Category Archives: Hawaiian issues

Hawaiian convention off to a rough start

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Following news reports on the opening of the Nai Aupuni Native Hawaiian constitutional convention made my head hurt.

As Hawaii News Now reported:

Molokai activist Walter Ritte signed up to run in the Na’i Aupuni election, but later dropped out. He was turned away at the entrance to the Royal Hawaiian Golf Club even though he said he just wanted to observe the proceedings.

Organizers told Ritte to return on Tuesday, after the participants had a chance to discuss whether to allow non-participants into the convention.

“It was such a bad situation. How can you build a Hawaiian nation by dividing us like this right from the get-go and keeping the Hawaiians out so they cannot see what’s going on?” said Ritte.

Let me try to understand that one. Ritte was all set to be a regular participant in the convention, but then bailed out for his own reasons, rejecting the whole process. Now, not much later, he’s outside protesting his inability to be there in the room?

And blaming others for the “bad situation”?

Give me a break. That’s a pretty twisted view of events.

Opening the doors of the convention to the public won’t be workable, and favoring some “observers” over others will just be a whole new can of worms.

So sit back and let the delegates see if they can reach consensus on anything.

If you find any social media threads especially useful in getting a sense of what’s going on inside, please share the links here. I’m sure there are lots of folks who would be interested in following the back-and-forth.

Sen. Thielen questions “separation of powers” argument in case of Hawaiian funding

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Are Hawaii State Constitutional Public Trust obligations enforceable? And if so, by whom?

Those were the questions state Senator Laura Thielen addressed in a post on her legislative blog this week.

Her questions were prompted by the Supreme Court’s ruling that the state has violated its constitutional obligation to provide sufficient funding for operations of the Department of Hawaiian Home Lands, and the announcement that the state would be appealing the decision, with support from the legislature.

The state is expected to argue that the “separation of powers” prevents the Supreme Court from imposing a duty on the legislature.

Thielen asks what happens if the legislative and executive branches just blow off their constitutional duties? She says some suggested that the response is to vote those who fail in the duties out of office.

Thielen then pointed out the limits of this idea.

But what happens when the public trust is an obligation to a group who happens to be a minority of voters (for example, current and potential DHHL beneficiaries)? Even if they band together, they can’t vote out officials because they’re a minority. And isn’t one of the purposes of elevating a matter to the constitutional level to ensure the majority doesn’t infringe on the constitutional rights of the minority?

What happens when the public trust obligation is to future generations – who aren’t around today to vote? Ask any youngster, and they would gladly vote for more protection of our public trust natural and cultural resources. Sorry! No remedy for you until you turn 18 (if those resources are still around then).

I would suggest two places to find answers. First, there’s the earlier 2012 decision by the Hawaii Supreme Court in an earlier round of this same case involving funding for the Hawaiian Homes Commission and DHHL.

That decision rested on whether the separation of powers would prevent the court from intervening in the funding question. The court concluded that one part of the larger case–the question of whether the state had provided “sufficient sums” for administrative and operating expenses of DHHL as mandated by the state constitution–was subject to judicial interpretation.

So reviewing that court decision may provide sufficient answers to the current controversy.

And then I started looking to the State of Washington, where its Supreme Court not only ruled that the state’s system of school funding is unconstitutional, but found the legislature in contempt of court for failing to implement changes to comply with the state constitution. The case obviously raises similar “separation of powers” issues.

Documents filed in the long running case are publicly available on the Washington state court system’s website.

There’s also a Harvard Law Review article that is on point (“McCleary v. State/Washington Supreme Court Holds Legislature in Contempt for Failing to Make Adequate Progress Toward Remedying Unconstitutional Education Funding Scheme“).

The Washington Supreme Court has long recognized the power to work cooperatively with the legislature in vindicating the constitutional right to education.

McCleary made clear that the judicial role in that project is twofold: first, the court draws a baseline to ensure that the legislature has “done enough” to fulfill its constitutional duty; and second, once the legislature has defined the specifics of its duty through education policies, the court enforces the legislature’s self-drawn standards. The court’s approach thus stands as a modest judicial principle: a legislature must keep its promises regarding constitutional duties. This judicial posture toward legislative discretion is unlike the federal separation of powers scheme, in which constitutional grants of legislative or executive discretion weigh heavily if not absolutely in favor of judicial forbearance.

For Washington’s education clause jurisprudence, the opposite is true. Standing “idly by” even at the remedy stage would “abdicate the court’s own duty.” Accordingly, each “unfulfilled promise” by the legislature in the McCleary litigation prompted further mistrust from its Article IX partner, and thus appropriately triggered increasingly aggressive judicial enforcement.

The law review article includes footnotes to additional commentaries on the separation of powers issues.

It looks to me as if the state is simply stalling to put off the need to provide the constitutionally mandated funding. But perhaps some of the lawyers out there could provide some suggestions on how we should be interpreting these earlier rulings.

Native Hawaiian political convention to convene in less than three weeks

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Delegates to the Na‘i Aupuni Hawaiian constitutional convention, or Aha, set to convene in less than three weeks, must return any per diem payments or be taxed on the amount received if they fail to attend 80% of the daily sessions, according to an email sent last month to convention participants.

The email from Louis F. Perez III, chairman of the Akamai Foundation, which is processing the grant money that is paying for the convention, laid out the schedule of payments to delegates.

A total of 154 delegates are expected to participate in the convention, scheduled to begin on Monday, February 1. Those from Oahu will receive a total of $1,000 in per diem payments, while neighbor island delegates will get $4,000, and those coming from outside of the state will receive $5,000.

Per diem amounts will be paid in four equal increments. An advance of one-quarter of the total amount was to be delivered by mail at the beginning of January, with additional advances scheduled to be made once the Aha begins, with payments distributed in person on February 1, February 15, and February 29.

Delegates were advised that they must attend in order to avoid being taxed on the payments received.

Advances of per diem are considered “earned” by participation in the ‘Aha as documented by each delegate signing-in and signing out on the Delegate Attendance Roster at the start and end times for each day of the ‘Aha. The minimum attendance necessary for advances to be considered “earned” is 80%.

At the conclusion of the delegate training, per diem disbursements will be reconciled against the Delegate Attendance Roster to determine the amount of per diem advanced that was actually “earned”. An IRS Form 1099MISC will be issued to each delegate for the total amount of unearned per diem not returned to Na’i Aupuni.

The first week of the convention will be devoted to education on key areas of interest, including discussions of governance in the Hawaiian Kingdom, to the issue of ceded lands, and issues surrounding tribal sovereignty and international law.

The written background materials are publicly available in pdf format on the Na‘i Aupuni website. For those who are interested, there’s a lot of substantive material here.

Encore: Those confusing sovereignty claims

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This post was originally published by Civil Beat on September 2, 2015, part of my ongoing series of columns on diverse topics.

Civil Beat has exclusive rights to the columns for three months, and after that I’m free to republish, as I’m doing here. I’ll try to skim through and repost some of my favorites in coming weeks.

Dispute Muddies Already Confusing State of Sovereignty Claims

Two activists say the overthrown Hawaiian Kingdom still exists legally, but one is accusing the other of misrepresenting recent court rulings.

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Just a month ago, in early August, a “cease and desist” letter was issued warning influential Hawaiian political scientist and activist scholar, David Keanu Sai, to stop spreading what were referred to as misleading, fabricated or exaggerated descriptions of current and past events.

The warning didn’t come from the U.S. government or the State of Hawaii, both of which Sai claims are illegally occupying the Hawaiian Islands and thus have no legal authority.

This time around, the “cease and desist” missive came in a letter to Sai from Edmund K. Silva Jr., who styles himself as Alii Nui Moi, or king, of the “Kingdom of Hawaii,” one of several self-proclaimed sovereigns who have staked claims to represent the kingdom and the Hawaiian people.

The reader should not confuse Silva’s “Kingdom of Hawaii” with the “Hawaiian Kingdom,” an equally self-proclaimed group which also claims to wield government authority in the islands, and in which Sai has adopted the titles of Chairman of the Council of Regency, and Acting Minister of the Interior.

And while this might easily be dismissed as a demand letter from one make-believe ruler to another, this one is of interest because Sai’s controversial historical theories and legalistic assertions are providing the intellectual grounding for a significant group of Hawaiian sovereignty activists.

While certainly not the sole proponent of the idea that the overthrow of the kingdom was unjust and illegal, Sai’s embellishment of that proposition with claims about international law and previously unknown backroom deals to restore the monarchy have become increasingly popular, and liberal references to his Ph.D. from the University of Hawaii at Manoa have sought to imbue these claims with added legitimacy.

Recently, for example, they have found their way into legal arguments made in court by protesters arrested on Mauna Kea, as well as a number of other criminal and civil cases in which Sai’s published articles have been cited as proof that Hawaii courts lack jurisdiction because of the continued sovereignty of the kingdom.

The claims have not been successful in court, but have nonetheless have raised Sai’s stature in parts of the sovereignty movement.

In his letter, Silva minces no words. He accuses Sai of “perverting the facts,” and calls his behavior “misleading, misdirected, dangerous and harmful” to Hawaiians.

The letter then goes on to debunk a series of claims made by Sai in speeches, publications, and the Hawaiian Kingdom website.

The first case reviewed involves a criminal case involving two Molokai fisherman. Sai has proclaimed that a recent ruling by a state judge confirmed the valid and continued existence of the kingdom.

Silva’s letter takes Sai to task for the claim and explains what actually happened in court.

Silva explains that attorney Dexter Kaiama filed a motion in the criminal proceedings asking for the charges to be dismissed for an alleged lack of jurisdiction because, citing Sai’s publications, the kingdom still exists.

The court denied the motion to dismiss and, in doing so, rejected the claim that the kingdom’s continued existence leaves the State of Hawaii and the U.S. with no jurisdiction over Hawaiians.

But Sai continues to claim that the court’s ruling recognizes the continued legal existence of the kingdom.

“Unfortunately, I do not think you believe the judge made such a ruling,” Silva wrote. “I think that instead you were willing to totally misrepresent what happened in the court in order to make it look like you achieved some great ruling. That self-serving act has misled thousands of people into believing that there was such a ruling when in fact there was no such ruling.”

Similarly, Silva’s letter charges Sai has deliberately misrepresented the outcome of allegations of “war crimes” that he filed with Swiss prosecutors.

The case was dismissed, but Sai claimed the court ruling backed his belief that international treaties entered into by the Hawaiian Kingdom are still in effect.

Silva disputes that view.

“The Court noted that you had made that argument,” Silva wrote. “While I would certainly agree with that argument, the court was merely noting what YOU argued, NOT entering a ruling.”

In this instance, Silva again accuses Sai of deliberately misrepresenting the court’s action in order to boost his own prestige.

The result, Silva wrote, “amounts to a fraud on the people.”

Sai, who has been writing quite prolifically on other matters on the Hawaiian Kingdom blog, has apparently not responded to Silva’s cease and desist letter.