Obama plan to benefit native Hawaiians runs into trouble

By Malia Zimmerman | Watchdog.org

HONOLULU — A proposal by the Obama administration to create a new relationship with ethnic Hawaiians may have backfired.

The U.S. Department of Interior is holding a series of hearings about the plan, which, it said in a statement, would determine “the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.”

The vast majority of native Hawaiians who testified during a hearing here Monday were indignant, and even outraged, that the federal government would try to insert itself or side with any faction of native Hawaiians.

They scolded, shouted at and questioned the motives of Interior Department officials. Many want the Hawaiian monarchy restored to power and the U.S. government out of Hawaii.

Congress has enacted more than 150 statutes over several decades specifically for native Hawaiians, yet the federal government hasn’t negotiated directly with the Kingdom of Hawaii since it was overthrown in 1893, the Interior statement said.

Hawaiian activist Bumpy Kanahele, who heads the organization Nation of Hawaii, told Interior officials: “We don’t need you to come in to tell us how to govern ourselves. Let us figure it out.”

University of Hawaii Hawaiian studies professor Jonathan Osorio said the feds shouldn’t intervene and impose additional “aggression upon our nation.”

While the debate is stirring up an already racially divided community, constitutional experts argue President Obama and the Department of Interior have no legal right to create such a relationship and has no business holding these hearings in the first place.

Former Hawaii State Attorney General Michael Lilly has said native Hawaiians have no tribe, and therefore the United States cannot enter into a treaty relationship.

“The current effort to recognize a separate ethnic tribe by the Department of the Interior is unconstitutional because, under the Constitution, it is the Congress that has the plenary power to recognize tribes and ratify treaties. That power does not reside in the executive branch of the federal government or with the various states. So the current effort aimed at creating a tribe of Hawaiians has no legal basis,” Lilly said.

The U.S. Supreme Court has held that a “tribe” is a political and not a racial entity, Lilly said. “If there was such a tribe, then all the multi-ethnic peoples who were citizens of the Hawaiian Monarchy would be members of that tribe,” Lilly said.

Hans von Spakovsky agrees. He’s a senior legal fellow at the Heritage Foundation who spent four years working in the civil rights division at the U.S. Department of Justice, specifically on such issues.

“Not only is it unconstitutional, but the administration has no authority to enter into such a relationship. It is a sign of how the Obama administration believes in official discrimination and sanctions it. They continue to divide up our country and raise the walls between different races. I find it disgusting that they want to do this,” von Spakovsky said.

Hawaiian entitlements

University of Hawaii Hawaiian studies professor Jonathan Osorio

A large part of the debate centers around federal and state government entitlements, which include money, housing and land set aside for native Hawaiians only.

Some of these entitlements have been challenged in the federal courts, and other federal challenges have included whether Hawaiians only could vote for trustees of the state Office of Hawaiian Affairs and whether only Hawaiian students should continue to be admitted to Kamehameha schools.

Many native Hawaiians believe Hawaiians deserve these entitlements; they lost their government in 1883 and thereby deserve a part of crown lands, Hawaiian homelands and money generated from crown lands and other government trusts.

Osorio said the Interior Department should look for ways to protect native Hawaiian government entitlements.

“The chief threats come from Americans courts,” Osorio said.

But Spakovsky said the blood-quantum based government benefits divide the state by race, which he called “reprehensible behavior.”

“There are all kinds of benefits based on whether or not people have Hawaiian ancestry defined by how much blood quantum they have. That is the kind of racial segregation the South used and Nazi Germany used against the Jews. It is disgusting that use those kinds of definitions are used to give benefits, such as low housing loans,” von Spakovsky said. “We can go back to the fact that when Hawaiians decided they wanted to become a state, Hawaii was a great example to the nation of a multi-cultural microcosm of people who live together well. Now there is a movement to reverse it and Balkanize Hawaii.”

Clinton’s apology

Sovereignty activists got a boost when President Clinton and Congress in 1993 enacted the “Apology Resolution,” extending an apology to Native Hawaiians on behalf of the United States for its role in the 1883 overthrow of the Hawaiian monarchy and committed the U.S. government to a process of reconciliation. The resolutionwas controversial among historians, some of whom maintain private businessmen, not the U.S. government, orchestrated the overthrow and imprisoned the beloved Hawaiian queen.

In 2000, the departments of the Interior and Justice issued a report on the reconciliation process, recommending self-determination under federal law for Native Hawaiians, giving further momentum to the movement.

U.S. Sen. Daniel Inouye, D-Hawaii, who died in 2012, for 12 years tried to pass the Native Hawaiian Recognition Act, also known as the Akaka Bill, which would have created a Hawaiian nation within the United States. One version of the bill would have categorized native Hawaiians as American Indians, so the federal government could legally negotiate with an official tribe. The move outraged virtually all Hawaiian activists, who said, defiantly, “We are not Indians.”

The legislation, named in honor of then U.S. Sen. Daniel Akaka, was supported by all of Hawaii’s elected officials, with the exception of state Senate Minority Leader Sam Slom. The bill passed the House, but died in the Senate.

Interior is posing five primary questions:

• Should the secretary propose an administrative rule that would facilitate the re-establishment of a government-to-government relationship with the Native Hawaiian community?
• Should the secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could re-establish a government-to-government relationship?
• If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
• Should the secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the state of Hawaii, to the extent such a process is consistent with federal law?
• If so, what conditions should the secretary establish as prerequisites to federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?

Meetings continue throughout the state until July 8. The Department of Interior will then conduct Indian country consultations from July 29 through Aug. 7 in Minnesota, South Dakota, Washington, Arizona and Connecticut before issuing a draft for public comment.

Reach Malia Zimmerman at Malia@hawaiireporter.com