Copyright 2000 (c) Kenneth R. Conklin, Ph.D. All Rights Reserved
A few sovereignty groups have long advocated Indian tribe status for kanaka maoli. They believe that a direct government-to-government relationship with the U.S. would allow them to by-pass the restrictions of working within the State of Hawai'i government, and would provide a more stable source of entitlements with deeper pockets. This issue came to the forefront in Hawai'i from the Fall of 1999 through the year 2000. It is likely to become the next major battleground in the sovereignty debates, and will remain a focus of attention and community strife for many years to come.
On October 6, 1999 the U.S. Supreme Court heard oral arguments in the Rice v. Cayetano case (See that section of this website). During the oral arguments it was immediately apparent that some of the Justices were hostile to maintaining racial exclusivity in voting for OHA trustees. There was great consternation and fear among the supporters of OHA that OHA would lose the case, voting would be opened to all citizens of Hawai'i, and sooner or later racial entitlements under the State of Hawai'i would come to an end.
In early December, the U.S. government sent high-level representatives of the Department of Justice and the Department of the Interior to Hawai'i to hold a week-long series of meetings on several islands to gather oral and written testimony from the kanaka maoli people to get their input on what role the Federal government should play in providing racial entitlement programs. Many kanaka maoli testified that they did not want to be under the Federal government at all -- they want total U.S. withdrawal, and an independent nation of Hawai'i with reparations for a century of military occupation and alleged theft of 1.8 million acres of land. The U.S. government representatives made it clear repeatedly that they cannot offer independence, they can only offer help with entitlement programs. It was clear to everyone that the Clinton administration had in mind some sort of political recognition of Indian tribe status for kanaka maoli, so that the racial entitlement programs currently offered through OHA (and other State and Federal agencies) could continue, probably under auspices of the Bureau of Indian Affairs within the Department of the Interior. The Department of Justice is involved so it can handle legal matters in setting up the programs, and assist in writing legislation for Congress.
The U.S. Supreme Court handed down its decision in the Rice v. Cayetano case on February 23, 2000. The Justices ruled 7-2 that all citizens of Hawai'i are eligible to vote for OHA trustee without racial restrictions. Panic set in.
The first idea seriously proposed even before the decision came down was that if OHA would pay for its own elections, then the elections could continue to exclude non-Hawaiians. But it seems clear now to everyone that the decision doesn't focus on who pays for the election, but focuses on the fact that they are statewide elections for a branch of State government that affects all citizens of Hawai'i and therefore the elections cannot continue to be racially segregated, no matter who pays for them.
Another idea was to make the trustees be appointed by the governor rather than elected -- that way, the elections wouldn't have to be desegregated because there wouldn't be any elections at all! But then after the decision came down, when the non-Hawaiian governor actually tried to declare the illegally-elected trustee positions vacant and fill them with his own appointees, there was a great outcry from the Hawaiian community that this was another overthrow of the Hawaiians by a non-Hawaiian. So the issue whether there are vacancies on the Board and how to fill them was sent to the Hawai'i Supreme Court for an advisory opinion.
There was also a bill in the legislature to transfer the more than $400 million assets of OHA, and its administrative structure, to DHHL, thereby "protecting" everything against evil non-Hawaiians and keeping it all nicely segregated. That idea was sort of like what a wealthy man might do when he thinks his wife might file for divorce, and he sends most of his money to the Cayman Islands or a secret numbered Swiss bank account to keep his assets beyond her awareness or reach. But the bill died in committee.
There are also efforts to privatize OHA. The idea is to somehow take the $400 million in OHA's treasure chest and transfer it to a private agency that could be owned and operated by the race of kanaka maoli for the exclusive benefit of kanaka maoli. This is similar to the attitude of the Southern governors and legislators after the 1954 Brown v. Board of Education school desegregation decision. George Wallace of Alabama stood in the schoolhouse door to prevent black children from attending school. Orval Faubus of Arkansas called out troops to keep black kids out of the schools, until President Eisenhower sent in the U.S. paratroopers. Several states tried to convert their public schools into private academies so segregation could continue, much as the Hawaiian supremacists want to convert OHA into a private entity for the same reason.
Other clever attempts are being made to prevent any significant number of non-kanaka maoli from voting in the OHA elections. For example: even though all voters can vote in OHA, will voters still have to register separately for OHA, as at present, with OHA ballots going only to OHA-registered voters? What a cute evasion that would be! State Representative Sol Kaho'ohalahala publicly stated on April 21, 2000 (quietly and evasively, but clearly enough for people sensitive to the issue) that this separate registration requirement is in force currently and will remain that way. When people register to vote, they get to vote in every election except OHA, for which they must register separately. Kanaka maoli currently registered specifically for OHA will automatically get OHA ballots, as always. But the 80% of the population not registered for OHA because they were previously prohibited from doing so because of race, will now have to go out of their way to register just for OHA, even though they are already registered for all other elections. This is a very clever way to minimize the number of non-kanaka maoli who will vote in OHA elections. Voters will show up on election day having heard about the Rice decision and assuming they can vote for OHA, only to discover they must register separately to do so. And so OHA will be safe from all but a few extremely alert non-kanaka voters for at least two more years; until there is time for voting-rights lawsuits to force a single registration to be valid for all elections, or for outraged people prevented from voting to send in new voter registration forms. I encourage all citizens not currently registered for OHA to look in your yellow page phone book, take out the wikiwiki registration form, fill out both the top and bottom portions (cross out the illegal sentence that affirms your racial heritage), and send it to the address printed there to make sure you are properly registered to vote for OHA.
But there are additional technical issues on which the State Elections Board has asked for administrative decision. Should OHA ballots continue to be printed separately from other ballots, and perhaps have a separate color, and have to be requested separately at the ballot-issuing station, and perhaps be cast in a separate receptacle? Even one such technique might shame or discourage non-Hawaiians from exercising their right to vote in OHA, thereby minimizing the effects of the Rice decision.
Then there is a question whether non-Hawaiians can run for office and BE OHA trustees. The Hawaiian Supremacist defenders of OHA think that just because the Supreme Court ruled that all citizens must be allowed to VOTE for OHA without racial restriction does not mean that all citizens must be allowed to RUN for the office of OHA trustee. Does anyone seriously believe the Supreme Court would actually allow racial restrictions on who can hold office in a State government institution where the Court has just ruled that there cannot be racial restrictions on voting? Imagine that after the Civil Rights and Voting Rights Acts of the mid-1960s, some Southern governor had the nerve to stand up and say, "Well, the feds say we gotta let blacks vote, but that sure as hell don't mean we gotta let 'em run for office!" No Southern governors had such gall, but that is exactly what many politicians in Hawai’i are saying. The Rice decision may be the law of the land, but the stonewalling and evasion continue, and Hawai'i seems determined to maintain "segregation forever" without even a pretense of moving toward integration "with all deliberate speed."
In the midst of all these events, the option of being an Indian tribe looks better and better to the racial Supremacists. Indian tribes are allowed to be racially exclusionary. They are allowed to discriminate in hiring, awarding contracts, providing benefits, etc. They are allowed to make their own civil and criminal laws, zoning restrictions (or lack of them) etc. within their tribal reservation lands. They do not have to pay State or Federal taxes on revenues earned inside the reservation, and can impose whatever taxes or other regulations they wish on non-Indian businesses which operate on tribal lands. They can open gambling casinos and make millions of tax-free dollars. All these things sound wonderful to the kanaka maoli racial Supremacists. Finally they can manage their own affairs exactly how they wish.
As a result of the decision in Rice v. Cayetano, kanaka maoli (Native Hawaiians) will probably lose racial entitlements unless they can be recognized as an Indian tribe. The Supreme Court in the Rice case has clearly stated that "Hawaiian" or "Native Hawaiian" is a racial classification (not a political one); and previous Court decisions have held that racial classifications for governmental programs are unconstitutional unless they can pass strict scrutiny, meaning that they must be narrowly tailored to meet a compelling governmental interest. For a thorough explanation of why the seemingly narrow Rice decision will have such far-reaching effects as the destruction of OHA and other racial preference programs, see the parts of this website listed on the front page just above the Indian section, containing an amicus brief in the case OHA v State of Hawai’i, and also a motion to intervene in that case with accompanying memo in support and proposed brief.
Fearing the loss of lucrative racial entitlements such as Office of Hawaiian Affairs, Department of Hawaiian Homelands, Kamehameha Schools (Bishop Estate), Alu Like, and numerous other Federal, State, and private racial entitlements, many Hawaiian supremacists are now seeking federal recognition as an Indian tribe, either by executive order or by an Act of Congress. Such tribal status would allow racial entitlement programs to continue under the auspices of the U.S. government, with the Bureau of Indian Affairs taking the role now played by the State of Hawai'i Office of Hawaiian Affairs. Indian tribes can receive special benefits tailored to their needs, and those benefit programs only need to meet the "rational basis" test rather than the "strict scrutiny" test.
Everywhere in the world, nations and communities are constantly confronted with individuals and groups who would like to be separate and independent, not pay taxes, not obey the laws of the larger community. The issue here in this website is not to defend in general against anarchy or libertarianism. The issue here is to distinguish legitimate Indian tribes from phony ones. Many groups would like to have sovereignty and declare independence. Many individuals and groups would like to have the self-determination and collect the special economic benefits Indian tribes are entitled to. How can genuine Indian tribes be distingushed from phony ones? There must be laws for making such determinations. The President and the Congress cannot arbitrarily or capriciously award tribal status recognition. In the past, the courts have overturned such wrongful recognitions.
There are seven criteria which a group of Indians must meet in order to receive tribal recognition (called "acknowledgment"). Those criteria are listed in their entirety on this webpage.
The denials of recognition to two Indian groups are also provided. From reading the denials, it is clear that all seven criteria must be met or else tribal status is denied. It is also clear that Native Hawaiians must be denied, because they fail to meet the first three criteria, in a way similar to the denial of the Duwamish group. (a) Native Hawaiians have not been identified as an Indian entity on a continuous basis since 1900, (b) the predominant portion of Native Hawaiians do not comprise a distinct community that has existed as a community from historical times until the present, and (c) Native Hawaiians have not maintained political influence or authority over their members as an autonomous entity from historical times until the present.
Let's face reality: kanaka maoli (Native Hawaiians) are not an Indian tribe, no matter how much they would like to be. Seeking tribal status is merely one more attempt to preserve racial entitlements that are headed for the dustbin of history, and diverts energy from more constructive efforts to preserve and promote the culture and spirituality. A selfish minority of Hawaiian racial supremacists is willing to tear apart the State of Hawai'i to establish a phony Indian tribe so that the Federal government can continue racial entitlement programs; and political leaders of the State of Hawai'i are blindly endorsing this concept because they think it will resolve the sovereignty issue and bring in large amounds of Federal funding. A terrible mistake is going to be made unless brave people are willing to express strong opposition soon enough and in large enough numbers to make a difference.
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