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Whose Land Is It? Hawaiian Spirituality, Kingdom Law, and Modern Law All Support Racial Equality



(c) Copyright 2003 Kenneth R. Conklin, Ph.D. All rights reserved


The following is a somewhat extended version of a speech prepared for Saturday, November 1, 2003 at University of Hawai'i - Windward, as part of the Fall Windward Watersheds Symposium. References are provided at the end. Unfortunately the day's events were cancelled due to low preregistration. But like an orphaned child, the speech can be seen even if not heard.

INTRODUCTION

Aloha kakou,

No'u ka hau'oli e kukakuka o ke kuleana o na po'e a pau e malama 'aina. It's a pleasure to talk about the right and responsibility to care for the land, shared by all Hawai'i's people.

I'm going to defend a very simple concept which some seem to have great difficulty grasping.

WE ARE ALL EQUAL. That's it. Equality.

Some folks claim they should have supremacy over land ownership and policy for no reason other than their race. And some other folks unhesitatingly support them. While I find such assertions of racial supremacy, and support for it, to be morally reprehensible, my job here today is to set aside personal outrage and to give good reasons why equality is pono -- equality is morally righteous FROM THE VIEWPOINT OF HAWAIIAN SPIRITUALITY, and equality is legally required by Hawaiian history, including Kingdom law.

Two main points follow: (1) We ARE all equal in the eyes of god(s); and (2) We SHOULD all be treated equally under the law.

EQUALITY OF SPIRITUAL KULEANA IN THE 'AINA

These islands have been here for MILLIONS of years. Human beings have been living here for less than 2,000 years. Oral tradition tells us about the voyaging canoes, and the Polynesian Voyaging Society has traced the Polynesian Triangle, proving the scientific reasonableness of the oral tradition. Anthropologists, archeologists, and linguists all confirm that human tenure here is less than 2,000 years. Apparently the first people here, from Marquesas, were overwhelmed and either wiped out or enslaved a thousand years later by warlike invaders from Tahiti, who brought the war god and the hierarchical ali'i system. It is unclear whether any of the first people survived the slaughter and the subjugation of their lifestyle to the new regime. A few centuries later the Europeans arrived, and everything changed once again. We are all immigrants and descendants of immigrants.

But spiritually, the point is this:

He ali'i ka 'aina, he kauwa ke kanaka. Land is chief; people are its humble servants.

The spirits of the land have been here for millions of years. Those spirits speak constantly in the wind and rain, and in the rocks themselves. Those spirits speak, and can be heard by anyone whose ears are attuned. It doesn't matter what your race or geneology is. Some individuals can hear; others cannot.

He ali'i ka 'aina, he kauwa ke kanaka. Land is chief; people are its humble servants.

Those who say THEIR family, or THEIR race, should exercise supremacy in land use or land management are maha'oi -- guilty of pride and arrogance -- placing themselves above the land rather than as humble servants. We are ALL servants to the land. It is hewa (morally wrong) -- a violation of the servants' trust relationship with their master -- when some of the servants spend their time fighting the other servants to assert control over their master instead of serving their master. The Hawaiian sovereignty activists demanding race-based land ownership are saying they outrank the spirits of the land, who speak freely to us all. The activists are shouting so loud they can no longer hear the spirits speaking to them.

SHHHHH. Ho'olohe mai! (Listen!)

Now, there is one mo'olelo (historical legend) which seems to give a spiritual rationale for racial supremacy related to the land of Hawai'i. Kumulipo has been cited with increasing regularity lately, as follows: The gods mated and gave birth to these islands as living beings. The gods mated again and gave birth to the first human, the ancestor of all kanaka (I'm leaving out a LOT of steps in between!). Therefore, the gods, the land, and the kanaka are all related as members of a family, and those who lack Hawaiian blood are not a part of that family and therefore are merely guests in the kanaka homeland.

WHOA! Wait a minute. There's a big leap there -- a leap over the pali. Yes, according to Kumulipo the gods gave birth to the Hawaiian islands (and all other lands). And yes, according to Kumulipo the gods gave birth to the first human. But that first human was ancestor to us all, not merely ancestor to kanaka maoli. We are ALL a part of this family. Kupuna Professor Rubellite Kawena Johnson, greatly respected because she translated Kumulipo into English, has stated publicly that Kumulipo is racially inclusive.

I would add that those who choose a racially exclusionary interpretation of Kumulipo are following a very dangerous path. For example, some Zionists defend Israeli brutality toward the Palestinians by claiming that the Jews are God's chosen people, and they are the descendants of Abraham who had a covenant with God that gave the land of Israel to his descendants through Isaac forever. This is a religious justificatiuon for race-based control over land. There are other unsavory examples of religious claims to racial supremacy, such as the white supremacists who claim blacks are cursed by God with the mark of Cain; or followers of minister Farakhan (and the early Malcolm X) who claim white people are embodiments of the Devil.

Closing the spiritual part of my comments, let me talk for a moment about the 'iwi kupuna -- the bones. Ethnic Hawaiians say Hawai'i belongs to them because their ancestors' bones are here. Of course the same can be said of some haole families who now have 8 generations in Hawai'i, or some Chinese or Japanese families who might have 6 or 7 generations here. It's true that 30 generations (dating from the Tahitian invasion) or 100 generations (dating from the earliest possible immigrants) is a lot more than 8. Nevertheless, consider this: Nobody has more than 100 generations of bones in Hawai'i. But everybody, including koko piha kanaka -- 100% Native Hawaiians -- has THOUSANDS of generations of ancestors' bones buried elsewhere. If someone has less than 50% native blood, then obviously more than half his ancestors' bones are somewhere else in the world. But even a Native Hawaiian with 100% blood quantum has 99% of the bones of all his ancestors buried somewhere else. So don't be telling me that you have special rights to all of Hawai'i because some of your ancestors are buried in some parts of some islands.

EQUALITY OF LEGAL RIGHTS TO THE LAND UNDER BOTH KINGDOM LAW AND CURRENT LAW

Legal equality regarding the land, like spiritual equality, is a very complex topic; and I have only 15 minutes total. So let me briefly state a few of the most important points.

Kamehameha The Great was the first person to unify all the Hawaiian islands under a single sovereignty. He succeeded in a short period of time while many others failed over a period of many centuries. What made his victory possible was the new technology and expertise brought to him from England -- large ships, canons, guns, swords, and the knowledge of how to use them effectively. His chief advisor and fellow warrior was Englishman John Young. Following the military victories, Kamehameha named John Young as Governor of Kamehameha's home island of Hawai'i, and gave him land for a home overlooking the great heiau Pu'ukohola which Kamehameha had built at Kawaihae. Young married into Kamehameha's family, and Queen Emma was his granddaughter. Thus, right from the beginning of the Kingdom, people with no native blood were fully equal in land ownership and legal rights.

In 1839 Kauikeaouli Kamehameha III proclaimed the Declaration of the Rights of Man, and in 1840 he proclaimed the first Constitution of the Kingdom, in both cases relying on advice from the American missionary William Richards. Those documents recognized that all men are created equal by God and should be treated equally by the law. Newcomers to Hawai'i were able to become naturalized subjects of the Kingdom with full voting rights. Non-native Kingdom subjects were appointed to high government positions, and were also elected to the Legislature. Non-native middle-class businessmen and merchants, as well as lower-class farmers and fishermen, had equal rights under the law. In 1843 the non-native Hawaiian subjects Gerrit Judd and William Richards were the heroes of the Kingdom, securing the restoration of sovereignty after a rogue British takeover and securing a non-aggression agreement jointly from Britain and France. Following the Mahele of 1848, Kingdom subjects of all races were able to own land on an equal basis, and a few years later even foreigners were allowed to own land. It was explicitly clear in the laws of the Kingdom that all persons born in Hawai'i, regardless of race, and all newcomers naturalized to Hawai'i, had all the same rights as natives. All this equality was provided by the sovereign Kings of Hawai'i exercising self-determination on behalf of their people. Today's activists who seek racially exclusionary political power, as in the Akaka bill, are disrespecting the choice for equality made and carried out by their ancestors through more than a century of Kingdom history.

The Mahele distinguished among three categories of land. (1) Private land was given to chiefs and then to commoners, who were free to buy and sell it. Chiefs who received large tracts of land were required to preserve the ownership and gathering rights of the commoners who were living and farming on their lands. These land rights of the commoners were called "tenants' rights" -- the word for "tenant" was "hoa'aina" (friend of the land) and it was not a racial term. (2) Government land was set aside for the government to own and use on behalf of all the people regardless of race, for government buildings, schools, harbors, and in modern times for roads and airports. There was nothing racial about it. (3) Crown land was set aside for the King himself -- but he did not own it as an individual owns land; rather, he owned it in his capacity as head of the government. When a King died the Crown land was not passed down to his personal heirs through a will, but rather it was passed directly to the next King, even when the next King came from a different family (as with the election of Lunalilo and again the election of Kalakaua). In 1865 the Kingdom Legislature passed a law that made the Crown Lands basically the same as government lands. What happened was that the King had mortgaged the Crown lands to pay for his lavish lifestyle and gambling debts. The grantor of the mortgage threatened to foreclose and take over the Crown lands for private use. So the Legislature issued government bonds to pay off the mortgage and to make it clear that the government owned those lands and the King could not again mortgage or sell them. Thus the Crown lands by the end of the Kingdom (and well before the so-called "Bayonet Constitution of 1887) were the same as government lands, held by government on behalf of all Hawai'i's people, with revenue from the Crown lands set aside to support the head of state in his/her official capacity as leader of the government.

As part of the Annexation of 1898 and the Organic Act of 1900, the government and Crown lands of Hawai'i were ceded to the United States by the Republic of Hawai'i. But the Republic did not simply give away the government and crown lands. The Republic demanded and received two important concessions from the U.S.: (1) The ceded lands were to be held by the United States not as U.S.-owned lands, but rather as a trust whose income was to be used for the benefit of "the inhabitants of the Hawaiian Islands, for educational and other public purposes." (2) The U.S. paid off all the accumulated debts of the government of Hawai'i, most of which were leftover debts from the Kingdom (including the construction of 'Iolani Palace). Thus, there was nothing racial about the ceded lands -- they were held on behalf of all the inhabitants of the Hawaiian islands, and the debts were paid that the governments of Hawai'i (both Kingdom and Republic) had incurred on behalf of all the people.

In 1910, 17 years after the overthrow, ex-queen Lili'uokalani lost a lawsuit in which she claimed the U.S. should pay her for the ceding of what she called "her own" Crown lands. She lost. The court ruled that the Crown lands had never belonged to her personally; that the Crown lands were the property of the government; and the government of the Republic of Hawai'i had the right to cede them to the United States at Annexation in return for U.S. agreeing to place them in trust for the inhabitants of Hawai'i and in return for paying off all the debts of the Hawaiian government.

In the Statehood Act of 1959, most of the ceded land was given back to the ownership of the State of Hawai'i (except for military bases and national parks), to be held by the state as a public trust for all Hawai'i's people. Section 5(f) of the Statehood Act specifically stated that the revenues from the ceded lands could be used by the state for any one or more of five purposes. One of those purposes was racially defined -- for the "betterment of native Hawaiians" as defined in the Hawaiian Homes Commission Act of 1921 (i.e., Hawaiians of 50% or more native blood quantum). But it is important to note that none of the money has to be used for any one of the purposes -- it could all be spent for any one or more of the five purposes to the exclusion of the other purposes. Indeed, for the first twenty years of statehood, 100% of all ceded land revenue was given to the public school system. Since 26% of public school children had native ancestry, therefore 26% of ceded land revenue was spent for the betterment of Native Hawaiians without any need for racial set-asides or racially exclusionary institutions.

In 1978 the Constitutional Convention invented the Office of Hawaiian Affairs. But the Hawai'i Supreme Court invalidated the racial restrictions on voters, candidates, and beneficiaries of OHA on the grounds that Hawai'i's people were not sufficiently informed about those things prior to the ratification vote. Later the Legislature passed laws to implement the racial definitions, and to send OHA 20% of ceded land revenue. But it should be noted that the 20% racial allocation of ceded land revenues is a creation of the Legislature which can be undone anytime the Legislature chooses to do so, without violating either the letter or the spirit of the Statehood Act of 1959 or the Annexation of 1898. A lawsuit now pending in the U.S. District Court in Honolulu (Arakaki#2) seeks to declare that OHA and DHHL are unconstitutional on account of their racial exclusion of beneficiaries.

CONCLUSION

We ARE all equal in the eyes of god(s); and we SHOULD all be treated equally under the law.

The spirit of the land speaks to all who have ears to hear, regardless of race. Land is chief; people are its humble servants. It is wrong for some servants to demand supremacy for their family or their racial group thereby arrogantly asserting they are superior over the land. The navigation stories confirm we are all immigrants here -- even someone with 100% native blood has 99% of the bones of all his ancestors buried somewhere else in the world outside Hawai'i. The sovereign Kings of Hawai'i exercised self-determination on behalf of their people to recognize that all subjects of the Kingdom are equal under God and should be treated equally under the law regardless of race. Today's activists seeking race-based political power and race-based control of land are disrespecting the decisions of their ancestors carried out for more than a century of sovereign Kingdom history. Kingdom law, and U.S. law, both recognize all races as equal. Both kinds of law recognize that the ceded lands belong to all Hawai'i's people, regardless of race. The Hawaiian Homes Commission Act of 1921, the State of Hawai'i Department of Hawaiian Homelands created to implement it, and the OHA created in 1978, will all be declared unconstitutional when courtroom delays and appeals eventually give way to final decisions. Then perhaps we can stop fighting over racial supremacy in controlling the land, and start serving the land in full consciousness of our inherent equality under the gods and the laws.

REFERENCES:

Religion and Zealotry in the Hawaiian Sovereignty Movement -- How Religious Myths are Used to Support Political Claims for Racial Supremacy in Hawai'i
http://www.angelfire.com/hi2/hawaiiansovereignty/religion.html

Ceded Lands Belong to All the People of Hawai’i; There Should Be No Racial Allocation of Ceded Lands or Their Revenues
http://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

Lili'uokalani Loses A Big One (The Crown Lands) -- Liliuokalani v. United States, 45 Ct. Cl. 418 (1910). Full text of court decision and appendices, plus analysis of its significance.
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html

Patrick W. Hanifin, "To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai'i" Hawaii Bar Journal, Vol. V, No. 13, pp. 15-44. (The History of Citizenship and Voting Rights in the Kingdom, Republic, Territory, and State of Hawai'i). Available for download from:
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.pdf


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(c) Copyright 2003 Kenneth R. Conklin, Ph.D. All rights reserved


Email: ken_conklin@yahoo.com