Greetings From Independant Hawaii
by JAMES PODGERS

A drive to gain some measure of selfgovernment for Hawaii's native
population raises questions about whether the state could even leave the
union. Beyond Hawaii's swaying palm trees, beyond its beaches and beyond
its plush tourist enclaves of resort hotels and golf courses, there is
trouble brewing in America's island paradise. The "troubles" come in the
form of a growing sovereignty movement among Native Hawaiiansthose who
can trace at least some portion of their bloodlines to ancestors residing
on the islands at the time of their European "discovery" in 1778 by
British
explorer Capt. James Cook.

In recent years, an array of groups have grown more insistent in their
demands that some formal structure of selfgovernance be implemented for
the estimated 200,000 peopleabout 20 percent of the state's diverse
populationwho claim descent from the first inhabitants of the islands.

The rest of the state is looking on with growing interest and concern as
those groups struggle for consensus on just what form this structure might
take, especially since the gamut of ideas runs all the way to the extreme
of Hawaii seeking full independence from the United States. James Podgers,
a lawyer, is a senior editor of the ABA Journal. A decade ago, "People
laughed about sovereignty," says Mililani B. Trask, a lawyer in Hilo on
the
big island of Hawaii who heads one of the leading sovereignty groups. "Now
they're scared as hell."

That comes as no surprise in a state with a stagnant economy and practical
constraints on longterm growth. Native Hawaiians' claims of entitlement
to
portions of the state's significant holdings of public lands, as well as
to
revenue from those lands, raise serious concerns among legislators, the
business community and many residents who are nonHawaiian (everyoneeven
white missionaries and other settlerswho cannot trace blood to ancestors
on the islands prior to 1778).

"A lot of people are just now beginning to wake up to this issue," says
Clinton R. Ashford, of counsel to Ashford & Wriston, a Honolulu firm that
he helped found.

According to Ashford and James K. Mee, a partner at the firm, many leaders
of the nonHawaiian community agree that Hawaiians have suffered
economically, socially and culturally, especially since the 1950s.

Both groups, say Mee, himself partHawaiian, "have become fixated on
sovereignty as a magic pill that will make things go away." But "using the
questions of who is a Hawaiian as a way of reallocating rights is a recipe
for disaster."

The sovereignty movement is "inherently divisive" because it is based on
racial preferences that would give Hawaiians special rights, claims John
W.
Goemans, a former state deputy attorney general and legislator who now
commits practically all of his Honolulu law practice to resisting
sovereignty initiatives.

"In a society composed of many groups but no majorities, "the spirit of
aloha is very real." Goemans says, "Even when we argue, we get along.
Hawaii could have been an exemplar of how a society can coexist," he
adds,
but as the sovereignty debate heats up, "that's goneor it's going."

Honolulu lawyer, Hayden Aluli, president of the Native Hawaiian Bar
Association, disputes that view. We're all hapa (mixed blood) here. This
is
a cultural issue."

A Significant Movement

The implications of the Hawaiian sovereignty movement reach far beyond the
shores of the string of lush volcanic islands that lie more than 2,000
miles beyond the West Coast in the central Pacific Ocean.

As Native Hawaiian groups hone their arguments for sovereignty, bolstered
by the advice of a handful of legal scholars, they have struck a chord
both
on the U.S. mainland and in the international community.

A strong case for Hawaiian sovereignty can be made under international
law,
says Professor Francis Anthony Boyle, an international law expert at the
University of Illinois College of Law in Champaign. Boyle even sees
similarities between the goals of the Hawaiian sovereignty movement and
the
efforts of the Palestinians to achieve statehood in the Middle East, an
issue on which he has advised the Palestine Liberation Organization.

Providing a similar assessment, Professor Richard Falk at the Center of
International Studies at Princeton University in New Jersey sees growing
interest in the Hawaiian movement among other indigenous peoples seeking
to
carve out some form of selfdetermination from larger countries that
enveloped them.

In Hawaii and elsewhere, Falk observes, sovereignty movements "have
economic grievances, but at their center is a quest for cultural autonomy,
selfesteem and identity."

It is more likely, though that the issue of Hawaiian sovereignty will
become a federal question that may be answered within the context of the
extensive body of laws and Supreme Court decisions governing Indian tribes
in the continental United States. Those laws generally have not been
applied to Native Hawaiians.

How those laws might be applied in carving out sovereignty for Native
Hawaiians could create important precedents for some 550 tribes on the
mainland and in Alaska. With a total population of some 1.3 million, they
themselves have often felt the constraints of limited sovereignty.

Legal experts base their analyses of such questions on two watershed
events
in Hawaiian history.

First, in 1893, the Hawaiian monarchy was overthrown by a group of
American
residents of the islands who favored annexation by the United States. The
overthrow was undertaken with the backing of the U.S. minister to Hawaii,
who ordered Marines into Honolulu on the eve of the coup.

This group of Americans got its wish in 1898 when Congress annexed Hawaii
to the United States. In 1900 the islands became a U.S. territory.

Leading up to the second key event statehood in the late 1940s the
United States classified several possessions, including Hawaii, as
"nonselfgoverning territories" under Article 73, of the U.N. Charter. In
1953, the U.N. General Assembly adopted Resolution 742, stating that
independence is the primary form of selfrule for such territories unless
another status is selected by the population under conditions of "absolute
equality".

Significantly, however, before Hawaiian residents voted for statehood in
1959, the United States had withdrawn Hawaii from the U.N list of
nonselfgoverning territories. Accordingly, the vote asked Hawaiian
residents just one question: "Shall Hawaii immediately be admitted into
the
Union as a State?"

In December 1996, Falk stated in an open letter to Hawaiian sovereignty
groups that, on the basis of those events, "It can ... be concluded as a
matter of law" that Native Hawaiians "never relinquished, in any
appropriate and binding form, their right to selfdetermination under
international law."

That interpretation, also propounded by professor Boyle as early as 1993,
raises one of the most intriguing questions of all: Is there a basis, in
either international or U.S. law, for Hawaii to leave the United States
and
strike out as an independent nation?

Answering that question could trigger the first major debate since the
Civil War over the ultimate issue of federalism.

"The legal implications could be astounding if they move off and secede
from the United States," Boyle suggests. All native groups within the
United States "would start moving toward independence," he says.

But Laurence Tribe, a leading constitutional scholar at Harvard University
Law School, dismisses the possibility.

"The whole point of the Civil War was to confirm the axiom that no state
has a right to secede from the nation," Tribe says. The concept that
statehood is "a permanent fix is probably as deeply ingrained an idea as
any you can find in the Constitution." Tribe acknowledges that a mutually
consensual withdrawal of a state from the union is a somewhat different
issue, which the Constitution does not explicitly address. Nevertheless,
he
says, "Once something becomes a state, the idea that there can be some
consensual parting of the ways seems quite troubling."

But Boyle and Falk are not so sure. While Falk concedes it is unlikely the
United States would relinquish federal powers over a state, "What is
realistic," he adds, "is always undermined by historic developments. If
you
had asked me similar questions about the Soviet Union a few years ago, I
would have said 'no' to that, too."

And Boyle says that, while the Civil War was fought in part to preserve
the
concept of union, "Standards have changed, and we've put the principle of
the right of selfdetermination in the U.N. charter. Now we have to live
with it."

Moreover, these scholars say, the U.S. Congress itself has provided the
ammunition for Hawaiian sovereignty claims.

A LongAwaited Apology

Whatever comes of the Hawaiian sovereignty movement, Nov. 23, 1993, is
likely to be marked as the day it all started. On that day, the U.S.
Congress adopted, and President Clinton signed, a joint resolution of
apology to Native Hawaiians for the overthrow of the Hawaiian kingdom 100
years earlier.

Prior to Western contact, says Hawaii Sen. Daniel K. Akaka, a Democrat who
pushed for the resolution, "The kingdom of Hawaii was a sophisticated and
selfsufficient culture that many people would envy. Since Western
contact,
a number of profound changes, including the overthrow and the loss of
their
land, have been devastating to the health and wellbeing of the Hawaiian
people.

"With the apology resolution, we begin the process to recover some of what
has been lost," says Akaka, who is partHawaiian.

But as every astute political leader in Hawaii recognizes, the apology
resolution is full of language with openended meaning. And that vagueness
reflects the intense debate among Native Hawaiian leaders about just what
sovereignty means to them and how they should go about seeking to achieve
it.

For some, like Dennis "Bumpy" Kanahele, the selfproclaimed (sic) head of
the Independent Nation State of Hawaii, the answer is simple.

"The truth is finally setting in," says Kanahele, who lives in a
subdivision on land set aside for Native Hawaiians in Waimanalo on the
other side of Oahu from Honolulu. "Hawaii was an independent state. We got
ripped off, the U.S. apologized for it, and now we want to get it back."

In the Hawaiian sovereignty movement, everyone has an opinion about
everybody else. Thus, Kanahele, an open advocate of independence, is
viewed
by some as a sort of Robin Hood of the movement but by others as a
renegade
intent on provoking the state authorities.

And he has had his share of runins. His group has issued "war crimes"
indictments against state officials and alleged wrongdoing by some of the
state's big banks in their dealings with the Office of Hawaiian Affairs
(an
agency created in 1978 by a state constitutional amendment to receive and
administer state funds "for the betterment of conditions of Native
Hawaiians"). Kanahele still is fighting a recent federal charge for
assaulting a law enforcement officer.

Yet Kanahele claims strong grassroots backing. "He may have come out of
left field," says Hayden Aluli, his lawyer on the federal charges, "but
those prosecutions have made him a folk hero."

But not all Native Hawaiian groups share Kanahele's commitment to
independence, at least as a shortterm answer.

"If we woke up tomorrow in an independent Hawaii, none of our problems
would have gone away," says lawyer Trask, who heads a sovereignty group
called Ka Lahui, which means "the gathering." "The power structure would
still be the same."

Most Hawaiians, Trask adds, "are not worried about independence. They're
worried about paying their bills."

Clayton Hee, chair of the OHA board of trustees, acknowledges that the
concept of sovereignty still is murky for Hawaiians.

The general contours of sovereignty, he says, involve "the right to
selfdetermination, the right to make our own rules, to choose leaders and
to change both as appropriate."

But beyond that, sovereignty is "like an amoeba," Hee explains. "It's
amorphousan unquantifiable shapeless concept. But that's the thing about
sovereignty. It's yours to shape, yours to put the corners on, yours to
put
the contours to. And it's my view Hawaiians do not enjoy sovereignty."

The Search for Unanimity

As Native Hawaiians plunge on through the process of finding consensus,
they appear to be finding agreement on some issues.

More than anything, Hawaiian sovereignty leaders say, their movement is
about landor rather the effort to regain land that they believe was
taken
away when the monarchy was overthrown.

The immediate issue is over rights to some portion of revenue or control
of
some 1.8 million acres of public landsabout half the total land on all
the islandsceded to the United States at the time of annexation, then
returned to Hawaii when it became a state.

The Hawaii Admission Act specified that those lands be held in trust by
the
state for, among other public purposes, "the betterment of the conditions
of native Hawaiians." The land trust directive proved to be a bombshell
whose impact is still being felt today.

In 1980, the Hawaii Legislature designated that 20 percent of state income
from the public lands go to the Office of Hawaiian Affairs for use in
support of Native Hawaiians.

Considering that some of those lands have been leased for shopping malls,
hotels and the Honolulu International Airport, OHA almost immediately
became one of the potentially most lucrative agencies in the state; it has
been fighting with the state to gain full access to those funds ever
since.

Earlier this year, OHA chair Hee proposed that the state convey an
outright
grant of some lands, including Diamond Head and Iolani Palace, home of the
monarchs, in return for a waiver of some of the money it owes this agency.
But the bond between Native Hawaiians and the land goes much deeper than
revenues. Many believe that ancient practices, such as gathering ti
leaves,
tending fish ponds and maintaining religious ceremonial sites, are part of
the essence of their cultural heritage.

And most sovereignty movement leaders agree that any form of
selfgovernment for Hawaiians must involve control over at least part of
the public lands.

"Our state is like no other because our courts have tended to recognize
traditional practices," observes Mahealani Kamauu, director of the Native
Hawaiian Legal Corp., which handles various types of land cases. "Land is
a
key to the whole question of sovereignty."

Commercial interests could not agree more, and developers and the business
community contend that the sovereignty movement has thrown questions of
land ownership and development rights into chaos.

Not only have Hawaiian groups pursued challenges to state efforts to lease
portions of the public lands to developers, but courts generally have
upheld their rights of access to such parcels to conduct traditional
gathering and ceremonial activities.

Earlier this year, for instance, developers pushed a bill in the
Legislature to require people wishing to enter private lands to conduct
traditional ceremonies to first register with the state. The bill failed
after Native Hawaiian groups demonstrated against it.

There is also increasing agreement among sovereignty advocates that while
the tribal reservation structure that exists under federal law on the
mainland provides some precedent for their movement, it is not a viable
model.

Even Trask, a leading advocate of "nation within a nation" approach that
many compare to tribal status, insists she does not favor seeking status
equivalent to that granted to American Indians.

"The government can't shove us into a mold for continental Native
Americans," she says. "We do not want to be placed under the Bureau of
Indian Affairs."

The main problem, she says, is that federal law does not convey the level
of political and economic selfreliance to Indian tribes that Native
Hawaiians are seeking.

Moreover, it is questionable whether Indian law can be applied to
Hawaiians, says Stuart Minor Benjamin, an associate of Tribes's at Harvard
who is joining the law school faculty at the University of San Diego.

In an article in the December 1996 issue of the Yale Law Journal, he
argues
that federal laws giving American Indians preferential treatment have
passed equal protection muster under rational basis review, rather than
strict scrutiny, because they treated the tribes as political entities
rather than racial groups.

"Without a Native Hawaiian political entity that can constitute an 'Indian
Tribe' for constitutional purposes," Benjamin writes, "there is no
'special
relationship' between Native Hawaiians and the federal government pursuant
to which programs singling out Native Hawaiians would be subject to
rational basis review," especially in light of such recent U.S. Supreme
Court decisions as Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097
(1995).

That position, which could jeopardize the entire system of state support
programs for Hawaiians, was undermined somewhat, however, by a recent
ruling of the U.S. District Court for the District of Hawaii in Honolulu
in
the consolidated case of Rice v. Cayetano, Civil No. 9600616 DAE.

Judge David Alan Ezra denied a motion for a preliminary injunction against
issuing the results of a vote of Hawaiians sponsored in 1996 by the
statefunded Hawaiian Sovereignty Elections Council on the question of
whether a constitutional convention should be held to address sovereignty
issues.

The plaintiffs had contended the vote was unconstitutional because it was
limited to voters of one race. But Ezra held that, "[w]hile there is
undoubtedly a racial component to the voter qualifications for the Native
Hawaiian Vote, the emphasis here is placed on the Native Hawaiian
community as one targeted for 'rehabilitation' and special consideration
by
Congress."

Some 70 percent of the Native Hawaiians voting had supported a
constitutional convention that would develop a sovereignty plan, even
though some sovereignty leaders had urged a boycott to protest state
involvement in the process, and 60 percent of more than 81,000 ballots
sent out were not returned.

Winds of Change

Finally, Native Hawaiian leaders say they recognize that the ultimate
future of the movement will depend on reaching consensus among all the
residents of the islands.

"The success of the sovereignty movement is absolutely dependent on the
Hawaiians' ability to include the nonHawaiians and elicit their support,"
Hee says. "It cannot succeed as solely a Hawaiian movement. It cannot be a
secessionist movement."

But defining the stakes can be a matter of perspective.

"Frankly, I'm not very optimistic about where this is going to end up,"
says Honolulu lawyer Mee. "I came back after school because I wanted to
live in a place where it didn't matter what your background is, but I fear
we're heading down that path."

A return to roots has a somewhat different meaning for Kekuni Blaisdell,
by day a physician and a professor at the University of Hawaii School of
Medicine"my pass to the white man's world," he says.

But every Thursday evening, he hosts a meeting of his sovereignty group at
his home in the hills above Honolulu, near the Pali cliffs where the
warriors of King Kamehameha the Great flung his enemies to their death in
battle.

Up on those heights, Blaisdell says, he feels close to the land, to his
ancestors. After his visitors leave, he stands outside in the dark, with
the wind blowing off the ocean, and he listens.

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