The following essay is by Mr. Patrick W. Hanifin, a Honolulu attorney. It was never published in hardcopy, but Mr. Hanifin was very kind to permit its posting to this website.
Unfortunately, Patrick Hanifin is no longer able to respond to inquiries about his work. He died on June 14, 2003 at the age of 48. A webpage tribute to him, focusing on his scholarly writings and legal work on behalf of unity and equality in Hawai'i, can be found at:
https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinTribute.html
WE'RE ALL SOVEREIGN NOW
by Patrick W. Hanifin
(c) Copyright Patrick Hanifin 2001, all rights reserved.
You, whoever you are, if you are an American citizen,
you share in a
common sovereignty. Whatever your ancestry, you have
freedom of choice
and the right to participate with other citizens in
running a sovereign
government. Citizens of Hawaiian ancestry, like all
other citizens,
already are sovereign. Demands for something extra in
the name of
"Hawaiian Sovereignty" amount to claims for exclusive
political
privileges for a hereditary elite. They are
undemocratic and
unjustified.
HOW "SOVEREIGNTY" IS USED
Words mean what they are used to mean. Because
"sovereignty," is used
inconsistently, it can have no single, consistent
meaning. Indeed, its
vagueness is its value: people who agree on nothing
else can agree to
use "sovereignty" as a slogan and so can appear to
agree on substance
(until they begin to discuss specifics). If someone
could decree a
precise definition, everyone else would abandon
"sovereignty" for
something more vague.
Although irremediably vague, "sovereignty" is not
utterly meaningless.
Its varying uses in the current debate are
contradictory precisely
because they point to contrary proposals regarding the
same subjects. A
rough checklist of the word's uses suggests two broad
themes:
individual freedom of choice and collective political
power.
Individual freedom of choice encompasses freedoms of
thought,
expression, religion, and association. It includes
the right to try to
learn a culture and a language and so make them your
own. The federal
and state Constitutions guarantee all of these rights
equally to
everyone. However, the right to choose does not
entail the right to be
subsidized. I may desire a lifestyle that requires
buying things I
cannot afford, like a mansion or a farm, but I have no
right to force
you to pay for my choices with your taxes.
The second theme, political power, includes the right
to vote, to run
for office, and to try to persuade others about
political issues. Every
adult citizen of the United States and of Hawai`i has
these rights. In
a democracy, sovereignty in this political sense is
shared. No one can
be all-powerful unless everyone else is powerless.
Each of us is
sometimes in the minority, unable to imagine how the
majority elected
such an idiot or enacted such a foolish law. But with
raucous debate,
together we exercise the political power of sovereign
national and state
governments. Hawaiians, like their fellow citizens,
freely participate
in these public debates.
Thus, in our individual and collective exercise of
self-government, we
are all sovereign.
WE ALL HAVE SOVEREIGNTY BUT SOME DEMAND EXCLUSIVITY
Those who demand something more for themselves are
really demanding
exclusivity. Their basic problem is arithmetic.
Because they have
defined themselves as a minority, they can seize power
only if they can
somehow disenfranchise the majority. The competing
advocacy groups have
contradictory plans for doing this. Some want to tear
Hawai`i away from
America to form an independent country. Some aim to
create a government
modeled on those of certain American Indian tribes.
Others prefer a
special state agency with restrictions on voting and
holding office.
Each of these plans would give the new minority
government exclusive
power over some or all of Hawai`i's public lands and
funds.
All of these plans would restrict voting and holding
office to an
exclusive, hereditary group. The competing factions
split over how to
define the group that will be treated better than
everyone else.
Some definitions are exclusively racial. The
privileged group could be
limited to "Native Hawaiians" in the sense specified
in the Hawaiian
Homes Commission Act, that is, those having at least
50% Hawaiian ethnic
ancestry. Other proposals discriminate in favor of a
class of persons
descended from the inhabitants of Hawai`i in 1778 (the
year Captain Cook
arrived). "Descendants of the inhabitants of Hawai`i
in 1778" singles
out a racial group as clearly as "descendants of the
inhabitants of
sub-Saharan Africa in 1492" singles out blacks.
Other definitions add political criteria to the racial
criteria. One
plan extends the privileged class to include persons
of other races who
pass a test of political correctness defined by
members of the racial
elite. In a democracy the people choose the
government, but under this
plan the government chooses the people. Those who
disagree with the
government would be stripped of their citizenship and
would become
aliens in their own homes. Another proposal defines a
hereditary
aristocracy consisting of all descendants of the
citizens of the
Hawaiian Kingdom in 1893. That excludes descendants
of the Asian
immigrants who constituted most of the Kingdom's
population in 1893 but
who were not citizens. It also excludes everyone
whose family arrived
here later. Racial discrimination combined with
political
discrimination is still racial discrimination. Recall
how the
government imprisoned Japanese Americans during World
War II because of
their ancestral and "political" connections to an
enemy country.
Discrimination based on ancestry is generally conceded
to be
undemocratic and unfair. However, the advocates of
various versions of
"Hawaiian Sovereignty" are not racists. They
sincerely believe that
there are nondiscriminatory justifications for
privileging "Hawaiians"
(however defined) over all others. There are five
common justifications
but none of them works.
FIVE FAILED ARGUMENTS FOR EXCLUSIVITY
The first common justification is that the overthrow
of the monarchy in
1893 and the annexation of Hawai`i to the United
States in 1898 were
undemocratic because they were not supported by the
majority at the
time. Historically, this was true. This argument
appeals to the
democratic principle of majority rule, a principle
that was not followed
anywhere in the 1890s but that should have been.
However, if the principle of majority rule should have
been followed
then, it should be followed now. The principle of
majority rule cannot
justify minority rule by the descendants of people who
were in power
long ago. No one is entitled to extra power because
some of his
ancestors once belonged to a ruling class. For
instance, the heirs of
French King Louis XVI are not entitled to the land and
power he lost
when he lost his crown and head.
The second justification is, in essence, "We were
robbed." The argument
is that, before 1893, the lands of Hawai`i belonged to
the Hawaiian
people. Overthrowing the Kingdom of Hawai`i with the
assistance of
American troops, a small faction seized power and
later transferred the
Government Lands and Crown Lands of the Kingdom to the
United States.
That stolen property should be returned.
But everyone who was involved in the events of 1893
and 1898 is dead.
The exclusive powers demanded in the name of "Hawaiian
Sovereignty"
would go to people who were not alive then. This is
not a matter of
inheriting private property. It is a claim for
hereditary political
power. Private land was not seized as a result of the
Revolution.
Individual ethnic Hawaiians and the group of ethnic
Hawaiians did not
own the Government Lands; the government did. For
instance, an
individual could not have sold or willed a personal
share of the
Government Lands to another person. Nor could he have
excluded anyone
from any part of the Government Lands. Nor did ethnic
Hawaiians,
individually or as a group, have any special legal
privileges to the use
of those lands. As the term "sovereignty" suggests,
what was at stake
in 1893 was political power over the government and
hence over the
Government Lands and the Crown Lands (which had come
under control of a
government commission in 1865). An oligarchy of the
richest men
governed the Kingdom. Most ethnic Hawaiians had no
power to lose. They
were a minority in Hawai`i and most of them could not
even vote.
Political power is still at stake today. We who are
alive now have the
right to decide by majority vote how government land
should be used
now. The "we were robbed" argument does not justify
hereditary
political power for a minority. No one deserves more
than equality.
The third justification draws an analogy to American
Indian tribes. It
contends that, as a general rule, all "Native
Americans" have a right to
tribal land and to tribal governments with political
rights restricted
to tribal members. Hawaiians are "Native Americans."
Therefore,
Hawaiians have a right to form a racially restricted
government and to
claim some land exclusively for themselves.
However, there is no such general rule. What each
Indian group has is a
matter of historical happenstance. Some have tribal
governments and
large reservations while others have nothing. One
thing that American
Indians do seem to share is a conviction that they
have been
mistreated. Indian law is grounded in nineteenth
century racial
discrimination. The special laws applying to Indians
are not the result
of special constitutional privilege for Indians but of
special "plenary"
power of Congress over Indians. This was the power
that Congress used
to order Indian tribes rounded up at gunpoint and
locked up on
reservations. Reclassifying ethnic Hawaiians as an
"Indian tribe" would
jeopardize their right to equal protection and would
leave them at the
mercy of any future congressional majority.
Moreover, the analogy to Indian tribes does not fit
the history of
Hawai`i. Hawaiians were never organized as a tribe.
The Kingdom of
Hawai`i was not a tribe. Tribesmen are tribesmen
because their parents
were tribesmen. But under the laws of the Kingdom,
anyone born in
Hawai`i was a citizen of the Kingdom, no matter where
his family came
from. The annexation of Hawai`i was not the
incorporation of a tribe
into the United States with a racially defined
government intact.
Unlike Indian tribes on reservations, Hawaiians do not
live in
segregated communities that could make and enforce
laws without
affecting others. Neither policy nor history support
extending the
racially discriminatory rules of Indian law to Hawai`i
by inventing a
"Hawaiian Tribe."
Fourth, some argue that the Annexation and the
overthrow of the Kingdom
violated international law. Therefore, the United
States should return
power to descendents of those who held power under the
Kingdom.
However, "international law" is an oxymoron. Each
country is sovereign
in the sense that it is not bound by any law that it
does not accept
(subject, of course, to being attacked if it angers a
more powerful
country). Furthermore, because there is no world
government with
effective power to make, interpret, and enforce
international law,
anyone can argue anything about it without fear of
being proven wrong.
Even if international law arguments could prove
something, we would have
to look back to the 1890s to determine what was
"illegal" at the time of
the overthrow and Annexation. It is futile to try to
squeeze
late-twentieth century democracy into nineteenth
century international
law. In the 1890s the rules of international law, to
the extent there
were any, were made by the colonial empires and
amounted to the law of
the jungle: big swallowed little. Most governments
did not even
pretend to be democracies and none would have
qualified by today's
standards. The legitimacy of a government depended on
its control of
its territory, not on its popularity. The government
of the Republic of
Hawai`i, although undemocratic, maintained effective
control, was
recognized by the major powers, and so could make a
binding agreement
for annexation.
Finally, some advocates cite statistics showing that
on average ethnic
Hawaiians have less money and more disease than some
other ethnic
groups. From this they conclude that the government
should give all
ethnic Hawaiians land, money, and political power.
But why should
well-off Hawaiians get special benefits while poor and
sick members of
other groups do not? This argument does not justify
handing out
exclusive benefits to a group defined by ancestry.
In short, there is no valid justification for awarding
any group defined
by race or ancestry any exclusive privileges or powers
that are denied to other citizens. Hawaiians, along
with the rest of
us, are sovereign now. No one can fairly ask for
more.
The above essay (c) Copyright Patrick Hanifin 2001, all rights reserved.
A much longer and very scholarly version of this essay was published in 1982 in the Hawai'i Bar Journal, containing 152 footnotes. That article can be seen on this website at
https://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html
Mr. Hanifin also wrote a scholarly essay showing that all the people of Hawai'i today are the rightful inheritors of the Kingdom of Hawai'i, because the Kingdom had a law that all persons born in Hawai'i or naturalized into Hawai'i were subjects of the Kingdom with voting rights and property rights equal to the rights of the natives. That essay, with 243 footnotes including numerous legal citations, is on this website at
https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html
Mr. Hanifin also published an informal article in the Honolulu Advertiser newspaper of Sunday, April 8, 2001 responding to the usual diatribe of a sovereignty activist claiming that racially-defined Hawaiians are entitled to a "restoration" of a "nation." Mr. Hanifin points out that there are five different meanings of "nation" used interchangeably and incorrectly by sovereignty activists. That article is copied below:
http://the.honoluluadvertiser.com/article/2001/Apr/08/op/op05a.html
The Honolulu Advertiser, Sunday April 8, 2001
When 'nation' is given five meanings with inconsistent use, that's confusion
By Patrick W. Hanifin
Alani Apio ("Kanaka lament," March 25) admits to being in a "place of ... confusion" and then proves it: The Hawaiian nationalism he advocates is indistinguishable from the racism he denounces.
His confusion arises from using the word "nation" in five inconsistent ways:
1. A government — specifically, the monarchical government of Hawai'i that was overthrown in 1893.
2. An independent country — specifically, the country that Kamehameha I founded and that endured until 1898 when America annexed the Republic of Hawai'i.
3. An Indian tribe — without precedent in Hawaiian history, because there has never been a Hawaiian Indian tribe.
4. A territory — the 'aina that he loves and that was here millions of years before any human.
5. A group of individual citizens.
The last use of "nation" is the most confused. He never explicitly tells us how the members of this group can be identified.
Apio does say that the "nation" that he wants to restore is the one that Kamehameha I created — the Hawaiian Kingdom. He acknowledges that "the Hawaiian Kingdom wasn't race-based." Kamehameha created the kingdom by conquering his rivals with the help of immigrants like Englishman John Young (Queen Emma's grandfather). Under the kingdom's rule of citizenship, anyone born here was a citizen and anyone who came here could become a citizen.
Many immigrants and their children became judges, legislators and government executives.
Like the multi-ethnic kingdom, its multi-ethnic successors, the state of Hawai'i and the United States, follow the rule of citizenship by birth and naturalization. Apio shares with his fellow citizens the equal right to participate in a sovereign government. He has an equal right to try to learn whatever he thinks is deepest and most valuable in human culture and so make it his own culture. (Like the rest of us, he gets no guarantee of success.)
He has what he says he wants. Why is he so angry?
Equality isn't good enough for Apio. He claims to belong to a group that deserves more than equality with the rest of us.
In his superior group he includes himself, his family, and other people he calls "Kanaka." What these "Kanaka" have in common is "shared genealogy"and "shared ancestors." He also mentions a "shared culture," but he describes people as "Kanaka" even though they are happily "assimilated" into American culture. He ignores people who participate in Hawaiian culture but lack "Kanaka descent." Thus, living a distinctly Hawaiian culture is neither necessary nor sufficient to be "Kanaka."
Ancestry is necessary and sufficient. Anyone who can trace his ancestry in Hawai'i back to 1778, before the first non-"indigenous" people arrived, gets to be a member of Apio's "nation." This definition picks out the same individuals as the state's definition of "Hawaiian," which the Supreme Court held in Rice v. Cayetano is racial. Only the label has changed.
Apio defines "racism" as a doctrine of "inherent differences" among groups and "the idea that one's own race is superior." The moral evil of racism is that it divides people into superior and inferior groups based on ancestry.
As the Supreme Court said in Rice, "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit." The evil is the same regardless of the size of the hereditary group: a race, a nationality, a tribe or an aristocracy.
Apio rightly attacks the Hawaiian Homes program as racist because it requires a certain blood quantum. But so does his "nation." He reverts to "the racist ideology of blood quantum" that he denounces: A member of Apio' s "nation" must have Hawaiian blood. As the Supreme Court said: "Ancestry can be a proxy for race; it is that proxy here."
The nationalism Apio advocates is actually another one of those alien imports he despises. It is the blood nationalism invented in central and eastern Europe in the 19th century. Blood nationalism excludes everyone who lacks the blood of the indigenous group; for instance, a Jew or a Turkish immigrant can never be a true indigenous German.
Governments based on blood nationalism claim to "preserve and perpetuate" the nation's culture, as Apio hopes to do, but ultimately they destroy culture. If you want to see where blood nationalism leads a multi-ethnic society, look at the bloody ruins of what used to be Yugoslavia.
Interpreting Hawaiian culture in terms of a blood nationalism that is alien to Hawaiian history is what keeps Apio in his "place of anger and confusion." He rejects the "infuriating implication that we as Kanaka are not capable of handling life" but claims that some people commit suicide — the most extreme case of not being capable of handling life — because they are "Kanaka."
Apio sincerely believes his gut feelings about Hawai'i's history. But where historical facts are at issue, gut feelings aren't enough. The courts are full of plaintiffs who sincerely believe that they have been wronged. Some are right; some are wrong. That's why we hire judges and juries: to look beyond feelings and find the facts.
Once the confusion created by using "nation" in five different ways is sorted out, all the rhetoric about an "oppressed nation" demanding the return of a "stolen nation" comes down to this story: A group defined by ancestry — the "Kanaka" — exclusively controlled the government of the independent country of Hawai'i. In 1893, America invaded and stole from the Kanaka group that government and the territory it owned.
But Apio admits this story is false: "because the Hawaiian Kingdom wasn't race-based, therefore it's wrong under both nations' laws for America to acknowledge only indigenous Kanaka" as entitled to privileged status.
An oligarchy of the richest Hawaiian and haole men governed the kingdom in 1893. Most ethnic Hawaiians could not even vote. Ethnic Hawaiians were a minority in Hawai'i. They did not own the Government Lands, the government did. As Apio admits, they did not have any special group rights to land or power. When you've got nothing, you've got nothing to lose.
Apio's admission of error is not altered by his anti-American diatribe.That is merely "yo' momma" rhetoric (as in, "I'm wrong, but yo' momma's an [expletive deleted].")
Apio abhors racism, yet he advocates superior privileges for his own group defined by ancestry. He tries to reconcile his confused feelings by advocating a Kanaka "nation." But at bottom his "nation" amounts to a demand that Hawai'i should be torn out of the American Union so that a minority defined by racial ancestry can have a privileged position over their million fellow citizens.
Ultimately, Apio faces a choice: Does he stand by what he calls "the ideals of America — truth, justice, equality," that "provide the groundwork for the denial of any and all inequalities and discrimination"? Or does he stand with the Confederacy of the Civil War — for secession, division and racial privilege?
Like Apio, Hawai'i faces a choice. In Apio's words, will we "continue to fight and divide ourselves and 'ohana over an arbitrary, baseless, racist notion of koko — blood"? Or will we pursue the American ideal of equal rights for all — never fully achieved but still worth striving for?
Patrick W. Hanifin is a Honolulu attorney
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