BY KENNETH R. CONKLIN, PH.D. — Author’s note: This essay is written as my ho’okupu (offering) in honor of Statehood Day, the 52nd anniversary of Hawaii statehood, celebrated August 19, 2011. Statehood needs defending because the Akaka bill, and its state version Act 195, threaten to rip Hawaii apart along racial lines.

In recent days a long-standing controversy has once again come to public attention. It is a matter of great importance whether OHA is a state government agency and must comply with state law regarding elections, open meetings, disclosure of budget information including salaries and expenditures, etc. The specific issue currently under discussion is whether OHA must release information about the salaries of its employees, on the same basis as any other state agency. But there are other issues of far greater importance.

Because OHA is a state agency, therefore the Roll Commission under 2011 Act 195, whose purpose is to assemble a racially exclusionary roster of ethnic Hawaiians qualified for membership in a new state-recognized tribe, is also a state agency. Therefore Act 195, which requires the Governor to appoint only ethnic Hawaiians to serve as members of the Roll Commission, violates court decisions which have ruled that it is illegal to have racial restrictions on who can run for or be appointed to Hawaii state agencies (the court decisions in Arakaki#1 specifically focused on OHA).

Just as the Roll Commission is a state agency, not a private trust; so also the state-recognized tribe it is assembling is a state agency and not a private trust. Both are unconstitutional, because their members are required to be of a particular race, and both are being created and paid for by the state agency OHA. Although OHA claims that ceded land revenues are not public money just like tax dollars, a recent decision by the U.S. Supreme Court says the ceded lands (and therefore the revenues they generate) are the property of the state. Although OHA wishes the state-created tribe could be treated as a private club, the tribe is in fact a state agency precisely because it is created by the state agency OHA. The Roll Commission and the tribe are funded by state government money, whether that money comes from tax dollars appropriated by the legislature or from revenues from the ceded lands which are owned by the state or were (will be) given to the tribe by the state.

The remainder of this essay discusses the following issues in detail. It can be found at
http://tinyurl.com/3qtycqs

1. What are some examples of OHA’s refusal to disclose salaries and expenditures?

2. Is OHA a state government agency?

3. Is there any validity to OHA’s assertion that it is a private trust whenever its “trustees” are spending ceded land revenues, rather than tax dollars, on behalf of its “beneficiaries”?

4. Since OHA is a state agency, therefore the Roll Commission created by Act 195 is a state agency whose members are appointed by the Governor. But Act 195 requires the Governor to appoint only from a list of nominees who must be of a specific race, in violation of the court decisions in Arakaki#1.

5. The state-recognized tribe envisioned by Act 195 is little more than a replacement for OHA as originally constituted before the Rice and Arakaki court decisions partially dismantled it — a racially exclusive group of leaders elected by and handing out benefits to a racially exclusive group of members, where the benefits are taken from all Hawaii citizens of all races. But the tribe itself will be a state agency just as OHA has always been, not a private trust; for the same reasons discussed above regarding the Roll Commission.

6. Both federally recognized tribes (Akaka bill) and state recognized tribes (Act 195) are political entities which existed before the federal and state governments which recognize them came into being. First the tribes existed. Later the federal and/or state governments recognized them. But neither the Akaka tribe nor the Act 195 tribe ever existed historically, and still do not exist until the federal or state government creates them. The so-called Hawaiian “tribe” will be nothing more than an agency of the federal or state government, not a real tribe in any normal meaning of that word.

7. Conclusion: The flow of power and ownership from the State of Hawaii to the Act 195 tribe show that both OHA and the tribe are agencies of the state government. Likewise, the Akaka tribe would be a federal government agency, because it has never existed until the government creates it. For both the Akaka tribe and the Act 195 tribe, it would be unconstitutional for these government agencies to have racial restrictions on their officers, members, or beneficiaries.

See the detailed analysis of these topics at
http://tinyurl.com/3qtycqs

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