Site hosted by Angelfire.com: Build your free website today!

OHA is a state government agency despite its assertions to the contrary. It must disclose its income, budget, and expenditures. OHA, the new Act 195 state recognized tribe, and any future federally recognized Akaka tribe are government-created agencies and therefore must all comply with the 15th and 14th Amendments to the U.S. Constitution.


(c) Copyright August 19, 2011 by Kenneth R. Conklin, Ph.D. All rights reserved

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 will discuss the following issues in detail. These are the section headings:

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.

----------------------

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

On August 10, 2011 the online newspaper "Civil Beat" published an article entitled "OHA Employees Were Public Last Year — But Not This Year?"

Civil Beat raises the issue (again!) because it wants information about the salaries of employees of the State of Hawaii Office of Hawaiian Affairs, in conjunction with CB's extensive research and publication of salary information about all state government employees.

Last year OHA refused to disclose such data. Office of Information Practices acting director Cathy Takase ruled that OHA is a state agency and must disclose such information on the same basis as any other state agency. But then Governor Abercrombie fired Takase over Takase's insistence that Abercrombie must disclose the names of nominees for a position on the Supreme Court (reminiscent of President Nixon's Saturday Night Massacre when he fired Watergate prosecutor Archibald Cox for demanding secret White House tapes).

So now OHA is again stonewalling in hopes that Abercrombie's new OIP director Cheryl Kakazu Park will issue a different ruling on the question whether OHA is a state agency and therefore must disclose salary information. For details see the Civil Beat article at
http://www.civilbeat.com/posts/2011/08/10/12472-oha-employees-were-public-last-year-but-not-this-year/

See also a followup news report on August 29, 2011 where Civil Beat once again raises the issue of OHA employees being public employees, and once again criticized OHA for stonewalling and criticized OIP for letting OHA get away with it.
http://www.civilbeat.com/posts/2011/08/29/12666-oha-takes-second-shot-at-claiming-its-employees-arent-public/

For many years OHA has refused to disclose information about its expenditures. Hawaii Reporter made numerous attempts to find out how much OHA spent on lobbying, advertising, and travel for the Akaka bill; advertising, travel, and administrative expenses for the Kau Inoa racial registry; etc. For example HR editor Malia Zimmerman wrote "We asked how much they spent on parties under the guise of getting signatures for Kau Inoa (we’d heard they spent $60,000 on an elaborate party in Las Vegas and obtained very few signatures in the process)." OHA stonewalled. In response to a FOIA demand (Freedom Of Information Act), Hawaii Reporter was told it would have to pay $11,000 in research and copying expenses to get the information. See Hawaii Reporter's article of March 28, 2008 for the gory details.
http://archives.hawaiireporter.com/storyPrint.aspx?15b1c0d7-ad57-4c16-b6c5-3fe312e34445

For years now, OHA has evaded public accountability. It operates in the shadows, spending millions on overhead, salaries, first-class travel and entertainment, political lobbying, advertising, etc. instead of on the "beneficiaries." OHA has always imagined itself to be comparable to the tribal council of an Indian tribe, and asserted such claims in its legal briefs in Rice v. Cayetano as a reason why voting for OHA trustees should be limited to ethnic Hawaiians. The Akaka bill has been sitting in Congress for eleven years, raising OHA's hopes that soon there will be a federally recognized tribe in Hawaii which can govern its members with total secrecy and lack of accountability, just as the real Indian tribes do. Hawaii Act 195 of 2011 begins a process of creating a state-recognized tribe even without it getting federal recognition. OHA imagines the state recognized tribe will be a private club which can operate in secrecy. But as will be shown below, that entity is going to be just another state agency and therefore not entitled to secrecy.

One way OHA stonewalls is by claiming to be a private trust rather than a government agency. Let's strip OHA of that excuse.

-----------------------

2. Is OHA a state government agency?

Is OHA a state government agency? Is there any better legal authority than the U.S. Supreme Court? Let's look at how the Supreme Court ruled on that question in its Rice v. Cayetano decision of February 2000, available at
http://www.law.cornell.edu/supct/html/98-818.ZO.html

Paragraph 2: "The trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs, or OHA. Haw. Const., Art. XII, §5. The agency administers programs ..."

And about 40% of the way down: "The Hawaiian Legislature has charged OHA with the mission of “[s]erving as the principal public agency … responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians ..."

And about 85% of the way down: "The OHA elections, by contrast, are the affair of the State of Hawaii. OHA is a state agency, established by the State Constitution, responsible for the administration of state laws and obligations. See Haw. Const., Art. XII, §§5—6. ... The delegates to the 1978 constitutional convention explained the position of OHA in the state structure: “The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state 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"?

Although OHA likes to call its board of directors "trustees", and OHA likes to call the ethnic Hawaiians who receive its handouts "beneficiaries", OHA is not really a trust. There's no such thing as a trust whose beneficiaries are the entirety of a racial group. It's simply a state government agency illegally handing out benefits based on race. This is not merely the opinion of non-lawyer Ken Conklin. When I was a candidate for OHA trustee in Fall 2000, there was a public forum at the East-West Center, sponsored by the Honolulu Advertiser, in which I was a panelist. A few days prior to that event there was a luncheon meeting for panelists and organizers at the YWCA on Richards Street. There I had occasion to converse briefly with Randy Roth, the distinguished Professor of Law at UH Manoa whose specialty is the law of trusts. I asked him "Is OHA a trust, like the actual trusts you teach about in your law classes?" He laughed at the absurdity, and said "No."

OHA likes to make the distinction between the money it receives in annual legislative appropriations of tax dollars (about 10% of the money it gets), vs. revenues from the ceded lands (about 90% of the money it gets). Here's a quote which can be seen on the OHA website exactly here:
http://www.oha.org/index.php?option=com_content&task=view&id=242&Itemid=152

The quote is also repeated on the Kau Inoa website exactly here:
http://www.kauinoa.org/faq.php

"When OHA is spending State general fund revenues, it needs to operate as a state agency and, as such, must comply with various state laws and regulations. However, when OHA operates as a trust, its allegiance is to its beneficiaries."

It is ludicrous to claim that an organization is both a state agency and a private trust, depending on where the money comes from on different occasions. Various novels feature schizophrenic characters with split personalities: for example, Dr. Jekyll and Mr. Hyde; or The Three Faces of Eve. But in real life, there's only one OHA. If the source of money or property were the determining factor in deciding whether an organization is a government agency or a private trust, then the Boy Scouts would have to be called a government agency whenever they make use of the camp at the upper end of Pupukea whose land was donated to them by the government; and the City of Honolulu would be a private trust because it owns lands and memorial statues that were privately donated.

The OHA "trustees" receive their salaries and benefits from the State of Hawaii just like all other elected officials. They are elected on the ballot in the statewide general election. If there's a vacancy on the board through death or resignation, and if the board is unable to agree on a replacement, then the Governor appoints one. In February 2000, the U.S. Supreme Court ruled that the racial restriction on who can vote in OHA elections is unconstitutional. One result was that Governor Cayetano forced all nine OHA trustees to resign (because they had been illegally elected). The Governor then appointed temporary replacements for all of them, to serve until the elections later that year. Clearly, OHA is a state agency, as shown by the fact that the Governor seized control of it.

In section 2 of this essay, above, specific language from the U.S. Supreme Court decision in Rice v. Cayetano was cited wherein the Court ruled that OHA is a state government agency. In that lawsuit OHA never asserted (and therefore the Court never addressed the issue) that it is a private trust when it uses ceded lands revenue. OHA did make an argument in the Rice case that OHA has a right to restrict elections of its board members to require that only its beneficiaries have the right to vote, just as is done with various quasi-governmental agencies dealing with water allocation in other states. But the Court rejected that argument, noting that OHA's jurisdiction encompasses the entire state and makes encumbrances that are obligations of all Hawaii's people.

A more recent decision by the U.S. Supreme Court totally destroys any claim by OHA that revenue from the ceded lands belongs to ethnic Hawaiians as a racial group. On March 31, 2009 the Court handed down its decision in Hawaii v. Office of Hawaiian Affairs. The Supreme Court of the State of Hawaii had previously ruled unanimously that the state has no right to sell any portion of the ceded lands without permission from ethnic Hawaiians, because state law gives OHA (on behalf of ethnic Hawaiians) the right to a portion of the revenues from the ceded lands, and because the U.S. apology resolution of 1993 placed a cloud on the state's title to the ceded lands. But the U.S. Supreme Court unanimously overruled that decision. The U.S. Supreme Court ruled that the ceded lands belonged to the government of the Republic of Hawaii, which ceded them to the United States at annexation in 1898; and that the United States then ceded most of those lands back to the State of Hawaii in fee simple absolute in the Statehood Act of 1959; and that the apology resolution is merely a resolution of sentiment whose preambles carry no legal force and whose conclusions say nothing about the ceded lands. The U.S. Supreme Court decision of March 31, 2009 can be downloaded here:
http://www.supremecourt.gov/opinions/08pdf/07-1372.pdf

So let's be clear about this. The ceded lands are public lands belonging to the State of Hawaii in fee simple absolute. Therefore the revenues generated by the ceded lands are public money belonging to the State of Hawaii. Therefore the fact that most of OHA's money comes from ceded land revenue cannot be used as a way to define OHA as a private trust. On the contrary. All the money OHA receives either through appropriation of tax dollars by the legislature, or through payments of ceded land revenues, is government money. OHA does have small amounts of revenue from businesses (such as Waimea Valley Park) operated by a wholly-owned subsidiary; but that fact does not make OHA anything other than a government agency.

The fact that OHA receives 20% of ceded land revenue is a voluntary act of generosity by the state legislature. The Admission Act of 1959 whereby Congress allowed Hawaii to become a state includes a provision (section 5(f)) which says that the U.S. turns over ceded lands to the State of Hawaii, and the revenues from the ceded lands can be used for ANY ONE OR MORE of five purposes. One of those purposes is "the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1920"; i.e., ethnic Hawaiians with at least 50% native blood quantum. That particular purpose was included among the five, because the Admission Act required Hawaii to take over ownership and administration of the Hawaiian Homelands created by HHCA of 1920; therefore, the state was given permission to spend ceded land revenues to carry out its new responsibility. Section 5(f) does NOT require that ANY ceded land revenue must be used for that purpose, it only gives permission to the state to spend revenue for that purpose if it chooses to do so.

Likewise, when the state Constitution was revised in 1978 to create OHA, there was nothing placed in the Constitution to specify how much funding OHA should receive. It was a simple act of the legislature later on, just like any other ordinary law, whereby a decision was made to fund OHA by giving it 20% of ceded land revenue. That statute could be changed at any moment the legislature chooses to do so, without requiring a state Constitutional amendment or permission from Congress. Therefore it is an act of generosity by the legislature when ceded land money is given to OHA. The money given is public money belonging to the State of Hawaii. Neither the ceded lands, nor the revenues they generate, are owned by ethnic Hawaiians collectively, nor by OHA. These are government lands and government money. It is ludicrous for OHA to claim that it is acting as a private trust on account of the fact that it receives government money from the revenues generated by government lands, as an act of generosity by the government.

In year 2000 I ran on the ballot in the general election as candidate for the OHA board of directors. But first it was necessary to win a civil rights lawsuit in order to overcome a portion of the Hawaii Constitution which required all candidates for OHA trustee to have Hawaiian native ancestry. The Rice decision had said everyone can VOTE for OHA candidates regardless of the race of the voter. But the Office of Elections refused to acknowledge that that ruling also applied to running as a candidate without regard to race. A multiracial group of 13 Hawaii citizens filed a lawsuit to force the Office of Elections to certify candidates for OHA regardless of race. We won. In November there were 96 candidates for the OHA board, including at least a dozen with no native ancestry.

During the proceedings in the U.S. District Court in Honolulu, OHA filed a motion to intervene, which was granted. It turned out that the reason OHA wanted to intervene was so that OHA attorney Robert Klein (formerly a Hawaii Supreme Court justice) could present an argument that Ken Conklin should be dismissed as a plaintiff and should not have the right to run for the OHA board. The reason, said Klein, is that Conklin has published many essays opposing the race-based nature of OHA and calling for OHA to be abolished. Klein offered as evidence many, many pages of photocopies of Conklin's writings. Klein then presented the argument that OHA is a trust; and the trustees of a trust are obligated by trust law to work on behalf of the trust and in the interest of the beneficiaries; so anyone who publicly opposes the trust should not be allowed to run for or serve as trustee. But Judge Helen Gillmor was hardly able to conceal her laughter as she ridiculed Klein in open court, pointing out that the First Amendment to the U.S. Constitution guarantees freedom of speech for all citizens, and that robust debate is especially important during political campaigns. Once elected, if he violates his duty to work "for the betterment of Native Hawaiians" as required by his oath of office, then he can be sued, Judge Gillmor said. But his freedom of speech cannot be denied. Thus, in effect, Judge Gillmor ruled that OHA is a public agency, candidates for its board of directors are running for public office as political candidates with freedom of speech, and cannot be prohibited from running, nor have their freedom of speech muzzled, on account of any "trust" obligation.

----------------------

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. Act 195 specifically sets up the Roll Commission as an appendage of OHA. And 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 decision in Arakaki#1.

Act 195 is SB1520, SD2, HD3, CD1 as passed by the legislature in final form on May 3 and signed by Governor Abercrombie on July 6, 2011. Its text is here:
http://www.capitol.hawaii.gov/session2011/Bills/SB1520_CD1_.pdf
For background and commentary on SB1520 which became Act195, see
http://www.angelfire.com/big09/SB1520StateRecognizedTribe.html

Section 3(b) of Act 195 says "No later than one hundred eighty days after the effective date of this chapter, the governor shall appoint the members of the Native Hawaiian roll commission from nominations submitted by qualified Native Hawaiians and qualified Native Hawaiian membership organizations. For the purposes of this subsection, a qualified Native Hawaiian membership organization includes an organization that, on the effective date of this Act, has been in existence for at least ten years, and whose purpose has been and is the betterment of the conditions of the Native Hawaiian people."

Section 3(a) says "For purposes of establishing the roll, a "qualified Native Hawaiian" means an individual who the commission determines has satisfied the following criteria and who makes a written statement certifying that the individual: (A) Is: (i) An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii; or (ii) An individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act, 1920, or a direct lineal descendant of that individual; (B) Has maintained a significant cultural, social, or civic connection to the Native Hawaiian community and wishes to participate in the organization of the Native Hawaiian governing entity; and (C) Is eighteen years of age or older."

Here is the racial requirement found in 3(a)(i): "An individual who is a descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands, the area that now constitutes the State of Hawaii".

That's the same language which the U.S. Supreme Court, in Rice v. Cayetano, ruled is a racial identifier and not a political one. The Court said "Ancestry can be a proxy for race. It is that proxy here. ... The ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U.S. 81, 100 (1943). Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name." The entire Supreme Court decision can be found at
http://www.law.cornell.edu/supct/html/98-818.ZO.html

The decision by the 9th Circuit Court of Appeals in Arakaki vs State of Hawaii, decided December 31, 2002, says the following:

"[5] Although the language of the Fifteenth Amendment does not explicitly extend its protections to the abridgement of the right to vote on account of race-based candidate qualifications, the Court has acknowledged that the disqualification of candidates on the basis of race implicates voters’ Fifteenth Amendment rights. See Hadnott, 394 U.S. at 363-64. Thus, a candidate restriction which directly and expressly excludes all non-Hawaiians from qualifying as a candidate for the office of OHA trustee, compels the conclusion that the candidate restriction abridges the right to vote and is thus prohibited by the Fifteenth Amendment."

and also:

"[7] The Supreme Court established that the Voting Rights Act “should be interpreted in a manner that provides ‘the broadest possible scope’ in combating racial discrimination.” Chisom v. Roemer, 501 U.S. 380, 403 (1991) (citing Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)). In line with this premise, it is well-established that the exclusion or limitation of a class of candidates based on “obstacles to candidate qualification” can result in a discriminatory “abridgement” of the right to vote on account of race in violation of the Voting Rights Act. See Dougherty County Bd. of Educ. v. White, 439 U.S. 32, 43 (1978) (holding that “obstacles to candidate qualification” such as economic disincentives are “standard[s], practice[s], or procedure[s] with respect to voting” under § 5 of the Voting Rights Act); Allen, 393 U.S. at 570 (construing § 5 to encompass candidate qualification requirements that could “undermine the effectiveness” of voters by “increasing the difficulty for an independent candidate to gain a position on the general election ballot”). See also Hadnott, 394 U.S. at 366 (subjecting “increased barriers” on candidacy to § 5 scrutiny). 6"

and

"[8] Once the premise that a race-based candidate restriction results in a discriminatory “abridgement” of the right to vote under the Voting Rights Act is established, we are compelled to conclude that the trustee qualification at issue in the case at bench is a clear violation of § 2. By systematically disqualifying all non-Hawaiians from running for the office of OHA trustee on the basis of their race alone, see Haw. Const. art. XII, § 5; Haw. Rev. Stat. § 13D-2, the trustee qualification ensures that the “political processes leading to nomination or election in the State . . . are not equally open to participation” by citizens who are not Hawaiian. See 42 U.S.C. § 1973(b). Furthermore, because Congress enacted the Voting Rights Act to “implement” the Fifteenth Amendment, our earlier conclusion that the trustee qualification violates the Fifteenth Amendment provides additional support for this conclusion. See Smith, 109 F.3d at 592 (citations omitted)."

and

"[9] Based on the foregoing, we hold that Hawaii’s limitation of eligibility to be a candidate for OHA trustee to “Hawaiians” is invalid under the Fifteenth Amendment and § 2 of the Voting Rights Act."

The clear intent and effect of Act 195 is that the people who nominate candidates for the Roll Commission must be ethnic Hawaiian, and the nominees must be ethnic Hawaiian, and the Roll Commission itself can certify only ethnic Hawaiians to become members of the newly created tribe. That violates the U.S. Constitution and the Voting Rights Act, as shown by the ruling in Arakaki#1.

Section 3(a) also says "There is established a five-member Native Hawaiian roll commission within the office of Hawaiian affairs for administrative purposes only." Despite the phrase "for administrative purposes only," Act 195 clearly established the Roll Commission as an appendage of OHA. Even if the Roll Commission were totally independent of OHA, it would still be an agency of the state government. How do members of the Roll Commission, and their employees, get paid? Who are their bosses? Are they free to adopt their own policies, or are they compelled to follow the dictates of Act 195 -- legislation passed by the state legislature and signed by the state governor?

----------------

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.

OHA was founded on three pillars of racial discrimination: (1) Only ethnic Hawaiians could vote for OHA trustees; (2) only ethnic Hawaiians could run for or serve as OHA trustees; (3) OHA's purpose was to hand out benefits to ethnic Hawaiians exclusively, hold money and property for them, and serve as advocate for them.

As discussed above, pillar #(1) was destroyed by Rice v. Cayetano, and pillar #(2) was destroyed by Arakaki v. Hawaii. But pillar #(3) has survived despite repeated court challenges. A webpage traces the sad history of repeated attempts to get rid of government-sponsored racial discrimination during the decade following the Rice and Arakaki decisions. Every challenge was eventually dismissed on technicalities ("standing" and "political question") without ever reaching the merits (14th Amendment equal protection). See a detailed history and analysis "Tenth anniversary of U.S. Supreme Court decision in Rice v. Cayetano." at
http://www.angelfire.com/big09a/RiceCayetanoTenthAnniv.html

Since the merits have never been decided, further 14th Amendment lawsuits can be brought by attorneys and plaintiffs who are sufficiently brave, clever, stalwart, and well funded. There will be ample opportunities for renewed legal challenges to Act 195; the Roll Commission; election of officers and approval of a governing document for the state-recognized tribe; and the transfer of land, money and jurisdictional authority to the tribe. Civil rights activists and attorneys have a target-rich environment in Hawaii.

The Akaka bill was introduced in Congress a few months after the Rice decision as an attempt to overrule the Supreme Court by arbitrarily declaring that ethnic Hawaiians are an Indian tribe. After eleven years of seeing Congress fail to pass the Akaka bill, the State of Hawaii enacted Act 195 to accomplish the same thing. But future progeny of the Rice and Arakaki decisions will destroy pillars (1) and (2) of the state-recognized tribe in the same way those pillars were destroyed for OHA -- because both the Roll Commission and the tribe it envisions are state government agencies, not private trusts.

Even private trusts have come under court challenge when they are racially exclusionary, as shown by repeated lawsuits against Kamehameha Schools' admissions policy. Kamehameha knows its policy would probably be ruled illegal by the Supreme Court, which is why Kamehameha paid $7 Million to settle the most recent lawsuit at the moment when the Supreme Court was getting ready to grant certiorari (agree to hear the case). School trustees are so zealous about preserving their racist policy that they previously decided to give up their tax-exempt status if necessary to preserve the admissions policy. A large webpage with numerous subpages covers the history of the Kamehameha policy, along with legal documents, news reports, and commentaries, at
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool.htmlE

-------------------

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.

OHA and other pushers of the Akaka bill constantly spew the propaganda that there are only 3 groups of U.S. indigenous people: Native Americans, Native Alaskans, and Native Hawaiians. And of course the Native Hawaiians are horribly victimized by being the only indigenous group that lacks federal recognition. Wrong! There are more than 560 federally recognized tribes, each unique and distinct. Some had wars against others. If the U.S. actually recognized "Native Americans" or "indigenous people" there would be only one huge Indian tribe with several million members. Most Americans who have some degree of Native American blood, especially those with low native blood quantum, do not belong to any tribe and would not be eligible to join one. Also, many people living on tribal reservations are not racially Indian; and it's a matter of great controversy and numerous lawsuits whether tribal governments can exercise jurisdiction over non-members living or visiting within the boundaries of tribal lands.

There are hundreds of Indian groups seeking federal recognition, including many who have been refused recognition or had previous recognition rescinded. There's a webpage listing U.S. federally non-recognized tribes. In 2008 there were 226 of them. The website defines a "Federally Non-Recognized Tribe" as "a formally organized entity that has: A. Applied for federal recognition and is not yet approved; or B. Previously recognized and recognition was rescinded; or C. Applied for federal recognition and was rejected. See
http://www.manataka.org/page237.html

Wikipedia says "State recognized tribes" are Native American Indian Tribes and Heritage Groups that are recognized by individual states for their various internal government purposes. "State recognition" confers limited benefits under federal law and is not the same as federal recognition, which is the federal government's acknowledgment of a tribe as a sovereign nation. However, in some states, state recognition has offered some protection of autonomy for tribes not recognized by the federal government. For example, in Connecticut, state law protects reservations and limited self-government rights for state-recognized tribes. See a heavily footnoted list of state recognized tribes which includes details of each group's quest for recognition.
http://en.wikipedia.org/wiki/State_recognized_tribes

But in every case, federally recognized tribes and state recognized tribes existed as political entities before the federal and state governments came into existence. The chiefs, or tribal councils, exercised substantial authority over tribal members, often including the power to take and redistribute land or personal property, the power to grant or deny marriage, and even the power to banish or kill members or intruders.

When the white men came the tribes usually ran away, or fought wars to keep their lands. But unlike Hawaiians, the Indians did not mingle with the newcomers. The tribes continued living separate and apart from surrounding non-Indians. On rare occasions a captured or runaway white person was allowed to become a member of a tribe, but not a governing official. The Seminole and Cherokee tribes took in some Negroes as members when they escaped slavery, or when they were freed after the Civil War. Today there are ongoing legal battles between those tribes and the federal government regarding the status of African-American descendants of those former slaves -- the tribes are trying to expel them, while the government is trying to force the tribes to grant them full rights.

All tribes, whether federally or state recognized, were originally created by their own members without help from the federal or state governments, and preserved their tribal identities despite political opposition and often military aggression from federal and state governments seeking to ignore or destroy them. Some tribes fought on the side of the French and against the British before the American revolution, while other tribes fought on the side of the British. Likewise, during the revolutionary war, some tribes fought as allies of the Americans while other tribes fought as allies of the British. These tribes already existed before the French, British, or Americans came into their territories.

No Indian tribe has ever been created out of thin air by the federal or any state government. By contrast, both the Akaka bill and Act 195 begin by creating a Roll Commission whose purpose is to find people of a specific racial group, recruit them to sign up as members of a future tribe, and help them create a government. A tribe that never existed will thereby be created as an agency of the federal or state government.

In Hawaii before 1778 all residents were native Hawaiians. But the government of the Kingdom of Hawaii was created from 1790 to 1810 not only by native Hawaiian warriors but also by the indispensable help of Caucasians from Britain. Some of those Caucasians became high-ranking political leaders in Kamehameha's newly established Kingdom. For example battlefield general John Young became Governor of Hawaii Island; his bones are the oldest bones in Mauna Ala, the Royal Mausoleum, where they are covered by a miniature heiau and guarded by a pair of pulo'ulo'u (sacred taboo sticks). As the years went by, large numbers of Caucasians of American ancestry served as cabinet ministers, department heads and judges, and as legislators (not only appointed but also elected) in both the House of Nobles and House of Representatives. Some of those Caucasian leaders were naturalized immigrants, and some were born in Hawaii as Kingdom subjects. Whether naturalized or native-born, all were fully equal with native Hawaiians regarding both voting rights and property rights. Later, tens of thousands of people came from China and Japan to work on the sugar plantations or to establish businesses, and many of them became naturalized subjects or made babies with no Hawaiian blood who were born as Kingdom subjects under Hawaii law. Many descendants of those Caucasian and Asian naturalized or native-born Kingdom subjects live in Hawaii today, but would be excluded from the Akaka tribe or the Act 195 tribe solely because they lack Hawaiian native blood.

There was never a unified Kingdom of Hawaii whose subjects or leaders were exclusively native. The racially exclusionary tribe envisioned in both the federal Akaka bill and the state Act 195 is NOT the reorganization of any native government which ever existed -- it is a wholly new creation by a federal or state government which has no authority under its constitution to create brand new racially exclusive governments. Federal and state governments have the authority to recognize previously existing tribes, but not to create brand new ones out of thin air. The federal or state government can give grants of land or money or jurisdictional authority to political subdivisions, charitable groups or private clubs but not to entire racial groups and not to private groups which are racially discriminatory.

----------------------

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.

In 1978 a large number of amendments were made to the Constitution of the State of Hawaii. One of those amendments created OHA as a state agency.

Some of OHA's money comes from tax dollars appropriated to OHA by the legislature, and some of OHA's money comes from revenues from the ceded lands. But the U.S. Supreme Court has ruled that the ceded lands belong to the State of Hawaii in fee simple absolute and can even be sold by the state without needing permission from ethnic Hawaiians. Thus, ceded land revenue belongs to the state. So OHA is a state agency on every occasion it takes action, regardless whether the money for that action comes from appropriated tax dollars or from ceded land revenues. The state Office of Information Practices has a duty to force OHA to make public all information about its income and expenditures.

Act 195, an act of the state legislature, creates a Roll Commission "within the Office of Hawaiian Affairs" to recruit and certify members for a state recognized tribe. The Roll Commission is a state agency both because it was created by the legislature and because it is an appendage of OHA, another state agency. The Arakaki#1 decision ruled that is illegal for the State of Hawaii to place a racial restriction on who can be a candidate for the OHA board of directors. The Rice v. Cayetano decision ruled that it is illegal for the State of Hawaii to place a racial restriction on who can vote for OHA candidates. For those same reasons it is illegal for the members of the Roll Commission to be racially restricted, and illegal for the members of either the Akaka tribe or the Act 195 tribe to be racially restricted.

Real tribes can be thought of as self-governing private trusts or condominiums. They are private because they were created by their own members without help from any government. They are not agencies of the federal or state governments because they existed before federal or state governments came into existence. The governments recognized that they already existed; the governments did not create them out of thin air. Most tribes live separate and apart from surrounding non-native populations. By contrast, ethnic Hawaiians are thoroughly assimilated, intermarried (most with less than 1/4 native blood), and are intermingled with people of all other races throughout all Hawaii neighborhoods, social strata, and occupations. The Akaka tribe and the Act 195 tribe are proposed to be created by governments, and are nothing more than agents of their governments. They are required to obey the 15th Amendment (no denial or abridgment of the right to vote on account of race) and the 14th Amendment (equal protection of the laws regardless of race or national origin).

An 'olelo no'eau (Hawaiian proverb) says "O ke kahua mamua, mahope ke kukulu." First the foundation; then the construction. Another one says "Nana i ke kumu" (look to the source). American jurisprudence has a concept "fruit of the poisonous tree" which means that if a search was done illegally then any evidence found during that search must be excluded. If an entity is created by the state, and its activities are funded by government money, and its officers are appointed by the governor (the Roll Commission), and its people are chosen and certified by those government officers, and it gets its land and money and authority from the legislature, then by golly it is a government agency which must obey the U.S. Constitution!

We simply cannot have a government agency hiring Koko Kops (genealogists) to certify the racial pedigree of people as though they are dogs, as required by both the Akaka bill and Act 195. Ethnic Hawaiians themselves have been voting with their feet against this concept. For more than seven years OHA has sponsored and funded a "Kau Inoa" racial registry, spending untold millions of dollars on advertising, trips to the mainland, and free T-shirts to recruit ethnic Hawaiians to sign their names to say they have Hawaiian blood and want to participate in creating a tribal government. Fewer than 1/4 of those eligible have signed. Hawaiians have voted with their feet in opposition to this concept, by a margin of 3-1.

Many property deeds nationwide include easements to guarantee ownership and access for electric, cable, water, and sewer lines. But Hawaii is unique among the 50 states in having racial entitlements which strip government and private landowners of property rights commonly recognized elsewhere and give superior rights to one racial group. Ethnic Hawaiians are given special rights by explicit racial language in some laws, and by the way some non-racially-explicit laws are interpreted on account of traditional and customary practices. The Hawaiian racial easements are broad and pervasive, affecting all property. They are subtle and insidious, to the extent that most newcomers are unaware of them and will not find them listed in any deed. It would be impossible to partition the State of Hawaii into tribal lands vs. state lands, because issues such as disturbance of ancient burials, water rights, etc. will always arise whereby tribal "rights" will encroach on state lands. See
http://www.angelfire.com/big09a/RacialEasementsOnLand.html

High-ranking state and county government officials (legislators, department heads, and judges) of Hawaiian native ancestry, regardless of how low their blood quantum is, have a severe conflict of interest regarding the Akaka tribe and the Act 195 tribe. The conflict arises because they are eligible to join the tribe and receive benefits directly to themselves and their families and businesses on account of land, money, and jurisdictional authority given to the tribe by the state and county governments. Ordinarily a government official with a conflict of interest can recuse himself from deciding or influencing the outcome of an issue where he has a conflict of interest. But there will always be numerous ongoing conflicts as demands are made for transfer of assets or resolution of disputes (see the paragraph above). It doesn't make sense for any government official to be forced to recuse himself from such a large percentage of his workload. Therefore ethnic Hawaiians should refrain from seeking election or appointment to high office in state or county governments; and those who selfishly seek such election or appointment should be defeated and ostracized by the public. See
http://www.angelfire.com/big09a/AkakaHawnConflictRecuse.html

The people of Hawaii answered a Zogby poll, that they do not want the Akaka bill.
http://www.grassrootinstitute.org/newsroom/akaka-bill-poll-findings-released

See also the 302 page book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State"
http://www.angelfire.com/planet/bigfiles40/BookPromo.htm l

The most eloquent conclusion to this essay is the final paragraph of the Rice v. Cayetano decision:

"When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii."


==============

Send comments or questions to:
Ken_Conklin@yahoo.com

You may now

GO BACK TO OTHER TOPICS ON THIS WEBSITE

(c) Copyright August 19, 2011 by Kenneth R. Conklin, Ph.D. All rights reserved