Tag Archives: naiaupuni

Proposing a referendum vote before approval of Federal Recognition

Proposing a clause in the Na’i Aupuni ‘Aha governing document (and any other) to require a referendum vote BEFORE a future Hawaiian government makes a formal request for U.S. Federal Recognition (under the Dept. of Interior rules).

The reason? If a government is created, the Executive committee stated the future Executive will be empowered to request “Fed Rec” from the Dept. of Interior, ratified by the future Legistlature. That means if you are Hawaiian, you will NOT ever be specifically asked if you want to integrate sovereignty with the U.S. You could then be forced to start doing all your interactions as a Hawaiian to the U.S. Federal government through this new entity being created.

Currently Hawaiians ARE recognized by the U.S. via the Hawaiian Homestead Commission Act (HHCA), and over a hundred other laws. There are many disadvantages to changing to go under the DOI in the future, and deserves a full public education, debate, and discussion of the issues before signing off. If a requirement for referendum is not added, the input of the Hawaiian people would likely be ignored.

For those who are pro-Federal Recognition, there would also be the benefit of making the approval of any Hawaiian governing document more likely to be approved. There is little trust from the community in the Kana’iolowalu / Na’i Aupuni process, largely due to the fear that a new government will be empowered immediately to take action without limit on behalf of all Hawaiians.

If there is a limit on the government power to get U.S. Federal Recognition (until approved by voter referendum), then it would actually have the time to build trust and convince Hawaiians it can be trusted to be the primary political entity for us. No matter what method Hawaiians come together politically, this stage will be needed.

Currently, these are the steps required for a Native Hawaiian Governing Entity to request and receive U.S. Federal Recognition (under the current DOI proposed rule):

  • Create a governing document (which ‘fits’ the DOI rule requirements)
  • Send it to Native Hawaiians to vote to accept/reject it via referendum vote
  • The governing document vote must pass, and the ‘yes’ votes must have “broad-based support” (more than 30,000 to 50,000 votes)
  • Populate the government positions based on the document (elect Executive and Legislators)
  • Executive may write a formal request for U.S. Federal Recognition (submitting a letter on how the government was created)
  • If the Secretary of Interior approves the request, the Native Hawaiian Governing Entity is granted Federal Recognition as a native government, similar to tribal entities. However, with no land transferred or any other claims or negotiation in advance. No opportunity for voters to approve.

I am proposing adding a simple step to the governing document:

  • Any formal treaty or request to integrate sovereignty with another sovereign entity (including U.S. Federal Recognition) shall first be approved through a referendum of all recognized voters, without exception.

referendum-proposal-fedrec

By putting aside the most controversial issues for our lahui, we allow any future Hawaiian government time to build trust and respect of our lahui.

Mahalo nui for your consideration.

- Raul Nohea Goodness

A Proposal for Hawaiian Elections and Political Cohesion

by Raul Nohea Goodness, January 31, 2016

    1. Background

In February 2016, the new non-profit corporation called Na’i Aupuni is convening an ‘Aha for Hawaiians for the purpose of writing a constitution or governing document for a Hawaiian government.

The participants initially were to be elected delegates, and did stand for election via a process completely run by an outside contractor (Election America) which implemented the process of candidate registration and voting for delegates, via Internet voting and mail voting. There were no in-person polling places, and no planned oversight of the voting tabulation.

During the voting in November 2015, the U.S. Supreme Court ordered a stay on the vote counting and certification of the election (Akina v. Hawaii). In December 2015, the Na’i Aupuni directors declared the election canceled, and proposed an ‘Aha consisting of the unelected candidates. Although now not vested with any electoral authority, these participants are still being asked to create a constitution for a Hawaiian government, based on the principle of self-determination. This constitution would be voted to be approved or rejected by the registered Native Hawaiian voters (possibly with the same Kana’iolowalu voter roll which the U.S. Supreme court stopped vote counting on).

This proposal is a political one, not a legal case. I hold that we Kanaka Maoli and descendants of Hawaiian Nationals should determine our own path in the political realm together.

Please not that although I am proposing this in the context of the Na’i Aupuni process in 2016, it would likely be the same proposal for any other Hawaiian nation-building process, whether state-sponsored or grassroots.

    1. Rationale for a Hawaiian voter list which expands or replaces Kana’iolowalu

In 2011, the State of Hawaii passed Act 195, which created the Native Hawaiian Roll Commission (aka Kana’iolowalu).

The purpose of this Act is to recognize Native Hawaiians as the only indigenous, aboriginal, maoli population of Hawai‘i. It is also the State’s desire to support the continuing development of a reorganized Native Hawaiian governing entity and, ultimately, the federal recognition of Native Hawaiians.

It created a commission to register and certify people of Hawaiian ancestry which predates the arrival of Europeans in 1778. Furthermore, it required political and cultural affirmations, in order to sign up:

  • I affirm the unrelinquished sovereignty of the Native Hawaiian people, and my intent to participate in the process of self-governance.
  • I have a significant cultural, social or civic connection to the Native Hawaiian community.

After the roll was open for 2 years, it failed to attract anywhere near the goal of registering 200,000 people. Reported numbers were in the 20,000 to 40,000 range.

Reasons for the low participation rate may include the following:

  • Lack of trust by Hawaiians in the State-driven nation-building process, especially after the failed effort to create a government through a joint resolution (the Akaka bill)
  • Disagreement with the specific affirmation to create “governing entity”, due to disagreement with the expected outcome – U.S. Federal Recognition of that entity under the Dept. of Interior, similar to other Native tribal governments
  • Disagreement with the exclusion of Hawaiian Subject descendants, since they have the clearest claim as the wronged parties to the overthrow of the Kingdom and dispossession of their nation, their land, their language and culture.
  • Lack of effort in engaging the public in the substantive issues involved in nation-building.

When the State passed Act 77 in 2013, it transferred names from the OHA Registry and the DHHL list to Kana’iolowalu voter rolls. This action increased the voter roll to above 120,000 names. This is significant, because any election needs to demonstrate broad-based support from the Native Hawaiian community in order to show legitimacy. The action additionally served to reduce trust in the process, since many of those people intentionally did not sign onto Kana’iolowalu, intending not to validate the rush to Federal Recognition.

When Na’i Aupuni directors planned their elections, they specifically decided to recognize only the Kana’iolowalu list. They specifically rejected the use of any other registry or list.

The nature of the State-driven and OHA-sponsored nation-building process (having U.S. Federal Recognition as a stated goal) has set back the process of Hawaiian political organization for many years. Many other historical facts have become known to us over the past 20 years– our decisions today should be informed by them. By making a controversial outcome the goal– one which is either not generally accepted nor understood by Hawaiians– has alienated many from the process. I accept many have supported Federal Recognition for fair reasons on principle or just tactically. However, even if that turns out to be the best choice for us in the near future, it cannot be done by bypassing the majority of Hawaiians who have stayed out of Kana’iolowalu and Na’i Aupuni due to a lack of trust or understanding. They must be brought in before a referendum vote is held, and it must be an informed vote.

We should come to the conclusion soon that Hawaiians are in one wa’a – the same boat. Forward progress must come together.

    1. What is the alternative to Federal Recognition right now?

A common question from the pro-”fed rec” camp is: “what is the alternative?”. The intent of the line of argument is to present the alternatives as impossible, thus leaving Federal Recognition as the road to take– immediately– while the Obama administration is still in place.

Basically, the arguments boil down to:

  • There is no existing legal process for an Independent Nation-State which can compel enforcement on the U.S., either thru de-occupation or thru de-colonization.
  • There is an existing U.S. legal process for granting “Inherent Sovereignty” (a legal term in the context of Federal Indian law) to Native Hawaiians based on indigenous rights. Let’s get what we can now, because we may get nothing in the future.
  • Existing Native Hawaiian Federal programs need to be protected from lawsuits.

The arguments against “Fed Rec” include:

  • We have a Nation or Kingdom already, which was suppressed. Hawaiians never surrendered sovereignty. There is no treaty of annexation. Requesting Federal Recognition under the U.S. Dept. of Interior (DOI) will surrender those claims, or make them very difficult to assert.
  • The offer proposed for Federal Recognition includes no land transfer at all (no land base for our nation) except Kaho’olawe. We receive no new Federal benefits other than what we already have. In return, Hawaiians as a group agree explicitly to go under U.S. sovereignty for the first time ever.

Leaving aside the many arguments for and against (which there are many), there is a more problematic truth to these debates:

  • If Hawaiians cannot form a cohesive unified political entity, through a representative and inclusive process, then whatever entity makes the request for “Federal Recognition” is acting without authority from the Hawaiians at large.
  • Due to the polarization around this issue, Hawaiians cannot form a cohesive political entity. Those for and against Federal Recognition will continue to veto each other.

I propose that the alternative to accepting the offer on the table today from the Dept. of Interior should not be the “status quo” situation (Hawaiians divided politically in the State of Hawaii and U.S. system). The positive alternative is for Hawaiians to put aside the most divisive issue (requesting Federal Recognition) and organize around a unifying platform of governance.

Protection of sacred places is the most unifying issue in the present. Pro-independent, pro-Kingdom, pro-fedrec, and unaffiliated Hawaiians united to protect Mauna Kea from the construction of the TMT. There are other issues to hui on: getting the Hawaiians on Hawaiian lands, expanding language and cultural rights, fixing or taking control of the DHHL situation, asserting our leverage from a position independent from the State of Hawaii. If we can get more funds via OHA, let’s do it. If we have to assert leverage outside the State of Hawaii system through political action, let’s do it.

Those who are in favor of U.S. Federal Recognition may use the time to educate, discuss, and organize with the whole lahui. Pro-independent Hawaiians should do the same. Even pro-fedrec Hawaiians are insulted when they read the terms of the proposed rules for Federal Recognition from the Dept. of Interior. No transfer of land controlled by the Federal or State of Hawaii, no new benefits, just a possibility to talk directly to the Federal and State governments officially.

The battle over “Fed Rec” vs. Independent Nation-state will go on, but in the near term, that battle is holding Hawaiians in the status quo. The way forward is for Hawaiians to find a way to address the political objectives we share in the context of losing our power in the face of ruthless economic and political forces.

    1. Rationale for a Trusted Electoral System

Once Hawaiians come to a political consensus to embark into Nation-building or Government-building together, elections are a likely to be the next steps, whether they be for referendum on a constitution, or for representatives. When the stakeholders decide to vest their trust into an electoral process, the perceived legitimacy of the election becomes essential. Otherwise, political groups will continue to leave the process or remain outside it. This further serves to dilute the political leverage of Kanaka Maoli, whose interests have not been well served under the State of Hawaii and U.S. Federal government.

This is where knowledge and experience of electoral practices comes into the picture. If different political parties are in an election, there must be trust it is conducted fairly. Otherwise, the cohesion of the government will break apart again. Many governments around the world have faced these issues, and Hawaiians may employ similar means, if we only seek them out and ask. However, the political will to do so comes first.

    1. Maoli vs. National Electorate

To be blunt, this is another divisive issue, but an important one to establish from the outset of any electoral process. Hawaiians are an inclusive people, and most consider anyone of Native Hawaiian ancestry to be Hawaiian.

Hawaiian” was also the term used in the 19th century to mean a Hawaiian National/Subject of the Kingdom of Hawai’i, regardless of koko (blood). The majority of Hawaiian Nationals were Kanaka Maoli, but some were not.

It stands to reason the descendants of those Nationals were the parties which deserve reclamation of their nationality. Arguably, reducing the nation to those with the koko will also undermine the case for a Hawaiian political and cultural identity.

However, for those desiring to pursue Hawaiian indigenous path to Federal Recognition, the U.S. Federal rules currently require only Native ancestry, and excluding those with only non-native ancestry.

Ironically, it is the indigenous ancestry requirement combined with State-action that compelled the U.S. Supreme court to stay the Na’i Aupuni election. If either the voter roll were expanded to include Hawaiian National descendants, or if the election were not controlled by the State of Hawaii, it would likely not be blocked in the courts.

It has to be up to Hawaiians to decide the bounds of our nation, and ultimately, our electorate. I see the options this way:

  • If the electorate is to be Kanaka Maoli only, it should be as inclusive as possible within those parameters.
  • If the electorate is to be Kanaka Maoli and descendants of Hawaiian Nation Subjects, it would allow for voter registration based on Kingdom records or the 1897 Ku’e Petition.

The implementation of the Kana’iolowalu roll specifically leaves out non-native Hawaiian Nationals, but also fails on the first goal of registering Kanaka Maoli in any significant numbers. Participation and inclusion in nation-building will only come about through a trusted process which is understood by Hawaiians at-large and brings in the different political groups.

Fair and transparent elections are a part of building that trust.

    1. Specific Electoral Proposals

Since a new referendum vote on a constitution is a likely outcome for the Na’i Aupuni ‘Aha, this is the opportunity for correcting the electoral problems. Here are my proposals:

  • Internet voting should be abandoned. There is no way for it to be audited by the public, and is still not trusted in U.S. or International elections.
  • Voting/polling should be done via paper ballot (preferably computer scannable) in-person at polling places in Hawai’i
  • Voting by mail should also be available for voters outside Hawai’i or those requesting absentee ballots. Vote by mail should be sent in 2 envelopes, so that the knowledge of the ballot results cannot be connected with the sender.
  • There must be a dispute resolution process for any irregularities in the system of running, registering, voting, and tabulation/certification.
  • A board or committee from a range of political backgrounds should be managing any election.
  • 3rd party contractors should not be given control over the voting mechanisms.
  • Registration for voting should be done using trusted registries on who is Hawaiian. These could include the OHA Registry or the DHHL list (if available), and could include others if they conform to the criteria agreed upon.
  • Provisional ballots cast for voting day irregularities or registration omissions should be considered in the process as well. Determination for inclusion or rejection of those ballots should be done by a mixed political panel.
  • We should request Electoral Assistance from well-established NGOs (such as International IDEA or the Carter Center). They will have the best-practices available internationally for demonstrating a fair vote to all parties involved. They recommend, but we implement for ourselves.
    1. My analysis for requirements for Hawaiian cohesion in the near-term:

Reflecting on the current state of Hawaiian politics, I believe Kanaka Maoli and those with Hawaiian National identity will not be able to assert significant political power unless the most divisive issues are put to the side. Those issues are the rush to request Federal Recognition in 2016, and possibly settle claims on the “ceded” land trust. If we can limit the capability of any Hawaiian government or organization to put those aside (or otherwise take a referendum with full participation of lahui to achieve), and we still have political cohesion, then we can address the near terms issues while having the time to work on our long-term objectives.

Raul Nohea Goodness is a Kanaka Maoli Software Architect and Developer raised in Wailuku, HI, and currently residing in Brooklyn, NY. As a former delegate candidate, he is a participant in the Na‘i Aupuni ‘Aha. http://www.hekili.net

Printable 3 page PDF

Na’i Aupuni Election Termination

Today, December 15 2015, Na’i Aupuni announced that the delegate candidate election has been canceled, due to the legal obstacles it faces in the upcoming weeks, months, and years.

However, they will go forward with the ‘aha with all 200 candidates who want to participate, instead of the 40 with the most votes per district. This allows for the sidestepping the Akina v. Hawaii lawsuit brought by the Grassroot Institute. It is currently before the 9th circuit appeals court and a stay order on counting the votes by the U.S. Supreme Court. There is no more election, so the case is moot.

The audacity is stunning. It took me a while today to process the implications. I already had a splitting headache today, and the news didn’t help. I think I have a handle on it now, so I will make some points which have become clear to me:

  • There will be no elected delegates representing their (participating) constituents; only attendees representing themselves.
  • If somehow the ‘aha participants recommend a “governing document” of some kind, and if the same Kana’iolowalu voter list is used in an election to ratify it, the same legal jeopardy will apply as in the Akina v. Hawaii lawsuit.

This will be a debating society, but possibly with the funds available to run a ratification election. The “delegates” will possess zero authority to form a government (unless some find a way to show they are representing more than themselves). It will be no different than any arbitrary group of Kanaka getting together. Of course, they meant to do it via an election, but just throw it out the window, no need. Without the consent of the people there is no government.

Na’i Aupuni’s legal funding agreement with OHA and Akamai Foundation limits the scope of time to 15 months from Apr 2015– which is July 2016. They have a contractual obligation to wrap up by then. I’m sure this has figured heavily in their announcement today.

Clearly, nation-building or government-building cannot be done on such a tight schedule, and only serves those wanting to short-circuit political discussions and rush for Federal Recognition within the Obama presidency.

At this point, I have not decided whether to participate in this further diluted Na’i Aupuni educational and debating ‘aha. At some point, you need to decide if the sacrifice is worthwhile. Instead of engaging in the political arena with 39 other delegates with the authority vested by thousands of voters each, you would be engaging with 194 other self-appointed Hawaiians, representing no one but themselves and their own mana’o. We would be better off starting a new process including the whole lahui. No matter what happens to Na’i Aupuni, my kuleana is to assist the rebuilding of our nation. This will go on.

I understand that the building of any new government has many twists, turns, and stones in the path. I do not fault those making efforts in good faith – I applaud them. However, when meeting roadblocks, do not abandon principles or your faith.

For Na’i Aupuni ‘aha attendees, I propose the following guidelines:

  • Affirm the recognition that delegates have no authority to draft a constitution for ratification; any document shall be advisory only.
  • Use the opportunity to make face-to-face discussions with other participants. There are some who have been and will continue to be involved with Native Hawaiian governance in the years ahead. Even with differences, working towards cohesiveness is a worthwhile goal. So many forces has worked to divide lahui, we need to take control ourselves.
  • Seriously assess the need to correct the Kana’iolowalu roll problems. Problems of exclusion, non-participation, and legal challenges have all been effects. Consider the advantages of voter list including Hawaiian National descendants– they are the “wronged parties” of the overthrow, could sue for restitution based on probate law, and could withstand a Rice v. Cayetano-type challenge.
  • Reach out for independent electoral assistance from neutral 3rd parties, such as the Carter Center or International IDEA. Many peoples and nations around the world have moved forward from conflict to representative governments, and Hawaiians could benefit from lessons-learned and their guidelines.
  • Always work for any way for Hawaiians to be counted

Since the delegate election has officially ended (terminated), let me take this opportunity to thank all my supporters: those who nominated me to be a candidate in writing, and those who cast votes in the delegate election. Mahalo nui to Brandon Makaawaawa and Bumpy Kanahele, who invited me to meet and discuss the values, principles, and practices of practical governance, and National Sovereignty at Pu’uhonua o Waimanalo. Mahalo nui to the organizers of the Halawai Aloha Aina, who put out the kahea to lahui to bring to light ‘a’ole pono processes. Mahalo nui to kanaka moderating the Facebook groups creating spaces for us to inform each other and grow together: Protest Na’i Aupuni, Hawai’i'imiloa, KAI’ULA, and Destination Restoration.

According to Na’i Aupuni, the votes will never be counted. Hawaiians are invisible again, but never again to each other.

Aloha and Maka’ala,

-Raul Nohea Goodness

p.s. – The deadline to submit your comments to opposed the Dept. of Interior’s rules on Federal Recognition is December 30! Go to ainalahui.com to submit your comments today! Only takes a few minutes.

How Independence is Blocked by Federal Recognition

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.

Read more at: http://indiancountrytodaymedianetwork.com/2014/01/03/professor-breaks-down-sovereignty-and-explains-its-significance-152958

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.

https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States

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:

  • with “reestablishment” of our gov-to-gov relationship, will the U.S. recognize the NH Governing Entity as the successor state to the Kingdom of Hawaii, and reaffirm the Treaties in force between the U.S. and the Kingdom of Hawaii?
  • should we not have clarification on this point before making a request for Fed Rec? DOI does state that they have no power to undo acts of Congress, including the Statehood Act. That would likely stop them from declaring the governing entity a successor state with treaties in effect.
    Note: Treaties are recognized in the U.S. Constitution as having equal weight in law to the Constitution itself.
  • The Apology Law does state: “Whereas, the Newlands Resolution also specified that treaties existing between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations;”, which is have not been repealed or ruled unconstitutional.

So if you’re keeping score, here’s where we are on “how independence is blocked by federal recognition”:

  • U.S. will make a gov-to-gov deal with Native Hawaiians once and only once.
  • DOI will only make a “Fed Rec” deal with a single entity
  • “reestablishment” of gov-to-gov relationship  implies the deal is taking over from the prior Treaty relationship between the Kingdom of Hawaii and the United States. The deal is legalizing what was admittedly illegal.
  • Plenary Power Doctrine means Congress has full control over the powers of NH Governing Entity.
  • If you take “plenary authority” plus “reestablishment” of relations without the prior Treaty w/Kingdom of Hawaii, we just gave up the store while getting nothing– no land, no treaty, no national sovereignty.

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. …”

What is going on with Native Hawaiian efforts to form a Government with Naʻi Aupuni?

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.

What is Naʻi Aupuni?

From naiaupuni.org:

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.

What is “Federal Recognition”?

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:

  • No transfer of Federal lands, including Hawaiian Homelands (no “reservation”)
  • Does not affect lands owned by State of Hawaii (no “ceded lands”)
  • Not eligible for any Federal Indian Programs (health care, etc)
  • No difference in protection of sacred places (Mauna Kea)
  • Hawaiian Governing Entity will be subject to Congress’ plenary power (full control)
  • State of Hawaii will transfer Kahoʻolawe to the entity as a land base
  • more effective” implementation of Dept. of Interior’s “trust relationship”

Here’s what we give up:

  • Claim to our National Sovereignty, which has never been surrendered

What is National Sovereignty (Independence)?

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.

What is the Kingdom of Hawaiʻi today?

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.

What are my options now as a Native Hawaiian?

  • Educate yourself, your ʻohana, do your own research, and talk to people about it.
  • Find a way to be counted in this process:
  • Participate in the Naʻi Aupuni election process as an informed voter if you decide to engage the process. Find delegate candidates supporting your view for the ‘Aha and vote for them.
  • If you choose not to participate in the election, or are otherwise denied, sign the Protest Naʻi Aupuni petition – http://protestnaiaupuni.wordpress.com
  • Write comments to the DOI rules: http://www.regulations.gov/#!docketDetail;D=DOI-2015-0005
  • Hui with others to protest. Be counted.

What are possible outcomes for the Naʻi Aupuni ʻAha?

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

Sources:

Download this document as a printable 2-sided PDF file