Copyright 2000 (c) Kenneth R. Conklin, Ph.D. All Rights Reserved
Open Letter to Hawai'i State Legislators, March 22, 2000
Aloha Hawai'i State Senator or Representative:
I hope you will avoid a terrible mistake. Please do NOT support any resolution favoring any sort of federal recognition of kanaka maoli as having the political status of an Indian tribe. And please do not endorse any sort of racially defined sovereignty that would be different from the multiracial and fully-integrated sovereignty of the State of Hawai'i and the United States of America.
First, tribal status for kanaka maoli is historically inappropriate and probably unconstitutional -- the U.S. Supreme Court has already given strong indication in its Rice decision that it would strike down any such executive order or Congressional act (see below)
Second, I believe most citizens of the State of Hawai'i do not want to partition the state into tribal areas and integrated areas. We like living together and having equal rights. Why promote such divisiveness? The kanaka maoli people from the time of first contact with Captain Cook have always chosen to integrate, intermarry, adopt written language, Christian religion, the rule of law, and all the accoutrements of capitalist success. They have never wanted to confine themselves on reservations, and they have never been slaughtered by military power. They have no history of tribal government exercising political control over their race, because they freely welcomed newcomers into their homeland, made full partners of them, assimilated fully into their ways, and adopted democratic constitutional government (the Kingdom of Hawai’i) in which kanaka maoli became a minority and people of all races had full and equal voting rights and property rights. This is not the way Indian tribes behaved.
Third, tribal status would permit kanaka maoli to operate businesses without paying state income tax, excise tax, and other business taxes. Zoning regulations, environmental regulations, and mandated employee benefits such as health nsurance, liability insurance, and workers' compensation would not apply on tribal lands. The result would be that neighboring businesses not on the tribal lands would be unable to compete and would be driven out of business, thereby lowering the tax base and damaging the overall economy. There will also be constant lawsuits over the boundaries of the tribal lands, with land titles being thrown into doubt. Some political and business interests welcome tribal status because they believe it will result in a massive influx of federal dollars into the State of Hawai'i, and thus would be good for the economy. To see the terrible effects of having tribal lands and non-tribal lands interspersed among each other, take a look at a website created by the citizens of upstate New York who are struggling against tribal reservations in their area: http://www.ucelandclaim.com
We have just had a Supreme Court decision ordering us to desegregate our voting laws, and it is acutely distressing and embarrassing to watch our State officials scramble to find ways to circumvent that decision. Please stop behaving like the politicians of Mississippi, Alabama, and Arkansas behaved after the 1954 Brown v. Board of Education decision of the Supreme Court forced them to begin desegregating their schools -- they tried to privatize their schools and give vouchers to parents who could choose segregated education for their children, thereby circumventing the Court's decision. And following the Voting Rights Act of 1965, they tried to avoid letting black people vote by imposing poll taxes and literacy requirements. Now, in the year 2000 in the multiracial State of Hawai'i, the Supreme Court of the United States has told us that people of all races must be allowed to vote for trustees of the State of Hawai'i Office of Hawaiian Affairs. Yet what were the reactions to this decision? (1) Maybe OHA could pay for its own elections, so we don't have to let non-kanaka maoli vote. (2) Maybe we could let the governor appoint the trustees so there is no longer an election. (3) Maybe we could make OHA a private institution and slip them public money under the table. (4) Maybe we could "protect" OHA's assets by transferring them to the Department of Hawaiian Homelands where the non-kanaka maoli cannot get at them. (5) Maybe we can pass the buck to the Hawai'i State Supreme Court to figure out how to get around the Rice decision. (6) Maybe the trustees now in office, elected in a segregated election now known to have been unconstitutional, can stay in office until their terms expire; or perhaps the trustees could resign, thereby creating a vacancy which the governor could then immediately fill by appointing the same trustees. (7) Just because we have to allow non-kanaka maoli to vote for OHA trustee does not mean we have to allow non-kanaka maoli to run for that office or hold that office. (Or, in Alabama: imagine the politicians saying, "Just because we have to let blacks vote in the elections doesn't mean we have to let them run for office or hold office") (8) Maybe we can get Indian tribal status for kanaka maoli, so it becomes legal to continue racial entitlement programs for them, with the Federal Bureau of Indian Affairs replacing the State Office of Hawaiian Affairs.
Please recognize that the future lies with equal rights for all, and a revival of the Aloha Spirit -- not separatism and ethnic warfare. There are powerful entrenched bureaucracies and billions of dollars wrapped up in OHA, Kamehameha School (Bishop Estate), and the banks, law firms, and other institutions which serve them. It is time to break out of that stifling establishment and move forward into the new century. Those who cling to racial entitlement programs are doomed to follow such programs into the dustbin of history.
As mentioned earlier, the decision in Rice v. Cayetano indicates that the Supreme Court looks unfavorably at Indian tribal status for kanaka maoli, and will probably strike it down if President Clinton or Congress attempt to confer such a bogus status.
Here are the words of the Court, subscribed to by all 7 of the majority Justices:
"If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State--and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993--has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes...."
Five of the seven Justices in the majority specifically stated that they did not wish to address the questions of whether OHA was constiitutionally permissible, or whether kanaka maoli are similar to an Indian tribe, because those questions were not raised by plaintiff Mr. Rice. Neverthless, those five justices went out of their way to show their skepticism in the above paragraph. In addition, the other two Justices in the majority, Breyer and Souter, felt so strongly about these issues that they wrote a separate concurring opinion specifically in order to address these issues, even though it was not necessary to do so. Here is what Justice Breyer wrote, with Justice Souter also signing:
[Begin Breyer quote]
"The majority seems to agree, though it does not decide, that the OHA bears little resemblance to a trust for native Hawaiians. It notes that the Hawaii Constitution uses the word "trust" when referring to the 1.2 million acres of land granted in the Admission Act. Ante, at 10, 12. But the Admission Act itself makes clear that the 1.2 million acres is to benefit all the people of Hawaii. The Act specifies that the land is to be used for the education of, the developments 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).
"As importantly, the statute defines the electorate in a way that is not analogous to membership in an Indian tribe...... including individuals who are less than one five-hundredth original Hawaiian ..... which now comprises about 60% of the OHA electorate.
"I have been unable to find any Native American tribal definition that is so broad.
" There must, however, be some limit on what is reasonable .... definition. And to define that membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members ..... goes well beyond any reasonable limit. It ..... is not like any actual membership classification created by any actual tribe.
"These circumstances are sufficient, in my view, to destroy the analogy on which Hawaii's justification must depend. .... For that reason I agree with the majority's ultimate conclusion."
[end Breyer quote]
Before you vote in favor of asking for Federal recognition of Indian tribal status for kanaka maoli, please consider whether it is wise to create a rift between racial groups which may never heal. Perhaps you remember the film "Gandhi" starring Ben Kingsley. Remember the part about what happened to India about 50 years ago, following the British withdrawal? The Hindus and Muslims could no longer tolerate each other, despite Gandhi's efforts to promote aloha. They decided to partition the country into a Hindu India and a Muslim Pakistan (East Pakistan later became the independent nation of Bangladesh). There was a massive exchange of population, with millions of Hindu refugees going one way on the road while millions of Muslim refugees passed them going the other way on the same roads. And thousands murdered each other along the way. And then, when the refugees got to their new "hometowns," both Hindus and Muslims found that the houses they were supposed to live in had been burned down by the people forced to abandon them. More recently, we have all seen the horrors of ethnic strife in the former nation of Yugoslavia, as Serbs, Croats, and Muslims, who were formerly next-door-neighbors in a multiethnic society, murdered each other, burned each others' homes, and became refugees moving into ethnically segregated enclaves.
In conclusion, please stop pandering to the Hawaiian supremacists. Please stop aiding and abetting them in maintaining a racially exclusionary hereditary elite, which will divide us and impose tremendous economic and spiritual burdens on all the citizens of Hawai'i.
For a general discussion of the sovereignty issues from historical, legal, and moral perspectives, see www.angelfire.com/hi2/hawaiiansovereignty
And for specific analysis of the ceded lands issue (where the State is being sued for perhaps a billion dollars in money and land), see http://aloha4all.org
Kenneth R. Conklin, Ph.D.
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