In case you haven’t heard, “Native Hawaiians” are in the process of creating a government to government relationship with the United States of America, similar to the status granted to Indian tribes. Though fraught with controversy from the very beginning, the main source of contention seems to be that only Native Hawaiians were allowed to vote for “delegates” to this “constitutional convention” or “aha,” thus violating the 14th and 15th Amendments to the U.S. Constitution, as well as well as the Voting Rights Act among other federal and state laws.
The reason for the rushed election and sense of urgency seems to be the looming end of the Obama Administration which has been sympathetic to limited self-determination for Native Hawaiians. The Obama Administration, correctly surmising that such a proposal would never get through Congress, instead created an “administrative procedure” within the Department of Interior that allows the DOI to recognize Native Hawaiians as a political entity rather than a racial/ethnic category, which would then nullify the Constitutional and legal issues surrounding the Hawaiian question. The legality of this “administrative rule” is questionable.
Things have become even more complicated now that the Supreme Court of the United States has already issued a temporary order for Nai Aupuni (a private organization created to facilitate the election and convention) not to count the votes in the election until the case is decided. In response, Nai Aupuni simply certified all 196 “candidates” (which was supposed to be narrowed down to 40 slots after the election) as “winners” in a sense, though technically our status was changed to “participant” and this is ostensibly a “private gathering” not subject to the 14th and 15th Amendments. The legality of this move, and whether or not it constitutes contempt of court, at a very minimum raises concerns, since State of Hawaii funds from the Office of Hawaiian Affairs were almost certainly used to fiance this entire process. The plaintiffs have already filed a motion for civil contempt against the State, OHA, and Nai Aupuni which will be heard tomorrow. Nai Aupuni maintains that because this is a private gathering, and not a government function or election, the 1st Amendment protects the right of participants to “peaceably assemble” and “petition the Government for a redress of grievances.”
The opposition to this process is rather diverse. The primary plaintiffs in Akina v. Hawaii are Joe Kent and Kelii Akina from the Grassroot Institute of Hawaii, a 501 (c) 3 non-profit think tank that promotes a mix of libertarian and conservative views. Their argument is that the election is race based and therefore discriminatory, and also in the case of Dr. Akina, that he is Hawaiian but does not agree to the political requirement of “affirming the unrelinquished sovereignty of Native Hawaiians.” Other think tanks such as the Cato Institute have previously voiced opposition to the race-based discrimination in the Akaka Bill. Some Native American tribes oppose federal recognition of Hawaii because they fear, as the largest “tribe” in America, Hawaiians would quickly take the lions share of federal funding.
Hawaiian Kingdom separatists oppose the measure because they believe that federal recognition of a “tribal government” will extinguish their claims to full sovereignty and independence. They claim that Hawaii is a sovereign and independent Kingdom that “already exists” under “international law,” and that Hawaii is currently being “illegally occupied” by America. This theory and the movement behind it are largely the product of a man named Keanu Sai, PhD., who claims to be the “Acting Regent” of the “Hawaiian Kingdom” (until recently when he decided to appoint himself as “Minister of the Interior” instead). Needless to say, there is no “Kingdom Government” (unless you consider a website and a piece of paper to be a government) and his “government” is about as real as the Dragons of House Targaryen. His shenanigans and frivolous lawsuit at the Permanent Court of Arbitration are well documented, but he is nonetheless very respected within the separatist community and his “legal theories” enjoy something of a cult-like status among followers.
The fact that this entire process is racially discriminatory is transparently obvious to anyone honest enough to admit the basic facts of the case. The term “Native Hawaiian” has many definitions, but in the context of Kanaiolowalu (the voter roll list) it means anyone with Hawaiian blood (even a single drop). This blood/ancestry/race/ethnicity/DNA requirement clearly discriminates against those who do not share this very specific genetic prerequisite to voting. Like Affirmative Action, one could certainly try to argue that it is justified discrimination, but not that it isn’t discrimination.
Many supporters of Nai Aupuni try to get around this fact by saying that Hawaiian is “more than a race” and “more than DNA” and that we share a common “ancestry” (same thing) or “culture” (too vague, and that’s not a voting requirement anyway). There was no “cultural” requirement for participation in this Aha, no need to demonstrate your fluency with the Hawaiian language or familiarity with Hawaiian culture, customs, and beliefs. Nothing of that nature. The only requirement was that you could prove that you are, in fact, genetically “Hawaiian” and that you affirm the “unrelinquished sovereignty of the Native Hawaiian people.”
I’m not gonna sit here and pretend like any of this is legal or constitutional because I’m not a Supreme Court Justice.. The truth is that OHA, a State Agency, provided funding to a private group (Nai Aupuni) which then organized an election, which was then struck down by the Supreme Court of the United States, after which the private entity declared all candidates to be “delegates” or “participants” to gather at a convention to decide the future for everyone else. A group of 196 un-elected tyrants who simply filled out a form online, are now supposed to write a “constitution” or governing document of some kind which establishes the form of government and its relationship to the United States government. All of this is of course based upon rules set forth by the Department of Interior. If this smells like bullshit to you, that’s probably because it is.
I’m not going to defend the legitimacy of this dog and pony show, but I will say that nothing about this process is inherently (on average) “less legitimate” than the formation of any other government in history, including both the “Kingdom of Hawaii” and the United States Government. Let’s compare:
The “Kingdom of Hawaii” was the product of an inter-island power struggle among feudal warlords known as “alii” who came from the upper classes of Hawaiian society. One of these “alii” or “lords” eventually defeated the other chiefs and was proclaimed Kamehameha I, beginning the Kamehameha Dynasty. He declared himself ruler of all “Hawaii.” The new government was modeled after European monarchies (the concept of monarchy and nationalism was itself a foreign introduction), and new economic systems and concepts were introduced to Hawaii. Eventually, a group of western businessmen overthrew the monarchy and declared The Republic of Hawaii. The Republic of Hawaii was then annexed by the United States as the Territory of Hawaii and later achieved Statehood. Note that the legitimacy of every government that has ever existed in Hawaii is flimsy at best. The Kingdom through war. The Republic through coup. The Territory through “annexation.” The vote for statehood was arguably the most semi-legitimate process that Hawaii has ever experienced, but it was only an option between territorial status and statehood, not full independence.
Now let us look at the United States of America, which was created through an act of revolution and a Declaration of Independence from Great Britain. In the same revolutionary spirit, Southern states attempted to secede from the United States, resulting in the American Civil War. The principles of the Declaration of Independence were abandoned in favor of Unionism, or the doctrine that once a “state” joins the “United States” it may never leave, and this has been the dominant view of the US government ever since that time; a doctrine created through pure, raw force and violence. Simply put, the “legitimacy” of the US government in Hawaii is based upon the principle that America will go to war with any state that tries to secede, considering it to be an act of treason and subterfuge.
Thus, when comparing Nai Aupuni to every other government that has ever existed in Hawaii, it’s definitely not any less legitimate than the alternatives. Certainly no less legitimate than OHA, the State of Hawaii, or the US Government for that matter, which is in blatant and open violation of both the United States Constitution and international law. It is certainly no less legitimate than the half dozen or so “Kingdom” splinter groups like the “Lawful Hawaiian Government” or the “Kingdom Government” under “acting regent” Keanu Sai or the various claimants to the Hawaiian throne. When put into perspective, Nai Aupuni seems to be standard operating procedure here in Hawaii. No more or less legitimate than any other “government” entity.