Tapestries orange rouge

Pondering independence

Jon Osorio

The US Department of the Interior’s announcement of procedures to establish a formal government-to-government relationship with the Hawaiian community begins with several obvious and anticipated arguments and inferences, and one argument that is patently bizarre.

Interior’s 73-page memo takes special pains to document its reasons for treating the “Hawaiian community” as a group that has a special political relationship with the United States, but without really admitting what makes us special in the first place. According to the DOI, Congress has acknowledged a relationship with Native Hawaiians “analogous to, but separate from programs and services enacted for Native Americans.”  Congress has further claimed that it “does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous peoples of a once sovereign nation as to whom the United States has established a trust relationship.”

This argument was predictable, since one group opposing a federally recognized Hawaiian government is the American neo-cons, who have challenged the constitutionality of Hawaiian programs in federal courts. These challenges have been the personal boogie man such Hawaiian agencies as the Office of Hawaiian Affairs, Department of Hawaiian Homelands, even Kamehameha Schools. One OHA trustee rather famously argued on a televised panel in 2005 that within five years all of these programs would be gone unless Congress passed legislation authorizing a federally recognized Hawaiian government.

We are special. We are the sinister reminder that one of the most blatant thefts of a country’s legal and recognized sovereignty in the last two centuries has been carried out by the nation that trumpets the loudest about its support of democracy and self-determination.

But opposition to federal recognition also comes from Hawaiian independence organizations that have grown over the past decade to occupy the visual and vocal center of the sovereignty movement in Hawaiʻi. In the summer of 2014, when the DOI conducted its “Advanced Notice of Proposed Rule-Making (ANPRM)” listening sessions, several thousand people in Hawaiʻi and the United States attended, with most of the testimony opposing DOI participation. The argument, quite clearly stated, was that Hawaiʻi had never been legally annexed, and had therefore been subjected to prolonged occupation by US government and military forces. Hundreds of people testified that Hawaiʻi should have its independence from the US restored, and that the DOI should not interfere with efforts to regain independence.

Which is what makes the DOI’s current claim that the testimony was overwhelmingly in favor of their rule-making process so astonishing. But even more bizarre is the rationale the Department offers for this conclusion. It is worth quoting:

As expressly stated in the ANPRM, comments about altering the fundamental nature of the political and trust relationship that Congress has established between the United States and the Native Hawaiian community were outside the ANPRM’s scope and therefore did not inform development of the proposed rule. (DOI, 24)

Here, Interior very clumsily sidesteps the fact that the reason for opposing federal recognition, declared by hundreds of testifiers, is that United States control of the Hawaiian Islands is illegal. Even if it disagrees with the rationale for the testimony, it is impossible to understand how the Department of the Interior could dismiss such a clear voice of opposition. It could perhaps say that it was not swayed by the testimony, but to insist that it should not be counted suggests a level of federal arrogance that will only invite ridicule.

Hawaiʻi does indeed have a unique relationship with the United States, as the only once-internationally-recognized state possessing treaties with many nations that became subject to a foreign seizure without cause or relief.  We don’t fit into the American republic’s neat little rationales for seizing Indian lands and subjecting them to American laws. And we also don’t fit the profile of primitive and vulnerable clusters of people needing the guidance of European laws and religion that other colonial powers used as a justification for turning other Pacific Islands into “protectorates” and colonies.

We are special. We are the sinister reminder that one of the most blatant thefts of a country’s legal and recognized sovereignty in the last two centuries has been carried out by the nation that trumpets the loudest about its support of democracy and self-determination.  But when the people of our nation came forth recently to speak the truth of this theft, our voices did not register with the Department of the Interior because our complaint is not handled by their department.

The DOI does however have a very significant role in designing a federal accommodation for a Hawaiian government that several state and private agencies have been working through the Kanaʻioluwalu enrollment and Naʻi Aupuni to create.  State legislation in the form of Act 195 (2012) recognized the Kanaka Maoli as the native people of Hawaiʻi, and called for a process to create a governing entity that could be recognized by the US government. Under this law, the Office of Hawaiian Affairs was required to fund the enrollment and the execution of the convention. According to various sources, including the Grassroots Institute and the Hawaii Independent, OHA has spent more than 4 million dollars on the enrollment, and has committed 2.8 million dollars for the election of delegates and the conducting of the eventual convention.

So what will the DOI rulemaking permit an agency like Kanaʻioluwalu and its mutant sister NaʻI Aupuni to create?  As it turns out, not much. Beyond its insistence that the form and formation of the reorganized government must be a Native initiative, the DOI rules make it very clear that the result will be a federally recognized government in which the participants—one cannot call them citizens—must be Hawaiian and must include strong participation from those Hawaiians who qualify for Hawaiian Homelands. Discarding the Independents’ argument that the Kingdom of Hawaiʻi was a multi-ethnic nation-state that did not discriminate on the basis of race might be necessary to the DOI’s struggle to fit the Hawaiian nation into the model of Indian tribes, but only the most jaded individuals will fail to be discomfited by such hypocrisy.

This scam would be less easy to pull off if Hawaiians had not been lulled into believing Kanaʻioluwalu’s and Naʻi Aupuni’s endless claims that participation in the Hawaiian roll could produce any future nation that we really wanted, including independence from the United States. But in the wake of the DOI announcement, one thing is clear. If the DOI and the Native Hawaiian Convention join together, we will see the emergence of a governing entity whose lands and resources will have to come entirely from the State of Hawaiʻi

Section 50.44(f) makes clear that reestablishment of the formal government-to-government relationship will not affect title, jurisdiction, or status of Federal lands and property in Hawaii. This provision does not affect lands owned by the State of Hawaii or provisions of State law. See, e.g., Haw. Rev. Stat. 6K-9 (“[T]he resources and waters of Kahoolawe shall be held in trust as part of the public land trust; provided that the State shall transfer management and control of the island and its waters to the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii.”) (DOI, 48)

Naʻi Aupuni’s website does state that “Na‘i Aupuni has no relationship with the Department of the Interior and any rules it may adopt will not limit the delegates’ political options at the ‘Aha.” Given that, Naʻi Aupuni should go farther than this statement, and categorically reject the DOI rules. And in any case the DOI leaves the option of seeking federal recognition through its rules up to whatever governing entity is created:

Moreover, if a Native Hawaiian government reorganizes, it will be for that government to decide whether to seek to reestablish a formal government-to-government relationship with the United States. The process established by this rule would be optional, and Federal action would occur only upon an express formal request from the newly reorganized Native Hawaiian government. (DOI, 39)

Perhaps the Naʻi Aupuni conveners have already realized that options for the new government are now fairly clear with the DOI announcement. If that government is designed to require federal recognition, then the cards are stacked against achieving very much in the way of resources from the US because the DOI has explicitly stated that the Hawaiian “tribe” is not entitled to the same benefits and resources that are available to American Indians. (DOI, 36)

Despite Naʻi Aupuni’s assurances that the creation of an independent government is on the table for this convention, I suspect that the conveners and many of the some 30,000 individuals who actually signed the Kanaʻioluwalu roll were probably just looking for some federal protection of existing Native Hawaiian programs and entitlements from any new lawsuits. And a close look at the DOI rules reveals that such protection is actually the only thing that federal recognition offers, though perhaps some enrollees are hoping that this new government will be able to wrest new resources from the Feds, and a better ceded lands arrangement with the State.

One thing is clear. A Native Hawaiian government that would assume control of all OHA resources and responsibilities would at least be free of legislation like Act 195, which requires OHA to pay, both financially and politically, for the roll and for the convention. Even I have to admit that this would be an improvement. But 6.8 million dollars is an expensive quick fix, and one proving to be tremendously divisive in our community. 

The irony that a re-organized government was supposed to establish a unity in the Hawaiian community should not be lost on us. In fact, this process has been divisive from the beginning, in large part because of the legislative origins and wording of Act 195, which mandated explicitly that the goal of this process is to create an entity that can be granted federal recognition. Hawaiians seeking independence were never going to consent to such a government, and what is proving even more divisive now is Naʻi Aupuni’s declaration of independence from Act 195, and its assurances that independence is a possibility. As some independence activists suddenly enroll to run as candidates for the convention, alienating those of us who stand firm against it, one cannot help wondering whether the Fed Rec enrollees are starting to feel similarly betrayed.

It is unlikely that this election of delegates and the resulting convention can be halted. The neo-con Grassroots Institute lawsuit will surely fail, as it deserves to. What will be interesting is whether the convention will understand how limited its gains will be through federal recognition, and how difficult it will be to break for independence. Perhaps the conveners have anticipated and planned how to address the deep divisions among the delegates likely to appear. But if the convention were to create a government independent from the United States, I have to wonder how will it sell that to the nearly one million residents in the Hawaiian islands who are not Hawaiians, and have not been able to participate in any of this.