American Bar Association JournalJune 1997


Greetings
from
independent
Hawaii




by JAMES PODGERS


A drive to gain
some measure of self-
government for
Hawaii's native
population raises
questions about whether
the state could
even leave
the union
Beyond Hawaii's swaying palm trees, beyond its beaches and beyond its plush tourist enclaves of resort hotels and golf courses, there is trouble brewing in America's island paradise.

The "troubles" come in the form of a growing sovereignty movement among Native Hawaiians--those who can trace at least some portion of their bloodlines to ancestors residing on the islands at the time of their European "discovery" in 1778 by British explorer Capt. James Cook.
In recent years, an array of groups have grown more insistent in their demands that some formal structure of self-governance be implemented for the estimated 200,000 people--about 20 percent of the state's diverse population--who claim decent from the first inhabitants of the islands.
The rest of the state is looking on with growing interest and concern as those groups struggle for concensus on just what form this structure might take, especially since the gamut of ideas runs all the way to the extreme of Hawaii seeking full independence from the United States.
James Podgers,
a lawyer,
is a senior editor
of the
ABA Journal.
A decade ago, "People laughed about sovereignty," says Mililani B. Trask, a lawyer in Hilo on the big island of Hawaii who heads one of the leading sovereignty groups. "Now they're scared as hell."
That comes as no surprise in a state with a stagnant economy and practical constraints on long-term growth. Native Hawaiians' claims of entitlement to portions of the state's significant holdings of public lands, as well as to revenue from those lands, raise serious concerns among legislators, the business community and many residents who are non-Hawaiian (everyone--even white missionaries and other settlers--who cannot trace blood to ancestors on the islands prior to 1778).
"A lot of people are just now beginning to wake up to this issue," says Clinton R. Ashford, of counsel to Ashford & Wriston, a Honolulu firm that he helped found.
According to Ashford and James K. Mee, a partner at the firm, many leaders of the non-Hawaiian community agree that Hawaiians have suffered economically, socially and culturaly, especially since the 1950s.
Both groups, say Mee, himself part-Hawaiian, "have become fixated on sovereignty as a magic pill that will make things go away." But "using the questions of who is a Hawaiian as a way of reallocating rights is a recipe for disaster."
The sovereignty movement is "inherently divisive" because it is based on racial preferences that would give Hawaiians special rights, claims John W. Goemans, a former state deputy attorney general and legislator who now commits practically all of his Honolulu law practice to resisting sovereignty initiatives.
In a society composed of many groups but no majorities, "the spirit of aloha is very real." Goemans says, "Even when we argue, we get along. Hawaii could have been an exemplar of how a society can co-exist." He adds, but as the sovereignty debate heats up, "that's gone--or it's going."
Honolulu lawyer, Hayden Aluli, president of the Native Hawaiian Bar Association, disputes that view. We're all hapa (mixed blood) here. This is a cultural issue."

A Significant Movement

The implications of the Hawaiian sovereignty movement reach far beyond the shores of the string of lush volcanic islands that lie more than 2,000 miles beyond the West Coast in the central Pacific Ocean.
As Native Hawaiian groups hone their arguments for sovereignty, bolstered by the advice of a handful of legal scholars, they have struck a chord both on the U.S. mainland and in the international community.
A strong case for Hawaiian sovereignty can be made under international law, says Professor Francis Anthony Boyle, an international law expert at the University of Illinois College of Law in Champaign. Boyle even sees similarities between the goals of the Hawaiian sovereignty movement and the efforts of the Palestinians to achieve staehood in the Middle East, an issue on which he has advised the Palestine Liberation Organization.
Providing a similar assessment, Professor Richard Falk at the Center of International Studies at Princeton University in New Jersey sees growing interest in the Hawaiian movement among other indigenous peoples seeking to carve out some form of self-determination from larger countries that enveloped them.
In Hawaii and elsewhere, Falk observes, sovereignty movements "have economic grievances, but at their center is a quest for cultural autonomy, self-esteem and identity."
It is more likely, though that the issue of Hawaiian sovereignty will become a federal question that may be answered within the context of the estensive body of laws and Supreme Court decisions governing Indian tribes in the continental United States. Those laws generally have not been appplied to Native Hawaiians.
How those laws might be applied in carving out sovereignty for Native Hawaiians could create important precedents for some 550 tribes on the mainland and in Alaska. With a total population of some 1.3 million, they themselves have often felt the constraints of limited sovereignty.
Legal experts base their analyses of such questions on two watershed events in Hawaiian history.
First, in 1893, the Hawaiian monarchy was overthrown by a group of American residents of the islands who favored annexation by the United States. The overthrow was undertaken with the backing of the U.S. minister to Hawaii, who ordered Marines into Honolulu on the eve of the coup.
This group of Americans got its wish in 1898 when Congress annexed Hawaii to the United States. In 1900, the islands became a U.S. territory.
Leading up to the second key event--statehood--in the late 1940s the United States classified several possessions, including Hawaii, as "non-self-governing territories" under Article 73, of the U.N. Charter. In 1953, the U.N. General Assembly adopted Resolution 742, stating that independence is the primary form of self-rule for such territories unless another status is selected by the population under conditions of "absolute equality".
Significantly, however, before Hawaiian residents voted for statehood in 1959, the United States had withdrawn Hawaii from the U.N list of non-self-governing territories. Accordingly, the vote asked Hawaiian residents just one question: "Shall Hawaii immediately be addmitted into the Union as a State?"
In December 1996, Falk stated in an open letter to Hawaiian sovereignty groups that, on the basis of those events, "It can ... be concluded as a matter of law" that Native Hawaiians "never relinquished, in any appropriate and binding form, their right to self-determination under international law."
That interpretation, also propounded by professor Boyle as early as 1993, raises one of the most intriguing questions of all: Is there a basis, in either international or U.S. law, for Hawaii to leave the United States and strike out as an independent nation?
Answering that question could trigger the first major debate since the Civil War over the ultimate issue of federalism.
"The legal implications could be astounding if they move off and secede from the United States," Boyle suggests. All native groups within the United States "would start moving toward independence," he says.
But Laurence Tribe, a leading constitutional scholar at Harvard University Law School, dismisses the possibility.
"The whole point of the Civil War was to confirm the axiom that no state has a right to secede from the nation," Tribe says. The concept that statehood is "a permanent fix is probably as deeply ingrained an idea as any you can find in the Constitution."
Dennis Kanahele:
'Hawaii got
ripped off,
...
we want it back.'
Tribe acknowledges that a mutually consensual withdrawal of a state from the union is a somewhat different issue, which the Constitution does not explicitly address. Nevertheless, he says, "Once something becomes a state, the idea that there can be some consensual parting of the ways seems quite troubling."
But Boyle and Falk are not so sure. While Falk concedes it is unlikely the United States would relinquish federal powers over a state, "What is realistic," he adds, "is always undermined by historic developments. If you had asked me similar questions about the Soviet Union a few years ago, I would have said 'no' to that, too."
And Boyle says that, while the Civil War was fought in part to preserve the concept of union, "Standards have changed, and we've put the principle of the right of self-determination in the U.N. charter. Now we have to live with it."
Moreover, these scholars say, the U.S. Congress itself has provided the ammunition for Hawaiian sovereignty claims.

A Long-Awaited Apology

Whatever comes of the Hawaiian sovereignty movement, Nov. 23, 1993, is likely to be marked as the day it all started. On that day, the U.S. Congress adopted, and President Clinton signed, a joint resolution of apology to Native Hawaiians for the overthrow of the Hawaiian kingdom 100 years earlier.
Prior to Western contact, says Hawaii Sen. Daniel K. Akaka, a Democrat who pushed for the resolution, "The kingdom of Hawaii was a sophisticated and self-sufficient culture that many people would envy. Since Western contact, a number of profound changes, including the overthrow and the loss of their land, have been devastating to the health and well-being of the Hawaiian people.
"With the apology resolution, we begin the process to recover some of what has been lost," says Akaka, who is part-Hawaiian.
But as every astute political leader in Hawaii recognizes, the apology resolution is full of language with open-ended meaning. And that vagueness reflects the intense debate among Native Hawaiian leaders about just what sovereignty means to them and how they should go about seeking to achieve it.
For some, like Dennis "Bumpy" Kanahele, the self-proclaimed head of the Independent Nation State of Hawaii, the answer is simple.
"The truth is finally setting in," says Kanahele, who lives in a sub-division on land set aside for Native Hawaiians in Waimanalo on the other side of Oahu from Honolulu. "Hawaii was an independent sate. We got ripped off, the U.S. apologized for it, and now we want to get it back."
In the Hawaiian sovereignty movement, everyone has an opinion about everybody else. Thus, Kanahele, an open advocate of independence, is viewed by some as a sort of Robin Hood of the movement but by others as a renegade intent on provoking the state authorities.
And he has had his share of run-ins. His group has issued "war crimes" indictments against state officials and alleged wrongdoing by some of the state's big banks in their dealings with the Office of Hawaiian Affairs (an agency created in 1978 by a state constitutional amendment to receive and administer state funds "for the betterment of conditions of Native Hawaiians"). Kanahele still is fighting a recent federal charge for assaulting (sic) a law enforcement officer.
Yet Kanahele claims strong grassroots backing. "He may have come out of left field," says Hayden Aluli, his laywer on the federal charges, "but those prosecutions have made him a folk hero."
But not all Native Hawaiian groups share Kanahele's commitment to independence, at least as a short-term answer.
"If we woke up tomorrow in an independent Hawaii, none of our problems would have gone away," says lawyer Trask, who heads a sovereignty group called Ka Lahui, which means "the gathering." "The power structure would still be the same."
Most Hawaiians, Trask adds, "are not worried about independence. They're worried about paying their bills."
Clayton Hee, chair of the OHA board of trustees, acknowledges that the concept of sovereignty still is murky for Hawaiians.
The general contours of sovereignty, he says, involve "the right to self-determination, the right to make our own rules, to choose leaders and to change both as appropriate."
But beyond that, sovereignty is "like an amoeba," Hee explains. "It's amorphous--an unquantifiable shapeless concept. But that's the thing about sovereignty. It's yours to shape, yours to put the corners on, yours to put the contours to. And it's my view Hawaiians do not enjoy sovereignty."

The Search for Unanimity

As Native Hawaiians plunge on through the process of finding consensus, they appear to be finding agreement on some issues.
More than anything, Hawaiian sovereignty leaders say, their movement is about land--or rather the effort to regain land that they believe was taken away when the monarchy was overthrown.
The immediate issue is over rights to some portion of revenue or control of some 1.8 million acres of public lands--about half the total land on all the islands--ceded to the United States at the time of annexation, then returned to Hawaii when it became a state.
The Hawaii Admission Act specified that those lands be held in trust by the state for, among other public purposes, "the betterment of the conditions of native Hawaiians." The land trust directive proved to be a bombshell whose impact is still being felt today.
In 1980, the Hawaii Legislature designated that 20 percent of state income from the public lands go to the Office of Hawaiian Affairs for use in support of Native Hawaiians.
Considering that some of those lands have been leased for shopping malls, hotels and the Honolulu International Airport, OHA almost immediately became one of the potentially most lucrative agencies in the state; it has been fighting with the state to gain full access to those funds ever since.
Earlier this year, OHA chair Hee proposed that the state convey an outright grant of some lands, including Diamond Head and Iolani Palace, home of the monarchs, in return for a waiver of some of the money it owes this agency.
Mahealani Kamauu:
control over land
is a key to
the whole issue.
But the bond between Native Hawaiians and the land goes much deeper than revenues. Many believe that ancient practices, such as gathering ti leaves, tending fish ponds and maintaining religious ceremonial sites, are part of the essence of their cultural heritage.
And most sovereignty movement leaders agree that any form of self-government for Hawaiians must involve control over at least part of the public lands.
"Our state is like no other because our courts have tended to recognize traditional practices," observes Mahealani Kamauu, director of the Native Hawaiian Legal Corp., which handles various types of land cases. "Land is a key to the whole question of sovereignty."
Commercial interests could not agree more, and developers and the business community contend that the sovereignty movement has thrown questions of land ownership and development rights into chaos.
Not only have Hawaiian groups pursued challenges to state efforts to lease portions of the public lands to developers, but courts generally have upheld their rights of access to such parcels to conduct traditional gathering and ceremonial activities.
Earlier this year, for instance, developers pushed a bill in the Legislature to require people wishing to enter private lands to conduct traditional ceremonies to first register with the state. The bill failed after Native Hawaiian groups demonstrated against it.
There is also increasing agreement among sovereignty advocates that while the tribal reservation structure that exists under federal law on the mainland provides some precedent for their movement, it is not a viable model.
Even Trask, a leading advocate of "nation within a nation" approach that many compare to tribal status, insists she does not favor seeking status equivalent to that granted to American Indians.
"The government can't shove us into a mold for continental Native Americans," she says. "We do not want to be placed under the Bureau of Indian Affairs."
The main problem, she says, is that federal law does not convey the level of political and economic self-reliance to Indian tribes that Native Hawaiians are seeking.
Moreover, it is questionable whether Indian law can be applied to Hawaiians, says Stuart Minor Benjamin, an associate of Tribes's at Harvard who is joining the law school faculty at the University of San Diego.
In an article in the December 1996 issue of the Yale Law Journal, he argues that federal laws giving American Indians preferential treatment have passed equal protection muster under rational basis review, rather than strict scrutiny, because they treated the tribes as political entities rather than racial groups.
"Without a Native Hawaiian political entity that can constitute an 'Indian Tribe' for constitutional purposes," Benjamin writes, "there is no 'special relationship' between Native Hawaiians and the federal government pursuant to which programs singling out Native Hawaiians would be subject to rational basis review," especially in light of such recent U.S. Supreme Court decisions as Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
That position, which could jeopardize the entire system of state support programs for Hawaiians, was undermined somewhat, however, by a recent ruling of the U.S. District Court for the District of Hawaii in Honolulu in the consolidated case of Rice v. Cayetano, Civil No. 96-00616 DAE.
Judge David Alan Ezra denied a motion for a preliminary injunction against issuing the results of a vote of Hawaiians sponsored in 1996 by the state-funded Hawaiian Sovereignty Elections Council on the question of whether a constitutional convention should be held to address sovereignty issues.
The plaintiffs had contended the vote was unconstitutional because it was limited to voters of one race. But Ezra held that, "[w]hile there is undoubtedly a racial component to the voter qualifications for the Native Hawaiian Vote, the emphasis here is placed on the Native Hawaiian community as one targeted for 'rehabilitation' and special consideration by Congress."
Some 70 percent of the Native Hawaiians voting had supported a constitutional convention that would develop a sovereignty plan, even though some sovereignty leaders had urged a boycott to protest state involvement in the process, and 60 percent of more than 81,000 ballots sent out were not returned.

Winds of Change

Finally, Native Hawaiian leaders say they recognize that the ultimate future of the movement will depend on reaching consensus among all the residents of the islands.
"The success of the sovereignty movement is absolutely dependent on the Hawaiians' ability to include the non-Hawaiians and elicit their support," Hee says. "It cannot succeed as solely a Hawaiian movement. It cannot be a secessionist movement."
But defining the stakes can be a matter of perspective.
"Frankly, I'm not very optimistic about where this is going to end up," says Honolulu lawyer Mee. "I came back after school because I wanted to live in a place where it didn't matter what your background is, but I fear we're heading down that path."
A return to roots has a somewhat different meaning for Kekuni Blaisdell, by day a physician and a professor at the University of Hawaii School of Medicine--"my pass to the white man's world," he says.
But every Thursday evening, he hosts a meeting of his sovereignty group at his home in the hills above Honolulu, near the Pali cliffs where the warriors of King Kamehameha the Great flung his enemies to their death in battle.
Up on those heights, Blaisdell says, he feels close to the land, to his ancestors. After his visitors leave, he stands outside in the dark, with the wind blowing off the ocean, and he listens.


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