On November 9, 2009 the world celebrated the 20th anniversary of the fall of the Berlin Wall.
In speeches in 1983 President Ronald Reagan began referring to the Soviet Union as "The Evil Empire."
On June 12, 1987 President Reagan stood in front of the Berlin Wall and shouted "Mr. Gorbachev, tear down this wall!" Two and a half years later the wall came down. Courageous people of East and West Berlin attacked the hated wall with their bare hands, hammers, small trucks, and forklifts. Soviet President Mikhail Gorbachev wisely gave orders to keep the troops in their barracks and not defend the wall. Thus began a series of events leading to the collapse of the Soviet Union, the liberation of the captive nations of eastern Europe, and the end of the Cold War.
Today in Hawaii there is a wall of apartheid separating people by race. The wall has been built by Hawaii's own version of the evil empire -- a large group of powerful, wealthy institutions providing benefits exclusively to ethnic Hawaiians while walling out anyone who lacks a drop of the magic blood. Our evil empire has grown so powerful that it now demands federal legislation (the Akaka bill) to create a phony Indian tribe whose existence might protect the racially exclusionary institutions against lawsuits asserting they are unconstitutional.
Hawaii's evil empire began in 1921 with passage of the Hawaiian Homes Commission Act that set aside 203,000 acres of land exclusively for the benefit of ethnic Hawaiians with at least 50% native blood quantum. The announced purpose of the bill was benevolent -- to give a helping hand to poor, downtrodden people by putting them "back on the land" with 99-year leases for homesteads or farms at a rent of one dollar per year. The help was also given to wealthy Hawaiians, because the only criterion for getting a lease was to have 50% native blood, regardless of economic status. But whether benevolent or not, it is plainly unconstitutional for government to give benefits based solely on race to a group of people who are not an Indian tribe.
Hawaii's evil empire was expanded with the incorporation of Alu Like in 1975 to provide vocational training and other special programs exclusively to ethnic Hawaiians having at least one drop of native blood. Alu Like then began receiving federal funding in 1976 from the Administration for Native Americans, even though ethnic Hawaiians are not an Indian tribe.
In 1978 the State of Hawaii held a Constitutional Convention which proposed many changes, including creation of the Office of Hawaiian Affairs. The amendment creating OHA passed by the smallest margin of any of the amendments on the ballot. Furthermore, it passed only because at that time ballots on which a voter left a particular question blank were counted as "yes" votes for that question. Twenty years later voters appeared to have approved a proposal to call a new Constitutional Convention until OHA, fearing that the people of Hawaii would abolish OHA, backed a lawsuit causing the Supreme Court to reinterpret the rule to require that there must be an absolute majority of all ballots cast (thus effectively making blank votes count as "No", and causing the proposal for a Con-Con to be rejected).
When OHA was created by the Constitutional Convention of 1978, a lawsuit was filed (Kahalekai v. Doi), in which the Supreme Court ruled that the Con-Con had not succeeded in creating OHA because the voters had not been adequately informed about the racial restrictions on voting, candidacy, and benefits in OHA; but the Legislature then somehow "fixed" the problem and OHA was created. OHA was founded on three pillars of unconstitutional racial exclusion: Voting for OHA trustees was allowed only for ethnic Hawaiians; candidates for OHA trustee had to be ethnic Hawaiians; and benefits distributed by OHA were for ethnic Hawaiians. In 2000 the U.S. Supreme Court ruled in Rice v. Cayetano that the racial restriction on who could vote is unconstitutional. Later that year the U.S. District Court in Honolulu (followed a year later by the 9th Circuit Court of Appeals) ruled in the Arakaki case that the racial restriction on who can be a candidate for OHA trustee is unconstitutional. However, OHA continues to give benefits based on race because all efforts to have a court rule on that issue have been dismissed on technicalities such as "standing" and the "political question" doctrine.
How big is Hawaii's evil empire? There are two branches of the state government exclusively for the benefit of ethnic Hawaiians -- Office of Hawaiian Affairs, and Department of Hawaiian Homelands. Court filings have provided evidence that OHA and DHHL cost the state treasury one billion dollars from 1990 to 2002, and were projected to cost an additional two billion dollars during the ten years thereafter.
But that's not all. There is also the state agency KIRC (Kahoolawe Island Reserve Commission) which administers access and programs on the island of Kahoolawe until such time (described by state law) as the island is turned over to a Native Hawaiian governing entity recognized by the federal and state governments. There's also the taxpayer funded University of Hawaii Center for Hawaiian Studies, serving as a propaganda factory and recruiting agency for the evil empire, with headquarters at the flagship Manoa campus and satellite departments at all the community colleges.
But wait. There's more. In various court filings, and in the Akaka bill, OHA has stated that there are more than 150 (or 160) federally funded programs racially exclusionary for ethnic Hawaiians including such things as Alu Like, Papa Ola Lokahi, Na Pua No'eau, etc. Federal dollars flowing into Hawaii help the economy for all our people; but funneling those dollars through racially focused institutions for the benefit of racially exclusionary clientele gives tremendous political power to the evil empire.
In addition, Hawaii's largest private landowner, Kamehameha Schools (formerly Bishop Estate), has assets perhaps $8-15 Billion depending on how land is valued. All assets are supposed to support education, and a policy of the trustees (not required by the will of Princess Pauahi) requires all students to have at least one drop of native blood. The "school" maintains a large research division churning out "studies" to bolster the claim that ethnic Hawaiians are poor and downtrodden and therefore deserve government and philanthropic help. There are other private institutions giving benefits exclusively to ethnic Hawaiians, such as the Queen Liliuokalani Childrens Centers. Finally, there has been legislation in Congress for ten years -- the Akaka bill -- to establish a racially exclusionary government for ethnic Hawaiians which would be authorized to negotiate for money, land, and jurisdictional authority. Thus the lands and people of Hawaii would be permanently divided by race.
The evil empire does not appear to be evil; it appears to be benevolent, to help people whose leaders claim they are poor and downtrodden. What makes it evil is racial separatism -- an apartheid regime established by law. Hawaii's wall of apartheid is not (yet) visible as a physical structure like the Berlin wall. Rather, it's a legal structure walling out anyone who lacks a drop of Hawaiian blood, preventing them from getting a homestead lease on government land; or getting benefits from OHA or 160 federally funded programs; or getting admitted to Kamehameha Schools. The most evil thing of all is the Akaka bill.
Hawaii's wall of apartheid might be destroyed brick by brick. The year 2000 saw decisions in two successful civil rights lawsuits aimed at OHA. Rice used the 15th Amendment to the U.S. Constitution to destroy the racial restriction on who can vote for OHA trustees, and Arakaki used both the 15th Amendment and the Voting Rights Act of 1964 to destroy the racial restriction on who can run as a candidate for OHA trustee. But since then lawsuits to use the 14th Amendment to destroy the racial restriction on who can receive benefits from OHA and DHHL have been sidetracked by technicalities such as "standing" and the "political question" theory. A lawsuit to prohibit the racial restriction for admission to Kamehameha School got all the way to the U.S. Supreme Court and was awaiting its third conference wherein the Justices would decide whether to hear the case, when Kamehameha paid seven million dollars to the plaintiff child and his attorneys to "settle" the case and prevent the Court from hearing it. If the lawsuits against OHA, DHHL, and Kamehameha Schools are ever decided on the merits, the racial exclusions will almost certainly be overturned.
In 2009 a beleaguered State of Hawaii finally fought back against OHA's claim that the state has no right to sell any ceded lands without OHA's permission. The U.S. Supreme Court issued a 9-0 decision clearly establishing that the state owns the ceded lands in fee simple absolute. However, the state Supreme Court, to whom the case was remanded for further proceedings, later ruled that an ethnic Hawaiian plaintiff has a greater right to "standing" than non-ethnic-Hawaiian citizens, to complain about ceded land sales, on account of alleged special ties between "indigenous" people and the land. That issue will arise in future litigation that will become "ripe" if the legislature ever votes to allow the Governor to sell any parcel of ceded lands.
We cannot simply say "Abracadabra" or "Open Sesame" and expect Hawaii's wall of apartheid to fall down. Outside the courts, there is a simple way to start tearing down Hawaii's wall of apartheid.
Money is the mother's milk of politics. OHA is the primary political arm of the evil empire, and the main pusher of the Akaka bill. Since 1979 OHA has been funded by a law giving OHA 20% of ceded land revenues. That law was an ordinary law passed by the Legislature -- it was not required by the 1959 Statehood Admission Act, and it is not a part of the state Constitution. At any moment it chooses to do so, the Legislature could repeal that law.
Alternatively, the Legislature could reduce OHA's share of ceded land money to zero simply by passing a law to clarify that 20% of ceded land revenue should be interpreted to mean 20% of ceded land income after expenses. It turns out that the state spends more money to create and maintain revenue-generating capability on the ceded lands than the amount of revenue it receives. The public lands of Hawaii cost more money for the state to construct improvements and to maintain them than the money the state earns from fees and lease rents. Roads, schools, libraries, hospitals, and parks cost a lot of money and do not produce much revenue.
Either by repealing the law to send 20% of ceded land revenue to OHA, or by enacting a new law to define the 20% based on net income after expenses rather than gross revenue -- one way or another the state should cut off the flow of money to OHA, especially in this time of financial crisis when there's not even enough money to keep the schools operating on a normal schedule.
We can take inspiration from the words of President Obama, when he gave a campaign speech in July 2008 in the shadow of the Berlin wall. Mr. Obama said: "... the greatest danger of all is to allow new walls to divide us from one another. ... The walls between races and tribes; natives and immigrants; Christian and Muslim and Jew cannot stand. These now are the walls we must tear down. ... Not only have walls come down in Berlin, but they have come down in Belfast, where Protestant and Catholic found a way to live together; in the Balkans, where our Atlantic alliance ended wars and brought savage war criminals to justice; and in South Africa, where the struggle of a courageous people defeated apartheid."
The whole purpose of the Akaka bill is to divide the lands and people of Hawaii along racial lines -- to declare that the descendants of natives should be a hereditary elite with a racially exclusionary government walling out all who lack a drop of the magic blood.
Why should such an abomination be inflicted on us in the very place where King Kauikeaouli Kamehameha III proclaimed racial unity and equality as law? In the first sentence of the first Constitution (1840) of the multiracial Kingdom of Hawaii, the King wrote: "God hath made of one blood all races of people to dwell upon this Earth in unity and blessedness." Why should we now erect a wall of racial separatism in the land of aloha?
As I look at Hawaii's evil empire and our growing wall of apartheid, I say to President Obama and to the people of Hawaii: Tear down this wall!
RICE V. CAYETANO (98-818) 528 U.S. 495 (2000) -- The right of citizens to vote, without racial restriction, in elections for OHA trustees
Arakaki vs. State of Hawaii -- The Right to Run for OHA trustee, without racial restriction.
Collection of some plaintiff legal briefs at both the U.S. District Court and 9th Circuit Court levels, plus news reports and commentaries.
Arakaki v. Cayetano (became Arakaki v. Lingle after election) -- Seeking to abolish OHA and DHHL on the grounds they are unconstitutional. All legal briefs filed by plaintiffs and 5 defendants at U.S. District Court, 9th Circuit Court of Appeals, and U.S. Supreme Court; plus numerous news reports and commentaries.
OHA and DHHL Cost to State of Hawaii Treasury: $1 Billion 1990 to 2002. $2 Billion More Estimated for 2002-2012. See Spreadsheets On This Webpage for Details.
Open letter to President Obama regarding the Akaka bill (Hawaiian Government Reorganization bill)
Selling the Ceded Lands -- The Hawaii Supreme Court ruled that the State cannot sell ceded lands without permission from ethnic Hawaiians; but the State appealed to the U.S. Supreme Court which reversed the state court. The U.S. Supreme Court ruled that the state owns the ceded lands in fee simple absolute. The state Legislature then passed a law probibiting the Governor from selling any ceded lands without approval from 2/3 of each chamber of the Legislature. See the original decision by Judge Sabrina McKenna in the state court; Hawaii Supreme Court decision; many legal briefs filed on appeal along the way; all briefs filed at the U.S. Supreme Court (both principals and amici); transcript of oral arguments; final decision by U.S. Supreme Court; final decision by Hawaii Supreme Court dismissing plaintiff Orosio; plus numerous news reports and commentaries at all stages of litigation.
Kenneth R. Conklin, "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" (302 page book)
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(c) Copyright 2009 Kenneth R. Conklin, Ph.D. All rights reserved