that would break apart our rainbow. It would allow creation of a separate government for about 20% of our people defined solely by race. The primary purpose of the bill is to protect what OHA has identified as more than 160 racial entitlement programs which are unconstitutional under the 14th Amendment equal protection clause. Protecting those programs and enfolding them into a sovereign political entity would establish by law a permanent hereditary elite with government powers. The resulting disunity would produce constant jurisdictional disputes between the Akakakanaka government and the State of Hawai'i. The resulting racial inequality under law would fan the flames of ethnic strife, destroying the Aloha Spirit.

Tribal businesses on tribal lands (scattered throughout all parts of Hawai'i) would be exempt from federal, state, and county income, excise, and property taxes; exempt from environmental regulations; exempt from state laws requiring employers to offer minimum wages, health insurance, workers' compensation, etc. The tax base of the State of Hawai'i would be severely reduced -- both directly through the loss of taxes on tribal lands and businesses, and indirectly through the bankruptcy of neighboring businesses unable to compete in Hawai'i's high-tax and heavily regulated environment.

The concept of "a permanent [federal] agency to address Hawaiian reconciliation proceedings and the political status of Hawaiians" would be a first step toward racial separatism. The political status of ethnic Hawaiians is that they are citizens of the United States and of the State of Hawai'i. Needy people deserve government help based on need alone, without racial discrimination. Wealthy people need no government assistance, even if they have native blood. The Hawaiian culture and language have undergone a powerful renaissance during the past several decades. The population of Native Hawaiians has increased tenfold, from fewer than 40,000 in 1900 to more than 400,000 in 2000. This flourishing of Hawaiian culture and population has taken place under the sovereignty of the United States, and in the context of a multiracial society with one unified government of Hawai'i. May it always be so.

For detailed information about the Native Hawaiian Recognition bill, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

Submitted on behalf of myself and Aloha For All

Kenneth R. Conklin, Ph.D.

==================================

HB89 was originally a "short form bill" -- an empty vehicle to be filled in later. Its title was: "Hawaiian Issues Office; Appropriation." Its bill description said, in its entirety: "Effectuates the title of this Act, relating to Hawaiian affairs." The hearing notice mentioned cryptically that the bill would provide funds to lobby for passage of the Akaka bill in Congress." For comic enjoyment, the short-form bill can be seen at:
http://www.capitol.hawaii.gov/sessioncurrent/bills/hb89_.htm

With such a sketchy outline it was difficult to create testimony. The testimony below was given orally by H. William Burgess. The bill itself was "filled in" during or after the hearing, in the form of HB89 HD1: Hawaiian Issues Office; Appropriation -- Establishes a temporary Hawaiian issues office within the office of the lieutenant governor to monitor federal legislation affecting Hawaiians and to promote federal recognition of native Hawaiians and right to self-governance; office may be located in Washington, District of Columbia; appropriates funds.
http://www.capitol.hawaii.gov/sessioncurrent/bills/hb89_hd1_.htm

Aloha and good morning Chair Kanoho and committee members:

Spending taxpayer funds to support a Federal Recognition bill would encourage Congress to draw a line of racial segregation through all of Hawai'i's intermingled, intermarried and integrated society.

As everyone who lives here knows, there is no Native Hawaiian tribe. "Native Hawaiians" as defined in S. 746 are found throughout the state's social, economic and political fabric in positions of power and influence. Neither language nor religion nor a territorial boundary separates them from their neighbors of different ancestries. They are not segregated by prejudice or by tradition or by a voluntary decision to live apart. In fact, "Native Hawaiians" as defined in the Akaka Bill are not a distinguishable "they" or "them" at all, except by the test of race. In every way that matters, "they" are "us." The Akaka Bill would destroy that, and along the way, it would destroy the delicate but durable racial harmony that has made this state a model for others.

The Akaka Bill's many defects are explained in detail in a booklet written in 2001 by attorney Paul Sullivan. It's called "Killing Aloha." Copies of this booklet were provided in the last Congressional session to Members of Congress, and I have brought one for each member of this committee for your review. That booklet provides a section-by-section analysis of the Akaka Bill and shows why the Akaka Bill is dangerous, unnecessary and unconstitutional and why, even if it were passed and upheld in the courts, its many ambiguities and uncertainties would require years of litigation to untangle. I ask you and the other members of the committee to read this booklet and ask yourselves whether you really want this flawed bill to become law.

Sunday's Honolulu Advertiser provided another reason not to use the state's tax dollars to support the Akaka Bill: Your constituents do not want you to spend their tax money for it. Of all the issues covered, Addressing Native Hawaiian issues came in last. 52% of those polled (more than on any other issue) would pay no more tax to address native Hawaiian concerns.

So please, put taxpayer funds where they are most needed. Spending them in a hopeless quest for racial segregation is just not right. Put them to work in the public schools, or to protect our economy, the jobs of our citizens, the health and safety of our families and the quality of all our lives. That should be the priority, because it can make Hawaii once again the best place in the world to live.

Aloha for All

=====================

HB1305 and SB1156 -- Requires OHA to establish and maintain a registry of all persons of Hawaiian ancestry, regardless of place of residence.
http://www.capitol.hawaii.gov/sessioncurrent/bills/hb1305_.htm
and
http://www.capitol.hawaii.gov/sessioncurrent/bills/sb1156_.htm

HOUSE COMMITTEE ON WATER, LAND USE & HAWAIIAN AFFAIRS

TESTIMONY Regarding HB1305

Aloha kakou,

This bill should be rejected.

It is very bad policy for a government agency to maintain a racial registry. For example, in Germany of the 1930s and early 1940s, every person of Jewish ancestry was required to register with a government agency. Eventually all such persons were required to wear a yellow armband with Star of David; and eventually such people were forcibly relocated.

The Office of Hawaiian Affairs previously operated under an election scheme where only persons of native Hawaiian ancestry could vote; thus voter registration rolls were used as a racial registry. Following the Rice v. Cayetano decision, racial questions are no longer asked on voter registration forms, and the racial registry is no longer periodically updated for OHA by the Office of Elections.

In the years since the Rice decision OHA has attempted various schemes to register people of native ancestry. OHA currently operates a program where people of native ancestry fill out an application, submit proof of ancestry, and get photographed; a photo-ID race-identification card is then given to them having the general appearance of a driver's license or state ID card.

The clear intent of this program is to provide government money to help people literally "play the race card." When applying for government racial entitlement benefits, or demanding discounts from cooperating merchants, playing the race card guarantees success.

Under existing law OHA may choose to spend on a racial registry some or all of the $250 Million it still hoards in the stock market (following an 80 million dollar loss).

HB1305 states a requirement that OHA SHALL establish and maintain a racial registry, which implies that the State of Hawai'i in future legislation will be expected to pay for this program over and above all other moneys given to OHA. Let OHA pay for this program from its already hoarded wealth.

The bill description says: "Requires OHA to establish and maintain a registry of all persons of Hawaiian ancestry, regardless of place of residence." The results from Census 2000 indicate that there are over 400,000 people of native Hawaiian ancestry. 260,000 reside in Hawai'i, and an additional 160,000 reside elsewhere inb the United States, scattered among all the States. Shall the people of Hawai'i be required to pay for tracking down and registering all 400,000 of these people? In addition, there are people of Hawaiian ancestry living throughout the world. To see a spreadsheet showing state-by-state populations of people of Hawaiian ancestry, go to:
https://www.angelfire.com/hi2/hawaiiansovereignty/population2000.html

Furthermore, establishing a racial registry is part of the process of developing a "roll" of membership for an Indian tribe. If the Native Hawaiian Recognition bill passes (Akaka bill), Congress will pay for the process of creating and maintaining a tribal roll for Hawai'i's Indians.

Testimony submitted by Kenneth R. Conklin, Ph.D., on behalf of myself and Aloha For All

=======================

COMMITTEE ON JUDICIARY AND HAWAIIAN AFFAIRS

TESTIMONY Regarding HB633

RELATING TO THE HAWAIIAN LANGUAGE IMMERSION PROGRAM - Establishes the Hawaiian Immersion program.

Aloha kakou,

This bill deserves general support, but with important reservations and modifications. Specific language is proposed following some background commentary.

The Hawaiian language immersion program has a noble goal and a proud history of achievement. The goal is to preserve the Hawaiian language and help it flourish in daily use. Parents and community volunteers have struggled mightily, against great odds and occasional bureaucratic indifference, to provide specialized books, instructional materials, staff, and facilities. The Hawaiian language immersion program deserves continued government support, because Hawaiian language is a great treasure for all the world and especially for all Hawai'i's people. To that end, we support the general concept of this bill.

However, in recent years there has been a growing tendency to use the language immersion program as a vehicle for political consciousness-raising as part of the Hawaiian sovereignty movement. For example, it has been repeatedly claimed that Hawaiian language was made illegal by the Republic of Hawai'i following the overthrow of the monarchy in 1893. That claim is completely false. Hawaiian language was not even made illegal as a language of instruction in the schools, and enjoyed continued government support. But this pernicious and false historical claim has been used for political demagoguery to inflame the passions of sovereignty activists and to create sympathy for alleged historical grievances to cause the general population to support reparations programs. For a detailed examination of the claim regarding an alleged banning of Hawaiian language, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/hawlangillegal.html

Sometimes parents and community members participate in the program primarily for their own political purposes, and in order to try to indoctrinate the children with a form of ethnic pride that can turn into an attitude of racial entitlement and even supremacy. Because of the close connection between Hawaiian language and the Hawaiian culture, the language immersion schools also have a tendency to engage in forced religious observances such as prayers to open and close the school day. The content of elementary readers is focused on ethnic pride, describing "Hawaiian values" and ancestral achievements, which might cause children lacking Hawaiian ancestry to feel inferior and excluded. Care must be taken to prevent the language immersion classes and schools from becoming politicized venues for religious indoctrination, racial separatism, and ethnic nationalism resembling the schools in Saudi Arabia that have been featured in news reports since the events of 9-11. These concerns are not idle speculation, but are very real. These concerns are explained and thoroughly documented in the webpage
https://www.angelfire.com/hi2/hawaiiansovereignty/edforhawnethnicnationbuilding.html

To support the concept of restoration and flourishing of Hawaiian language as a cultural treasure for all Hawai'i, while guarding against an unfortunate and dangerous tendency toward religious indoctrination, racial separatism, and ethnic nationalism, the following suggestions are made for modifying HB633.

Section 1.1, Findings and purpose: strike the words "assisting the people of Hawaiian ancestry to regain and maintain their language." and replace with the words "assisting the people of Hawai'i to regain and maintain Hawaiian language."

Section 1.2, Hawaiian language immersion program; established: At the end of this section, add these two sentences: "Students in this program shall be required to meet the same standards of subject matter knowledge and skill as required for public school children not participating in this program, although such knowledge and skill may be assessed through the medium of Hawaiian language. Throughout the program and its daily operation, care shall be taken to ensure that no child is required or coerced to participate in religious observances either ancient or modern, and that no child's ancestral or cultural heritage is elevated to supremacy or relegated to inferiority."

Section 1.3, Attendance and eligibility: Replace the first sentence with the following two sentences: "All families of fluent Hawaiian-speaking persons of compulsory school age, regardless of ancestry, choosing to enroll in the Hawaiian language program may be given preference for admittance, together with all families regardless of ancestry who pledge to enroll in such language courses as may be necessary to become fluent."

Section 1.4, Office of Hawaiian language immersion instruction; personnel: Change the title of this section to "Personnel" and strike out the first sentence thereafter proposed. The intent of this legislation should not be to create a new and separate bureaucracy.

Section 1.5, Facilities or transportation: Strike the entire wording of this section and replace it with the following: When twenty-five or more qualified children (or whatever number represents the average number of children per class for that grade level in that district of the DOE) in any one departmental school district wish to enroll in the Hawaiian language immersion program, the superintendent of education may provide facilities for an immersion program. If facilities are not provided at the school such children would normally be assigned to attend, the DOE may provide assistance in helping families make suitable transportation arrangements under the same rules for payment that apply to other situations where families choose geographic exceptions, charter schools, or magnet schools.

Section 1.6 Student performance: Add the following sentence at the end: "Students in this program shall be required to meet the same standards of subject matter knowledge and skill as required for public school children not participating in this program, although such knowledge and skill may be assessed through the medium of Hawaiian language."

SECTION 4. Section 302A-1143, Hawaii Revised Statutes: Strike this portion of HB633. Make no change in existing regulations.

The remainder of HB633 is acceptable as written.

Testimony submitted on behalf of myself and Aloha For All

Kenneth R. Conklin, Ph.D.

========================

SB1597 -- Hawaiian Focused Charter Schools: Establishes a noncontiguous separate "public" school system consisting of all taxpayer-supported charter schools whose curriculum and methods are focused on ethnic Hawaiian culture; provides authority to certify additional such schools and to govern them separately from the Department of Education.
http://www.capitol.hawaii.gov/sessioncurrent/bills/sb1597_.htm

Aloha kakou,

This testimony is offered in opposition to SB1597, a bill to establish a separate "public" school system for ethnic Hawaiian culture immersion schools.

One obvious objection is that if the Native Hawaiian Recognition bill is enacted into law, it will then become the responsibility of the federal government to provide funds to operate tribal schools for Native Hawaiians. States do not control, operate, or fund tribal schools. In the meantime, ethnic Hawaiians are not a tribe, and the State of Hawai'i should not be trying to turn them into one.

Gerrymandering of school district boundaries to create segregated schools has been ruled unconstitutional. Indeed, for more than four decades great efforts have been made to desegregate public schools, including court-ordered busing of children across district lines to break up the racial homogeneity in schools serving racially segregated neighborhoods. Given that history, it would be especially odious to gerrymander explicitly to create a racially or "culturally" segregated school district by assembling non-contiguous populations into a district defined by having a predominance of one ethnic group. Imagine the reaction if the State of Mississippi had tried to circumvent the Supreme Court school desegregation decision of 1954 by creating either a statewide non-contiguous predominantly-Negro school district, or a statewide predominantly-white school district. This legislation is reminiscent of attempts throughout the United States 40 years ago, especially in places like Mississippi and Alabama, to evade the Brown v. Board of Education 1954 school desegregation decision by permitting white parents to privatize public schools and create white-focused schools with tax dollars to perpetuate white culture.

In general, I suggest that Legislators evaluate this bill by asking themselves whether they would support a similar bill to establish a separate public school system for a consortium of "Filipino focused" schools, or "Japanese focused" schools. One important purpose of the public school system is to provide a common education for all children of varying ethnicities, to help bring us together around a common set of values, skills, and knowledge. As a multiethnic community we value diversity and consider it important that children in their formative years are exposed in school to a wide range of people and cultural practices. The clear purpose of SB1597 is to pull people apart along racial and cultural lines, to provide a culturally and politically homogeneous curriculum and a student body overwhelmingly identifying itself as "Native Hawaiian." At a time when politically liberal activists are trying to preserve affirmative action programs to promote racial diversity of student enrollment on the theory that a diverse student body is essential to high-quality education, comes now a consortium seeking a retrograde racial and cultural separatism.

Two years ago the New Century charter school program permitted the establishment of 25 public charter schools that would have considerable autonomy within the Department of Education. 12 of those slots were taken by groups of Native Hawaiians who established Hawaiian CULTURE immersion schools -- these are different from the numerous Hawaiian LANGUAGE immersion classrooms and schools that have been operating for more than a decade.

The 12 existing Hawaiian culture public charter schools have formed a consortium and written the bill SB1597, that would formally establish a separate Native Hawaiian "public" school system, independent from the Department of Education but funded with tax dollars (of course!). This "separate but equal" school system would have the power to certify and incorporate additional Native Hawaiian culture immersion schools, more than doubling their current numbers to 25. This is in addition to the Hawaiian language immersion schools and classes that are the subject of other bills in the Legislature.

My Ph.D. is in Philosophical, Historical, and Social Foundations of Education. For 13 years I was a professor of teacher education, and my students were teachers, principals, and superintendents. Also, for 17 years I taught high school Mathematics. Thus I am familiar with both the theory of what makes a good education system, and the practical problems of teaching and curriculum design. Moreover, I have published scholarly articles on the manner in which individual elements of instruction are integrated by children into a coherent personal character and worldview, and the mechanism of concomitant learning whereby children acquire concepts and attitudes not explicitly taught.

I have created a large webpage which examines the distinction between public and private schools, the nationwide movement toward charter schools and voucher plans, the history of Hawai'i's highly centralized public school system, and the development of the Hawaiian language immersion schools and Hawaiian culture immersion charter schools. The webpage includes a copy of the original version of SB1597 as it was proposed in 2002, and the testimony submitted at that time to oppose its blatantly race-based provisions. The bill in 2002 required a majority of all students and a majority of all school governing board members to be racially Hawaiian, and was clearly unconstitutional. The new SB1597 this year has eliminated the explicit racial control provisions in an effort to create a more benign appearance, but the clear intent of the bill remains the same. Please see
https://www.angelfire.com/hi2/hawaiiansovereignty/efhenb.html

The proposed legislative "findings" in the first five paragraphs of SB1597 are dubious at best. And if the alleged victimology were true, SB1597 would only serve to worsen the ability of the children in these charter schools eventually to live happily and compete effectively in the culture of Hawai'i as it exists today and for the foreseeable future. The claim that ethnic Hawaiians are an indigenous people is dubious. No humans lived in Hawai'i more than 2000 years ago; thus, Hawaiians did not spring up from the land of Hawai'i. The voyaging canoes brought people here in at least two waves separated by perhaps a thousand years, and it is unclear whether any of today's Hawaiians are descended from anyone in that first wave. Certainly the lifestyle and culture of today's Hawaiians is, with rare exceptions, fundamentally similar to the lifestyle and culture of all Hawai'i's people, many of whom participate in Hawaiian language and culture even though lacking the blood. If descendants of a wave of Polynesians who immigrated to Hawai'i six centuries ago are considered indigenous, then descendants born in Hawai'i of the most recent wave of Europeans, Americans, and Asians whose ancestors arrived two centuries ago should also be considered indigenous. Some indigenous organizations have proposed statements regarding the rights of indigenous people, but no such statement has been adopted by the United Nations. However, even if there were a generally accepted right of indigenous people to be educated in "their native language," such a right would be intended to protect indigenous children whose families live an indigenous lifestyle and are raised speaking ONLY their indigenous language, so they do not find themselves suddenly thrust into a school environment conducted in a language completely unknown to them. Nearly all today's Hawaiians raised in Hawai'i, including children in the immersion program, speak English as their primary language, and learn Hawaiian voluntarily for enjoyment or for cultural or political purposes intentionally chosen by their parents.

The language in SB1597, and the language on the website of the lead Hawaiian culture immersion charter school, makes the following abundantly clear (supporting excerpts provided below): (A) Children who lack native ancestry would be admitted to these schools primarily out of necessity to comply with laws prohibiting racial discrimination, but they would be on more or less permanent probation to monitor their behavioral and ideological conformity with "Hawaiian culture;" (B) The curriculum is explicitly designed to indoctrinate children to believe in the racial and cultural superiority of Native Hawaiians, enthusiasm for ethnic nationalism and racial separatism, and a belief that Hawai'i's people should oppose and resist the United States as an oppressor of the Native Hawaiian people. These characterizations are not exaggerations of the bill-authors' beliefs -- they are clearly and unequivocally articulated in the statements of Ku Kahakalau, head of one of the existing charter schools and of the consortium sponsoring this legislation. Legislators should ask her and her colleagues about these statements when they testify (statements provided at the end of this testimony).

There is no way that public tax dollars should be spent to establish any school system such as this. Indeed, the existing Hawaiian culture immersion schools under the New Century charter school law should be decertified as public schools and have their public funding and tax-exempt status withdrawn. Political and religious indoctrination of children to believe theories of racial supremacy and to harbor anti-American attitudes is not something the taxpayers of Hawai'i should be required to support.

The kinds of religious, philosophical, historical, and political content being taught in these schools will brainwash the children with a separatist ideology based on the concepts that Native Hawaiians are racially superior (being descended from the gods), have been oppressed by the United States (overthrow, annexation), and have been victimized by an alien economic and political system imposed on them by non-Hawaiians (the victimhood myths are prominent in the school curriculum and in the first several paragraphs of SB1597). Some shocking quotations from Ms. Kahakalau's website are provided below.

Would non-Hawaiian children feel comfortable in a school like this? Why would their parents want them to attend? Of course there are a few non-Hawaiians who have bought into the guilt-trip laid on them by the sovereignty activists, who would feel it is their duty to send their children to such a school. And there are a few politically liberal "yuppies" who like the child-centered, hands-on, environmental-based, group-project style of education filled with the mystique of Hawaiian language, hula, chanting, and remnants of pre-contact paganism.

But sooner or later the non-Hawaiian children attending such schools will clearly recognize that they are there as racial tokens to satisfy the law. They will be indoctrinated to believe that they are inherently and irreparably inferior to the "true Hawaiians" who sit next to them. The situation would be comparable to sending a black child to attend a white supremacist school in Mississippi where the teachers treat "that cute little pickaninny" with kindness while the Ku Klux Klan sets administrative policy and writes the curriculum.

And the ethnic Hawaiian children attending these schools will also be irreparably damaged. They will feel racially superior to non-Hawaiians (being descended from the gods), and entitled to race-based political supremacy in Hawai'i (because they are indigenous, they have a close connection with the land, and the bones of their ancestors are here in the Hawaiian homeland). They will believe their people have been oppressed by the United States (overthrow, annexation, and continued military occupation), and have been victimized by an alien economic and political system which has placed them at the bottom among all ethnic groups in regard to health, education, housing, incarceration, etc. (this victimhood language is in the language of the bill itself). They will be taught that their heroic ancestors resisted, and it is their filial duty to rise up and take control of their homeland. They will feel a duty to rebel against state and federal governments which have produced for them wealth beyond the wildest dreams of their ancestors, freedom and financial support to pursue their culture, and a flourishing of their race that has produced a ten-fold increase in population during the century of American sovereignty, from 40,000 in 1900 to 240,000 in Hawai'i and 400,000 nationwide today. They will have their hopes and dreams channeled into the fruitless pursuits of ethnic nationalism and racial separatism, and in the end they will feel betrayed, defeated, and angry when their efforts are unsuccessful. Meanwhile, they will live well below the level which they could achieve, because their abilities and energies are being wasted to pursue political power and governmental handouts instead of productive work and professional success.

Here (between the lines) are five excerpts taken from Ku Kahakalau's website for her Hawaiian culture immersion charter school Kanu O Ka 'Aina: http://www.kalo.org/about/index.htm Please take note of the ethnocentric emphasis of the purpose and curriculum, and the blatantly anti-American focus of the "liberatory" pedagogy. For those who might believe that it is appropriate to provide government funding for such a school, please consider what would be your feelings if the word "white" were to replace the words "native Hawaiian" or "native" etc. Our Constitution guarantees people the right to hold repulsive opinions and to speak them freely; but it does not require us to spend tax dollars to promote such ideas or to brainwash children in accord with them.

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"The long-term goal of Kanu is to create a native designed and controlled system of Hawaiian education that will empower native communities throughout the archipelago to achieve political, cultural and economic self-determination."

"[T]his model wants to give native Hawaiians of all ages the opportunity and the choice to remain natives of their kulaiwi and to perpetuate Hawai'i's native language, culture and traditions into the future. In addition, Kanu wants to empower Hawai'i's native people, who are direct descendents of earthmother Papa and skyfather Wakea, to once again assume our rightful stewardship over our archipelago."

"Providing culturally driven education, that is specifically designed to meet the unique wants and needs of native students, is Kanu's primary focus. While we accept students that do not have Hawaiian blood, these students and their families, like their native counterparts, must make a commitment to be actively involved in the perpetuation of native Hawaiian language, culture and traditions. In addition, they must consent to being taught according to native Hawaiian values and teaching strategies and behave in a culturally consistent manner."

"Probably the most unique and critical aspect of Kanu's educational foundations is the fact that Kanu wants to actively prepare native students to participate in - and perhaps even lead - Hawai'i's indigenous sovereignty movement. Initially I was sort of hesitant to claim that Kanu represents a liberatory pedagogy. However, the more I reflected on the true purpose of my model the more I realized that my model is definitely designed to liberate. Specifically, Kanu wants to encourage Hawaiian students to become politically conscious, and individually and collectively tackle the problem of Hawaiian oppression by the United States and our subjugation to American law and a Western way of life. In that vein, Kanu has the potential of significantly contributing to the Hawaiian sovereignty effort."

"Utilizing problem-posing as an instructional technique, Kanu hopes to make our students realize that the occupation of Hawai'i by the United States of America is not fatal and unalterable, but merely limiting – and therefore challenging. Additionally, Kanu wants to empower our students to accept this challenge and find solutions to this and the many other dilemma, that face Hawai'i's native people in their homeland today. By actively participating in finding solutions to native problems, it is envisioned that Kanu students will become an intricate part of the process of native liberation from American domination that nearly caused the demise of our native people and our way of life."

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Thank you for defeating this outrageous piece of legislation.

Kenneth R. Conklin, Ph.D.

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No testimony was submitted regarding this bill. The racial restriction on voting for this state government agency's trustees is unconstitutional for the same reasons as decided by the U.S. Supreme Court in Rice v. Cayetano, and the racial restriction on candidacy is unconstitutional for the same reasons as decided by the U.S. District Court in Honolulu and the 9th Circuit Court of Appeals in San Francisco in the case Arakaki v. State of Hawai'i. The unconstitutionality of this bill should be so obvious that no testimony is needed. But if the bill is passed, the same attorneys who prevailed in the Rice and Arakaki cases will easily prevail again, and again at taxpayer expense.

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Email: ken_conklin@yahoo.com