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MAKUA MILITARY TRAINING VS. HAWAIIAN SOVEREIGNTY: USING ENVIRONMENTAL CONCERNS AND CULTURAL PRESERVATION AS PLOYS TO FORCE THE U.S. MILITARY OUT OF MAKUA AND EVENTUALLY OUT OF HAWAI'I





TESTIMONY: Scoping for Environmental Impact Statement for U.S. military training at Makua

BY: Kenneth R. Conklin, Ph.D., on behalf of myself and Aloha For All

DATE: APRIL 8, 2002


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INTRODUCTION

Aloha kakou,

There is great controversy regarding the military use of Makua Valley on O'ahu for live fire training.

The obvious issue for an environmental impact statement is whether military training will cause irreparable damage to the physical environment, including plants and animals. This Aloha For All testimony takes no position on that issue -- we have no expertise to offer. We will point out, however, that many individuals and organizations who offer testimony claiming negative environmental impacts are often pursuing an anti-military political agenda. They are cynically using environmental issues as a weapon to attack the military; thus, their environmental testimony must be regarded with great skepticism. Native Hawaiians have a special place in the hearts of all residents of Hawai'i. Thus, their environmental claims might be judged within a halo of respect for their history, and sympathy for their real or imagined "plight." But claims concerning likely damage to the physical environment must be evaluated scientifically, without regard to sympathy for those who make the claims. The "mascot syndrome" must not be allowed to affect scientific judgment on matters of fact.

Part of an EIS is a CIS -- cultural impact statement. Will military training in Makua cause irreparable damage to communities, families, religions, or cultural values? It is easy for disgruntled protesters to make such claims, and difficult to dismiss such claims as trivial or of low importance. If someone says he is suffering, how can anyone prove he is not? If someone says he feels offended by certain actions, how can anyone say such a claim is false or unworthy of mitigation? Competing groups may make conflicting claims; what makes one feel good makes another feel bad. This Aloha For All testimony offers no direct wisdom to help resolve such disputes. But again, we note that most of the cultural impact comments in opposition to live-fire training at Makua are offered by individuals and groups with a political agenda hostile to the military. They cynically (ab)use cultural and religious claims whose subjectivity makes those claims difficult to evaluate. While claims regarding damage to the physical environment can be evaluated scientifically, claims regarding culture and religion often require judgments concerning the authenticity of cultural practices and the sincerity of religious beliefs. If an anti-military political agenda is the prime motivating force in making cultural and religious claims opposing military use of Makua, then such cultural and religious claims can be devalued or dismissed as probably inauthentic and insincere.

We of Aloha For All strongly support the existence of the United States military. We recognize its need for training programs, including live fire training that realistically simulates battlefield conditions. We acknowledge that such training requires a place where it can be done safely, and that such a place might be located on our own island, or even in our own part of the island. As patriotic citizens of the United States, we place a high value on having a well-trained military force, and we are prepared to make some personal sacrifices of comfort or convenience as part of our contribution to the greater good of our nation. This patriotic support for a strong U.S. military is part of the culture of the State of Hawai'i and, indeed, of the entire United States; particularly after the events of September 11, 2001. This patriotism aspect of our culture is noted here because it should be included within the scope of a cultural impact statement, which is part of an environmental impact statement.

The scoping for an EIS is very broad. The process invites participation from all groups and individuals, on a very wide range of issues. Some participants are openly anti-military and even anti-U.S. They see this scoping process as open season on the military. It is a great opportunity to shoot rhetorical bullets, to launch an anti-military blitzkrieg. Some participants are Hawaiian sovereignty activists. They gleefully welcome the chance to reassert their same tired, discredited theories of ethnic nationalism or racial supremacy. For them, a public hearing with media attention is a chance to do "witnessing" of the sort done by religious zealots who feel a need to proclaim their faith in public. They will claim Hawai'i is not truly part of the U.S., the U.S. has no jurisdiction in Hawai'i, the overthrow of the monarchy was illegal, the annexation was illegal, the ceded lands were stolen from ethnic Hawaiians, ethnic Hawaiians have special rights superior to non-Hawaiians to control the land, the land is sacred, etc.

Anti-military and Hawaiian sovereignty activists overwhelmingly dominate the opposition to live-fire training at Makua. Those activists cynically use environmental issues at Makua as a convenient way to assert their own agendas. While some among them may truly care about protecting the environment, their main objective is to drive the U.S. military out of Makua, then out of Hawai'i, and then to demilitarize the U.S. The Hawaiian sovereignty activists hope that when the U.S. military is kicked out of Hawai'i, then the U.S. itself can be kicked out, leaving behind an independent nation of Hawai'i. Their goal is to rip the 50th star off our flag.

The American Friends Service Committee is a political arm of the Quakers, a religious group noted for being pacifists. Their primary focus at Makua is opposition to the U.S. military. The highly-paid head of AFSC in Hawai'i, Kyle Kajihiro, travels to Vieques Puerto Rico to agitate against military use of that island, and hosts visiting Puerto Rican activists who come to Makua to learn useful tricks of the anti-military trade. The same Hawaiian sovereignty activists who protest at Makua can also be found at Hawaiian Kingdom revival meetings, and at rallies at 'Iolani Palace and Thomas Square where they symbolically lower the U.S. flag and raise the Hawaiian Kingdom flag. If anti-military pacifists and Hawaiian sovereignty activists were removed from the Makua debates, only a very small handful of true environmentalists would remain. If people who do not live along the Wai'anae coast were removed from the debates, a majority of the local residents, feeling patriotic as Americans, would probably favor the military presence at Makua.

We deplore the cynical abuse of insincere religious and cultural claims for political purposes. We deplore the constant drumbeat of false historical and legal claims whose only validity comes from repeating them frequently and loudly. This testimony will provide "live fire" ammunition to discredit such claims.


BRIEF OVERVIEW OF FIVE MAJOR TOPICS

Here are five topics discussed in greater detail below. The order of listing is not necessarily the order of importance. In particular, Army personnel are encouraged to learn from the experience of a similar EIS exercise a few years ago at Bellows Air Force Station in Waimanalo (see item #5).

1. Makua is not the only battlefield where Hawaiian sovereignty activists fight the military. In March of 1999 the commander of Hickam Air Force Base felt compelled to issue a public apology to Native Hawaiians for a politically incorrect designation of the “enemy” in a war game, and granted Hawaiian activists unprecedented access to military personnel for “sensitivity training” and Hawaiian sovereignty propaganda. Also, the accidental sinking of the Ehime Maru gave sovereignty activists a platform for the use of cultural ceremonies in March of 2001 as a subtle but effective anti-military weapon. There are two basic varieties of Hawaiian sovereignty activists, and both see the military as an enemy.

2. Activists claim that Native Hawaiians are "indigenous." This theoretical claim leads to practical claims for special rights to control the land. They claim the right to have race-based access to Makua, and the right to exclude people of other races from certain parts of Makua at certain times, for purposes of Hawaiian subsistence farming or fishing and for Hawaiian religious purposes. But Native Hawaiians are not indigenous. And even if they were, it would be legally and morally wrong to give special standing based on race. Whatever special rights may pertain to individuals or families having a tradition of subsistence farming, fishing, or hunting; or religious observances; those rights should be based not on race but on the fact that such individuals or families have such customary practices in this particular area. All persons must be treated equally, regardless of race; claims to "indigenous" status notwithstanding. It is a matter of considerable dispute whether there are gathering rights permitting people to go onto other people’s property to collect food and cultural materials, and to have access to the shoreline; however, if such rights of trespass do exist, they are rights pertaining to all residents of an ahupua’a, not only to so-called “indigenous” people. Some local groups of activists have tried to create private organizations which have the appearance of being environmental governing boards for particular ahupua’a, and have tried to write their governing documents in such a way as to guarantee dominance by ethnic Hawaiians. Thus, cultural and environmental concerns are used as springboards for ethnic nation-building.

3. The history of the Kingdom of Hawai'i shows that the Native Hawaiians welcomed newcomers, eagerly changing their old ways to embrace the newcomers' religion and culture. A social contract was established under the leadership of the sovereign Kings of Hawai'i, exercising self-determination on behalf of the natives. According to this social contract, newcomers were given full equality of voting and property rights, in return for investment of capital and expertise. Non-natives became fully equal subjects of the Kingdom through both naturalization and birth, and held high elective and appointive positions in the government. There were no special rights for "indigenous" people during the final 40 years of the Kingdom period. Activists like to use Hawaiian music, hula, language, and cultural activities, together with a general impression that Hawaiians have suffered historically, to elicit public sympathy for their victimhood grievances and thus for their political goals. But a careful study of history shows there is no basis for reparations to ethnic Hawaiians.

4. Hawaiian language is increasingly being used as a political weapon, along with public prayer. The language and culture are being used as vehicles for claiming an artificial, reinvented indigeneity; and as vehicles for ethnic nation-building. The EIS scoping process at Makua is seen as a venue for public propaganda. The Makua struggle affords ethnic nationalist Hawaiian sovereignty independence activists a chance to obstruct and harass the military as a step toward Hawaiian independence. The use of Hawaiian language in written and oral testimony, and opening prayers and chants, is a political strategy of asserting indigeneity and a deliberate method for obstructing the EIS process. Every living person who has fluency in Hawaiian has greater fluency in English; thus, the choice of using Hawaiian in testimony addressed to an audience that does not speak Hawaiian is a voluntary and deliberate act of obstruction, whose intent is confirmed by activist communications.

5. Numerous historical and legal claims are asserted by the activists regarding ceded lands, stolen lands, the 1993 Congressional apology resolution, and alleged special rights for Native Hawaiians. These claims were asserted in an EIS scoping hearing at Bellows Air Force Station. The claims were extensively studied, and soundly refuted in 1995. Important portions of the Bellows EIS documents are available on the internet and are provided here to assist the Army in dealing with similar claims at Makua.


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(1) WHY AND HOW HAWAIIAN SOVEREIGNTY ACTIVISTS OPPOSE THE MILITARY


Hawaiian sovereignty activists come in two basic varieties. Some seek nation-within-a-nation status, comparable to an Indian tribe.
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

Some seek to restore Hawai'i to its 19th Century international status as an independent nation, but with a new racial limitation on full voting rights and property rights.
http://www.angelfire.com/hi2/hawaiiansovereignty/racistdemands.html

Both varieties of sovereignty activists see the U.S. military as an enemy. The Indian tribe activists see large portions of land currently being occupied by the military which formerly were government or Crown lands under the monarchy (the "ceded lands") and which they believe should belong to their race-based tribal reservation lands. The independence activists believe that the first step toward "liberating" Hawai'i from the United States must be the removal of the "U.S. military occupation forces." Both groups play upon sincere concerns about "desecration" of burial sites and other cultural sites under military control, using demagoguery on that issue to undermine public confidence in continued military presence.

Many ethnic Hawaiians have served with distinction in the U.S. military and some have died for our country. They and their families are patriotic Americans, along with the vast majority of the citizens of Hawai'i. But every mistake made by military personnel (Ehime Maru), every bit of environmental damage (Kaho'olawe, Makua), and every occasion of inadvertent cultural or religious desecration (Mokapu burials) will be used for anti-military propaganda.

Another current example is the ceremony held by Hawaiian activists on March 4, 2001 to honor and mourn the loss of the victims of the Ehime Maru tragedy on the day prior to the start of the Navy's formal Ehime Maru inquiry.
http://the.honoluluadvertiser.com/2001/Mar/05/35localnews12.html

It is no accident that those ceremonies were organized by Hayden Burgess, alias Poka Laenui, a leading sovereignty activist from Wai’anae who prides himself on not paying income tax to the U.S. government and its "puppet regime" State of Hawai'i. He is not noted in the community for his expertise (if any) on protocol or ceremony, nor for his religious commitments (if any). His primary claim to fame is his opposition to the U.S. military and advocacy for ethnic Hawaiian nationalism. The idea behind the Ehime Maru ceremony was to quietly insinuate into people's minds that the military is dangerous and bad for the community, while the Hawaiians are the caretakers of spirituality, aloha, respect for the dead, healing, etc.

Several tax-exempt organizations actively cooperate with Hawaiian sovereignty groups to undermine the military presence in Hawai'i: the AFSC (American Friends Service Committee [Quakers]), the People's Fund, the Ahupua'a Action Alliance (a sovereignty front-organization masquerading as an environmental group), Malama Makua, Japanese American Citizens League (in Hawai'i, it is a radical fringe group that does not speak for most Americans of Japanese Ancestry).

There is no evidence that Hawaiians in the 18th or 19th Centuries regarded Makua valley as a pu'uhonua (place of refuge). There is no evidence that they refrained from warfare there. On the contrary, Kamehameha the Great used Makua to assemble a great fleet of war canoes and to train his warriors for his intended invasion of Kaua'i. Regarding environmental damage and the desecration of sacred places by the use of guns and canons: Kamehameha the Great did not hesitate to use guns and canon in the famous Battle of Nu'uanu Pali on O’ahu. He did not hesitate to use guns and canon in the extremely sacred 'Iao Valley on Maui in his battle with Kahekili. it was called the Battle of Kepaniwai, meaning "the damming up of the rivers" because so many warriors were slaughtered on both sides that their dead bodies dammed up the rivers. Before the battle, Kamehameha gave his war cry urging his soldiers into a bloody battle to the death: “Imua! Imua e na poki’i, a inu i ka wai ‘awa’awa. ‘A’ohe hope e ho’i mai ai.” Go forward! Go forward little brothers, and drink the bitter waters. There is no turning back.

Each branch of the military has various classroom training components to familiarize personnel with the local physical and political environment. In recent years there has been added emphasis on cultural "sensitivity training" to encourage military personnel to treat local civilian populations with respect, and to be aware of attitudes or practices by civilians or by military personnel which may unnecessarily cause conflict. In March, 1999 this sensitivity training briefly became a focus of public attention because of an unfortunate incident in which a counter-terrorism exercise gave to the "bad guys" the name "Hawaiian sovereignty group." Hawaiian activists demanded and received an apology, as well as inclusion of pro-sovereignty materials into military sensitivity training programs. Colonel Anne Testa, then the commander of Hickam Air Force Base, was shown in a Honolulu daily newspaper bowing her head in remorse while apologizing to the terribly racist sovereignty activist Mililani Trask; and pledging to make military personnel more sensitive to the historical and cultural grievances of Hawaiians.
http://starbulletin.com/1999/03/24/news/story4.html

While it is good to familiarize military personnel with Hawaiian history and culture, and make them aware of the demands of sovereignty activists, it is also essential to convince military personnel that Hawai'i is rightfully a State of the United States, and should remain that way. It would be very damaging to morale, and to readiness for possible counter-terrorism actions, to leave military personnel with the false impression that Hawaiian sovereignty demands are justified either historically, legally, or morally. No matter how well the forces are supplied, no matter how physically strong and disciplined they are, they cannot operate effectively in Hawai'i if their minds are poisoned and their hearts lack resolve. Hopefully the numerous internet citations in this Makua EIS scoping testimony can be used by military personnel to learn about Hawaiian history and sovereignty issues.

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[note added August 19, 2004 for webpage readers]

Since the time when the Makua testimony was presented, additional webpages have been created which expand on some points raised here. See especially these two:

Stryker Brigade Lawsuit -- Ethnic Hawaiian Activists Use A Religious Legend To Claim Racial Supremacy in Political Power -- Long-Range Attempt to Push the Military (and the United States) Out of Hawai'i
and
Hawai'i's Fifth Column: Anti-Americanism in the Hawaiian Sovereignty Movement

[end of note added August 19, 2004]


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(2) THE CLAIM TO INDIGENOUS STATUS, AND RACE-BASED CULTURAL AND GATHERING RIGHTS


Activists claim that Native Hawaiians are "indigenous." This theoretical claim leads to practical claims for special rights to the land. They claim the right to have race-based access to Makua, and the right to exclude people of other races from certain parts of Makua at certain times, for purposes of Native Hawaiian subsistence farming, fishing, or hunting, and for Native Hawaiian religious purposes.

But ethnic Hawaiians are not indigenous. No humans occupied Hawai’i until 2000 years ago. Polynesian immigrants came in several waves of voyaging canoes from different areas of Polynesia and with different cultural practices. The final wave of Polynesian invaders came from Tahiti around 800 years ago and completely changed the genetics, government, and culture, imposing the war god Ku, the ali’i social hierarchy, and the institution of human sacrifice. Polynesians have a shorter tenure in Hawai’i than Anglo-Saxons have in England; and the latest wave of Polynesian invaders who took over the islands arrived here later than the Norman invasion of England.
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html

It is a matter of considerable dispute whether there are gathering rights permitting people to go onto other people’s property to collect food and cultural materials, and to have access to the shoreline; however, if such rights of trespass do exist, they are rights pertaining to all residents of an ahupua’a, not only to so-called “indigenous” people.
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html

Some local groups of activists have tried to create private organizations which have the appearance of being environmental governing boards for particular ahupua’a, and have tried to write their governing documents in such a way as to guarantee dominance by ethnic Hawaiians. Thus, cultural and environmental concerns are used as springboards for ethnic nation-building.
http://www.angelfire.com/hi2/hawaiiansovereignty/fraudahupuaa.html

In recent years there has been a massive effort to "restore" or "rediscover" Hawaiian culture, including the establishment of public charter schools whose purpose is to indoctrinate children with “Hawaiian cultural values” as a path to ethnic nation-building.
http://www.angelfire.com/hi2/hawaiiansovereignty/efhenb.html

Old cultural customs and holidays long dormant are revived; and sometimes customs and holidays are created out of thin air.
http://www.angelfire.com/hi2/hawaiiansovereignty/holidaysethniccleansing.html

Leisure-time hobbies are being invented and then elevated to the status of customary and traditional indigenous practices -- this is being done for political purposes, to establish a claim to indigeneity and/or a claim to race-based rights to particular areas. The movie “Field of Dreams” gave American popular culture the phrase: “If we build it, they will come.” The Hawaiian activists might paraphrase this by saying, “If we manufacture a culture that looks indigenous, they will treat us as indigenous.”


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(3) NON-NATIVES WERE FULL PARTNERS IN THE KINGDOM, WITH EQUAL RIGHTS TO GOVERNMENT AND LAND. THERE IS NO BASIS FOR REPARATIONS.


Even if Hawaiians were indigenous, it would be legally and morally wrong to give them special standing based on race. The history of the Kingdom of Hawai'i shows that the Native Hawaiians welcomed newcomers, eagerly changing their old ways to embrace the newcomers' religion and culture.
http://www.angelfire.com/hi2/hawaiiansovereignty/seconddialog.html

A social contract of full partnership was established under the leadership of the sovereign Kings of Hawai'i, exercising self-determination on behalf of the natives.
http://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html

According to this social contract, newcomers were given full equality of voting and property rights, in return for investment of capital and expertise. Non-natives became fully equal subjects of the Kingdom through both naturalization and birth, and held high elective and appointive positions in the government. There were no special rights for "indigenous" people during the final 40 years of the Kingdom period.
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html

Whatever special rights may pertain to individuals or families having a tradition of subsistence farming, fishing, hunting, or religious observances should be based not on race but on the fact that such individuals or families have such customary practices in this particular area. All persons must be treated equally, regardless of race; claims to "indigenous" status notwithstanding.
http://www.angelfire.com/hi2/hawaiiansovereignty/principles.html

Activists like to use the beauty of Hawaiian music, hula, language, and cultural activities, together with a general impression that Hawaiians have suffered historically, to elicit public sympathy for their victimhood grievances and thus for their political goals.
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html

But there is no legitimacy to claims for reparations for racially-defined Hawaiians, as shown by both an informal essay
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinallsovereign.html
and a scholarly legal analysis.
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

The ceded lands were all the public lands of the Kingdom of Hawai’i, both government lands and crown lands. There are no valid racial claims to any of these lands.
http://aloha4all.org

In particular, the crown lands were owned not by the monarch personally, but by the government; and were used to generate income to support the office of the head of state. In 1910 ex-queen Lili’uokalani sued the United States for compensation for what she claimed to be her personal right to the crown lands. The court ruled that she did not have any personal ownership of those lands even before the overthrow, and was not entitled to any compensation. But it is interesting that she never made any claim that the crown lands belonged to Native Hawaiians as a group, and she only claimed to own them personally.
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html


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(4) USE OF HAWAIIAN LANGUAGE AS A POLITICAL WEAPON TO ASSERT FALSE INDIGENEITY AND TO OBSTRUCT THE MAKUA EIS SCOPING


Speaking or writing in Hawaiian language is used by Native Hawaiian activists to assert indigeneity (even though both the language and the indigenous practices have been learned artificially, in adulthood, as hobbies). Hawaiian-language prayers and chants at the opening or closing of public meetings are used for political purposes to create an impression of indigeneity and to bolster a claim to special access to Makua for religious observances. However, there is no living human being whose fluency in Hawaiian is greater than his fluency in English.

A handful of children have grown up in the last 15 years attending Hawaiian language immersion schools, and speaking Hawaiian at home as much as their parents are capable of studying the language to keep up with them. But this language immersion is an artificial and experimental program adopted specifically for the purpose of raising a few children who can call themselves native speakers of Hawaiian language.
http://www.angelfire.com/hi2/hawaiiansovereignty/hawlangimmersionhistpurpose.html

In their daily lives outside school and home, these children speak fluent English. Occasionally a foreigner comes to Hawai'i to live and decides to learn Hawaiian (there have been a few from Germany like this), but they learn English before learning Hawaiian. Speaking and writing Hawaiian are more like a hobby than like a daily necessity or a customary practice. The Hawaiian language immersion schools are one of the strategies used by sovereignty activists as a way to foster ethnic nation-building.
http://www.angelfire.com/hi2/hawaiiansovereignty/hawlangimmersionnationalism.html

The public use of Hawaiian language in a setting where most people do not speak fluent Hawaiian is an act of showmanship for a political purpose, just as the act of praying in public is intended more for the human audience than for the deity toward whom the prayer is directed (since God can hear a private, silent prayer as well as a public, spoken one). This use of Hawaiian language for showmanship and one-upmanship is recognized by the activists themselves, who become quite angry when a non-native person speaks Hawaiian in public for political purposes, especially when the ethnic Hawaiian activists who are in the audience do not themselves speak Hawaiian.

Ethnic Hawaiians who insist on presenting oral or written testimony in Hawaiian language for the Makua EIS scoping hearings are knowingly and intentionally obstructing the process. They know their use of Hawaiian will slow down the process and force the expenditure of resources for unnecessary translations. In a social setting, it is considered impolite, boorish behavior when people speak a language they know their audience does not speak, and especially if the speaker is capable of speaking the audience's language. But in a formal, legal proceeding, such boorish social behavior becomes obstruction of a government operation. Such obstruction may be prosecutable; or at the very least, it should give government officials a perfect right to ignore such testimony. Evidence of the intent to use Hawaiian language for obstruction is provided in the form of an e-mail circulated among the activists explaining how such linguistic obstruction has been successful in the past.

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----- Original Message -----
From: "Sparky Rodrigues"
Sent: Sunday, March 31, 2002 5:13 PM
Subject: EIS Scoping Meetings set...

We need your help. April 9 and 13, 2002. Testimony can be submitted via e-mail. The Army has announced two Scoping Meetings for the Environmental Impact Statement (EIS) for live-fire training at Makua. This is the community meeting where we have a chance to present our concerns and focus the EIS study on what is important. No limits, every subject is open for presentation. Kingdom of Hawaii, Crown and Ceded lands, Sovereignty, Independence, Land Use, resources, Hawaiians on the Land, Kupuna Kahiko, health impacts, Clean up issues, social impacts, Malama 'Aina, Aloha 'Aina, Mo'olelo that is important, all the forms of endangered Hawaiians.

In the past testimony and words given in the Hawaiian Language was always recorded as "Inaudible". This is still happening in our courts and society today. As part of the Court Settlement, the Army has to provide a court reporter and must be able to record the testimony in Hawaiian or a audio tape recording of the testimony must be transcribed into Hawaiian than translated into English. This may be the first time this has happened. This is for the Record.

I urge you to participate in the Scoping Meetings by providing testimony. If you are able to 'Olelo Hawai'i please do. If English is most comfortable your testimony is very important. If you are able to enlist the support or participation of Youth, Makua and Kupuna, please Kokua.

Know that the Army and supporters of live fire training on the 'Aina will be present in mass and will submit written testimony. The 'Aina is important and needs our help, our mana'o, our voices.

Mahalo for your Kokua. Sparky, Leandra & Ohana.


*** This additional e-mail was sent a few days prior to the Saturday April 13 Makua scoping hearing, but it was too late to be included in the Aloha For All testimony submitted on March 8. Notice that the writer of this e-mail confesses that he cannot speak or write Hawaiian language, but he nevertheless urges his fellow protestors to use Hawaiian if they are capable of it, because “We need to serve notice to these occupation forces, English is our second language.” That claim is clearly bogus. ***

----- Original Message -----
From: "Sparky Rodrigues"
Sent: Thursday, April 11, 2002 2:28 PM
Subject: 'Olelo Hawai'i, 4-13 Saturday EIS mtg

Hi, the EIS Scoping meeting is a key part of our efforts to make an impact on the Community of Waianae and our 'Aina. In the past the Hawaiian language was NOT considered in any testimony. The federal government has never acknowledge our language in any court or testimony. Always documented as inaudible. This EIS process is a real opportunity to Question the Army in our native language. I lack the ability to speak our language so I will submit testimony in the colonizers language. I'm looking to you to spread the word and gather those who can 'Olelo Hawai'i. Offer testimony in the Hawaiian Language for the EIS Scoping process. Answer the questions of our colonial occupation. How the military has impacted our culture, social-economic condition, the 'Aina, wai, kai... The settlement forces the Military to accept our language both spoken and written as testimony. Please participate and include your Hawaiian voice. We need to serve notice to these occupation forces, English is our second language. Hope to see you and your Ohana on Saturday. Mahalo, Sparky


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(5) HOW MAKUA EIS CAN LEARN FROM A PREVIOUS EIS AT BELLOWS REGARDING CEDED LANDS, RACE-BASED RIGHTS TO ACCESS, AND THE 1993 CONGRESSIONAL APOLOGY RESOLUTION


In 1995 testimony was collected for scoping for an environmental impact statement regarding Bellows Air Force Base in Waimanalo. Although Bellows concerns the Air Force and Makua concerns the Army; and although Bellows is in Waimanalo while Makua is far away on the leeward coast; many of the issues raised by ethnic Hawaiians are the same.

Four important items from the Bellows EIS process are available on the internet as part of the website
http://aloha4all.org

What follows are some excerpts from each of those four items, together with the website URL where the entire item can be seen.

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http://aloha4all.org/B-INTR1.HTM

The Bellows Air Force Station Environmental Impact Statement and Hawaiian Claims to the Military's Ceded Lands

The document was principally concerned with various proposed land use changes, including improved recreational facilities, new family housing, expanded Marine Corps training and identification of land which might be released for non-military uses. However, at public "scoping" meetings held during the early stages of planning in order to identify issues which the EIS should address, a number of people (including one member of Hawai'i's Congressional delegation) noted that most of the land at Bellows AFS was "ceded land" and asserted that "Native Hawaiians" (referring generally to persons descended from the inhabitants of the islands before the discovery of Hawai'i by Captain James Cook in 1778) had special rights or interests in these lands. Some commenters asked that Native Hawaiians be given a special voice in decisions about the future of Bellows AFS; others stated that the lands should be immediately "returned" to "Native Hawaiians".

As a result of these comments, the military undertook a detailed study of the chain of title supporting the military's claim to ownership of these lands as well as the claims that Native Hawaiians have special rights or interests in these lands. The chain of title was clear and unremarkable, and showed that all the parcels at Bellows, both the ceded lands and the parcels which had been acquired from prior owners, had passed by proper documentation to the military.

In spite of this, the military went further and sought out whether any basis might exist for the Native Hawaiian claims. In Section 6.6 of the Draft EIS, the military announced its tentative conclusion that there was no merit to these claims, and that at least since the time of the Great Mahele of 1848, "Native Hawaiians", as a group defined by race or ancestry, had no claims of any sort to the lands which would eventually become the ceded lands.

Some of those who submitted comments on the Draft EIS objected to the military's conclusions concerning the Native Hawaiian claims to the ceded lands at Bellows, and their comments were addressed with care in the Final EIS.

Steven Kubota's letter of May 9, 1995 addressed several elements of the Draft EIS; his comments concerning Section 6-6 were as follows: Land title issues in the DEIS completely ignore the ramifications of the US Apology to Native Hawaiians (P.L. 103-150). This is a major omission and an insult to native Hawaiians. The sole argument in the DEIS rests on the U.S. Claims Court decision in 1910 (Liliuokalani v. U.S.) (6-10). The DEIS quotes the court as saying: "The Crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist (emphasis added), they became as other lands of the Sovereignty and passed to the defendants (U.S.) as part and parcel of the public domain." By ignoring the fact that "the office ceased to exist" because of the illegal actions of sugar planters, descendants of missionaries, financiers and representatives of the US government, the preparers of the DEIS have attempted to discredit the testimonies of the many people who questioned the military's title to Bellows AFS. References to sugar plantations (2-5, 2-6, etc.) omit the fact that the US government admitted to the complicity of representatives of the sugar plantations in the illegal overthrow of the Hawaiian Monarchy. Land title issues should not demean the claims of native Hawaiians and should be re-evaluated in light of the US Apology.

The military responded to these and other comments of Mr. Kubota in a letter from Melvin N. Kaku, Director of the Environmental Planning Division of the Pacific Division, Naval Facilities Engineering Command, dated 26 October 1995. Enclosure (1) to that letter, entitled "Response to Comment 1", consisted of a detailed explanation of the military's position on the Native Hawaiian claims to the military's ceded lands, with references to and quotations from historical and legal documents. It also explained in depth why the Apology Resolution, Public Law 103-150, had no bearing on the issue.

Mr. Anthony Sang, President of the Waimanalo Hawaiian Homes Association also submitted written testimony which received a detailed response. Mr. Sang's comments are too lengthy to set out here, but they are summarized in Mr. Kaku's letter responding to the comments of Mr. Sang.

After considering these and other comments, the military concluded that its original conclusions were valid, and it republished them, with additional points concerning the Apology Resolution, in Section 6.6 of the Final EIS.

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http://aloha4all.org/B-KUBOTA.HTM

Dear Mr. Kubota:

In your letter of May 9, 1995 you state that the Draft EIS' discussion of land title issues should be reevaluated in light of Congress's legislative apology to native Hawaiiians enacted in P. L. 103-150 (hereinafter referred to as the Resolution). You state further that the Government's reliance on Liliuokalani v. U. S., 48 Ct. Cl. 418 (1910), to support the position that persons of Hawaiian descent have no ownership rights in the ceded lands is unjustified because that case failed to take into consideration that the overthrow of the monarchy was illegal. These issues deserve a detailed response.

The ceded lands at Bellows AFS are part of the former Crown lands of the monarchy. Before addressing each of the points you raise, it may be useful to review the history of the ceded lands, and in particular the Crown lands, in more detail than was done in the Draft EIS.

In preparing the EIS, we researched primary and secondary sources for both the monarchy period and afterward to ascertain the grounds for the belief, as expressed at the scoping sessions, that persons of Hawaiian ancestry have claims to the ceded lands. From our research, the only conclusion which could fairly be drawn was that these beliefs, however honestly held, were not supported by history or law. We examined legal documents of the kingdom such as the Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them. (Laws 1848, p. 81, reprinted in Revised Laws of Hawaii (RLH) 1925, Vol. II, p. 2124, hereinafter referred to as Principles) and decisions of the courts of the kingdom concerning Crown lands. We also reviewed such modern studies as Cannelora's The Origin of Hawaii Land Titles and of the Rights of Native Tenants (1974, hereinafter referred to as Cannelora) and Jon Chinen's The Great Mahele (1958) and Original Land Titles in Hawaii (1961) which examined in detail the development of real property rights in Hawaii.

These sources show a rapid evolution of the concept of property ownership in the Hawaiian kingdom over the first half of the nineteenth century from a situation in which the king exercised absolute control of the land of the kingdom to one in which control was allocated in a Western model among the King, the government, the chiefs or konohikis and the tenants or common people. This evolution culminated in a series of property divisions generally referred to as the Great Mahele, hereinafter referred to as the Mahele. It included the segregation of the Crown and government lands of the kingdom from the property of private individuals. In so doing, it changed the nature of property ownership in a way that left no room for any rights in or to the Crown lands other than the private property rights of the monarch.

For accuracy and completeness, the following review of this process is described principally through direct quotations from the above sources, rather than through summaries and paraphrases, and as much as possible from the primary legal documents themselves.

[There follows a lengthy and well-documented description of the Mahele process]

Thus the overall effect of the Mahele was to terminate the shared -ownership, trust-like relationship described in the Constitution of 1840. Through the Mahele, these diffuse and poorly-defined rights were specified and allocated to individuals, to the King and to the government. Following the Mahele, the chiefs and common people had no property rights in the lands of the King and the government, and no rights to control those lands except as citizens of the Kingdom acting through the structures of government; that is, the ballot box and the political process. There could no longer be any broadly-shared or communal claims to the Crown or government lands.

By the time of the Mahele, many citizens of the kingdom were not of Hawaiian ancestry, and by the 1850's, the kingdom's law generally did not discriminate among subjects of the kingdom on grounds of Hawaiian ancestry. Specifically, there was no differentiation on the basis of ancestry with respect to the rights to vote and to hold property and thus it could no longer be said, in any sense, that persons of Hawaiian descent, by virtue of that descent alone, had rights superior to those of persons of foreign parentage with respect to the lands of the King or the government. Such rights as existed in the citizens of the kingdom to control those lands were attributes of citizenship, not race. When the government of the kingdom changed from a constitutional monarchy to a republic and then to a territorial government of the United States, there was no conceptual change in the relationship of the citizens to the lands of the government. However "citizens" might be defined and however the franchise might be restricted or expanded, it was citizenship, not ancestry, which gave rights to participate in decisions concerning the Crown and government lands. Citizens of the territory had precisely the same rights and opportunities to control the disposition of lands of the government as citizens of the monarchy; that is, through the ballot box and the political process.

With these facts in mind we turn to the issues you raise in your letter. The first issue is the effect of P. L. 103-150, which is sometimes referred to as the apology resolution.

A careful reading of the resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. Specifically: The resolution neither recognizes nor creates rights to any of the ceded lands in Native Hawaiians or any other group defined by race or ancestry, and contains the following express disclaimer: Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.

The resolution provides no direction to any individual Federal agency as to any specific implementing action. There is no express instruction with respect to ceded lands, and no instruction or implementing action is implied (as might be the case, for example, if the resolution excused a Federal agency from otherwise-applicable requirements such as those governing management, transfer or disposal of real property).

The executive branch has been silent on the resolution. We have been unable to locate any Presidential or other regulatory guidance as to whether or how Federal agencies should address the resolution or pursue follow-on actions.

Although the resolution terms the revolt against the monarchy "illegal", it makes no similar finding on the annexation of Hawaii by the United States or the cession of land that accompanied that annexation. This is an important point, because while a revolution is almost always illegal under the law of the government revolted against, when the revolution is successful, a new de facto government exists which often becomes the legitimate government of the country, entitled to international recognition and the prerogatives of a lawful sovereign. This took place with the Provisional Government, which was the sole and effective government of Hawaii during the years from 1893 to 1898 and was recognized as such not only by the United States but also by the major world powers.

This conclusion--that the apology resolution has no bearing on Native Hawaii>ian claims of ownership of the ceded lands--is consistent with the observations in the Draft EIS that under the monarchy, persons of Hawaiian descent as a group or class were not recognized as having ownership rights in the Crown or government lands. Since such persons as a racial group never had rights in the ceded lands under the monarchy, the 1893 revolution could not have deprived them of any rights to the ceded lands, and so there would have been no reason for the resolution to address such rights.

It is further noted that the recitations in the resolution are not universally accepted as the truth among Hawaii's citizens, and there has recently been highly visible public debate on these issues.

In light of the foregoing, the resolution can best be seen as an appeal to Federal agencies whose actions affect persons of Hawaiian ancestry to be alert and sensitive to the special significance of the 1893 revolution for many such persons. For this EIS process, however, such sensitivity is already mandated by the statutes and regulations governing the process, particularly those concerning scoping and subsequent public input. It was precisely the public input during scoping that prompted the thorough examination of the ceded lands issue in the Draft EIS. That would have occurred whether or not the apology resolution had been passed.

Because Congress has not established special procedures (either in P.L. 103-150 or in other laws) specifically for the land use decisions being contemplated for Bellows AFS, Federal agencies must adhere to generally-applicable laws and regulations governing use, administration and disposal of Federal property. The EIS reflects the Government's compliance with these requirements to date with respect to Bellows AFS.

Your letter also questions the validity of the draft EIS's reference to the case of Liliuokalani v. U. S. in the U. S. Court of Claims because that case did not discuss the lawfulness of the 1893 revolution which resulted in acquisition of the Crown lands by the Provisional Government.

As a preliminary matter, it should be noted that the 1893 revolution was not a revolution against the existing system of private property rights. The Crown and government lands were not seized from private persons; they were simply taken over by the Provisional Government because they were governmental assets. The Queen's suit in the Court of Claims was for the validation of claimed private property rights in the Crown lands as they had existed under the kingdom. The Queen conceded in the litigation that the absence of such a private property right would have "rendered the crown lands subject to the usual transmission of title appurtenant to a change of sovereignty." The Court of Claims, applying the law of the kingdom, ruled that by virtue of the statute of 1865, the Queen did not have such a private property right to the Crown lands.

On the basis of that conclusion, the court ruled that the Queen had not been wrongfully deprived of any interest in the Crown lands when the government changed hands. The ruling would likely have been the same even if the court had addressed the legality issue; from the court's point of view, the revolution, legal or not, did not deprive Liliuokalani of her private property. It is of significance, however, that the Queen's claim was in her own name. She did not appear before the court in the capacity of a trustee or any other type of representative or fiduciary either for the citizens of the kingdom or for persons of Hawaii>ian ancestry. She was asserting her own personal and independent rights.

For all the foregoing reasons, we must reaffirm the conclusions reached in the draft EIS. Whether we look to the statutes of the kingdom and the decisions of its courts (as was done in the draft EIS) or to the statements and behavior of the monarchs themselves in asserting their claims to sole ownership of the crown lands, we must conclude that neither the king nor the legislature of the kingdom nor the kingdom's judiciary believed that persons of Hawaiian ancestry, as such, had any specific or general rights to the Crown lands. We have found no evidence that such rights arose at any time after the ending of the monarchy, and we must therefore conclude that no such rights exist today.

We recognize that this conclusion may be controversial with those who have come to believe differently, and it may be that our analysis will not lay the issue to rest, but the conclusion we have reached is the only one which the available facts permit. Neither our own research nor the public input received at scoping or during the public comment period points in another direction. We have, however, tried to make plain exactly what we considered and how we reached our conclusions, and we invite continuing dialogue on this topic with anyone who may have additional information or points of view to offer.

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http://aloha4all.org/B-Sang.html

Dear Mr. Sang:

Subj: DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS) PROPOSED LAND USE AND DEVELOPMENT PLAN BELLOWS AIR FORCE STATION (AFS)

Thank you for your written testimony of May 9, 1995, regarding the DEIS for the above referenced action. Our responses to your comments are as follows:

* * *

Comment: It is not accurate, as stated in section 2.4.5, that ceded lands used by the Department of Defense (DOD) remain in fee simple federal ownership. The Joint Resolution of Annexation and the Admissions Act recognize the unique status of Hawaii's ceded lands, which are not to be treated as other public lands. The organic act and Admissions Act go to great lengths to establish native Hawaiians as specific beneficiaries and to provide for native Hawaiians out of proceeds from ceded lands. "The issues of recognition of trust land and trust responsibility raised in Section 6.6 of the DEIS are central to the opposition of this community association to the current plans for Bellows AFS. . ."

Response: The points you raise focus on the time after the overthrow of the monarchy and address the effect of United States (U.S.) laws on the rights of persons of Hawaiian ancestry with respect to the ceded lands. We examined the documents of the time to see whether persons of Hawaiian ancestry were given rights which might support the claims made at the scoping session and at hearings on the DEIS.

a. You first question the statement in the DEIS that after statehood, the ceded lands remained in Federal fee simple ownership. You refer to P. L. 88-233 as a promise by the federal government to return ceded lands to the State and you note this as a distinction in title.

b. Technically, P. L. 88-233 should not be viewed as a promise, although we do not believe the issue will arise in the case of Bellows AFS. By that statute, Congress merely establishes a routine means of disposing of surplus ceded lands which is different from the routine means prescribed for lands which are not ceded lands. Both methods of disposal limit the options of the disposal agency according to the category of land which is being disposed of. However, neither statute limits the options or affects the title of the U.S.; that is, neither statute limits the right of Congress, which has the ultimate authority to determine how Federal property is disposed of, to change the disposal rules for any given parcel of land. Since the U.S. has fee simple absolute title to the ceded lands, a change in the disposal rules would not be a "taking" of anyone's rights or a violation of any obligation. In the case of the 170 acres proposed for release at Bellows, however, this distinction should make no difference, since there is no plan to dispose of these lands except through the normal process for ceded lands.

c. You also point to the following language from the Joint Resolution of Annexation as creating a unique status for ceded lands: The existing laws of the U.S. relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the U.S. shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military or naval purposes of the U.S., or may be assigned for the use of local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.

d. You conclude that this language is one of many indications that Congress intended these lands to be "trust lands". You then cite Section 5(b) of the Admissions Act, by which the U.S. granted to the State of Hawaii (SOH) its title to the public lands (with certain exceptions).

e. We agree that Congress did in fact, through the Organic Act, place the ceded lands under a regime different from that provided by Federal law for public lands in the other states and territories. The ceded lands in Hawaii were indeed reserved for public purposes, although we have been unable to conclude that the ceded lands were placed under any sort of trust beyond the general fiduciary responsibilities which any governmental entity would have for the property entrusted to it for use and administration.

f. We must, however, disagree with your testimony insofar as it asserts that the ceded lands, under either the Territory or the SOH, were specially reserved or targeted for persons of Hawaiian ancestry. As you point out, the Joint Resolution of Annexation speaks only of using these lands for "the benefit of the inhabitants of the Hawaiian Islands". We have found no evidence that the term "inhabitants" has any racial or ethnic connotation. The dictionary definition indicates otherwise: Webster's Ninth New Collegiate Dictionary defines "inhabitant" as "one that occupies a particular place regularly, routinely, or for a period of time" and defines "inhabit" as meaning "to occupy as a place of settled residence or habitat". Black's Law Dictionary (Fifth Edition) defines "inhabitant" as "[o]ne who resides actually and permanently in a given place, and has his domicile there". This race-neutral definition appears to reflect the actual practice during Territorial times, and we have found no grounds to believe that Congress had any other meaning in mind when it used that term.

g. Such an interpretation is also consistent with the practice under the monarchy, when citizens of both Hawaiian and non-Hawaiian ancestry had equal rights. Equality of citizens is clear from the sections on citizenship of the 1846 Joint Resolution of the Hawaiian Legislature entitled "An Act to Organize the Executive Department of the Hawaiian Islands", Chapter V, Article I, Sections III and VIII. It is also strikingly plain in the Constitution of 1852, Article 14, which provided: The King conducts His Government for the common good; for the protection, safety, prosperity and happiness of His people; and not for the profit, honor, or private interest of any one man, family, or class of men among his subjects. Therefore, in making laws for the nation, regard shall be had to the protection, interest and welfare not only of the King, the Chiefs, and rulers, but of all the people alike.

h. We must also disagree with your position that Section 5(f) of the Admission Act "distinguishes native Hawaiians from any other beneficiaries" of the public trust and "expressly provides that ceded lands are to be used for the 'betterment of the conditions of native Hawaiians'". Section 5(f) does list "the betterment of the conditions of native Hawaiians" (defined as 50% or more Hawaiian blood by reference to the Hawaiian Homes Commission Act of 1920) as one permissible use of the proceeds of the ceded lands, but section 5(f) does not require that all or any part of the proceeds of the ceded lands be used for that one of the enumerated public uses for these proceeds. Section 5(f) specifically states: The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the U.S. under subsections (c) and (d) and later conveyed to the state under subsection (e) . . . shall be held by said state as a public trust (1) for the support of the public schools and of the public educational institutions, (2) for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, (3) for the development of farm and home ownership on as widespread a basis as possible, (4) for the making of improvements, and (5) for the provision of lands for public use. Such lands, proceeds and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said state may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the U.S.

i. By the terms of the statute itself, the ceded lands and the proceeds and income from them could be lawfully used entirely for education, or entirely for the development of farm and home ownership, and not in any measure for the betterment of the condition of native Hawaiians. The SOH has chosen to provide a portion of the income from the ceded lands for the betterment of native Hawaiians, but this is the State's option, not the State's duty. This very issue was presented to the U.S. Court of Appeals for the Ninth Circuit in the case of Price v. Hawaii, 921 F.2d 950 (9th cir., 1990), which stated at page 955: [I]t would be error to read the words "public trust" to require that the State adopt any particular method and form of management for the ceded lands. All property held by a state is held upon a "public trust". These words alone do not demand that a state deal with its property in any particular manner even if, as a matter of prudence, the people usually require a close accounting by their officials. These words betoken the state's duty to avoid deviating from section 5(f)'s purposes. They betoken nothing more.

j. Of course, it must be noted that even if Section 5(f) were read to impose specific obligations on the State to apportion a part of the proceeds from the ceded lands to native Hawaiian support, no corresponding obligation would limit the Federal government. By the words of the statute itself, the trust is imposed on the State; the Federal government may enforce the state's trust obligations, but it is not bound by them.

k. The foregoing compels the conclusion that persons of Hawaiian ancestry did not and do not have rights of any sort, solely by virtue of that ancestry, in or to the ceded lands. It remains to consider whether persons of Hawaiian ancestry could be granted such rights at this time as part of DoD's decision-making with respect to Bellows AFS.

l. No such action could be taken by any agency in the Executive Branch of the Federal government without special legislation. For example, in response to a request by Congressman Tom DeLay on behalf of a constituent seeking an increase in rent for property rented to the U.S. Postal Service, the Comptroller General stated (Unpublished opinion B-238430, April 4, 1990): The rule is well established that no officer or agent of the government has authority to give away the money or property of the U.S. either directly or by the release of vested contractual rights, without adequate legal consideration.

m. Since persons of Hawaiian ancestry do not have existing rights in the ceded lands, any action of an executive agency acknowledging or creating such rights would constitute a gift of Government property. Disposals of Government real property are rigidly controlled by statute. The exclusive authority of Congress over disposals of Federal property is unequivocally affirmed by the Comptroller General, with multiple citations to judicial precedent, in MATTER OF: Immigration and Naturalization Service--Lease-back arrangement to pay for renovations to detention facility (B-221011, February 25, 1986, 65 Comp. Gen. 339: It has uniformly been held in the decisions of the courts and in the opinions of the Comptroller and the Attorney General that Article IV, section 3, clause 2 of the Constitution of the U.S. confers on the Congress exclusive jurisdiction to dispose of real or other property of the U.S. Therefore, without express or reasonably implied statutory authorization, the head of a department or agency of the government is powerless to dispose of the property of the U.S.

n. With narrow exceptions not pertinent here, (for example, the granting of leases, licenses and easements), a DoD agency has no general authority to dispose of real property under its jurisdiction. The Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 471ff, permits disposal of property outside the Government only when that property is surplus to the needs of the Government--that is, no longer needed either by the agency originally using it or any other agency of the Government (see 40 U.S.C. 484). Such disposals occur only after the agency responsible for the lands has reported them as surplus to the General Services Agency, which then becomes responsible for the disposal action. Any disposal of surplus lands at Bellows AFS would be accomplished under appropriate statutory authority, depending on whether those lands are ceded or not. Any other disposal of surplus lands would require express authorization from Congress.

o. Thus any grant of rights in the ceded lands to persons of Hawaiian ancestry would have to come from Congress. That body, however, may find that its ability to grant such rights to a group whose members are defined purely by race is limited by the recent U. S. Supreme Court case of Adarand Constructors v. Federico Pena. That case holds that racially-based distinctions in Federal decisions must survive a test of "strict scrutiny"; that they are permissible only when the Government can show a "compelling interest" to be served; and that any remedy must be "narrowly tailored" to correct specific past wrongs. For Congress to lawfully give persons of Hawaiian descent preferential rights to the ceded lands or their proceeds, it would have to demonstrate that some wrong (probably of constitutional magnitude) that such an action would redress. However, since persons of Hawaiian ancestry, as such, never had any rights in or to the ceded lands, and since the ceded lands are still used (as they were under the monarchy) for the benefit of all the persons of the Hawaiian Islands, it would be difficult to show that any remedy is needed, particularly a racially oriented one. The broader complaints that the overthrow of the monarchy was "illegal," as stated in the apology resolution (P.L. 103-150), could hardly suffice to justify race-oriented remedial action by Congress since persons of Hawaiian ancestry had no more rights to the ceded lands before the revolution than afterward. Perhaps more importantly, if there was any wrong done by the overthrow of the monarchy, the wronged parties would have to include at least all the citizens of the kingdom, and perhaps all the permanent residents of the kingdom. Many of the persons in each of these categories were not of Hawaiian ancestry. Since any such wrong would have no racial link, it would be extraordinarily difficult under the Adarand test to justify a race-linked remedy.

p. In summary, the evidence we have been able to discover shows that as a result of the actions of the king and legislature during the monarchy period, persons of Hawaiian ancestry have no valid claim to the ceded lands deriving from ancestry, descent or race.

q. We are fully aware that this conclusion contradicts conventional understanding of the issue, and we are fully open to considering any evidence that supports that conventional understanding. On the basis of what we have seen to date, however, we cannot agree that such rights exist.

Revisions to DEIS: none.

* * *

Sincerely,

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http://aloha4all.org/B-EIS6-6.html

Extract from Final EIS for Land Use and Development Plan, Bellows AFS, December 1995

6.6 TITLE ISSUES

Many who offered testimony or wrote letters in response to the scoping notice questioned the military's title to Bellows AFS. They asserted that persons of Hawaiian descent have claims to the land or may be entitled to have some sort of special control over the disposition of these lands. In response to these concerns, a review of the title to these ceded lands was conducted. The possibility that Hawaiians or native Hawaiians (as those terms are used in existing legislation to denote classes defined by race or ancestry) should have special consideration in decisions concerning ceded lands has been carefully evaluated.

The circumstances by which the lands now known as Bellows AFS came into federal ownership are described in Appendix E to this EIS. This report shows that valid legal title to these lands was vested in the United States either by condemnation, by conveyance, or by set-aside of ceded public lands of the Territory.

The claims advanced during the scoping process focused on ceded lands, i.e., the lands known as Crown or government lands during the period of the monarchy, which were ceded (granted) to the United States when Hawaii was annexed to the United States in 1898. The claims seek "return" of these lands to the "Hawaiian people," to "native Hawaiians" or to "Hawaiians." It is noted that the terms "native Hawaiian" and "Hawaiian" are defined in a number of state and federal statutes solely in terms of race or ancestry; that is, as referring to persons descended from inhabitants of the Hawaiian Islands just prior to the discovery of the islands by Captain Cook in 1778. There is no accepted definition of "the Hawaiian people" in state or federal law, but it is assumed for purposes of the discussion below that the term as used during the scoping process referred generally to persons who are either "native Hawaiians" or "Hawaiians" as otherwise defined by law.

The basis for the claims advanced during scoping was not explained in detail, so the status of the Crown and government lands under the monarchy was reviewed to determine whether any basis for such claims might exist.

As explained in Appendix E, both the Crown and government lands were set apart from the lands under the exclusive control of the king at the time of the Great Mahele. Under the monarchy, the government lands were dedicated to public purposes. The instrument by which Kamehameha III conveyed the lands that would eventually become known as "government lands" stated, with respect to the lands conveyed, that: These lands are to be in the perpetual keeping of the Legislative Council (Nobles and Representatives) or in that of the superintendents of said lands, appointed by them from time to time, and shall be regulated, leased, or sold, in accordance with the will of said Nobles and Representatives, for the good of the Hawaiian Government, and to promote the dignity of the Hawaiian Crown.

The Crown lands were intended for the support of the king in what might be called his official capacity. Any doubt on this point was resolved in 1865, when legislation was enacted making the Crown lands inalienable and forbidding leases for more than 30 years. The preamble to this legislation, after noting the history of the Crown Lands, stated: “And whereas, the history of the lands shows that they were vested in the King for the purpose of maintaining the Royal State and Dignity; and it is therefore disadvantageous to the public interest, that the lands should be alienated, or the said Royal Domain diminished. And whereas, further, during the two late reigns, the said Royal Domain has been greatly diminished, and is now charged with mortgages to secure considerable sums of money; now therefore, ...”

This was followed by the text of the law. Leasing was placed under the control of a body known as the Commissioners of Crown Lands. Bonds were authorized for the purpose of retiring mortgages against the property, and the proceeds of leases, less a portion to be used for discharging the bonds, were made payable to the king. By this statute, the status of the Crown lands as a public resource for the support of the head of the government, rather than the personal property of the King, was confirmed in the law of the kingdom.

Thus it clearly appears that during the monarchy, both the Crown lands and the government lands were essentially dedicated to governmental purposes. Government benefits were not apportioned by race; indeed, during the later years of the monarchy, many citizens of the kingdom were not of Hawaiian descent, but the government lands appear to have been administered for the benefit of the citizenry as a whole rather than solely for those of Hawaiian ancestry. There is no indication that during the monarchy, any individual (except the king, his wife, and his successors with respect to Crown lands) or any group or category of persons defined by Hawaiian ancestry alone, had any claim to the Crown or government lands. Indeed, even the right of the monarch to dispose of the Crown lands at his will was rejected not only by the courts and the legislature of the kingdom, but ultimately by Kamehameha V himself when he signed the 1865 legislation making the Crown lands inalienable.

Beyond the historical documents themselves, a review of respected historical works discloses no support for a position that during the existence of the kingdom, Crown or government lands were somehow intended only for the benefit of persons of Hawaiian ancestry, except perhaps for the monarch's claim to the Crown lands. With respect to the personal rights of the monarch, it should be noted that Queen Liliuokalani's claim that she held an interest in the Crown lands as her individual property, and was entitled to compensation from the United States for its loss, was carefully considered and specifically rejected by the U. S. Claims Court in 1910. In that case, entitled Liliuokalani v. U. S., 45 Ct. Cl. 418 (1910), the Queen argued that she held a vested equitable life estate in the Crown lands. After discussing the history of the establishment of the Crown lands, their treatment under the kingdom, and the 1865 legislation that made Crown lands inalienable, the court stated: “The [1848] reservations [of Crown lands] were made to the Crown and not the King as an individual. The Crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain.”

During both the Republic and the Territorial periods, ceded lands were treated as public property and under the Territory, they were explicitly dedicated to public purposes. With the possible exception of the Hawaiian Homes Commission Act, the governing statutes neither acknowledged nor created property rights in any of these lands based on Hawaiian ancestry.

At statehood, the special status of these lands as dedicated to governmental purposes was confirmed by section 5(f) of the Admission Act, which limited the uses of ceded lands to the following: Support of the public schools and other public educational institutions; Betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended; Development of farm and home ownership on as widespread a basis as possible; Making of public improvements; and Provision of lands for public use.

This statute established no requirement that any specific portion of the ceded lands be used for "native Hawaiians," or that any portion of the ceded lands be so used. It simply included such use among those permitted. No property rights were established in any individual or group simply by virtue of Hawaiian ancestry.

Taken together, the foregoing facts indicate that no individual has a legal claim, based on any right of property or historical practice, to any federally retained ceded lands simply by virtue of Hawaiian ancestry. As against any such claim, the government's chain of title, from a purely legal standpoint, is unimpeachable. Even if such a claim might once have existed, it would appear to be barred by the 12-year statute of limitations in the Federal Quiet Title Act.

No other valid basis was offered during the scoping process for the claim that some or all Hawaiians, racially defined, should have special status in determining the disposition of ceded lands, and no such basis has been independently identified. Of course, persons of Hawaiian ancestry, like all members of the community who are or may be affected by the decisions concerning Bellows AFS, have a variety of rights under Federal law to participate in the process leading up to those decisions.

Some questions were raised concerning the applicability to the ceded lands issue of the "apology resolution" enacted as Public Law 103-150 on November 23, 1993. this resolution apologized to "Native Hawaiians" for the U.S. role in the 1893 overthrow of the monarchy. A careful review of this resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. The resolution neither modifies existing rights of the United States to any of the ceded lands nor creates rights in any other person or entity. To the contrary, it contains the following express disclaimer: "Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the government," and the Senate Report on the bill (S. Rep. 103-126) states that "enactment of S.J. Res. 19 will not result in any changes in existing law." More importantly, although the resolution terms the revolt against the monarchy "illegal", it makes no similar finding on the annexation of Hawai'i by the United States or the cession of land that accompanied that annexation. All revolutions are illegal under the law of the government revolted against, but if a revolution is successful, a new de facto government comes into existence that often becomes the legitimate government of the country, entitled to international recognition and the prerogatives of a lawful sovereign. This took place with the Provisional Government and the Republic that followed it, which was the sole and effective government of Hawai'i during the years 1893 to 1898 and was recognized as such not only by the United States but also by the major world powers. The apology resolution does not state or imply that the acts of this government in ceding the former Crown and government lands to the United states were improper or illegal.

For all of these reasons, the only legal and legitimate course for the DOD in making decisions concerning ceded lands is to treat these lands just like any other lands owned in fee simple by the government, and to afford all persons, including Hawaiians and native Hawaiians, who may wish to be involved in those decisions the full range of rights provided by law, without discrimination.

Resolving claims that the ceded lands were wrongfully obtained by the United States, and that they should be returned (or compensation provided) to a class defined by race or ancestry, is beyond the scope of this EIS and the discretion committed in this action to the DOD. However, a careful review of historical records and an analysis of recent U.S. Supreme Court cases concerning racial preferences indicate that proponents of such claims may encounter difficulty in establishing either a sound factual basis for legal relief or a sound constitutional basis for such a remedy.

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Testimony for Makua EIS Scoping hearings
Submitted APRIL 8, 2002
On behalf of myself and Aloha For All

Kenneth R. Conklin, Ph.D.
e-mail Ken_Conklin@yahoo.com



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