The aha delegates have done their work. Now it’s our turn.[Originally posted at CivilBeat.com on March 6, 2016 – reprinted with permission]
Last Friday, by an 88-33 vote, the delegates to the Native Hawaiian convention [or aha] yanked the question of “What do Hawaiians mean by nationhood?” from the shadows of ambiguity and confusion and flung it out there like a high-flying Frisbee looking for a place to land.
By a two-thirds majority, the delegates gave wings to a “Constitution of the Native Hawaiian Nation.” In doing so, they met two formidable challenges that some feared would derail the convention.
First, through remarkable leadership, they emphatically fended off anarchist attempts to undermine a democratic process and the principle of majority rule.
Second, racing against a 20-day convention clock, they rose to the level of intellectual leadership and political sophistication needed to draft a constitution that is a legitimate political work.
Ultimately, they overcame a few bumps in the road, exceeded general expectations and met both challenges with discipline, dignity and procedural fairness.
The most important provision of any national constitution is to define citizenship. This constitution simply requires one to meet the existing definition of Native Hawaiian under federal law as any descendant of the aboriginal and indigenous people who were in Hawaii prior to 1778 (Captain Cook’s arrival).
A second, very important provision for many Hawaiians, wisely provides for dual Hawaiian nation and U.S. citizenship. That is expressed by the provision that, “Any benefits accorded to the citizenry, by virtue of their status as citizens of the United States, shall not be diminished or impaired by the provisions of this Constitution or the laws of the Nation.”
Maintaining U.S. citizenship was of critical concern for many mainstream Hawaiians.
A third and very interesting provision, under a separate section of the constitution, addresses the rights and privileges of the nation: “The Nation has the inherent power to establish the requirements for citizenship in the Nation. The Nation reserves the right to modify or change citizenship requirement …”
This is an important provision. Once the nation is established and the constitution is adopted, it allows the government to open citizenship to persons of other ancestry, as was the case at the time of the illegal overthrow of the Hawaiian Kingdom in 1893.
This seems a strategic positioning of constitutional language in anticipation of a time when the nation will move toward becoming multi-ethnic to include perhaps the rest of Hawaii.
Federal Recognition Or Independence
The Constitution leaves the option of federal recognition or independence open, to be determined once the constitution is ratified and the government is formed. The provision reads, “We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence.”
This option-friendly statement is reinforced further in the body of the constitution, declaring, “The Nation has the right to self-determination, including but not limited to, the right to determine the political status of the nation…”
Clearly this was an accommodation for delegates committed to independence. It’s a “let’s get the ship out of the harbor and then decide on the destination once we’re underway.”
In the end, this will be the most difficult sea to sail.
Of course, central to the whole idea of a Hawaiian nation is the question of what will serve as the land base for the nation. Many people feared that when Hawaiians spoke of nationhood, the intent was to re-claim all of Hawaii. Delegates answered the question in two provisions addressing the geo-political subdivisions of lands that would provide the physical footprint of the nation.
One provision speaks to “lands … belonging to, controlled by, and designated … for the Hawaiian Nation.” These lands would include such places as Kahoolawe Island and Iolani Palace, already reserved by the state for conveyance to a new governing entity.
Also included would be lands now owned in fee title by the Office of Hawaiian Affairs, such as the Na Lama Kukui Building (formerly the Gentry-Pacific Design Center), 30 acres of Kakaako Makai, 1,800 acres at Waimea Valley, and other substantial properties such as 20,000 acres of Puna forest lands on Hawaii Island and 500 acres of land in Wahiawa (Kukaniloko) previously referred to as the Galbraith property.
There are a number of other properties sprinkled throughout the state.
A second provision states “Native Hawaiian people … never relinquished their claims to their national lands … the Government shall pursue the repatriation and return of the national lands … or other just compensation for lands lost.”
This is a loaded provision in a deliberate statement of intent suggestive of a negotiation with the state and federal government for either the return of thousands of acres of public trust lands, or some form of compensation for the loss of such lands.
Other Hawaiian Lands
The body very smartly also provided a status quo accommodation for lands now held in trust by the state under federal law and managed by the Department of Hawaiian Home Lands.
The status quo provision also wisely includes the privately held trust lands of the Alii Trusts such as the Kamehameha Schools, Queen Liliuokalani Trust, Lunalilo Trust and others. The provision declares that current rights of these institutions and their beneficiaries will not be affected as a provision of the constitution.
The governance model set forth is fairly straightforward. It includes a president, a vice president, and what is referred to as a nine-member Moku Council, which I assume to be an advisory cabinet of sorts.
The constitution calls for a unicameral (one-body) legislature composed of representatives from 43 legislative districts. There are two sets of representatives elected from each district, one set determined by land size, and another set determined by population. Both sets are equal in authority and are teamed to represent each district.
Other aspects of structuring the government are phased to evolve into a final configuration as the many moving parts of re-convening a national government, after 123 years, fall into place.
One predictable challenge, from the inception of the aha and the presumption it would yield a constitutional document, is for the constitution to be ratified in an election process.
Questions abound as to how this critical next step gets initiated. How will it be funded? Who will be eligible to vote? What political standing will it have if ratified? Who takes ownership?
A Question Of Legitimacy
The most interesting public policy puzzle to be navigated: The aha and the constitution it has rendered, for all the angst and brouhaha to get this far, has no official political standing. So, I anticipate that foes will aggressively pursue challenges to the legitimacy of the body politic, the constitutional document it produced, and steps toward ratification.
Attacks on legitimacy will come from two directions.
First, I anticipate more lawsuits to be filed by the gang of six plaintiffs led by Keli‘i Akina, chief executive of the local organization Grassroot Institute of Hawaii. This group seems opposed to any form of political self-determination by Hawaiians. It has created a legal flashpoint, by challenging any attempt by Hawaiians to organize a Hawaiians-only election as racist and unconstitutional.
This group complicitly joins the right-wing political view shared by some members of Congress who continue to deny Native Hawaiians the same constitutional right to self-determination accorded every other indigenous peoples of the United States by acts of Congress. They are advocates of revisionist Hawaiian history that the illegal overthrow of the Hawaiian Kingdom was a legitimate transfer of sovereignty and Hawaiians have no case for seeking reconciliation or independence.
By contrast, at the extreme opposite end of the fracas, a self-identified group referred to as Hawaiian Nationals aggressively argue that Hawaii is a country illegally occupied by the United States. Therefore, any attempt to reconcile or seek nation-within-a-nation status, as one of the options provided for in the constitutional document produced by the aha, is traitorous.
Some Hawaiian Nationals participated in the aha but exited, apparently to form an opposition movement to oppose ratification.
I expect sparks to continue to fly from both these camps as each vies to capture the political high ground.
In my opinion, the aha, its delegates, and its draft constitution are as legitimate as it gets. The collective body politic of the aha represented many of the best and brightest from the Hawaiian community. The assemblage included leaders of long-standing Hawaiian organizations, noted scholars of history and law, educators, and men and women from the business sector.
These delegates didn’t just pop out of the ground. They collectively were truly representative of the Hawaiian community and bonded by years of engagement in the struggle for Hawaiian self-determination. Some came from highly credentialed Hawaiian families where engagement spans two and three generations.
For this old man, it was an assemblage to behold.
Meanwhile, what’s next for the initiative launched by the delegates of the aha? Will there be some attempt to provide a continuum of the delegates to the aha as a body politic providing an organizational center of gravity to move the nationhood initiative forward and stave off attempts by foes to disrupt and derail the process?
Do they perhaps keep their delegate credentials alive, although adjourned as a convention, and incorporate into some kind of government-free body politic, place an intellectual copyright claim on the constitution they fashioned, and strategize as they sort out next steps?
I don’t have the answer; but I believe they have turned the corner on self-determination and are moving in the right direction.
The Historic Opportunity
From my perch, the two most formidable challenges moving forward will be raising the funds to hold a public ratification vote and defending legal challenges to the ratification process.
I don’t know what the numbers are, but I’m sure the process of ratification will require at least $2 million. It is not likely, for political and other reasons, that any one benefactor will step forward and save the day. My hope is that the next steps will lie in the willingness of the entire Hawaiian community to rise to the historic opportunity and join a grass-roots fundraising drive.
Let us have faith in the democratic process and move forward as one people to support a ratification initiative that puts the question in the hands of the people.
The delegates have done their work. It is our turn at bat.