On June 16, the Department of Interior released an advanced notice of proposed rule-making for “Procedures for Reestablishing a Government-to-Government Relationship With the Native Hawaiian Community” (43 CFR 50).

The notice gives the Native Hawaiian community 60 days to provide comments to address the following:

“The Secretary of the Interior is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is to solicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.”

In the wake of the turmoil related to the Office of Hawaiian Affair’s nation-building process, the notice feels more like battery than a consultation opportunity, but it’s an important development nonetheless.

Hawaiian flag at OHA  press conference

A Hawaiian flag is displayed at a May 12, 2014, press conference in support of Office of Hawaiian Affairs CEO Kamana’opono Crabbe.

PF Bentley/Civil Beat

People should read the notice and answer the varied questions — there are five threshold questions and nineteen general questions — that the Interior is seeking comment on.

Conceding that the processes that have been employed have alienated many Hawaiians, rather than engaging them, the reality is that the long difficult relationship between Hawaiians and the United States is overdue for redress.

History

In 1893, in the face of an armed threat by the U.S. military, which had landed ashore in Hawaii under false pretenses, Queen Liliuokalani, the sovereign authority of the Hawaiian Kingdom at the time, yielded her authority to the U.S. with the following statement:

“I Liliuokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.

“That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the Provisional Government.

“Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.” — Queen Liliuokalani, Jan 17, 1893 — as cited in U.S. Public Law 103-150 (1993)

The Queen then traveled to the U.S. to plead for corrective action that would return her authority. The U.S., under the leadership of President Grover Cleveland, ordered an investigation into the incident. The finding of this investigation was The Blount Report, which found wrongdoing on the part of U.S. citizens involved in the landing and overthrow. After the issuance of The Blount Report, a second investigation was conducted in 1894, which found the U.S. citizens referenced in the Blount Report “not guilty” of the accusations made in the first report. This second report is known as the Morgan Report.

The U.S. moved forward in an effort to formally annex Hawaii, which had been under the control of a self-appointed provisional government since the Queen yielded her authority in 1893.

The U.S. government attempted to pass a treaty of annexation in 1897, but was unable to secure the two-thirds vote from the Senate required to pass it.

Article II Section 2 of the U.S. Constitution governs the ratification of treaties, like treaties of annexation. The Constitution states: “He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”

The U.S. government attempted to pass a treaty of annexation in 1897, but was unable to secure the two-thirds vote from the Senate required to pass it. By then, Hawaiian nationals had rallied to lead a successfully lobbying effort in opposition to the annexation, amassing petitions from a large percentage of both Hawaiian and non-Hawaiian supporters of the kingdom, these are known today as the Kū‘ē Petitions.

In April 1898, the Spanish-American war began. Concerned about the growing conflict in the Pacific, Congress passed the Newlands Resolution in July 1889 “to provide for annexing the Hawaiian Islands to the United States.”

With this resolution, the U.S. attempted to do the following: “To cede absolutely and without reserve to the United States of American all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands…” (July 7, 1898, No. 55, 30 Stat. 750).

This resolution has been the foundation of the claims regarding the illegality of the annexation for over 100 years. Resolutions simply do not have the full force and effect of the required treaty of annexation, which was never secured by the United States.

Attempts at Redress and Recognition

Since 1893, Hawaiian nationals have continuously fought to restore their kingdom. While the intensity with which this effort occurred may have fluctuated, the struggle never stopped.

The most concentrated effort in modern history occurred in the late 20th century when, in the wake of the Hawaiian cultural renaissance, Native Hawaiians united to push their political efforts forward.

Community organizations like A.L.O.H.A. and Ka Lahui Hawaii led successful grassroots campaigns to educate modern Hawaiians on historical and political issues. The success of the effort can be seen today in the varied federal and state Hawaiian rights that were advanced under this era, like Article XII Section 7 of the Hawaii State Constitution, ratified in 1978, which provides for traditional and customary rights and the legislation, passed in 1993, in which the U.S. apologized for the overthrow of the Kingdom of Hawaii.

There is absolutely no justification for denying Hawaiians an opportunity to become fully educated on their history as to make informed decisions about their future.

In 2000, the U.S. Supreme Court made a ruling on Rice v. Cayatano, a lawsuit by long-active anti-Hawaiian community members that argued the Office of Hawaiian Affairs elections, which were only for Native Hawaiians at the time, violated the 14th and 15th amendments of the U.S. Constitution by being a race-based state voting process. This wasn’t the opposition groups’ first lawsuit, or their last, but it was the most successful. The Court found the elections to be a violation of the 15th Amendment, holding Native Hawaiians to be a racial classification.

The Court stated:

“However, even if Congress had the authority, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of the sort created here. Congress may not authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians to the exclusion of all non-Indian citizens. The elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. Morton v. Mancari, 417 U.S. 535, distinguished. Rice v. Cayetano, 528 U.S. 495 (2000).

This set in motion a discussion regarding forming a “quasi-sovereign” government for Native Hawaiians, as this decision essentially found that the existing model, which embedded OHA in the state government, to be problematic.

Efforts to establish federal recognition followed: first through the Akaka Bill, then through Hawaii State Act 195 (Native Hawaiian Roll Commission), and now rule-making.

Healing and Hope

Injustice is a wound, and wounds do only two things: they get worse or they heal.

The lingering injustice of the overthrow and the subsequent history of the Hawaiian people is an open wound; one that continues to worsen.

I honestly don’t believe that the people engaged in the varied efforts to resolve the issue have any malicious intent; rather I think there are a lot of people trying to find a suitable resolution. This issue is long-standing and complicated; therefore an obvious solution continues to evade everyone. The situation is wrought with emotion, reflective of the raw, open wound that plagues this community.

For above all else, we are a people in desperate need of healing.

There is little doubt that the varied entities leading these efforts, whether OHA, the Native Hawaiian Roll Commission, or now the Department of Interior, largely continue to miss the mark. Efforts have used corralling, rather than educating, as the primary mechanism to uplift the people.

The community continues to beg for educational opportunities on this issue. Those requested have been systemically rebuffed. There is absolutely no justification for denying Hawaiians an opportunity to become fully educated on their history so they can make informed decisions about their future.

I imagine a miasma of frustration and even anger will cloud these upcoming public meetings. It will diminish the opportunities these forums provide. With a week’s notice prior to the start of public hearings, the Department should expect nothing less. They deserve the frustration they will face.

They surely cannot believe they could create an environment of free, prior and informed input with only a week’s notice.

Nonetheless, the Department of Interior is here asking important questions, questions largely reflective of the ones the community has already been asking. That’s important to know. It means someone has been paying attention to the concerns that emerged from the Native Hawaiian Roll Commission process. That’s a good thing.

That’s a reason to hope that there is still opportunity to get the state and federal governments to stop their current events and hand nation-building over to the Native Hawaiian people where it rightfully belongs.

There is still hope.

And after over 120 years of injustice and frustration, now, more than ever, hope for the Native Hawaiian people must spring eternal.

Information on the upcoming meetings can be found here.

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