BY MALIA ZIMMERMAN – HONOLULU – A proposal by the Obama administration to create a new relationship with ethnic Hawaiians backfired on the administration Monday as native Hawaiians rallied in force against the proposal to reestablish a “government-to-government relationship” between the United States and the Native Hawaiian community.
The U.S. Department of Interior, here in Hawaii on the president’s behalf, is holding a series of “Advanced Notice of Proposed Rule Making” hearings about the plan to “more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community.”
Secretary of the Interior Sally Jewell said the Department is responding to requests from the Native Hawaiian community, state and local leaders and others who want to determine “the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.”
While Congress has enacted more than 150 statutes over several decades specifically for Native Hawaiians such as the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act, which award government benefits based on Hawaiian blood quantum, the Interior Department said in a statement that the federal government has not negotiated directly with the Kingdom of Hawaii since it was overthrown in 1893.
The capitol auditorium was so packed Monday, organizers sent the overflowing crowd to other rooms in the capitol to view the hearing remotely.
The vast majority of native Hawaiians who testified were indignant, and even outraged, that the federal government would try to insert itself or side with any native Hawaiian faction vying to take power away from other Hawaiians by officially organizing and negotiating.
They scolded, shouted at, and questioned the motives of, Interior Department officials. Many of those in attendance were from various factions that want the Hawaiian monarchy restored to power, and the U.S. government out of Hawaii.
Hawaiian activist Bumpy Kanahele, who heads the organization Nation of Hawaii, told Interior officials: “We don’t need you to come in to tell us how to govern ourselves. Let us figure it out.”
University of Hawaii Hawaiian studies professor Jonathan Osorio said the Department of interior should not intervene and impose additional “aggression upon our nation.”
While the debate is stirring up an already racially divided community, constitutional experts are arguing The White House and Department of Interior have no legal right to create such a relationship and has no business holding these hearings in the first place.
Former Hawaii State Attorney General Michael Lilly said at a recent forum that unlike native Americans, native Hawaiians have no tribe, and therefore the United States cannot enter into a treaty relationship.
“The current effort to recognize a separate ethnic tribe by the Department of the Interior is unconstitutional because, under the Constitution, it is the Congress that has the plenary power to recognize tribes and ratify treaties. That power does not reside in the Executive branch of the federal government or with the various states. So the current effort aimed at creating a tribe of Hawaiians has no legal basis,” Lilly said.
The U.S. Supreme Court has held that a ‘tribe’ is a political and not a racial entity, Lilly said. “If there was such a tribe, then all the multi-ethnic peoples who were citizens of the Hawaiian Monarchy would be members of that tribe,” Lilly said.
Hans von Spakovsky, a Senior legal fellow at the Heritage Foundation, who spent four years working in the civil rights division at the U.S. Department of Justice department, specifically on such issues, also maintains neither the Department of the Interior not the White House has ability to say it will enter not government relations with a class of U.S. citizens or a particular group of citizens.
“Not only it is unconstitutional, but the administration has no authority to enter into such a relationship. It is a sign of how the Obama administration believes in official discrimination and sanctions it. They continue to divide up our country and raise the walls between different races. I find it disgusting that they want to do this,” von Spakovsky said.
A large part of the debate centers around federal and state government entitlements, which include money, housing and land set aside for native Hawaiians only.
Some of these entitlements have been challenged in the federal courts over the last decade.
There have been other federal challenges as to whether Hawaiians only could vote for trustees of the state Office of Hawaiian Affairs and whether just Hawaiian only students should continue to be admitted to Kamehameha Schools.
Many native Hawaiians believe Hawaiians deserve these entitlements and more, because they lost their government in 1883, and thereby deserve a part of crown lands, Hawaiian homelands and funds generated from crown lands and other government trusts.
University of Hawaii’s Osorio said the Interior department should look for ways to protect native Hawaiian government entitlements and gathering and access rights from legal challenges, until the Hawaiian people have completed their own process of restoring its own government.
“The chief threats come from Americans courts,” Osorio said.
However, Heritage’s Spakovsky said the blood-quantum based government benefits divide the state by race, which he called “reprehensible behavior.”
“There all kinds of benefits based on whether or not people have Hawaiian ancestry defined by how much blood quantum they have. That is the kind of racial segregation the South used and Nazi Germany used against the Jews. It is disgusting that use those kinds of definitions are used to give benefits, such as low housing loans,” von Spakovsky said. “We can go back to the fact that when Hawaiians decided they wanted to become a state, Hawaii was a great example to the nation of a multi cultural microcosm of people who live together well. Now there is a movement to reverse it and balkanize Hawaii.”
Sovereignty activists got a boost when President Bill Clinton and Congress enacted the “Apology Resolution” in 1993, extending an apology to Native Hawaiians on behalf of the United States for its role in the 1883 overthrow of the Hawaiian monarchy and committed the U.S. government to a process of reconciliation. That resolution in itself was highly controversial among historians, some of who maintain private businessmen, not the U.S. government, orchestrated the overthrown and imprisoned the beloved Hawaiian queen.
In 2000, the Department of the Interior and the Department of Justice issued a report on the reconciliation process, recommending self determination under federal law for Native Hawaiians, further giving momentum to the movement.
U.S. Senator Daniel Inouye, D-Hawaii, who died in 2012, attempted for 12 years to get passed the Native Hawaiian Recognition Act, also known as the Akaka Bill, which would have created a Hawaiian nation within the United States. One version of the bill would have categorized native Hawaiians as American Indians, so the federal government could legally negotiate with an official tribe. The move outraged virtually all Hawaiian activists, who said defiantly, “We are not Indians.”
The highly controversial legislation, named in honor of then U.S. Senator Daniel Akaka, was supported by all of Hawaii’s elected officials, with the exception of state Senate Minority Leader Sam Slom. The bill continued to pass in the U.S. House but die in the U.S. Senate.
During the current public Department of Interior meetings, the Department is posing five main questions:
- Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community?
- Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship?
- If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
- Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
- If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
Meetings continue throughout the state until July 8. The Department of Interior will then conduct Indian Country Consultations from July 29 through August 7 in Minnesota, South Dakota, Washington, Arizona and Connecticut, before issuing a draft for public comment on its decision.
Reach Malia Zimmerman at Malia@hawaiireporter.com