Aha may fail to give Hawaiians true self-determination

As OHA and Na‘i Aupuni push forward toward the election of delegates to a Hawaiian government convention, the U.S. government is paving the way for Hawaiians to become federally recognized as a tribe.

Will Caron

Throughout November of 2015, Native Hawaiians who have been registered by the Native Hawaiian Roll Commission will be able to vote for 40 delegates to attend an ʻaha, or convention, in which those delegates will convene for the purpose of working out the details of a new Hawaiian government and determining what relationship the governing entity would have with the Hawaiian community, as well as with the State of Hawai‘i and the United States of America.

On the morning of September 30, 2015, Na‘i Aupuni—the organization established at the request of the Office of Hawaiian Affairs (OHA) to guide the process along to an election of delegates, a constitutional convention and, if need be, a ratification vote by registered Native Hawaiians—announced the names of 209 Native Hawaiian individuals who registered as delegation candidates.

“The nomination of delegate candidates is a milestone in the upcoming historic election for Hawaiians to determine if a reorganized Hawaiian government will be formed,” said Kūhiō Asam, Na‘i Aupuni president. “The candidates are diverse in their age, backgrounds and purpose. They are representative of a good cross-section of the Native Hawaiian community.”

But activist Andre Perez believes there are significant problems with the process, starting with the method Na‘i Aupuni used to come up with its list of Hawaiians eligible to run as candidates or vote for them. The organization is relying on data collected by the Native Hawaiian Roll Commission for the Kana‘iolowalu roll list (as well as data from previous attempts at rolls, such as Kau Inoa).

“We have to remember that this process started with the State of Hawai‘i, not the Hawaiian people,” Perez told The Independent over the phone. “Hawaiians did not initiate or pass Act 195, which created Kana‘iolowalu. The state legislature did, and gave the governor the power to appoint members to the commission. True self-determination does not come with a state-initiated, state-controlled process like this.”

On July 7, 2011, Governor Neil Abercrombie signed Act 195 into law. OHA was required to fund the state initiative with Native Hawaiian trust funds, but was not authorized to direct or control the process by which the commission addressed and fulfilled its mandate. The law set out a time frame for Kana‘iolowalu to achieve its mission: the registration of 200,000 Native Hawaiians by June 15, 2013. According to OHA, only 21,418 Hawaiians had signed up for the Roll as of September 27, 2013. The commission, headed by former governor John Waihe‘e III, had spent $3.3 million of OHA resources and was requesting another $2.5 million when the trustees finally decided to scrap the project.

“So why is Na‘i Aupuni using this failed, state-sponsored roll as the basis for their nation-building process?” Perez asks. “Why did OHA send trustee Machado to Washington, D.C., with commission head Waihe‘e to meet in secret with the Department of the Interior? The commission’s only job is to ‘build a roll,’ so why are they lobbying in D.C.?”

This is not the first time OHA has attempted a nation-building process, and legislation aimed at obtaining federal recognition has been introduced repeatedly, especially as the various incarnations of the Akaka Bill, named for recognition proponent and former U.S. senator from Hawai‘i, Daniel Akaka. Before the Akaka Bill, there was the Native Hawaiian Convention (ʻAha Hawaiʻi ʻŌiwi), the product of years of preparation including the election of delegates from each island, extensive community outreach, the creation of governance models to be considered at a Native Hawaiian constitutional convention and more. Sounds familiar, right?

Activist Leon Siu, in a March 2014 statement, recalled what happened to that attempt to build a nation: “When the state realized that there was a strong possibility that ʻAha Hawaiʻi ʻŌiwi would choose the independence model, the state suddenly yanked the funding, essentially freezing the process in place. Since then, every other OHA/State-funded governance initiative got its plug pulled whenever it arrived at favoring independence.”

Department of the Interior | Dawes Act

On September 29, the day before the candidate list was released, the U.S. Department of the Interior (DOI) announced a proposal to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community does, in fact, form a governing body out of the Na‘i Aupuni process that then seeks a formal government-to-government relationship with the United States. (Also known as federal recognition, this is a system that has been used for many Native American tribes.)

“The United States has a long-standing policy of supporting self-governance for Native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation’s largest indigenous communities,” said U.S. Secretary of the Interior Sally Jewell. “Today’s proposal is testament to the Obama Administration’s strong support for our nation’s Native peoples’ right to self-determination.”

“This issue has been discussed for many years, and I support President Obama and the Department of the Interior’s efforts to move it forward,” said Hawai‘i Governor David Ige. “I urge the public, particularly Native Hawaiians, to comment on this possible pathway for the United States and Native Hawaiians to establish a government-to-government relationship. The public comment period for the proposed rule is an invitation for the public to participate in the rulemaking process.”

According to the DOI, the new proposal allows the Native Hawaiian community—not the federal government—to decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.

“On behalf of Na‘i Aupuni, we appreciate the U.S. Department of Interior’s recognition on the first page of its proposed rule that ‘the Native Hawaiian community itself would determine whether and how to reorganize its government,’” said William Meheula, legal counsel to Na‘i Aupuni. “The Interior Department’s announcement also validates our legal position that Na‘i Aupuni’s process does not violate the U.S. Constitution or federal law.”

The proposal comes on the heels of a public comment period that began last year and included public meetings in Hawai‘i, as well as on Native American reservations on the continent. According to the DOI, more than 5,000 members of the public submitted written responses during this process, and the responses overwhelmingly favored creating a pathway for reestablishing a formal government-to-government relationship.

“We’ve listened to the feedback we received during the public meetings and in writing and worked to improve the proposal to reflect those comments,” added Jewell. “We appreciate the many voices on this topic and look forward to hearing from the public on this proposal.”

The DOI says that, if a government-to-government relationship is reestablished, it can provide the Hawaiian community with greater flexibility to “preserve its distinct culture and traditions,” as well as “special status under federal law that enables the community to exercise powers of self-government over many issues directly impacting community members.”

In 1993, Congress enacted the Apology Resolution, which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the federal government to a process of reconciliation. As part of that reconciliation process, in 2000 the DOI and the Department of Justice jointly issued a report identifying, as its lead recommendation, the need to foster self-determination for Native Hawaiians—under federal law. And therein lies the problem for Perez and others who reject the Na‘i Aupuni-Kana‘iolowalu process.

“We should know the implications of the term ‘roll’ and the historical legal precedent of native rolls coming out of the Dawes Act,” Perez said at an OHA meeting in April. “I’ve been saying for a long time now that we need to look at the implications that a roll has for our lāhui.”

The Dawes Act of 1887 authorized the president of the United States to survey American Indian tribal land and divide it into allotments for individual purchase by Native Americans. Those who accepted the allotments would be granted United States citizenship. The stated objective of the Dawes Act was to stimulate assimilation of Indians into mainstream American society. Individual ownership of land in the European-American model was seen as an essential step. But the act also provided what the government would classify as “excess” Indian reservation lands remaining after allotments which could be sold on the open market to non-Native Americans.

The Dawes Commission registered Native Americans in what became known as the Dawes Rolls. The Curtis Act of 1898 completed the process by which the federal government no longer recognized tribal governments and abolished tribal communal jurisdiction of Indian land. During the ensuing decades, Native Americans suffered extreme dispossession of lands and other social ills. In recognition of this failure, Franklin D. Roosevelt signed the U.S. Indian Reorganization Act in 1934, ending allotment and reaffirming the right of Native Americans to organize and form their own governments.

“The DOI’s newly proposed criteria to federally recognize a Hawaiian government exposes the massive contradictions and overarching failure embedded within Hawaiʻi’s settler colonial state,” said Hawaiian scholar and indigenous activist David Maile. “The language in these proposals attempts to normalize an uneven relationship: ‘federal recognition expresses self-determination for Indigenous peoples.’ Consider for a moment the remarks by Secretary Jewell:

The United States has a long-standing policy of supporting self-governance for Native peoples, yet the benefits of the government-to-government relationship have long been denied to Native Hawaiians, one of our nation’s largest indigenous communities.

“If the U.S. had historically supported Native peoples’ self-governance, why are these proposed rules necessary? Why would we need a ‘pathway to sovereignty,’ unless sovereignty had been stripped away by the United States? This is but one of many contradictions,” continued Maile.

Another glaring contradiction is the outright dismissal of the overwhelming opposition by Hawaiians, demonstrated in public testimony inside and outside of Hawai‘i. According to Maile, who attended meetings last summer on the continent, the DOI’s characterization of the majority of testimonies as favoring federal recognition is false.

“The DOI proposal underwrites opposition by, instead, highlighting a legal genealogy of racist, colonial policies like Public Law 103-150, also known as the Apology Resolution, to articulate ‘deep regret’ in order to provide ‘reconciliation’ as a masquerade to control, incorporate and subordinate Hawaiian sovereignty,” Maile said.

According to Maile, the continental DOI hearings were also attended by some Native American scholars and leaders, many of whom testified against federal recognition, urging Hawaiians to learn from the experiences of Indigenous Americans who gave up their sovereignty claims in exchange for the benefits of federal recognition that Secretary Jewell touts in her press release.

“Those of us who said ‘no,’ last summer, to the DOI proposal for new rules constituted a substantial portion of testimonies at the DOI’s public meetings. We are saying ‘no’ yet again to this proposal. We say ‘no’ to federal recognition, and we say ‘no’ to the ongoing conditions of U.S. occupation, settler colonialism, institutional racism, astronomy-industry development, extractive capitalism, globalized tourism, militarization and much more,” said Maile. “It is within these marginalizing and violent, but also refused, conditions that Secretary Jewell paternalistically claims Native Hawaiians are ‘one of our nation’s [U.S.] largest indigenous communities.’ We weren’t, aren’t, and never will be. But yet, we are always already being made to be.”

Moving toward the ʻaha

Whether you support federal recognition or believe it to be just another form of control by the state over Hawaiian self-determination, the Na‘i Aupuni process is moving forward. Looking through the names on the list of candidates for the 40 delegation seats, Hawaiian leaders from both sides of the federal recognition issue have stepped forward in an attempt to steer the convention either toward or away from it.

Some names of interest include current OHA trustee Rowena Akana, University of Hawai‘i law professor Williamson Chang, former Koolaupoko Hawaiian Civic Club president Mahealani Cypher, state senator Brickwood Galuteria, former state representative Faye Hanohano, current state rep. Kaniela Ing, pro-Thirty-Meter Telescope commentator Bronson Ka‘ahui, former Abercrombie administration “Homelessness Czar” Collin Kippen, Joshua Lanakila Mangauil and Hina Wong Kalu, both activists and educators, freelance journalist Mary Ka‘iulani Milham, and long time activist and sovereignty movement leader Walter Ritte Jr.

Some, like Galuteria, clearly support federal recognition. The senator released the following statement after the DOI announcement was made:

For decades, the United States has supported the indigenous rights of self-determination and self-governance at home and abroad. At the same time, it has neglected to recognize these rights for Hawai‘i’s indigenous people. Today, the Obama Administration has made good on the President’s commitment to correct this injustice by publishing a proposed rule on reestablishing a government to government relationship with our Native Hawaiian people.

I commend Secretary Jewell and her staff for creating a pathway for recognizing a Native Hawaiian government. Like many of my colleagues, I have long believed in the Native Hawaiian ability to improve our own lives, and the shared future of our children. A government-to-government relationship between the Native Hawaiian people and the United States will clarify for the courts that our programs are not race-based, but based on our political status as an indigenous people. As the Native Hawaiian community rises, so does Hawai‘i.

Others are seeking a seat in the delegation in order to be a voice for change in the process. “My intention is not to derail the agenda, but to throw some brakes on so we have more time as a lāhui to do our due diligence in determining the best path forward. I donʻt think we have done that,” Milham told The Independent.

“My concern is that this process has alienated a large faction of our lāhui, who favor independence and restoration of our sovereignty, and is now proposing to go forward in nation-building without their participation and their free, prior and informed consent,” continued Milham. “There is massive contention about where we want to go, and legitimate mistrust of the ʻaha stemming directly from mis-steps along the way, like coercing kānaka to enroll in Kanaʻiolowalu by threatening to disenfranchise them as well as their keiki and moʻopuna. Those were big-time fighting words; the opposite of unifying.

“Then of course, when Kanaʻiolowalu enrollment was a dismal failure, with only about 20,000 names after a year and millions of dollars spent, they rolled over all those names from past registries. That was another trust buster. And finally the claim of neutrality, neither favoring federal recognition or independence, from OHA has been mired in the obvious bias toward federal recognition in the organizing of the ʻaha,” said Milham. “The combined effect of all these violations of trust has been to alienate kānaka from this nation-building process. That’s not democratic and, if it’s not corrected, it will delegitimize the outcome of the ʻaha. We need to make this process inclusive. We can never unify as a people if we donʻt do that first. Rather than suppressing these dissenting voices, it will, rightfully, make them louder.”

For Perez, however, participating in the convention is inherently a pro-federal recognition move. “I believe that my activist friends that have decided to run for a delegate seat are doing so out of sincere effort to make things better,” Perez told The Independent. “Their plan is to protect independence by preventing bad decisions from within. But I would say that, in this case, their analysis is incorrect. In order to get the outcome they want, they’ll need a majority in the convention—that means 21 delegates that are both independent of external pressures toward recognition and believe in holding out for true self-determination. I simply don’t see that happening.

“And even if they did achieve a majority, what then? They’ve participated in a state-sponsored process and, in doing so, have given it legitimacy,” said Perez. “You cannot cook dinner with food that is rotten. No matter how you dress it up with flavors and seasonings, you can’t make good dinner with bad food.”

For Milham, she understands Perez’ concerns but still believes participating is the right thing to do. “I think if our money is going to be used to create a space for nation building then, yes, we need to be in that mix where decisions are being made,” she said. “Like it or not, decisions are going to be made there that affect all of our lāhui. I want to be there for that.”