On March 1, 2005 The Hawaii-Nation website posted message # 720. Hawaii-Nation also sent an e-mail to all subscribers of their e-mail list containing the contents of message #720 plus an attachment containing the testimony of David Ingham, a non-native who is strongly supportive of Hawaiian independence and very knowledgeable about the history and laws concerning Indian tribes. Although this testimony is written from the perspective of Hawaiian independence activists, it includes some very good points about the history of Hawai’i.
The fact that Hawai’i was an independent nation having treaties with the U.S. and many other nations makes it grossly inappropriate for the Akaka bill to treat Hawaiians as a domestic dependent nation like the American Indian tribes. And the fact that there were thousands of non-natives who had voting rights and property rights as fully equal members of the Kingdom (including cabinet members and elected members of the Kingdom legislature) makes it grossly inappropriate for the U.S. to “reorganize” the government of that nation on a racially exclusionary basis to include only ethnic Hawaiians.
Following is message #720 (which includes testimony of Koani Foundation spokesman Kai’oupua Fyfe), plus the lengthy testimony of David Ingham.
http://groups.yahoo.com/group/hawaii-nation/message/720
From: 'Ehu Kekahu Cardwell
Date: Tue Mar 1, 2005 11:39 am
Subject: URGENT - E KOKUA MAI AGAINST S 147
Aloha 'aina,
As most of you already know, the Indian Affairs Committee hearings was held this morning in Washington, DC on S147.
Although we of the Koani Foundation were present at the hearings and had requested in advance to testify in opposition to the bill, no opposing testimony was allowed.
We did however, submit the attached document, authored by David Ingham, along with Koani Foundation coversheet to the Committee on Indian Affairs.
Judging from the questions asked by Senator McCain this morning, our written testimony clearly had impact.
Nevertheless, the bill may be reported out of committee next week and will in fact then go to the Senate floor for a vote by the full Senate sometime between then and August.
All of us clearly have our work cut out for us to help defeat this bill.
Now is the time, as never before, to begin seriously lobbying members of the US congress to vote against this bill.
To be clear, we are speaking about members other than Hawai'i's congressional delegation - we know those 4 votes are already gone.
We must all work together in unity to insure the future of an Independent Hawai'i, and to insure that all the work done by our Queen and ancestors was not in vain.
Here's the cover letter submitted to the Indian Affairs Committee. The document itself is attached to this email.
United States Senate Committee on Indian Affairs
838 Hart Senate Office Building
United States Senate
Washington, DC 20510
Subject: Testimony in Opposition to S147, March 1, 2005 Hearing.
Aloha kakou:
Greetings to Committee Chair Senator John McCain, and greetings to Committee Member Senators Pete V. Domenici, Craig Thomas, Gordon Smith, Lisa Murkowski, Mike Crapo, Richard Burr, Tom Coburn, Bryon L. Dorgan, Daniel K. Inouye, Kent Conrad, Daniel K. Akaka, Tim Johnson and Maria Cantwell
Please accept this testimony in opposition to S147, the Native Hawaiian Government Reorganization Act of 2005, for your information and consideration. We respectfully request that it be read into the record and recorded as part of the testimony at the March 1, 2005 Hearing of the Senate Committee on Indian Affairs.
In descending order of priority we:
* recommend that The Committee conduct Hearings in Hawaii so that the overwhelming opposition to S147, and its predecessor bills, may be better understood and appreciated;
* oppose the S147 proposition that the Secretary of the Department of Interior be the first and final arbiter, and ultimate administrator of Hawaiian governance, given the historic dysfunction of the DOI and recent findings of contempt, inability and unwillingness to fulfill existing fiduciary and trust responsibilities to current Native American wards;
* encourage the Committee to consider and recognize that S147 is fatally flawed in defining and seeking to reconcile with only a portion of the class of people, those who descend from the original inhabitants of Hawaii, rather than the entire class of descendants of subjects of the Kingdom of Hawaii who were negatively impacted by the United States admitted unlawful participation in the 1893 overthrow;
* request the acceptance and incorporation of the attached letter of February 27, 2005 to Chair John McCain from David Ingham as our own expanded opposing testimony.
Respectfully submitted,
Kai`opua Fyfe, Director,
The Koani Foundation
PO Box 1878
Lihu`e, Kaua`i, Hawai`i 96766
808 822-7643
Attachment
02-27-05 DIngham Lttr to Mccain XV.doc
==================
** Testimony by David Ingham, Attachment to the above e-mail from Hawaii-Nation, sent to all aubscribers **
02/27/05
Senator John McCain
Indian Affairs Committee
838 Hart Senate Office Bldg.
Washington, DC 20510
Dear Senator McCain,
The purpose of this letter is to bring compelling reasons for stopping S147, Native Hawaiian Government Reorganization Act of 2005 to your committee’s attention. This letter proposes a sound foundation for reconciliation with Hawaiians. It asks that your committee answer Hawaiians’ repeated calls for hearings in Hawaii in order for your committee to better understand the reasons for broad based sentiment against the shaky foundation for Reconciliation that Hawaiians are being offered in S147.
S147 and its predecessors are a result of the Hawaii Congressional delegation’s response to the commitment Congress made in the Apology Resolution of 1993 (PL 103-150). In that Resolution Congress expressed its commitment to:
“…acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.”
Now, the Hawaii Congressional delegation, compelled largely by the economic impact of the collapse of large scale agriculture that leased much of the Hawaiian Homes land for sugar production, the decline of tourism in Hawaii, and the State’s increasing reliance on federal pork, propose in S147 that the State of Hawaii be relieved of its responsibilities to Hawaiians delegated in the Admission Act (Act of March 18, 1959, Pub L 86-3, 73 Stat 4), but without a corresponding transfer of the lands that the State received in order to administer the Admission Act. The Admission Act provided the following conditions under which Congress granted the Crown Lands and Government Lands of the Kingdom of Hawaii to the State of Hawaii:
At section 5F of the Admission Act:
“The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.”
At Section 4 of the Admission Act:
" As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State, as provided in section 7, subsection (b) of this Act, subject to amendment or repeal only with the consent of the United States, and in no other manner: Provided, That (1) sections 202, 213, 219, 220, 222, 224, and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 212, and other provisions relating to the powers and duties of officers other than those charged with the administration of said Act, may be amended in the constitution, or in the manner required for State legislation, but the Hawaiian home loan fund, the Hawaiian home operating fund, and the Hawaiian home development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for State legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of said Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for State legislation, but the qualifications of lessees shall not be changed except with the consent of the United States; and (3) that all proceeds and income from the "available lands", as defined by said Act, shall be used only in carrying out the provisions of said Act."
S147, dressed as the foundation for reconciliation called for in the Apology Resolution, is destined to become another “ramification of the overthrow” rather than the foundation for reconciliation. S147 proposes adding half a million Hawaiians to the ever-thickening pot of sludge that both Indians and the United States are now mired in. Considering S147 as a foundation for reconciliation for the overthrow of the Kingdom of Hawaii is preposterous. Even If the proposal in S147 is any foundation at all, it will never be capable of supporting the weight of reconciliation Congress and Hawaiians will soon be building on it. The foundation proposed, federal Indian policy, is already sinking of its own weight.
It is important that your committee understand the seldom-discussed motivation of the Hawaii Congressional delegation for its proposal in S147 to incorporate Hawaiians into federal Indian policy. The 45 year long failure of the State of Hawaii to meet its federally mandated responsibility under the Admission Act is the single largest factor sustaining the decay of Hawaiians. And yet, discussion of the State’s failure to fulfill its commitment has not appeared on the Congressional radar screen. In the Admission Act, Congress ceded nearly half the land in Hawaii, two million acres, to the fledgling State of Hawaii on the condition that the land be used for five specific purposes. One of those enumerated purposes is "the betterment of conditions of Native Hawaiians". Additionally, the Admission Act delegated responsibility for the Administration of the Hawaiian Homes Commission Act and ceded two hundred thousand acres of Hawaiian Homes land to the State of Hawaii for the sole purpose of administering the Act. Those who are responsible for the State’s failure to meet its responsibility are attempting, in S147, to cast off the cloud of suspicion that hovers over land dealings in Hawaii that have occurred since Statehood, the Hawaii Congressional Delegation is attempting to divest the State of Hawaii of the obligations that came contingent with the cession of land by adding nearly half a million Hawaiians to over extended federal Indian policy, and, to simultaneously retain the land. This is not an appropriate foundation for reconciliation; it is better characterized as a scam.
S147 is the vehicle of the State’s relief and not the relief of Hawaiians whose troubles manifest themselves in all too real ill health, economic depravity, and social decay. Your work in campaign finance reform gives you superior knowledge of the negative impact narrow interests can have and the insidious way these interests seep into and corrode effective government. Your knowledge of the dismal conditions Indians find themselves in today will serve the committee well in considering the problems with S147 identified in this letter, and hopefully will cause you to urge your colleagues in Congress, the Committee, and Hawaii Congressional delegation to consider the foundation for reconciliation herein proposed. S147, in effect, will reward the State of Hawaii and other agencies for their failures at the expense of Hawaiians who would become the responsibility of the federal government. If S147 becomes law, half a million Hawaiians would be added to the chronically under funded federal obligation to Indians. Federal recognition of Hawaiians as a tribe is viewed by many of the bills proponents as an avenue to increase federal pork in the same light as the wasteful military pork that the State now relies on heavily to float its economy. S 147 is not a solution or a foundation for solution. It is the transfer of a problem from one party to another. Hawaii is no stranger to applying the legislative process to serve narrow land interests, these efforts have now risen to the Congressional level dressed as S147.
The foundation for reconciliation must address not only the United State’s participation in the overthrow of the Kingdom of Hawaii, but also State of Hawaii's failure to faithfully adhere to the conditions under which nearly two and a quarter million acres of land were ceded to the State by the federal government. Both are ramifications of the overthrow and both have caused Hawaiians to become marginalized second-class citizens in their own homeland.
In designing a proper foundation, it is important to recognize and consider the flawed concept at the core of S147 and the Apology Resolution, both of which seek to reconcile with only a portion of the class of people impacted by United States admittedly unlawful participation in the overthrow of the Kingdom of Hawaii:
Congress' commitment to establish a foundation for reconciliation must address and involve the entire aggrieved class.
It would be absurd for Congress to propose that Mayflower descendants were somehow more American than those who committed their lives, fortunes and honor to establish the United States as an independent nation. It is equally absurd to propose a foundation for reconciliation that ignores the advances and sacrifices all Hawaiians made in establishing the Kingdom of Hawaii as an independent nation, and yet, the Hawaii Congressional delegation makes exactly that proposal in S147 by defining the object of reconciliation as those with ancestors who were the original inhabitants of Hawaii rather than the descendants of subjects of the Kingdom of Hawaii in 1893 (the date of the United States Intervention that motivated the Apology Resolution). It is not the prerogative of Congress to legislate the value of Hawaiian blood and ancestry any more than it is the prerogative of Hawaiians to determine the value of Mayflower descendants or anyone else’s blood.
The value of Hawaiian blood and ancestry is for Hawaiians to determine, not the Congress of the United States.
It is important for you, Senator McCain, and the Indian Affairs Committee, to understand that it is not the ramifications of the overthrow of a Tribe that Congress committed itself to acknowledge in the Apology Resolution. The Kingdom of Hawaii was clearly a foreign nation with respect to the commerce clause of the constitution of the United States, and not an Indian Tribe. As you know, Congress relies on the commerce clause as its constitutional authority over Indians.
The Supreme Court has made the distinction between the two, Foreign Nation, and Indian Tribe in McIntosh v Johnson and Cherokee Nation v Georgia:
Johnson v McIntosh 1823:
" The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country. …"
" So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others."
Cherokee Nation v Georgia 1831:
"Foreign nations is a general term, the application of which to Indian tribes, when used in the American Constitution, is at best extremely questionable. ... We find nothing in the context and nothing in the subject of the article (Article 3, the Commerce Clause) which leads to it."
Rice v Cayetano 2000:
"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."
The Apology expresses Congress' commitment to establish a foundation for reconciliation for the overthrow of a constitutional democratic Monarchy with a highly evolved written constitution and a complex system of courts and written laws that granted fee land title to its own citizens and foreigners, including Americans. The fee title granted to Americans and others by the Hawaiian government is recognized as legitimate to this day by both the United States and the State of Hawaii. This fact alone places the Kingdom of Hawaii on the foreign nation side of the commerce clause. This was not a nation in which the Monarch ruled absolutely, but one with an elected legislature charged with making laws and a supreme court charged with interpreting those laws.
The Hawaii Congressional delegation further proposes in S147 that Congress recognize only a Hawaiian government designed and created by those meeting a congressionally provided ancestral definition that excludes descendants of the subjects of the Kingdom of Hawaii who do not meet the congressionally imposed ancestral requirement. This is in deference to the following undisputable facts:
* The laws of the Kingdom of Hawaii did not provide for discrimination based on race or ancestry; Both non-Native Hawaiians and Native Hawaiians participated on both sides of the United States intervention in Hawaiian Government.
* The highest offices in Kingdom government were filled with naturalized subjects who had no Hawaiian ancestry.
* The constitution of the Kingdom of Hawaii prohibited slavery long before our thirteenth amendment.
* The Kingdom of Hawaii was an internationally recognized independent government at the time the United States intervened and was recognized as such in treaties of commerce, navigation and amity with many nations including all of the European powers and the United States itself.
The unlawful intervention of the United States has caused Hawaiians to become alienated from their land and government. Hawaiians have done nothing wrong, they have neither committed an offense nor provoked the United States’ offense against them; Hawaiians have played the game fairly in full adherence to the rule of law. The United States has acknowledged in the Apology Resolution that it is the sole violator between the two parties. Neither legislation nor the passage of time will ever be able to undo Hawaiians attachment to their homeland. The source of Hawaiian’s soul deep attachment to the Hawaiian Islands is not within the domain of earthly governments. Hawaiian’s awareness of the events that alienated them from their land and government has come to the forefront of modern Hawaiian consciousness and has reinforced their attachment to the land, their right to govern it, and more ominously, their will. For these reasons it is imperative the foundation for reconciliation does not exclude or remove perfect reconciliation from the horizon for Hawaiians or the United States ability to attain it.
Reconciliation must be supported not by a foundation that has been fabricated to conveniently fit Federal Indian policy, but rather by a foundation built on Historical fact and law.
The Indian Affairs Committee would be correct to recognize and report to Congress that the foundation for reconciliation proposed in S147 is inappropriate. How does one justify the segregation of the descendants of the subjects of the Kingdom of Hawaii, by blood or ancestry, in order to apply federal Indian policy to Hawaiians in the name of reconciling the United States participation in the disruption of a multi-ethnic Independent government? The Indian affairs committee would be correct to report to Congress that the "questions of considerable moment and difficulty" foretold in the Rice v Cayetano decision will place an unnecessary burden on the United States and an even greater burden on Hawaiians.
Reconciliation for the alienation of Hawaiians from their land and government must include all of the descendants of the subjects of the Kingdom of Hawaii at the time the United states intervention in Hawaiian government, and must not be limited to only those Hawaiians who conveniently fit into federal Indian policy if Congress’ reason for reconciliation is the "overthrow of the Kingdom of Hawaii" as Congress has stated in the Apology Resolution. It may be argued by S147's proponents that the Apology Resolution authorizes only reconciliation with "Native Hawaiians" as defined in the resolution, and that this demands the exclusion of non- "Native Hawaiians" from benefiting from any reconciliation. This argument fails for the simple reason that the inclusion of non-Native Hawaiian descendants of the subjects of the Kingdom in reconciliation is legally and historically accurate and necessary to justify reasoning for reconciliation based on the unlawful overthrow of the independent, multi- ethnic Kingdom of Hawaii. The Supreme Court has stated plainly in Rice v Cayetano that applying Indian political status to Hawaiians is questionable and that neither the Hawaiian Homes Commission Act nor the Apology Resolution conclusively established that Hawaiians are an Indian Tribe and warned of the difficulties overshadowing such a proposal. Their status as the subjects of the admittedly unlawful overthrow of an independent government cannot be questioned and it cannot be questioned because it is the truth.
If "Native Hawaiians" meeting a federally delineated ancestral or blood restriction are to be singled out for reconciliation by Congress, the overthrow of a government with the multi-ethnic and progressive character such as that of the Kingdom of Hawaii is not the proper basis or a fitting reason. The basis for reconciliation with such a narrowly tailored class would have to be found in acts that confined themselves to, or that were aimed at, that class. The alienation of the subjects of the Kingdom of Hawaii from their land and government was not compelled by a desire to wrest control of Hawaii from "Native Hawaiians" as defined in the S147 and the Apology Resolution. Alienation was compelled by a desire to wrest control of the Hawaiian Islands from legitimate government. The parties on both sides of the events surrounding the United States intervention in Hawaiian government had both Native Hawaiian and non-Native Hawaiian participants and supporters. Native Hawaiians and non-Natives alike signed the Constitution of the Republic of Hawaii. Non-Native and Native Hawaiians alike were loyal to the Constitution of the Kingdom of Hawaii. Neither race nor ancestries were at issue in the overthrow of the Hawaiian government. Control of the Hawaiian Islands was the issue and loyal subjects of the Kingdom of Hawaii and their descendants were, and are, the victims. S147 attempts to install race and ancestry as a component in reconciliation order to fit federal Indian policy, not because it fits the historical and political events that have compelled Congress to enact the Apology Resolution.
A proposal such as S147 that proposes to apply favor based on ancestral connection over other loyal subjects of the Kingdom of Hawaii is no more justified than applying favor to Mayflower descendants over the sons and daughters of the American Revolution and other Americans. Any Solution crafted to establish a foundation to reconcile the "ramifications of the overthrow" must include all of the descendants of the subjects of the “overthrown” government or look for a legitimate reason for reconciliation that befits the beneficiary class. Such reason exists, but if it were applied, it would incriminate many of the bills proponents who have neglected their responsibility to Hawaiians since the Hawaiian Homes Commission Act of 1920.
Law suits challenging Federal and State Programs aimed at the betterment of the condition of Hawaiians.
In the 2000 Rice v Cayetano decision the Supreme Court decided against a voting scheme in the State’s Constitution that restricted voter eligibility to "native Hawaiians", in electing the trustees of a State office charged with overseeing the affairs of Hawaiians. The Court decided the scheme was based on race rather than ancestry and that it violated the 14th amendment. The opinion of the majority in rice contained this forewarning:
…" 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…"
Proponents of placing Hawaiians under federal Indian policy ignored the courts forewarning of considerable difficulty and seized instead on this piece of Justice Kennedy’s opinion choosing to ignore his concerns over "questions of considerable moment and difficulty”:
"Mancari, upon which many of the above cases rely, presented the somewhat different issue of a preference in hiring and promoting at the federal Bureau of Indian Affairs (BIA), a preference which favored individuals who were "‘one-fourth or more degree Indian blood and . . . member[s] of a Federally-recognized tribe.’ Although the classification had a racial component, the Court found it important that the preference was "not directed towards a ‘racial’ group consisting of ‘Indians,’" but rather "only to members of ‘federally recognized’ tribes." "In this sense," the Court held, "the preference [was] political rather than racial in nature."
The Hawaii Congressional delegation and proponents of placing Hawaiians under federal Indian policy took this to mean that if Hawaiians became recognized as a tribe, that racial distinctions would be instantly transformed into political distinctions. Your committee would be wise to question, unlike the bills proponents, why no objection was raised to specific language in S147, that was added during the last session of Congress in a little publicized amendment, which prohibits the Native Hawaiian governing entity from being included on the list of federally recognized tribes entitled to the Mancari protections:
"…the Secretary shall certify that the organic governing documents-- are consistent with applicable Federal law and the special political and legal relationship between the United States and the indigenous, native people of the United States; provided that the provisions of Public Law 103-454, 25 U.S.C. 479a, shall not apply."
Public Law 103-454, 25USC479a is the law that establishes the list of recognized federally recognized tribes.
Proponents of the bill have accepted the addition of this language excluding the Hawaiian government established under the process in S147 from the list of federally recognized tribes without serious protest even though it undermines the key component of the Rice decision that they rely on as the reason for the bill; That reason being, the federal recognition of ancestry as a political distinction rather than a racial one. It is not unreasonable, in consideration of the foregoing, to suspect that the motivation for this legislation has far more to do with relieving the State of Hawaii of its responsibility to the federal government under the Admission Act than it does in securing the more palatable, albeit inaccurate, notion that the primary motivation for the bill is Hawaiian well being and political rights. This is especially suspicious considering that those promoting the bill have failed so miserably in meeting their obligation to Hawaiians when it was their responsibility, and they had the means to do so.
The Rice Decision caused proponents of placing Hawaiians under federal Indian policy to redouble and expedite their efforts to convince Hawaiians that this placement was essential to protecting entitlements and programs that had come under increasing legal attack on the heels of the Rice decision. The chanting of the mantra that federal Indian policy was the only avenue available to protect Hawaiians was repeated more frequently and more loudly from the bills proponents as a result of the Rice decision. At one meeting I attended personally, a Hawaii Judge gave a well-prepared power point presentation, with a straight face, explaining to the largely Hawaiian audience that Hawaiians would become extinct if the bill did not become law. There were numerous other well organized and well-funded community meetings with a similar message conducted on the mainland and throughout Hawaii by State agencies and NGOs dependent on federal and state programs. These agencies and NGOs take 70% or more of the funding for administration of state and federal programs before the people they are intended to help ever see one dime. Questions from Prominent Hawaiian leaders opposed to the legislation were ignored at many of the meetings. Testimony in the Senate Indian Affairs Committee was limited to invitees who supported the legislation. Community meetings to promote the bill targeted Hawaiian homes lessees heavily and publicly proclaimed that if the Arakaki case, another case attacking Hawaiian programs, were decided in favor of the plaintiff that Hawaiian homes lessees would be evicted from their homes. This completely fabricated claim came in spite of specific language in the Arakaki suit providing that the leases would be converted to fee titles as a remedy. Elderly, ill and indigent Hawaiians were targeted heavily with similar messages.
Implied limitations on the Congressional prerogative
Promotion of the bill in Hawaii has been attended by the slogan that the bill provides a foundation for reconciliation within the framework of federal law. The unspoken implication being that federal law and the Congressional and executive prerogatives limit the foundation for reconciliation to the application of federal Indian policy to Hawaiians as proposed in S147. This is patently untrue and Hawaiians are aware of options outside the proposal in S147. The Congressional and executive prerogative was exercised in the return of the Panama Canal to the Panamanians. The Congressional and executive prerogative gave the Philippines and Cuba their Independence and established the commonwealths of the Marshall Islands and Palau. There are numerous other examples demonstrating that Congressional and executive prerogative in these matters is only as limited as their will to exercise it within the bounds of the constitution and their sense of justice. While the Commerce clause of the constitution gives Congress the authority to restrict the Native People within the boundaries of the United States, the Territorial Clause gives Congress and the Executive branch the authority to free Hawaiians if their sense of justice compels them to do so.
The State’s Administration of the Hawaiian Homes Commission Act and the “5F” trust.
The battle for control of land in Hawaii has consumed Hawaii politics from the earliest involvement of the United States. Statehood raised the level of land grabbing to resemble a feeding frenzy. To gain a better understanding of State official’s obsession with control of land in Hawaii that caused the States obligations under the Admission Act to be all but ignored, I am enclosing a copy of Gavin Daws’ book, Land and Power in Hawaii. While this book does not address the State’s failure to meet is obligations under the Admission Act directly, it provides a clear and minutely detailed picture of the State official’s obsession with land that caused them to ignore their federally delegated responsibility to Hawaiians. The condition of Native Hawaiians and the existence of vast tracts of Hawaiian Homes land, Crown land and Government land that are today either vacant, or occupied by non-Hawaiians in comparison to that land occupied by Hawaiians is testament to the State’s negligence in meeting their obligation under the Admission Act ,and to the abuse of their authority.
During the Hawaiian Homes Commission Act’s 85 years of existence, precious few Hawaiians have managed to overcome the burdensome regulations, bureaucratic hurdles, nepotism, and cronyism they face in actually getting a lease or retaining it. This failure to lease land to Hawaiians as the State is obligated to under the Hawaiian Homes Commission Act is not for lack of good available land. There is ample land assigned to the program lying fallow, yet, evictions of Hawaiian families unable to comply with cumbersome and restrictive regulations have become tragically routine while new leases are rare at best. The lack of infrastructure required to make the land useable to Hawaiians has often been cited by State officials as the chief reason the land is not available, but this has not prevented the State’s Division of Hawaiian Homes from leasing the land to non-Hawaiian interests at below market rates in many instances. The revenue from these non-Hawaiian leases and land swapping is often diverted which stagnates the development of infrastructure necessary to get Hawaiians on their land. The number of Hawaiians that have been born, lived, and died on the lengthy waiting list borders on criminal. Imposition of blood quantum restrictions has resulted in a miniscule percentage of today’s Hawaiian population that actually meets the blood quantum required. Many Hawaiians find themselves unable to provide the documentation required to prove they qualify for a lease. Blood quantum restrictions have the effect of dividing Hawaiian communities and families into the haves and have-nots by blood quantum.
The State’s failure to Administer the “5f” trust that requires the State of Hawaii to administer the two million acres of Crown and Government lands of the Kingdom of Hawaii for the benefit of Native Hawaiians and other purposes has resulted in a judicial deadlock in which Hawaiians are pinned to the floor, unable to benefit from the Crown and Government Lands as required in the agreement the State made with the Federal government as a condition of Statehood.
Revisiting the Hawaiian Homes Commission Act and the 5F trust in light of Congress' commitment in the 1993 Apology Resolution to establish a foundation for reconciliation for the “overthrow” of the Kingdom of Hawaii is a fitting place to establish a foundation for reconciliation that deserves Congress’ most serious consideration; far more so than the current proposal to place Hawaiians under federal Indian policy. The "questions of considerable moment and difficulty" foretold by the Supreme Court in Rice v Cayetano can be avoided entirely by facing political and historical fact squarely.
Wherever the Admission Act allows for the federal government to intervene on behalf of Hawaiians in order to ensure the State of Hawaii complies with the letter and spirit of the Admission Act, the Federal government should intervene and take the Congress’ commitment to establish a foundation for reconciliation into consideration. The necessity of keeping perfect reconciliation permanently available should shadow congressional intervention in the Admission Act.
Where the Admission Act does not allow the Federal government to intervene the Federal Government should compel the State of Hawaii to act in the spirit of the Apology Resolution and resolutions of the State legislature. Any amendments to the Hawaiian homes Commission Act or effort to compel the State to meet its obligations under the 5F trust should be aimed at establishing a foundation for reconciliation underpinned by a commitment to forever keep the doors open to perfect reconciliation.
The United States, the State of Hawaii, and Native Hawaiians will all benefit from a foundation that “acknowledges the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and descendants of the subjects of the Kingdom of Hawaii.”
Inventory of the Crown and government lands
There is great mistrust in the Hawaiian community and in the general community in Hawaii regarding land titles administered by the State of Hawaii. Any effort to establish a foundation for reconciliation must accurately, openly; truthfully, and conclusively answer the questions fueling this increasing mistrust. In the absence of an inventory of the Crown and Government there are increasing questions being raised regarding commingling of lands by the State and the sale of tracts of land by former sugar interests and others. These and other questions are eroding confidence in land titles in Hawaii.
The Crown and Government lands ceded to the State from the Federal government have never been inventoried. Several efforts to inventory these lands have begun only to be abruptly halted without plausible explanation before they could be of any use. The wide spread mistrust of the legitimacy of land titles, common in the Hawaiian community, is beginning to permeate outside of the Hawaiian community in ways that are beginning affect the kind of investment decisions needed to maintain economic stability.
An occurrence a few years ago in a courtroom typifies the mistrust of land titles among Hawaiians and others in the State. As part of his sentence for a crime, a Hawaiian man was not to set foot on Hawaiian lands ever again. The Hawaiian responded to the judge that he would be more than happy to comply if only the judge could tell him where these lands were. The judge of course could not tell him. No one in Hawaii can say with certainty what is Crown and government land and what is not. But this is not for lack of records. The records exist to complete an inventory. It is the will to perform the inventory and publish it that is lacking. It is the absence of an inventory that fuels suspicion, mistrust and frustration.
An inventory of the Crown and Government lands and review of title transfers that is the result of an independent, open and objective investigation is an imperative piece of any foundation for reconciliation. Any reconciliation effort that proceeds under the persistent cloud of suspicion that hangs over land titles in Hawaii both within and without the Hawaiian community is not likely to produce much more than a short lived appeasement. The issue of land titles will continue to surface and damage any efforts towards reconciliation, regardless of how deeply the issue is buried, until all parties, Congress, Hawaiians, the State of Hawaii, and other property owners in Hawaii are thoroughly satisfied that the rule of law has prevailed. This cloud of suspicion over land titles is also a “ramification of the overthrow” that Congress has committed to acknowledge. The State’s failure to administer the Hawaiian Homes Commission Act and their failure to administer the Crown lands and Government Lands in Accordance with the Statehood compact between the State and Federal Government is reason enough for Congress to order the Inventory.
Respectfully submitted recommendations in consideration of the foregoing and the testimony of Hawaiians at the 1999 Hearings conducted by the Department of Justice and Department of the Interior in Hawaii for consideration by the Indian Affairs Committee and all others concerned with justice and the preservation of the rule of law.
1.) Inventory the Crown lands and Government lands and perform a comprehensive review of land titles in Hawaii. This will allow a clearest possible basis from which to reconcile and will instill confidence in the reconciliation process.
2.) Lift the imposition of blood quantum restrictions in the Hawaiian Homes Commission Act and expand the eligible class to properly include all of the descendants of the subjects of Kingdom of Hawaii. The value of Hawaiian blood and ancestry is for Hawaiians to establish within their culture and laws, not the United States. The idea that the United States is better suited to determine the value of Hawaiian ancestry than Hawaiians is absurd. The application of federally imposed blood quantum requirements to determine eligibility results in un-healthy and destructive divisions between and within Hawaiian communities and between and within Hawaiian families. It has resulted in an ever declining number of qualified beneficiaries that serves the State’s interests well, but is devastating to Hawaiians and particularly corrosive to their culture and the self esteem of Hawaiians who are unable to document their ancestry. Curiously, the Hawaiian Homes commission act restricts eligibility to those who can document they have at least 50% of the blood of those who inhabited the Islands 30 years before written records were kept and 30 years before written language was introduced in Hawaii. The impossibility of proving ones ancestry unequivocally in the absence of written records on the date of ancestral eligibility, and the ease with which some lessees are able to obtain leases has given rise to a culture of suspicion and jealousy that further tears at the fabric of the Hawaiian community. Kingdom citizenship is easily proved and the records have been preserved.
3.) Assist and encourage the unification and development of Hawaiian government without guiding or steering or otherwise interfering in the reconstruction of Hawaiian government.
4.) Hawaiian responsibility for the administration of the Hawaiian Home Lands should serve as the seed for strengthening Hawaiian government and control over their own land and affairs. The potential for expansion of Hawaiian governed land and resources should not be limited. Any legislated limitation ruling out potential will destroy the hope successful people and governments depend on. Hawaiians are capable of and in the process of establishing a unified government. The expansion of Hawaiian government in Hawaii need not be debilitating to others in Hawaii and there is no movement or desire to expel or infringe on the rights of non-Hawaiians among any of the Hawaiian governments in existence today. The prevailing thought underlying these Hawaiian governments is the realization of Hawaiian’s potential through their land and resources. Most Hawaiians today are well aware of the debilitating and destructive effect that restrictions on Indian land and resources have on those communities and will consider the imposition of federal Indian policy as a restriction on their potential. Any restrictions or limitations on Hawaiian’s potential must be agreed to by Hawaiians, through their government, unfettered by the predetermined constraints of federal Indian policy and law if they are to ever end their frustration, and, if the United States is ever to reconcile the events of the late 1890’s. Keep the doors open. Congress and the Executive branch will find a Hawaiian government and people who know what is at stake here and who are unwilling to risk it through an imprudent or irrational government.
5.) The United States must recognize Hawaiians right to independent government, and both governments must remain receptive to offers of diplomatic relations from either as co-equal independent governments. This is the relationship that existed between the United States and the Kingdom of Hawaii, not a guardian to ward relationship. This is the relationship that is the object of reconciliation.
6.) An agreement between the Hawaiian Government and the United States to respect the rights of each others citizens should be reached early on after diplomatic relations are established.
7.) The absolute title of the Hawaiian government to lands under Hawaiian government control must be recognized by the United States, beginning with the Hawaiian Homes land but with no restriction on future increases in lands under Hawaiian government control when such control is productive and beneficial to Hawaii. The common practice in federal Indian policy of permanently extinguishing rights in exchange for concessions from the federal government must not be a part of the reconciliation process. Exchanges, such as these will eliminate the potential for perfect reconciliation and open the doors to corruption.
8.) Hawaiians should be allowed to choose between Hawaiian citizenship and American citizenship and vice versa, subject to the naturalization policies of each respective government.
9.) Hawaiian government should develop regulations for the administration of and be exclusively responsible for the administration of the land and resources under their control free of state or federal restriction but with communications open between the Federal and Hawaiian governments. This will provide Hawaiians with the opportunity to develop effective government and allow them to prepare for governmental control of additional land and resources and to develop inter-governmental relationships of their own design and to their own benefit within the constraints of rationality rather than imposition.
10.) Remove the present restriction that allows lessees to apply their lands to agricultural markets only. Development of the Hawaiian economy requires that Hawaiian land be applied to all markets including but not limited to housing, retail, wholesale, international trade, communications, tourism, transportation, banking, and all other markets. Hawaiians’ ability to develop their own economy will undoubtedly benefit all of the people in Hawaii. The State of Hawaii seems to be fresh out of solutions other than more pork. Hawaiians pent up desire to excel will unleash a flood of innovation and cultural renaissance that is sorely needed in Hawaii. There are designs and desires in the minds of Hawaiians that cannot make the leap to reality because of their marginalization and inability, by imposed restriction, to apply their land and resources to the realization of their dreams.
11.) Hawaiian governance of the Hawaiian Home lands and other lands in perpetuity, including the right of taxation and grants of title must be backed and guaranteed by the United States in order to overcome the debilitating effects that federal trust status, coupled with sovereign immunity, have had on investment as is the case where lands are administered by the United States under federal Indian policy. The ability of Hawaiians to attract investment that serves their needs without the crippling effect of a federal trust will benefit all of the people in Hawaii.
12.) The release of United States interest in land to the Hawaiian government must correspond to the Hawaiian government’s ability to govern. No Hawaiian land must ever be taken from the table. Milestones describing progress in terms of mutual benefit, common good, amicable relations, and advances in the health, economy and social conditions of Hawaiians, but not a time line, should be agreed to between the Hawaiian and United States governments. These milestones must be established in terms of advancement of Hawaiians towards perfect reconciliation and must not be allowed to have the effect all to common in federal Indian policy where continued failure is motivated by the prospect of continued or increased funding, and where success is often rewarded by decreased or eliminated funding. A review of the Indian Affairs Committee’s “Views and Estimates letters” and the July 2003 United States Commission on Civil Rights Report “A Quiet Crisis- Federal Funding and Unmet Needs in Indian Country” are testament to the existence of this failure motivating policy and its continuing impact on the lives of the Indians it is designed to benefit.
13.) The relationship between the Federal and Hawaiian governments must never be allowed to take on the trappings of a test or an experiment. Trust and mutual respect between governments and people must guide the reconciliation effort. The United States will always have the ability to apply the authority it applied in alienating Hawaiians from their land and government that has brought the need for reconciliation. The object of perfect reconciliation must mandate that such authority never be applied again.
14.) The fallout from an unjust settlement of claims, perceived by either of the parties will benefit neither. Hawaiians Claims against the United States can be set aside by mutual agreement rather than being resolved immediately. Perhaps, one day, the claims can be permanently buried along with any ill feeling if the relationship between Hawaiians and the United States can be restored to the amicable relations between the two nations before a handful of zealous people with narrow interests took it upon themselves to destroy relations between the two nations. The forced settlement of claims under an imposed jurisdiction, as in the current proposal, is a recipe for continued strife, not reconciliation.
15.) The culture within the Department of the Interior is such that an effective solution cannot be managed from that department. The Idea of Independent control of land and resources and the potential to expand independent control is better suited to the direct control of the Senate foreign relations committee, the House resources committee and the Department of State.
16.) The restoration of Hawaiians’ culture demands their control over cultural property with the potential to expand the definition of cultural property, Hawaiians right to Identify previously unknown or unrecognized cultural properties and to extend their authority over them must be their exclusive prerogative.
These Ideas and others deserve serious discussion and consideration in lieu of the simplistic approach of placing Hawaiians under policies that have now come to serve neither the United States nor Indians well. The time is ripe and the opportunity is here in front of us to craft solutions that will serve to better the conditions of all the people, Hawaiians and others, who will live with the decisions made today for a very long time to come.
The capacity to ensure Hawaiians to lift themselves and excel exists within the current framework of federal law. The State and federal government must answer for themselves the question whether to apply that framework of law in a way that acts to the detriment of Hawaiians or to Hawaiian’s benefit. S147 presents the State’s answer to that question and asks Congress to concur in the hope Congress will apply the quagmire of federal Indian policy to nearly half a million Hawaiians. The State of Hawaii, from its creation, has had the ability, but not the will, to provide solutions. Much of the solution, Hawaiians benefiting from their land and resources, is written into the State’s charter with the federal government but has never been applied as intended. The need to consider and develop solutions outside of those proposed in the bill, and to compel the State to comply fully with its charter, and to amend that charter to provide the foundation for reconciliation that Congress committed itself to in the Apology is imperative if the root of Hawaiian’s problems is to be remedied. Solutions that allow for perfect reconciliation and that serve the interests of Hawaiians, Congress and the people of the State of Hawaii are available to Congress, and deserve serious consideration. This bill, S147, is not one of them.
Mahalo for all you do
David Ingham
21- 5th Ave.
San Francisco Ca. 94118
415 221 7472
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