by Andrew Walden
Everything that Hawaii’s political leadership has been peddling in DC since the 1999 ‘Reconciliation Hearings’ has been a lie. Fifteen years later, the Feds came back to Hawaii and found out that Hawaiians still don’t want the Federal Akaka Tribe. Even more unanimous than hearings held in 1999, the overwhelming response from thousands of Hawaiians at meetings on every island over the last two weeks has been “No!”
What is left to cronies of the Akaka Tribe as their defeat and humiliation are revealed for all to see?
In a July 9 column, which was echoed in a July 11 Star-Advertiser editorial, Ian Lind tries to salvage something from what he calls a “political train wreck,” writing:
Through all the testimony, though, the dominant message has been a simple “no.”
No, we don’t need or want federal help. No, leave us alone. No, go home.
Here’s the problem.
If you hadn’t noticed, the new conservative majority of the Supreme Court, and in the U.S. Congress, is hostile to everything that smacks of affirmative action or racial preferences.
The court has narrowed the protections of voting rights laws, and outlawed, undermined, or restricted affirmative action in a variety of settings, including college admissions, employment, and so on.
Yes. The case for the Akaka Tribe all boils down to a partisan rant against ‘conservatives.’ And the rant doesn’t hold up. For instance, the US Supreme Court has been tilted to the right ever since President Richard M. Nixon appointed Warren Burger Chief Justice in 1969. It is hardly a “new” phenomenon. “The new conservative majority” is just a bogeyman to scare Hawaiians into signing up for a fake Indian Tribe—and it isn’t working.
Fifteen years ago, after the 1999 ‘Reconciliation Hearings,’ AP reported: “Many of the speakers called for an independent Hawaii, and rejected the idea of becoming a federally recognized ‘tribe.’”
And the 1999 Honolulu Advertiser responded with the same kind of partisan rhetoric:
Federal officials have made it clear that the best they can offer is a government-to-government relationship within the framework of domestic law. That means Hawaiians will have to form a sovereign political entity with which the United States can do business.
Some say Hawaiians should take advantage of the offer, because a better one might not come around once President Clinton is out of office.
"You've got a Democratic president who feels your pain, and you'd better hope the next Republican conservative president feels your pain," said Dan Boylan, a political commentator and history professor at UH-West Oahu.
Beginning in the mid-1990s, long before this court was seated, there was an organized push from the political right challenging the constitutionality of programs benefiting Hawaiians. Back-to-back lawsuits forced elections of trustees of the Office of Hawaiian Affairs elections to be open to all voters, not only to voters of Hawaiian descent, and then eliminated barriers that had required trustees themselves to be Hawaiian.
Yet somehow--with the exception of voting rights cases Rice v Cayetano (1999) and Arakaki v Hawaii (2002) —all of the suits against Native Hawaiian entitlements and preferences have failed.
Native Hawaiians have noticed this. Ka Wai Ola, April, 2013 explains: “More than 9,300 people have signed up (for the Kanaiolowalu Roll) since July 2012, far short of the campaign’s yearlong goal of 200,000. At an OHA board meeting in February, the commission attributed this in part to people wondering why they need to register again if they had already signed the Kau Inoa registry, and the lack of imminent threats to Native Hawaiian programs, such as lawsuits, which creates a lesser sense of urgency.”
Another pair of lawsuits during the same period challenged Kamehameha Schools’ policy giving preference in admissions to Hawaiian children. The policy survived the legal challenges, but only after both cases were settled out of court, one with a payment of a reported $7 million to convince the plaintiffs to walk away.
KSBE allegedly paid $7M to keep plaintiffs out of the ‘liberal’ 9th Circuit Court—not the ‘conservative’ US Supreme Court. Oooops.
Perhaps KSBE Hawaiian preference admissions might not hold up before the 9th. But we don’t need a fake Indian Tribe to solve this problem. A voucher program would be a much more effective solution opening the doors to every Hawaiian who wishes to attend Kam Schools, while also offering admission to non-Hawaiians. Vouchers are a 21st Century solution; an Indian tribe is an 18th Century solution—but vouchers don’t create a legal jurisdiction.
The legal issues we’re dealing with today go back to the 1970s, when Native American activists were beginning to challenge the effects of historical discrimination and were seeking reparations, including land and monetary damages. During that period, the Supreme Court upheld policies and programs that specifically benefited Indian tribes, holding these were allowed because of a “special relationship” between the tribes and the federal government. Absent such a special relationship, however, such programs would likely be found to violate the equal protection clause of the U.S. Constitution.
The State of Hawaii has a ‘special relationship’ with the United States—as outlined in the Admission Act. The Admission Act incorporates the Hawaiian Homes Commission Act and identifies five purposes for ceded lands revenue including “the betterment of Native Hawaiians.” After OHA Trustees viciously attacked the State’s right to use its land to build affordable housing (OHA v Hawaii, aka the ‘Ceded lands’ case), the ‘liberal’ Hawaii Supreme Court upheld OHA’s position 5-0. Fortunately, the ‘conservative’ US Supreme Court reversed knocking OHA’s anti-working class lawsuit down 9-0.
As this writer explained: The elements of the Supreme Court ruling which give special weight to a state’s Admission Act are woven throughout the decision but are stated most clearly on page 11.
Writing for the unanimous court, Justice Alito explains: “…the Apology Resolution would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that 'Congress cannot, after statehood, reserve or convey … lands that have already been bestowed on a State.'…('[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event…to suggest that subsequent events somehow can diminish what has already been bestowed').…"
The High Court’s holding any suggestion “that subsequent events somehow can diminish what has already been bestowed” would ignore “the uniquely sovereign character of” a state’s admission--places a very high burden on any who would claim that DHHL, the ceded lands revenues stream, or any other aspect of the Hawaii Admission Act can be challenged on the basis of racial discrimination.
The combination of the perceived vulnerability of Hawaiian programs to constitutional challenge, and the court decisions regarding Indian tribes, set off a search for something equivalent to the tribal “special relationships” that could be claimed, or created, to cover the case of Native Hawaiians and allow benefits to continue to flow through to Hawaiian communities….
Nonsense. The “search for something equivalent to the tribal ‘special relationships’” began with by the Broken Trustees of Kamehameha Schools seeking to evade oversight of their corrupt doings. To avoid scrutiny, they considered moving KSBE corporate headquarters out of Hawaii to the windswept plains of the Cheyenne River Sioux Indian reservation in South Dakota. The author of the 1995 Cheyenne Reservation proposal – John Waihee III—now serves as Chair of the Kanaiolowalu Roll Commission.
Waihee was right. A fake Indian tribe would be a vehicle for legal protection of corruption in Hawaii. That’s why “Instant Legal Jurisdiction” and “Tribal Immunity” have been features of every version of the Akaka Bill written since December, 2009.
Theft from within is the real threat to Hawaiian entitlements.
The desire to steal places Hawaii’s political class at odds with Native Hawaiian opinion.
Since 1999, 'conservatives' in the US House and Senate have saved Hawaii from its own elected officials.