To: Legislators of the State of Hawai’i
From: Kenneth R. Conklin, Ph.D.
Re: Ceded Land Revenues For OHA
Perhaps you saw my article about racial balkanization and ceded land revenue for OHA, in the Honolulu Advertiser of December 22, 2002:
In the hope you would like to get a better understanding of the ceded lands, here is more information. A LOT more information. First a few words of advice about Hawaiian racial entitlements in general. Then a summary of the main points about the ceded lands, followed by extensive analysis of the historical, legal, and moral issues involved in sending ceded land revenues to OHA. Please take time to think carefully before giving ceded land revenues (or tax dollars) to OHA.
OHA demands legislation to send ceded land revenues to OHA, or to give ownership of ceded lands to OHA. The purpose of this message is to give reasons why that is not required, is probably illegal, and is certainly immoral.
Ethnic Hawaiians do not own the ceded lands. The State of Hawai’i does not owe rent for the use of its own public lands for public purposes which benefit all Hawai’i’s people, including ethnic Hawaiians.
Two levels of analysis are offered, according to how much time you want to spend and how much persuading you need. First, a very brief summary of the main points. Second, a more detailed, expanded version of some points, including references to further analysis and legal documentation.
Surely you know that race-based entitlements are illegal and immoral. But the Legislature keeps voting for them because noisy activists demand them, and the silent majority doesn’t complain much. Eventually the courts will find these programs illegal.
We know that frequent takeoffs and landings of an airplane cause dangerous metal fatigue from repeated bending and straightening. By repeatedly enacting these race-based programs you respond to short-term political pressure at the cost of long-term social, political, and economic disaster. You raise the hopes of sovereignty activists who later feel bitter and angry when the programs are found to be illegal. Each cycle of hope and despair puts increasing strain on our unity and social cohesiveness, weakening the Aloha Spirit. Each time a program is ruled illegal you get pressured to replace it with another program that will also be found illegal. Please stop this vicious cycle.
Racial entitlements are like addictive drugs. OHA boasts there are already more than 160 such programs “benefitting” ethnic Hawaiians (i.e., turning them into wards of the State). If a beloved family member is hooked on drugs and demands your help in getting more, you have a responsibility not to feed his habit. If he kicks and screams and throws a tantrum, you must show your love by soothing but restraining him. Please, just say no to OHA.
The recent controversy over Senator Trent Lott shines a bright light on racism. Senator Lott was forced to resign his leadership position because he made comments at Strom Thurmond’s 100th birthday party that seemed to endorse Thurmond’s segregationist 1948 campaign platform. Our country has come a long way forward in race relations since 1948. People today find the idea of government-sanctioned racial discrimination abhorrent. But the Akaka bill and ceded land revenues for OHA threaten to position Hawai’i as a leader in taking us back to racial separatism written into law and government policy. Slaves were freed after the Civil War, but forced to live under laws that treated them as second-class citizens. That was a situation where a majority discriminated against a minority. In Hawai’i, some members of one minority are seeking to withdraw themselves from the general system of laws and create a new government for themselves. At first it might seem that voluntary self-removal and self-segregation should be acceptable, because it is voluntary. What’s the harm? Freedom of association allows everyone to cling to people they like and avoid those they don’t like. Self-segregation is OK when people do it in personal relationships. But it is not acceptable when governments set up laws of apartheid. It is not acceptable for a government to treat people as second-class citizens, with inferior voting rights and property rights under law. The proposal that a minority take racial supremacy over a majority is especially evil, reminding us of South Africa under white rule. Allocating disproportionate benefits to one racial group at the expense of all is contrary to basic principles of fairness and democracy. A society cannot function properly if one racial group is named by law to be a hereditary elite.
There is no historical, legal, or moral justification for race-based claims to ownership of ceded lands or to the revenues they generate. Indeed history, law, and morality all favor using the ceded lands to benefit all Hawai'i's people equally. The following arguments will help you make a wise decision and explain to your constituents why that decision is right.
LIST OF 6 MAIN TOPICS
(1) What are the ceded lands?
(2) Did ethnic Hawaiians ever have special rights to own the ceded lands or receive revenue from them?
(3) Does the Legislature have any obligation to make a racial allocation of ceded lands or revenues?
(4) Indeed, does the Legislature have any right to make such a racial allocation?
(5) What purpose would be served by doing so?
(6) If the Akaka bill passes, the federal government will be taking responsibility for ethnic Hawaiian entitlement programs; States generally leave the funding of Indian programs to the federal government; therefore, it is unwise to establish any permanent flow of State of Hawai’i government resources to a group which might become a federally recognized tribe engaged in adversarial legal battles against the State of Hawai’i.
HERE ARE QUICK SUMMARIES OF EACH MAIN POINT. Detailed analysis and legal citations can be found at:
(1) What are the ceded lands?
The ceded lands include the government and crown lands that were established in the Mahele of 1848 by King Kauikeaouli Kamehameha III. The crown lands were initially regarded as the King's own lands, but as time went by it became clear that the crown lands were owned by the government to provide revenue to support the head of state in his official capacity for national pride, ceremonial activity, and international travel and diplomacy. By the time the monarchy was overthrown the crown lands were virtually indistinguishable from government lands, as shown by a later legal decision in a lawsuit by the ex-queen against the United States. The Annexation, Organic Act, and Statehood Act all treated the government and crown lands under the single category of ceded lands. A fascinating history of land ownership in Hawai’i is Chapter 9 of Thurston Twigg-Smith’s book Hawaiian Sovereignty; Do the Facts Matter? which has been reproduced at:
(2) Did any racial group ever have special rights to own the ceded lands or receive revenue from them?
In the Kingdom, just as now, government lands were owned by the government and used for roads, harbors, schools, hospitals, parks, and other public purposes that benefitted all residents regardless of race or citizenship. Ethnic Hawaiians had no special racial rights to own private land, nor to control government land, nor to live on or derive benefits from crown lands. In 1865 the Kingdom Legislature took over the crown lands and issued public bonds to pay off their mortgages after they had been threatened with foreclosure (the King had mortgaged them to pay gambling and lifestyle debts; and by signing the bailout legislation he agreed never again to treat the crown lands as his personal property). Since there were no race-based rights to the government or crown lands before the monarchy was overthrown and before those lands were ceded to the United States, there is no justification for special rights after Annexation or after Statehood, and there is no justification for claims for race-based land-related reparations for the overthrow of the monarchy. A fascinating history of land ownership in Hawai’i is Chapter 9 of Thurston Twigg-Smith’s book Hawaiian Sovereignty; Do the Facts Matter? which has been reproduced at:
The concept of special rights for indigenous people was never asserted by the monarchs or the majority of high-ranking ali'i, who eagerly abandoned whatever indigeneity they may have had in favor of adopting Christianity, written language, private property, constitutional democracy and the rule of law. The clearly established social contract was that newcomers from Europe and America were welcomed as full partners with equal voting rights and property rights, in return for their massive investment of money, expertise, and labor. Asians were brought in as contract laborers, and often stayed in Hawai'i as farmers or entrepreneurs when their labor contracts expired; but Asians were almost entirely excluded from political power by tacit agreement between Hawaiians and whites throughout the Kingdom and the early Territorial period. Today all racial groups are supposed to have equal rights in Hawai'i (except that some ethnic Hawaiians claim superior rights and often seem to succeed in getting them!
(3) Does the Legislature have any obligation to make a racial allocation of ceded lands or revenues? (Annexation, Statehood, 5(f) provisions, Hawai’i Constitution, OHA’s creation, subsequent lawsuits)
During the Kingdom and Republic periods, ethnic Hawaiians had no race-based rights to either the government or crown lands, or to the income those lands produced. At annexation, those lands were ceded to the United States to be held in trust for all Hawai'i's people, while revenues "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes" -- there was no race-based allocation for ethnic Hawaiians. In 1910 ex-queen Lili’uokalani lost a lawsuit against the United States. She demanded compensation for the crown lands ceded at Annexation, claiming they were her private property; but a federal court, using the laws of the Kingdom, ruled she had never personally owned the crown lands, and also accepted the legitimacy of the transfer of title by the Republic to the U.S. at Annexation.
In the Statehood Admission Act of 1959, Section 5(f) of the Admission Act lists five purposes for which ceded land revenues can be used. The Admission Act very clearly says revenues can be used for ANY ONE OR MORE of those five purposes. Only one of those purposes includes any racial language, and says revenues MAY be used (but are not required to be used) for the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1921 (50% blood quantum).
It is doubtful whether the U.S. government has the right to give the State of Hawai'i permission to use ceded land revenues for a racial group, which would violate the 14th Amendment equal protection clause. But even if such permission can legally be granted, it would only ALLOW the State to make a racial allocation but would NOT REQUIRE the State to do so. For the first 20 years of Statehood, 1959-1979, virtually all the ceded land revenues were used for public education, which meant that native Hawaiians received benefits in proportion to their share of the population, just like all other citizens.
OHA was invented at the Hawai'i Constitutional Convention of 1979. When the Con-Con proposals were offered for ratification in an election, all the changes were approved by the voters (with blank ballots counting as "yes" votes under the rules then prevailing). But the specific OHA proposal (along with DHHL) received the lowest approval rating among all the proposals, at barely over 50%, under rules where blank votes counted as “yes.” Soon thereafter the Hawai'i Supreme Court (Kahalekai v. Doi) struck down the definitions of "Hawaiian" and "native Hawaiian" contained in the OHA amendment on the grounds that the public had not been adequately informed about them. Unfortunately the Legislature at its next session made a bad decision to re-establish the racial definitions, despite misgivings.
It is entirely up to the Legislature whether to appriopriate any tax dollars or allocate any ceded land revenues to OHA. Even if you decide that the existence of 5 enumerated purposes for ceded land revenues implies a 20% share for ethnic Hawaiians, you must keep in mind that Hawaiians comprise about 20% of our population and will therefore receive 20% of government expenditures without any special legislation being needed. If you appropriate a 20% share for OHA, that will be on top of the 20% share Hawaiians would automatically get through normal race-neutral expenditures. You would be shortchanging 80% of our people. If you rob Peter to pay Paul, Paul will be very happy; but Peter will get angry, vote you out of office, and file lawsuits when he finds out what you have done to him.
IMPORTANT: Through either negligence or deliberate subterfuge, the figure of 20% has come to be interpreted as 20% of gross revenue rather than 20% of net income after expenses. Surely members of the Legislature are aware that airports, harbors, schools, public housing, and public hospitals require enormous capital investment and operating expenses. Yet OHA’s 20% share of gross revenue would come off the top from all the money taken in by those agencies, without regard to capital and operating expenses. In most cases, the net income from government operations on ceded lands is actually negative. Perhaps OHA should pay its fair share of debt service and operating expenses. Perhaps OHA should be sent a bill for all the services Hawaiians receive from the State’s general fund expenditures -- especially the services OHA should be providing but neglects in order to invest $300 Million in the stock market.
Suppose you give a beggar on the street a dollar on Monday, Tuesday, and Wednesday; and then you pass by without giving him anything on Thursday. Wouldn’t it seem improper and perhaps frightening if that beggar chased after you demanding “his” Thursday dollar on the grounds that your generosity of the previous three days has established a “trust relationship” with him?
It is pure nonsense to say that the State of Hawai'i "owes" “rent” to OHA for the state's use of ceded lands. If the Legislature has the power to appropriate tax dollars for OHA or to allocate ceded land revenues to OHA or to set a percentage of revenues for OHA, then the Legislature also has the power NOT to do so. The Legislature has no obligation to give money to OHA.
Under Judge Heely’s decision of 1996, estimates of the State’s additional “debt” ranged as high as $1.2 Billion. The State allegedly offered to settle for $250 Million plus 300 million acres, but a greedy OHA refused the offer. A major reason why OHA refused was because the settlement would have been a “global” one, containing language that it was a final settlement and extinguishing any further ceded land claims. OHA wants to be able to sue the State constantly! Finally, on September 12, 2001 the Hawai’i Supreme Court handed down its decision invalidating Act 304 of 1990, invalidating Judge Heely’s decision, and dismissing OHA’s ceded lands lawsuit. Under that Supreme Court decision, the State has no further obligation to pay any ceded land revenues to OHA unless the Legislature takes action; and in 2002 the Legislature chose to take no action. The Legislature should continue to be so wise in the future!
In 1995 a federal agency gave careful, extended consideration to claims that ethnic Hawaiians have special rights to own or set policy for use of ceded lands. An environmental impact statement was required when Bellows Air Force Station proposed to do a construction project. Claims were aggressively asserted based on the apology bill, the alleged illegality of the overthrow and annexation, and language in the Organic Act (annexation) and the Statehood Admissions Act (section 5(f)). All such claims were totally rejected, with extensive analysis and documentation. See lengthy summary of Bellows EIS documents at:
On December 5, 2002 state Circuit Judge Sabrina McKenna handed down a decision in the case OHA, Aluli, Osorio, et. al. v. State of Hawai'i et. al., CIVIL NO. 94-4207 (SSM). The Honolulu Star-Bulletin and Honolulu Advertiser newspapers of December 6, 2002 reported the decision. Judge McKenna denied a request by the Office of Hawaiian Affairs for a moratorium on the sale of ceded lands. McKenna also ruled that the sale of these lands is not a breach of trust and does not violate the state Constitution. In the 107-page opinion McKenna said the state has the legal authority and sovereign immunity to sell public-trust or ceded lands. The decision explicitly took account of "the distinct possibility of the creation and recognition of a sovereign Hawaiian government, and of the alleged illegality of the overthrow of the Hawaiian Kingdom, the alleged historical injustices affecting Native Hawaiians, and the 1993 apology bill. Sherry Broder, attorney for OHA, also argued that international law protects the propertry rights of indigenous people. But John Komeiji, a private attorney hired by the state, successfully argued that the state's laws and constitution take priority over an alleged international law declaration regarding the rights of indigenous people, both because that declaration is only in draft form unapproved by the United Nations and also because the declaration was never endorsed by the United States. Judge McKenna also disagreed with the plaintiff's argument that Native Hawaiian land rights are comparable to and should be given the same treatment as Native American claims.
(4) Does the Legislature have any right to make a racial allocation of ceded land revenues if it wishes to do so?
The answer is no, because of the equal protection clause of the 14th Amendment of the U.S. Constitution. In the Admission Act the U.S. specifies 5 purposes for ceded land revenues, allowing the revenues to be used for any one or more of them. Since one of those 5 purposes is "the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1921," the U.S. appears to give permission to the State of Hawai'i to make a racial allocation of ceded land revenues. But the U.S. does not have the right to give a State permission to do something which violates the U.S. Constitution. It is also questionable whether the land trust established at Annexation in 1898 to benefit all Hawai'i's inhabitants can be changed in 1959 by attaching strings to the return of the land. Furthermore, according to the equal footing doctrine, all states enter the union on an equal footing, which would seem to mean that the strings can have no force or effect. See further details later, regarding the requirements that must be met before a government agency is allowed to engage in racial favoritism or discrimination.
(5) What purpose would be served by making a racial allocation of ceded lands or their revenues?
The Hawaiian grievance industry portrays ethnic Hawaiians as poor and downtrodden, with the worst statistics for poverty, disease, drug abuse, incarceration, homelessness, and family dysfunction; therefore, Hawaiians should be entitled to special government handouts. But of course there are two major problems with this rationale. First, not all Hawaiians are needy -- some (indeed, many) are quite wealthy. It is a form of racial profiling and prejudice to stigmatize people as having undesirable personal characteristics merely because of their race. Second, many people with no Hawaiian blood are very needy, and should receive government help even though they lack the magic blood. Government benefits should be given to needy people for only one reason -- because they are needy, not because of their race. It is both unconstitutional and immoral for a government of all the people to place one racial group ahead of all others who need government assistance.
Hawaiian activists say the issue is self-determination. That seems to mean that ethnic Hawaiians should be able to exercise political power based on race. Hawaiians who need government help should go to agencies controlled by ethnic Hawaiians, while people with no Hawaiian blood cannot go to those institutions. Such an attitude is reminiscent of “whites only” signs on Mississippi drinking fountains, or “separate but equal” dining cars on passenger trains. For example, OHA was established to provide benefits only to ethnic Hawaiians, and only Hawaiians could vote for trustees or serve as trustees. But in the Rice decision the U.S. Supreme Court ruled that it is unconstitutional to have racially exclusionary voting for OHA trustees; and in Arakaki #1 the U.S. District Court in Honolulu ruled that it is unconstitutional to have racially exclusionary candidacy for OHA trustees. The Barrett and Carroll lawsuits attacked the racial restriction on who can receive benefits from OHA; and although those lawsuits were dismissed on technical grounds regarding lack of standing of the plaintiffs, the underlying issues remain undecided until plaintiffs with standing file suit. In Arakaki #2, a multiracial group of taxpayers have been ruled to have standing to complain about tax dollars being spent for racially exclusionary programs. The judge has ruled that as taxpayers they do not have standing to complain about non-tax ceded land revenues; but as Legislators you know that government revenue diverted from the general fund to serve a special purpose must either be replaced by tax dollars or else general services must be cut.
"Self-determination", as used by Hawaiian activists, means racial separatism and balkanization. It means carving up Hawai'i into racial envlaves. All Hawai'i's people have self-determination collectively. That self-determination was exercised in the Statehood plebiscite of 1959 where 94% of all voters said "yes" to Statehood -- a clear majority of every racial group including Hawaiians. Our collective self-determination continues to be exercised when we vote every two years. Should the Confederate States have been allowed to secede and form an independent nation as an exercise in self-determination? Should black Americans be allowed to form their own nation of New Africa? Should the "indigenous" people descended from at least one Aztec ancestor, living in those States that were formerly part of Mexico, be allowed to establish their own nation of Aztlan? Hawai'i Legislators need to think very carefully whether to encourage apartheid in Hawai’i. Making a racial allocation of ceded lands, or of ceded land revenues, puts us on a path to Bosnia, Rwanda, Zimbabwe, and Fiji.
(6) If the Akaka bill passes, the federal government will be taking responsibility for ethnic Hawaiian entitlement programs. States generally leave the funding of Indian programs to the federal government. Therefore, it is unwise to establish any permanent flow of State of Hawai’i government resources to a group which might become a federally recognized tribe engaged in adversarial legal battles against the State of Hawai’i.
Those Legislators who support the Akaka bill are contradicting themselves if they also support establishing a permanent flow of ceded land revenues to OHA. Let the federal government pay for Hawaiian entitlement programs as it does with other recognized Indian tribes. Also, those who support the Akaka bill should not be supporting any handing over of ceded land ownership or decision-making power to OHA. If the Akaka bill passes there will then be negotiations over land among the federal government, the State of Hawai’i, and the new federally recognized Native Hawaiian governing entity. Those negotiations will be very difficult and contentious. Jurisdictional disputes will plague both the State of Hawai’i and the new tribal government for many decades, especially because the “tribal lands” will be sprinkled throughout the area now known as the State of Hawai’i. Kanakaland would certainly include all the Hawaiian Homelands, and possibly include numerous portions of the “ceded lands” currently owned by the State, and perhaps also the lands owned by Bishop Estate (Kamehameha Schools). The State of Hawai’i needs to keep its options open, and not give away valuable resources before negotiations even begin. If lands that now belong to all Hawai’i’s people are to be handed over to a racially exclusionary group of only some of our people, we need our Legislature to be a strong defender of the rights of all our people.
There are important reasons why the Akaka bill should be opposed. Since this message is about the ceded lands issue and not the Akaka bill, the points in opposition to the Akaka bill should be left for a different discussion. But if time permits, please consider the arguments against the Akaka bill:
For a quick introduction, see:
For lengthy, detailed analysis, see:
Let's focus on what holds us together rather than what rips us apart. Let's clearly acknowledge that the ceded lands belong to all the people of Hawai'i, and that ceded land revenues should be allocated to government institutions that do not engage in racial discrimination. Government help should be given to people based on need and not race; but OHA gives help based on race regardless of need. Reject OHA demands for ceded land revenues or appropriations of tax dollars. Let OHA spend the money it has hoarded, rather than throwing more money into this bottomless pit. When OHA makes demands, just say "no."
OHA describes the Hawai’i Supreme Court’s decision in the ceded lands case as a crisis. I suggest you view it as an opportunity.
Please replace the overturned Act 304 with a new law that gives 100% of ceded land income to the public school system, as was done from 1959-1979; or simply send all the ceded land to the state’s general fund. And make it clear that there is no distinction between ceded lands and all other government lands -- all such lands are held by the State of Hawai'i on behalf of all Hawai'i's people without distinction or segregation based on race, gender, creed, or national origin.
Indeed you might go further. Please pass a Constitutional amendment to be ratified on the November ballot to repeal the entire portion of the State Constitution that created OHA and DHHL. Include transitional language to appoint a receiver for OHA to supervise the return of OHA's assets to the State. Include transitional language to provide for a process of converting existing DHHL leases for house lots to fee simple on easy terms based on financial need of homeowners, using OHA’s hoarded wealth to get the job done.
There might be huge protests at the State Capitol, as all the current beneficiaries are herded there by their institutional overlords. Pahu drums and chants. Vitriolic speeches by the Trask sisters carrying signs with cuss-words. But when November comes, the ordinary people of Hawai'i (including probably most ethnic Hawaiians) will affirm your Constitutional amendments. No more OHA lawsuits. No more DHHL waiting list horror stories and lawsuits. No more bureaucratic, plantation-style oversight of racial ghettos for homeowners who cannot sell or mortgage their property or hand it down to their grandchildren. No more public subsidies for wealthy professionals to own homes worth $385,000 in Kalawahine Streamside "Homeland" on the hills overlooking downtown Honolulu. No more racial balkanization of Hawai'i. No more permanent victimhood status for one racial group whose leaders get angry when other groups won't meet their demands. No more exploitative "service providers" who get rich by claiming to help poor downtrodden victims.
Please help restore equality under the law, and unity as one people (kokokahi) under the Aloha Spirit.
For a more detailed, expanded version of the above points, including references to further analysis and legal documentation, see:
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