Here is my presentation video on “What is Na’i Aupuni’ as of Oct 30, 2015. I’ve had to research extensively over the past 3 months, and beleive it could also be useful to Hawaiians before voting, not voting, or disenrolling in Na’i Aupuni.
Here is my presentation video on “What is Na’i Aupuni’ as of Oct 30, 2015. I’ve had to research extensively over the past 3 months, and beleive it could also be useful to Hawaiians before voting, not voting, or disenrolling in Na’i Aupuni.
I was interested to follow up on the recent assertion by Robin Danner to Kalama Niheu:
Robin Danner: These are your claimed positions. Show us how independence is blocked by federal recognition. I need not provide anything – I’m not the one that is making a claim about blocking independence. I merely stated your claim to be false, because there is no evidence that it is true.
I have myself asserted this claim in the recent past, so I on took the effort by reviewing the Dept. of Interior’s (DOI) Proposed Rulemaking released Sept. 29, 2015. This is the “offer” on the table for a future “Native Hawaiian Governing Entity”.
To be granted Federal Recognition, a Native Hawaiian Governing Entity must formally request it and comply with the DOI Rule’s 8 criteria and 7 elements, stated in § 50.16. Implicit in this is that the Governing Entity accepts the terms of the contract that the Department lays out in the same document. It can be read here under “NRPM”: https://www.doi.gov/ohr/hawaiian-govt-to-govt-procedures-proposed-rule
Here are the terms of the deal:
§ 50.43 What does it mean for the Secretary to grant a request?
When a decision granting a request takes effect, the requester will immediately be identified as the Native Hawaiian Governing Entity (or the official name stated in that entity’s
governing document), the special political and trust relationship between the United States and the Native Hawaiian community will be reaffirmed, and a formal government-to-government relationship will be reestablished with the Native Hawaiian Governing Entity as the sole representative sovereign government of the Native Hawaiian community.
What this means to me: the DOI will only make a “Fed Rec” deal with a single entity. If that entity wants to subdivide its authority as it sees fit, fine. But the U.S. will make a gov-to-gov deal with Native Hawaiians once and only once. I think its reasonable to think this would mean any future NH group seeing Independence via the State Dept. would not be recognized because they already made a deal with a Native Hawaiian government.
But could this one Governing Entity later switch from “Federal Recognition under DOI” to “recognition as a Nation-State by U.S. State Dept.”? Let’s see…
§ 50.44 How will the formal government-to-government relationship between the United
States Government and the Native Hawaiian Governing Entity be implemented?
(a) Upon reestablishment of the formal government-to-government relationship, the Native Hawaiian Governing Entity will have the same government-to-government relationship under the United States Constitution and Federal law as the government-to-government relationship between the United States and a federally recognized tribe in the continental United States, and the same inherent sovereign governmental authorities.
(b) The Native Hawaiian Governing Entity will be subject to Congress’s plenary authority.
Now, please understand “i am not a lawyer”, so I will rely on Wikipedia a bit for my references on U.S. and Federal Indian/Tribal law: https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States
First, DOI says “reestablishment” of the formal government-to-government relationship. That implies the deal is taking over from the prior Treaty relationship between the Kingdom of Hawaii and the United States. This is a renegotiation of the Treaty terms from before the 1893 overthrow.
Second, DOI states the NH Entity will have the same relationship that other federally recognized tribes have, and the same “inherent sovereignty”. Briefly, under U.S. law, “inherent sovereignty” comes directly from consent of the governed, but only for powers not reserved by the Federal or State governments. Clearly a “domestic dependent nation” situation.
Now, “inherent sovereignty” still means we could assert sovereignty in a limited way, but not in any way which goes against the U.S. Federal and State law. On the other hand, if a Hawaiian nation were to assert sovereign rights at the International level, or at levels within U.S. territory under Federal law, we would already have agreed to the “inherent sovereignty” deal. That would include law such as Newlands Resolution/Act of Annexation, which the U.S. currently considers lawful, notwithstanding that the lawful way to acquire territory was by treaty of annexation.
Third, “subject to Congress’s plenary authority”. Huh? This is a big one.
Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
This asserts Congress has full power over tribes. It may override the Native government and even the Executive branch. This legal doctrine (upheld in United States v. Kagama), although called unconstitutional in past cases, it currently considered “good law”, in that is it enforceable in the courts. It has led to laws destructive to Native peoples, such as the Dawes Act, which broke the cohesiveness of tribal governments and dispossessed them of their lands.
I would like to bring attention to another detail: US Public Law 103-150 (Apology Law):
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;
This is key, because we never gave up claim to our NATIONAL lands through referendum. Now, if there is a NH Governing Entity created via referendum, and that entity “signs off” on this Federal Recognition deal (which states clearly we get none of our national lands from U.S.A., only Kaho’olawe which the State of Hawaii already agreed to give up), then that could be construed as giving up our claim to national “ceded” lands.
In addition, we would be settling for “inherent” sovereignty, giving up “national” sovereignty.
Now, one avenue worth pursuing is to request clarification from DOI and/or the State Dept:
So if you’re keeping score, here’s where we are on “how independence is blocked by federal recognition”:
With this Fed Rec deal, we give up all our leverage, get nothing in return. Then the State of Hawaii will be ready to “negotiate” with us.
Now, i’m not a lawyer, but at this point in my life, i think i know how to read a contract. Any lawyers out there, want to review my analysis?
A hui hou,
-Raul Nohea Goodness
Update: Z. Aki addressed this issue in the Hawai’i'imiloa: Status of the Hawaiian State FB Group post on Fed-Rec by referencing a legal treatise:
OHA recently contracted some brilliant minds in international law to compose a treatise on law and policy relating to Kanaka Maoli. The document can be accessed here: http://www.oha.org/…/upl…/OHA-IPLP-Report-FINAL-09-09-15.pdf
At the end of page 24 (and beginning of 25) the authors state,
“By contrast, implied acquiescence to U.S. sovereignty could be interpreted as prejudicing the claim for restoration of the Hawaiian monarchy and an independent Hawai‘i, insofar as that claim relies on the assertion that the U.S. presence in Hawai‘i is today illegal. …”
Below are my comments i am sending to the Dept. of Interior’s “Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community”. https://www.doi.gov/ohr/hawaiian-govt-to-govt-procedures-proposed-rule
This is targeting a specific participation requirement for Federal Recognition, not addressing the history of our 200 year relationship.
If you agree, please submit the same comments or your own comments under your own name by Dec 30, 2015. http://www.regulations.gov/#!docketDetail;D=DOI-2015-0005
Subject: The “affirmative” voter participation threshold should be 55,000 to 90,000, not 30,000 to 50,000
The minimum “affirmative” voter participation threshold to accept a formal request for Federal Recognition should be 55,000 to 90,000, not 30,000 to 50,000. Referring to criteria § 50.16 (g).
The Dept. of Interior (DOI) calculations of voting age Native Hawaiians is based on census data of 527,000 in the U.S. and 290,000 in the State of Hawaii. 65% are voting age, so 65% of 527,000 = 342,550. 65% of 290,000 is 188,500.
“But those figures do not include Native Hawaiian voters who reside outside the State of Hawaii, who also could participate in the referendum; the Department believes that the rate of participation among that group is sufficiently uncertain that their numbers should be significantly discounted when establishing turnout thresholds.” pg.43, NPRM Part 50 9.29.15
Even if the DOI cannot calculate the voter participation numbers for mainland Native Hawaiians, that doesn’t mean they should be discounted. We are Native Hawaiians, and we are recognized as U.S. Citizens of voting age.
DOI’s expected participation rate is between 60,000 and 100,000. So the minimum “affirmative” threshold to show community support will be 30,000. If you factor the total Native Hawaiians of voting age in the U.S. the correct minimum “affirmative” voter participation threshold should be 30,000 / 188,500 x 342,550 = 54,517 votes. The top range should be 50,000 / 188,500 x 342,550 = 90,862 votes.
55,000 votes in the “affirmative” for ratifying a Native Hawaiian Governing Entity document must be the minimum number for the Secretary of Interior to accept a formal request for Federal Recognition. Anything less will fail “to demonstrate broad-based community support” and should be rejected outright. The reasonable total demonstrating “broad-based community support” should be 90,000 affirmative votes.
by Raul Nohea Goodness, October 11, 2015
So many Hawaiians are seeking clarity around the effort to create a Native Hawaiian Governing Entity with the Naʻi Aupuni. This is understandable, since there has been little public discussion of the facts and issues involved. I had the same questions when the process kicked off August 3, 2015, when election notices were first sent out. Here, I will share some of what I learned, facts as well as possible actions. I hope we can inform ourselves on what we, the lāhui, can do today about it. We all can make our own decisions on what comes next.
Na‘i Aupuni is an independent organization made up of a volunteer board of directors from the Hawaiian community. It exists solely to help establish a path for Hawaiian self-determination.
In 2011, the State of Hawaii passed Act 195, which created the Hawaiian Roll Commission, aka Kana‘iolowalu. First, Native Hawaiians could sign up directly, then in 2013 names from other lists (OHA Registry, Kau Inoa) were added to the list. This is significant because the intention of the creators of the process is to have a government with “standing” or “authority” to legitimately take actions to request federal recognition from the U.S. State Dept. of Interior, and to negotiate/settle claims over the land trust with the State of Hawaii.
October 15, 2015: Voter Registration by the Hawaiian Roll Commission closes.
November 1, 2015: Ballots will be sent to voters certified by the Roll Commission as of 10/15/15.
November 30, 2015: Voting ends.
Between February and April 2016: ‘Aha (Constitutional Convention) held on Oahu over the course of eight consecutive weeks (40 work days, Monday through Friday).
Two months after ‘Aha concludes: If delegates recommend a form of Hawaiian government, a ratification vote may be held.
Although federal recognition is one likely outcome, theoretically the delegates to the convention could propose another form of government, such as an independent government based on reclaiming Native Hawaiians’ National Sovereignty.
The term “Federal Recognition” may sound good to some ears, because recognition as a Native Hawaiian is a “good thing”, right? The fact is, Native Hawaiians are already recognized as having special status under U.S. Federal law. None of that changes without an act of Congress.
The term “Sovereignty” is sometimes used in the discussion to create a “government-to-government” relationship with the U.S. Dept. of Interior. U.S. law considers tribal governments as “dependent” governments, and reserve full authority for the Congress over those governments.
The Department of Interior (DOI) proposed rules released September 29, 2015 spell out exactly what would happen if a Native Hawaiian government requests and receives federal recognition:
Here’s what we give up:
National Sovereignty is the exercise of sovereignty at the level of the nation-state. This first happened in Hawaiʻi when Kamehameha united the islands in 1810 and asserted full political, economic, social, and cultural sovereignty over those lands.
In 1842, Hawaiʻi was recognized as an independent Nation-state by the U.S., and recognized in 1843 by Britain and France. This is what is unique about Hawaiians– we were recognized as having National identity.
The U.S. Public Law 100-606 defines a ‘national group’ as a “set of individuals whose identity as such is distinctive in terms of nationality or national origins”.
National Sovereignty and Federal Recognition are incompatible. One is a nation-state at the international level, and the other is a dependent government under the U.S. Federal system.
Today, Hawaiians still retain their National identity, we never surrendered it. But we do not yet have a means to exercise our National Sovereignty.
Historically, the Kingdom of Hawaiʻi was the government of Hawaiian Islands from 1810 to 1893. The form of government was a Constitutional Monarchy. Today, that government is no longer operational. For some, the Kingdom still exists. Practically, the National Sovereignty of the Hawaiian Nation-state would need to be re-established first. However, typically if a nation is considered a successor state to a prior nation, it can form a new government system if it is created from a legitimate, recognized process. It will be up to Hawaiians today to decide that.
In many cases internationally, new governments and constitutions are created to continue or re-establish a successor state. It does not have to have the same government that existed previously.
Federal Recognition under the Dept. of Interior
The delegates could draft a Governing Document to be voted on by Native Hawaiians via referendum. It would match all the criteria required by the U.S. Dept. of Interior, leaving only a formal request by that government to grant “Federal Recognition”.
The request would be the first time Native Hawaiians have voluntarily surrendered their claims for National Sovereignty as a nation-state in the international system.
Declaration of National Sovereignty
Delegates could draft a statement of intent to reclaim Independence / National Sovereignty. This could be part of a path to an independent government, separate from the State of Hawaii and Federal government.
Declaration of “no authority” or “limited authority” and a new process for Nation-building
In light of the rushed schedule for Na‘i Aupuni, the lack of participation in Kana‘iolowalu, and the lack of free prior informed consent, delegates could declare they do not have authority to draft a constitution, and instead propose a new process which includes all Kanaka.
No document (Status Quo)
There could be no governing document created or statement created. The current state of affairs will proceed.
Raul Nohea Goodness is a Kanaka Maoli Software Architect and Developer raised in Wailuku, HI, and currently residing in Brooklyn, NY. He is registered to be a delegate candidate to the Na‘i Aupuni ‘Aha from outside Hawai‘i. www.hekili.net
One playbook for being counted while protesting: 1897 Kūʻē Petitions Protesting Annexation
The Kūʻē Petition effort served as a practical instrument for effective representative resistance, suited for the particular needs of the time and place. We find ourselves in 2015 and must meet the challenge right now! Find a way to be counted independently, and use that for our united goal: Aloha Aina!
Here i describe the process to register as a delegate to the convention called by the new entity Na‘i Aupuni.
In my prior post A Call for Nomintating Naʻi Aupuni Delegates to Preserve Hawaiian Unity – Guard Against Unrepresentative Action, i explain my reasons for doing this. However, since one of my aims is to simply make this (or any future process) more truly representative of Kanaka Maoli and (descendants of) Hawaiian Nationals, this guide is for anyone trying to enter in the same process in the next couple weeks.
Election Notice (email)
First, i received an email on Aug 3 from Election Administrator <email@example.com> , Subject: “Election Notice”
These are the links in the email:
The body of my second email from them contained the Election Code and PIN. You use this to log in to the election system. Note, the first email i received was exactly the same, but missing the Election Code and PIN. They must have send a second email to correct the mistake. Note, my second email was in my “Spam” folder, so i didn’t see it for a couple weeks. If you are missing it, check your “spam” folder.
As for anyone added to Kana’iolowalu without registering directly on their website (your name was added from another list?), i don’t see how you would get an email. Maybe they would send you a mailer via the post office? You should email firstname.lastname@example.org . If they cannot help, they are not doing their job as the contractor hired by Na’i Aupuni to implement the elections (with your $$$ from OHA).
If you want to register but not agree to the language “unrelinquished sovereignty of the Native Hawaiian people and an intent to participate in the process of self-governance”, supposedly you can still register thru the Roll or via OHA’s Registry: http://www.oha.org/registry. You can also try the Kanaʻiolowalu Kōkua Desk.
When you log in, you will see the “Required Information” form, which displays your Name, Address, Phone, Email. There is a section to update your Mailing Address and phone number. Also, you may upload a picture/image file of yourself.
I updated my address as well as uploading a picture (i assume it could be used in a voter guide, but it doesn’t say what it is for at this point). When i selected the JPG file for upload, i thought it didn’t work, but a minute later, the picture appeared – just give it a minute or so, depending on the size.
I click the “Next” button. The text under says: Once you have submitted this application you will receive an email confirmation within 1 day. If you do not receive this confirmation please contact email@example.com.
Next page: Eligibility Criteria
You have to agree to attend the 8 weeks for the Con-Con from Feb-April 2016. Yes/No.
Also enter your date of birth. I say “Yes” (i have reasonable flexibility with my employer).
Next page: Optional Information
Please answer the following questions. Please note that answers to the questions below will be made public for delegate candidates.
I assume this is going directly in the voter guide. These seem to be typical questions for candidates to answer, except for the “criminal record” item. In a US Federal or State election, there would be some statutory requirements regarding criminal record of candidates. But this is part of a “new” convention, which may or may not form a “governing entity”. So there is no statutory requirement. I guess that is why the questions are optional. In my case, i do not have a criminal record, but if one did, it would not be disqualifying. But people would want to know, as well as understand the reasons. I will leave it blank, as criminal records are usually public record anyway.
In the Election Notice, http://naiaupuni.org/docs/
… it states:
b.optional information relating to Hawaiian ancestry, educational background, employment history, criminal record and a personal statement limited to 300 words.
However, on the web form, the limit is 600 characters. It is in no way possible to fit 300 words into 600 characters. It is about 100 words. Please increase your field size limit as soon as possible. There is no way to put a meaningful statement to voters in that space. So i have to add the statement;
A statement of 600 characters is far too small for voters to make decisions. Go to http://forums.hekili.net/c/elections to view candidates true statements.
These kinds of shenanigans are exactly why we need our own open sites for dialog and organizing. Any delegate candidates can go to forums.hekili.net today and submit their full statements.
OK, i enter all the details, Save, and go to “Next”.
Next page: Nominations
Please enter the names of ten eligible voters that you hereby represent have in writing nominated you as a delegate candidate.
Once your application has been successfully received. You may review the application but not make changes.
So this is where we submit names of people who nominate you. It is on you to get them to support you and have done it in writing. At this point, i will stop this post, since i do not yet have the 10 supporters. But it is clear the registration is not complete until then.
I hope this is helpful to any and all potential delegates to the Naʻi Aupuni convention. Please share with all who want to break open this process!
-Raul Nohea Goodness
Update: since there is no written form supplied for the 10 names to nominate, i created one myself. Download it here, print out copies for people to sign, or else have them. PDF version and Word docx version.
Update 2: there is a new forum at http://forums.hekili.net/c/elections where potential delegates may solicit nominations, and supporters may pledge to support.
Update 3: here are the last steps in the process, just for completeness:
On Sept 14, 2015, i logged back in to enter my 10 supporters for nomination. I noticed the personal statement field size was increased from 600 characters (about 100 words) to 1200 characters (about 200 words).
I entered my 10 supporters names, who i had previously checked against the kanaiolowalu.com/list and also had letters in writing. This is another situation where this process deviates from generally accepted election systems. Normally when a candidate files nomination papers, they do need to include a minimum number of signatures. However, in the Na’i Aupuni case, 10 are required (minimum), but only 10 slots are available for submission. This means if any one is contested and invalidated, the nomination can be invalidated.
For my own submissions, there were a couple cases where the legal name on Kana’iolowalu was incorrect (typo). In those cases, i listed the correct legal name. We shall see what happens…
In contrast, typical nominations list a minimum number of signatures, but allow and encourage more than the minimum, since some are expected to be invalid.
The State of Hawaii’s Signature Requirements are listed here:
Candidates are encouraged to file early and obtain more signatures than required in anticipation of invalid or unqualified signatories. Once a nomination paper is filed, candidates will not be allowed to add more signatures.
So this is another irregularity in the electoral process to contest, possibly leading to the invalidation of potential nominees.
Continuing on, after submission, you must declare the information submitted is correct:
Next, this is the final submission, after which no changes may be made:
After submission, you receive a final “thank you” page, and an email copy of the submission.
I leave this step–by-step posting for the historical record.
Today, i launched Hekili Forums / http://forums.hekili.net – a site intended for Native Hawaiians / Kanaka Maoli and Hawaiian Nationals to discuss issues surrounding forming a legitimate government, regardless of the mechanism or process.
Secondly, it can also be used as a central, public forum for potential delegates to declare themselves as candidates for delegates to the Con-Con / ‘Aha organized by Na’i Aupuni
This site is non-commercial and always will be. It is my kuleana. I invite community members from different groups to help build this site together.
Mahalo Nui Loa to Ryan S. and Pi, who inspired the idea for online discussion forums for these issues.
This site is a tool intended to assist in the path towards unity for kanaka maoli and Hawaiian people.
More specifically, I am compelled to look for a path toward Hawaiian unity, good governance, and preservation and growth of our shared assets, in order to reassert our independent control of our culture, lands, and our people’s future.
The issues at hand today in August 2015:
These are the recent formal steps taken by the State of Hawaii and the U.S. Federal government. Their desired outcome is to declare Native Hawaiians as indigenous people, and create an explicit “trust” relationship over us, but implicitly it ignores the more significant history of the relationship between the Kingdom of Hawaii and the U.S. as equals. These forces are going forward and are now getting ready to “check the box” of the consent of Native Hawaiians. It will go forward unless we are engaged to stop it, from inside and out. I am just a regular working guy until now, but I find myself “in” now because Na’i Apupuni emailed me to nominate delegates (with no info or tools on organizing around anything).
I do believe Hawaiians must find a way to work together and re-form our nation. That nation should be pono - representing all hawaiians who should be a part of it. In that spirit, i signed up for Kana’iolowalu in good faith, knowing the process was imperfect. As it became more evident that only a fraction of eligible Hawaiians were participating, my concerns over a truly representative process grew. Further, the push by OHA to go forward with electing delegates for the ‘Aha caused me to understand there could be a new calamity approaching our people. Having signed up, i cannot let the the process go forward without participating to a better outcome.
I once learned practices are based on principles, and principles are based on values. We share the same values. Let’s take this as an opportunity to have a true dialogue, instead of talking at each other. But let’s not skip ahead to any “solution” without a true consensus.
The OHA-driven process is moving towards its initial desired outcome: federal recognition of Native Hawaiians as indigenous peoples, with a government-to-government relationship (within a nation). Putting aside the multiple reasons why a pre-cooked DOI solution is undesirable, the more significant point is that the process is not representative. Hawaiians who disagree (asserting the Kingdom of Hawaii’s continued independence) have largely chosen not to participate. Most have not. However, with the process going forward (with not much transparency), it becomes far more likely that a few people close to OHA will be forming a governing entity that would fast-track federal recognition and even transfer the Crown lands to this new entity. This is not a recipe for good outcomes, in any country. Maybe I’m wrong, but trust in each other is extremely low right now, and we need a path toward rebuilding it.
We were once united in a common culture, language, territory, and set of values, and that is the desired outcome. No one can be better stewards of our interests than ourselves. Let us unite first, and only later negotiate from a position of strength.
This is what i am calling for today, for the sake of unity:
How do we achieve trust while preserving our unity? Follow this tactical steps:
Even if i get no other nominations, i will provide a step-by-step guide of the nomination process on this web site shortly. I invite others to use this guide in the next weeks before the Sept 15 closing.
I am not part of any Native Hawaiian political organization, nor any US or State of Hawaii group. My career for the past 20 years had been as a Internet/Web Software Developer in NYC (resident of Brooklyn, NY, so i will be in the out-of-state group). I was raised on Maui until i was 18 and went to school in Massachusetts. I own and maintain my family home in Wailuku, Maui, and am a part-time resident. I just find myself in this place and want to do my part for the “true” Au puni.
If this approach speaks to your manaʻo, puʻuwai, or naʻau, please share with them.
Me Ke Aloha,
- Raul Nohea Goodness