I was looking for something else this morning, and ran across a column of mine originally published in July 2014 in the aftermath of the public hearings held by the U.S. Department of the Interior.

Events have moved on, but the underlying observations are still valid today, as voting for delegates to a Native Hawaiian political convention closes in on the final deadline.

If the election process flounders due to the fractiousness of the debate within the Hawaiian community, I think it will fit the definition of a political train wreck.

So I thought that I would share it here in this “encore” post.

Did Hawaiian Hearings Set Up a Political Train Wreck?

Civil Beat, July 9, 2014 · By Ian Lind

If I had to sum up in a single word the testimony of Hawaiians in the current round of statewide hearings, the word would be: “Dispossessed.”

The hearings, sponsored by the Interior Department, have sought input on whether, or how, the U.S. should seek to reestablish an official, government-to-government relationship with Hawaiians. They have drawn lots of input, most of it direct, in-your-face, passionate, and personal, often reflecting a religious-like zeal which makes evidence irrelevant and renders certain “facts” beyond debate.

Concerned community member holds up sign during a Department of the Interior panel during a public meeting on whether the United States should establish a government-to-government relationship with Hawaii’s indigenous community held at the Hawaii State Capitol auditorium on June 23, 2014

Speakers most often traced their sense of loss back to the overthrow of the Hawaiian Kingdom in 1893, when, in the currently prevailing narrative, we lost our nation and our land. I think there’s plenty of room to debate the facts and interpretation of the overthrow and its aftermath, while sorting out a path to some form of self-determination, but that widespread sense of the shared experience of dispossession, the loss of history, rights, and more, comes through loud and clear.

One could, I suppose, take heart at the apparent high level of consensus that Hawaiians need to get together and take active control of their collective destiny, whether political, cultural, or economic. But that consensus quickly falls apart when you attend to the details.

Some want to restore the monarchy. Some believe the kingdom doesn’t need restoration because it never ceased to exist. Others believe they already speak for the Kingdom, whether restored, resurrected, or recreated. Together, they reject further efforts to shape a new governing body.

Some back the Hawaiian roll commission, others reject it utterly and completely.

There are those who say they reject laws of the United States and the State of Hawaii, and are not subject to them. There are others who rely on specific U.S. laws, from the Annexation resolution to the so-called Apology Resolution, to argue the overthrow was illegal.

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.

Preferences and Hawaiian Programs

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.

Through all the testimony, though, the dominant message has been a simple “no.”
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.

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.

Tribes and a ‘Special Relationship’

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 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.

Hawaiians don’t need to necessarily become a tribe. They do, however, need an equivalent special status. The Akaka Bill was an attempt to create that special tie through the legislative process, but floundered in part due to internal infighting and in part due to conservative opposition in Washington.

The Interior Department initiative behind this set of hearings is another, perhaps last-ditch attempt to define a “special relationship” between Hawaiians and the federal government through administrative rules rather than legislative action.

Hawaiians don’t need to necessarily become a tribe.

If this isn’t successful—and it’s hard to see the Interior Department panel finding a way to move forward in light of the hostility expressed during the hearings—a whole range of institutions that have provided critical community services and support to Hawaiians, including Kamehameha Schools and the other alii trusts, along with OHA, the Department of Hawaiian Home Lands, and the network of nonprofit health, education, and cultural organizations built over recent decades with federal funding, will remain at risk.

No one likes to talk about this publicly, for fear it will encourage those legal challenges. But the hearings have shown that failing to acknowledge the real threats may be doing even more damage.

A Slow-Motion Train Wreck

So as I have watched online as testimony has been presented across the state, and marveled at the strength of convictions and depths of emotions being expressed, I can’t help thinking that I’m watching a political train wreck in progress.

That train is moving in slow motion, since it will take years for any new legal challenges to work their way through the lower courts and finally reach the U.S. Supreme Court. But I have no doubt, given the current political climate, that such challenges are coming.

Realistically, the Interior Department’s initiative is throwing a lifeline to Hawaiian programs, offering a potential way to survive lawsuits that will end up being decided by an increasingly conservative Supreme Court. You know, the same court that says corporate money is the same thing as free speech, that special protections for voting rights aren’t needed any more, that corporations have the same religious rights as people, and that corporate rights to religious freedom take precedence over the rights of actual, human persons that are employed by them.

While perhaps there are some who would not hesitate to trade all of the established Hawaiian institutions and programs for the vague promises and psychological satisfaction of “sovereignty,” I doubt very much that a majority of Hawaiians would want to embrace this tradeoff if it were made explicit.

Perhaps the hearings prove to be cathartic and, after the opportunity to share strong emotions, enough of those repressed feelings will have been expressed that we can move on, making progress possible. I hope others will see that as preferable to the train wreck scenario. But only time will tell.