Category Archives: Hawaiian issues

Looking back 40 years to the first protest landing on Kahoolawe

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Monday, January 4, will mark the 40th anniversary of the first protest landing on Kahoolawe to protest the use of the island as a Navy bombing range.

This small demonstration somehow came at just the right moment, and communicated just the right message, and sparked a movement that still reverberates in island life.

Click on the photo to see all the pictures from that day!

It was a long time ago.

How long, you might ask?

My answer:

The Vietnam War had ended less than a year before. The American Bicentennial year was beginning. Gerald Ford was president. John Waihee, later to serve as Hawaii’s governor, was looking forward to graduating from the new University of Hawaii Law School. Construction of the new Aloha Stadium was finished. The term “personal computer” was coined later in the year to refer to a little gadget called the “Altair.”

I wrote a brief essay about the experience which appears on Civil Beat today (“Ian Lind: Kahoolawe 40 Years Later“).

And I’m sure there will be other retrospectives over the next week.

For the record, I decided to post a set of my photographs taken on that long ago day. Just click on the photo below to see the whole gallery.

January 1976

Separating cultural fact from fiction

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There’s a very challenging column by Peter Apo at Civil Beat today (“Peter Apo: Let There Be Light On The TMT“).

Apo takes the politically risky step of exploring “the separation of cultural fact from fiction” in the claims made about the sacredness of Mauna Kea and the site of the planned Thirty Meter Telescope project.

How should we evaluate claims regarding traditional practices engaged in on Mauna Kea, as well as the broader claim that the entire mountain was considered sacred by Hawaiians? Well, you do some research in the best available sources.

These sources include archaeological findings, oral traditions, such as ancient chants like the Kumulipo, and the works of present-day scholars based on newly discovered Hawaiian language sources. These include unpublished oral histories, and more than a million pages of Hawaiian language newspapers published between 1843 and 1948.

After making the case for the need to evaluate cultural claims, he presents his own findings.

I found no documentation indicating that Mauna Kea, as a whole, is sacred. I could not find any reference to any blanket of sacredness over the entire mountain and the air column in any of the usual sources of validation — not even in the Kumulipo Hawaiian creation-origin chant, or in the writings of Native Hawaiian historians of the 19th century like Samuel Kamakau, David Malo, John Papa ‘I‘I and Kepelino.

Beyond the blanket-of-sacredness claim, there is nothing else on record to suggest any validated sacred places would be disturbed by the construction or operation of the TMT.

There’s a lot more in the column, definitely worth reading, even if you have to borrow someone else’s access to Civil Beat. Apo invites others to point to documentation that he might have missed, which I expect could lead to further light being shed on this issue.

Apo, of course, is no stranger to protest in defense of Hawaiian rights. Here are a couple of photos taken at the old federal courthouse in Honolulu, in the building shared with the downtown post office. It was 1977, and the occasion was a rally at the court during one of the appearances of Richard Sawyer, who was facing federal charges for taking part in one of the series of protest landings on Kahoolawe in 1976-1977.

Honolulu Federal Courthouse

In the photo above, Apo is at the center, facing the camera. In the lower photo, Apo is on the right. And that’s the late Frenchy DeSoto, on the left.

Click on either photo to see a larger and more detailed version.

Honolulu Federal Courthouse

Thoughts on the Native Hawaiian convention

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Yesterday’s announcement that the election of delegates to a Native Hawaiian constitutional convention has been cancelled took me by surprise. Apparently there was just too much centrifugal force (of the political kind) to hold the election together as planned.

I wish that I could be optimistic about the idea of embracing all the registered candidates and proceeding with a much larger, but much shorter, convention. All of the nearly 200 candidates have been invited to take part, nearly five times the planned 40 delegates. And they’ll only have 20 days to tackle all the issues, rather than the planned 40 working days over two months.

And according to yesterday’s announcements, the first of the four weeks will be spent reviewing background materials.

The Star-Advertiser reported:

During the first week delegates will see presentations on constitution building, federal Indian law, international law regarding de-occupation, decolonization, the rights of indigenous people, constitutional issues that relate to Native Hawaiian self-governance, the ceded-lands claim, background on Hawaiian homelands, kingdom law and constitutions already drafted by sovereignty groups.

I don’t know about you, but that makes my head spin.

Let’s see. The state’s 1968 constitutional convention ran for 58 days. I haven’t found the actual data on 1978, but I expect it ran about the same length. And they weren’t starting from scratch, and were just looking at amendments to an existing constitution, rather than having to decide the most basic issues and directions, as the Hawaiian convention will have to do.

And the Honolulu Charter Commission, with just 13 members, is scheduled to take nearly 18 months to complete its review of the charter and to recommend amendments.

Twenty working days? It seems designed for failure, at least if concrete results are expected. The political free-for-all perhaps could, however, result in at least a general sense of common direction. No, I take that back. It could yield a majority view of what direction to move next, and leave the actual drafting of a founding document to a future political process.

But I also think Walter Ritte got it right on one point. Again, from the Star-Advertiser story:

Ritte and others contend that Na‘i Aupuni is part of a campaign to turn Native Hawaiians into a federally recognized American Indian tribe before President Barack Obama leaves office in early 2017.

I think that is certainly an accurate assessment, at least if you substitute “Hawaiian government entity” for “American Indian tribe.”

The question, though, is whether you think that’s a goal that will pay benefits for most Hawaiians. I’m with those who believe that it certainly will, and if most delegates to the convention agree, that will be an advance. Unfortunately, that agreement remains questionable, doesn’t it?

A very busy time for court rulings on Hawaiian issues

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It’s been quite a week or so in legal news, with decisions coming in several major Hawaii cases.

First was the decision by Circuit Court Judge Jeannette Castagnetti, who ruled that the state must provide millions of additional dollars annually to adequately fund the operations of the Department of Hawaiian Home Lands.

Her ruling essentially monetized a 2012 decision by the Hawaii Supreme Court, which had found that “the State has failed, by any reasonable measure to provide sufficient funds to DHHL.”

The underlying lawsuit was brought by several plaintiffs seeking to enforce Article XII, Section I of the state constitution, which states:

“The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.”

Following the Supreme Court’s action in 2012, the case was sent back to the Circuit Court to determine what would constitute “sufficient funds” in order to meet the constitutional requirement.

Castagnetti ordered the state to appropriate more than $28 million to DHHL in 2015-2016, well above the $9.6 million granted the agency over the past few years.

So what happens if the legislature fails to comply, or simply can’t agree on where to find the money?

I’m not sure, but the situation in the State of Washington is instructive. There’s been a long political battle over taxation and education funding. In terms of school funding, though, the state’s highest court found that the legislature had failed to provide constitutionally-required funding for the public school system, and ordered that additional funding be provided. When that didn’t happen, the court found the legislature in contempt of court. And in August 2015, the court imposed monetary sanctions of $100,000 a day for the continuing failure to provide sufficient school funding, with the provision that the fines could be suspended if the state moves quickly to settle the funding question.

Could that happen here? At this point, who knows.

Then came the U.S. Supreme Court, which granted an injunction preventing votes from being counted or election results certified until the 9th Circuit Court issues a ruling in the case, a challenge brought by several opponents of the Na’i Aupuni Native Hawaiian election process.

Inversecondemnation.com, a legal blog by Honolulu attorney Robert Thomas, commented earlier:

The biggest problem with this thing has always been the public funding. Yes, the money was washed through a non-profit, set up for the purpose of supporting the argument that this is not a publicly-funded election. But come on, the Court would have to be blind to not see the pretense. Justice Kennedy is often the lynchpin in these type of cases (and many others), so it’s not good if you are a proponent of the election when he is the Circuit Justice who puts a stop to it, even if only temporarily.

He’s also the author of Rice v. Cayetano, 528 U.S. 495 (2000), the 7-2 decision which struck down under the 15th Amendment the “Hawaiians-only” vote to elect trustees for the State Office of Hawaiian Affairs, in which he wrote:

As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii.
Rice v. Cayetano, 528 U.S. 495, 524 (2000).

Words to keep in mind as this case progresses.

The case has also been discussed by the Election Law blog, and the Supreme Court of the United States Blog.

According to the latter:

The Court did not issue an opinion explaining the order, but it appeared that the majority was inclined to believe that the election was not truly a private affair, but was instead officially ordered and at least partly financed by the state, thus raising the question whether it could constitutionally be confined along an ethnic or racial line. And it appeared that the dissenting Justices were at least partially persuaded that this is a matter relating only to self-determination of a cohesive ethnic community. That is the argument made for the election and constitutional convention by the Obama administration and the state of Hawaii.

The challengers to the balloting limitation are relying mainly upon a seven-to-two decision by the Court in the 2000 case of Rice v. Cayetano, striking down a similar limitation for the election of officials in a state agency, the Office of Hawaiian Affairs. This time, supporters of the election contend it is for the selection of delegates to a convention among ethnic Hawaiians only, to draft a constitution for the proposed new nation.

Five members of the current Court took part in the 2000 decision, along with now-retired colleagues. Justice Kennedy wrote the majority ruling, joined by Justices Scalia and Thomas. Justice Breyer supported the result, but not the reasoning of the majority. Justice Ginsburg dissented.

And then there was the TMT bombshell dropped by the Hawaii Supreme Court, but that will have to wait for a future post.