Rooted in Reason: Nurturing the Seeds of Liberty


Akaka: Unintended Consequences by grassroothawaii
March 2, 2010, 8:08 pm
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By James Toenail Kamaaina

The Akaka bill was made possible by an amendment to the Constitution of the state of Hawaii that transformed non-Hawaiians into Hawaiians. In 1978, there only two qualifications for being Hawaiian: pure Hawaiians with 100% Hawaiian blood, and 50% Hawaiians, who were half Hawaiian and half non-Hawaiian.

Hawaiian activists at the convention convinced the delegates to adopt a new definition called native Hawaiian, which would change the status of people who had 75% non-Hawaiian blood or more. At the time, these individuals were considered non-Hawaiians and were not eligible for federal and state Hawaiian entitlements. These part Hawaiians constituted more than 70% of people with Hawaiian blood.

The delegates agreed to the new definition, and with a stroke of the pen the number of Hawaiians in the world increase from approximately 125,000 to almost 400,000. People with any amount of Hawaiian blood, however small, were now native Hawaiians and eligible for benefits from the federal and state governments.

The delegates did not realize at the time that they had also made all of these people eligible to secede from the union to form their own sovereign nation, and had given them the right to lay claim to half of the land in Hawaii. Most of the delegates were non-Hawaiians, and none of them realized that they would be sacrificing billions of dollars in value for the land that would be transferred to the native Hawaiians. These lands are fragmented into small and large parcels that are sprinkled throughout the state. Administration, land titles, government jurisdictions, lost taxes, and the sovereign rights of the new, fractured nation are sure to be a nightmare.

The largest question will be the status of the native Hawaiians. Will they continue to be US citizens, or will they become citizens of their new nation. Will they pay US taxes, or will they be exempt? Will the United States continue to have jurisdiction and control of the new nation? If all of this is supposed to be resolved by negotiation, how will everything be administered while the negotiations are going on?

In Rice versus Cayetano, the Supreme Court said that the definition of native Hawaiian was unconstitutional because it violated the 15th amendment. The definition lies at the very heart of the Akaka bill and the entitlements that the native Hawaiians are expecting. It is certain that the constitutionality of the definition will be challenged in court, and this will create uncertainty that will have a profound impact on the economies of the state of Hawaii and the new Hawaiian nation. This is uncharted territory because there has never been a study done of the impacts that the Akaka bill will have on the Hawaiians and non-Hawaiians living in the 50th state.

The Democrats in Hawaii have remained silent, but recent polls indicate that at least 60% of the people in the state, Hawaiians and non-Hawaiians, are against the bill. There have not been any congressional hearings in Hawaii for at least a decade, and it seems certain that there will be no hearings on the new language in the bill, which was drafted in secret and is opposed by the state’s governor.

Given the circumstances, the only chance that this bill can be defeated is in the hands of Senate Republicans, and Democrats, who will consider all the people of Hawaii, Hawaiians and non-Hawaiians, and vote their conscience.  Racial segregation resulting from the Akaka bill is certain to create conflicts that will overwhelm a state known for aloha spirit and racial tolerance.

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One note. The racial classifications established by the ’78 ConCon were invalidated by the Hawaii Supreme Court on the ground that the electorate didn’t know what they were voting for and thus the classifications were never ratified. Kahalekai v. Doi, 60 Haw. 324, 590 P.2d 543 (1979). Nevertheless, the State legislature ignored the decision and proceeded to create OHA by statute.

I wish more people would raise this point when folks start saying this racial balkanization was approved the the citizens of Hawaii and is in our State constitution.

Here’s what the Hawaii Supreme Court said:

Another major omission of a substantive nature concerns New Article XII, s 7, which provides:

“The term ‘Hawaiian’ means any descendant of the races inhabiting the Hawaiian Islands, previous to 1778. The term ‘native Hawaiian’ means any descendant of not less than one-half part of the blood of races inhabiting the Hawaiian Islands previous to 1778 as defined by the Hawaiian Homes Commission Act, 1920, as amended or
may be amended.“

This proposed amendment to present Article XI (New Article XII) was not properly presented to the public for its consideration under Question No. 28 (Office of Hawaiian Affairs) and was, therefore, not validly ratified.

Comment by Jim




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