(1) On August 24, 2009 Professor Jon VanDyke published a commentary in the Honolulu Star-Bulletin claiming that passing the Akaka bill would be "a 'win-win' solution, addressing and resolving long-festering injustices, and encouraging our host people to once again play a major role in our economy and community."
(2) On August 31, 2009 two leaders of Aloha For All, Tom Macdonald and attorney H. William Burgess, published a rebuttal in the Honolulu Star-Bulletin. They say the Akaka bill is "a classic zero-sum game" because "Every dollar or acre of land transferred to the new governing body would be a dollar less, or an acre less, available for the benefit of everyone in Hawaii."
Many related historical, legal, and moral issues are discussed in both essays. The two commentaries are copied below, in full.
Illustration of dice with Hawaiian and U.S. flags by Honolulu Star-Bulletin artist Bryant Fukutomi, originally published as part of essay # (2) below. Original URL of image was
Honolulu Star-Bulletin, August 24, 2009
Akaka Bill would be 'win-win'
By Jon M. Van Dyke
The Star-Bulletin's editorial on Aug. 9 suggested redrafting the Akaka Bill to protect it against court challenges. This bill has been redrafted many times and its current version is designed to provide flexibility to the Hawaiians, to allow the Hawaiian people to decide how they want to govern themselves and to define their own membership. Although court challenges may be filed, the bill will certainly be found to be constitutional, because it is fully consistent with U.S. and international law.
The editorial characterized Hawaii before the 1893 overthrow as a "multiracial kingdom," observing that some Westerners had become naturalized. But Hawaii was hardly a happy, peaceful "multiracial kingdom" in the early 1890s. It was seething with fierce struggles for power.
The Bayonet Constitution, forced upon King Kalakaua in 1887 by Westerners, introduced sharp racial divisions with regard to voting. Only those "of Hawaiian, American or European birth or descent" could vote, which excluded Asians, even if they had been born in Hawaii or had become naturalized. Contract-laborers from Portugal and Puerto Rico could vote, but not Asians -- "a clever device for securing to the [foreigners] the control of the Kingdom," as stated in the 1959 "The Hawaiian Revolution: 1893-94."
But the Hawaiians did not give up, and in the 1890 election the National Reform Party, led by Hawaiian leader Robert Wilcox, took control of the Legislature, and forced the Cabinet, including Lorrin Thurston, to resign. These deep divisions came into clear focus in the 1893 overthrow and 1898 annexation.
This divide continue to resonate in our islands. Although we cannot turn back the clock, we must try to achieve some measure of justice, in light of the wrongs that took place at the time of the overthrow and annexation. Congress observed in its 1993 Apology Resolution that the participation of U.S. agents in the overthrow was "illegal" and violated "international law." This Resolution states that the Crown and Government Lands were transferred to the United States in 1898 without "the consent of or compensation to the Native Hawaiian people," and calls for a reconciliation to heal these wounds. The Akaka Bill would be a major step forward in this reconciliation process and would allow the Hawaiian people to control their destinies once again.
The U.S. Constitution recognizes that indigenous peoples have a separate and distinct status within the U.S. political system, and our national government stated formally in 1970 that native groups are entitled to govern their own lands and to maintain their culture and heritage. The United Nations in 2007 passed the Declaration on the Rights of Indigenous Peoples, which confirms the right of native people to control their lands and resources through their own governmental bodies. Native Hawaiians are "indigenous" under U.S. and international law, as our federal and state legislature have said repeatedly. The fact that the kingdom's monarchs sought advice from Westerners in no way undercuts the right of the Hawaiian people to reform a governmental entity and to define their membership in a manner that is appropriate for them.
The Hawaiian people were resourceful and self-sufficient before Western contact, developing aquaculture in a way that still marvels us; navigating across vast oceans; creating beautiful dances, chants, songs, and feather capes; and building formidable temples and intricate tools for fishing and hunting. Their culture was cut short by diseases and the efforts of others to control their land and government. They deserve a chance to come together once again, to build upon their dynamic heritage.
The Maori in New Zealand (Aotearoa) also suffered great losses after Westerners came, but their experiences during the past 35 years provide a road map we can examine as we move forward with passage of the Akaka Bill. The people of New Zealand established the Waitangi Tribunal in 1975 to permit the Maori to pursue their claims. This Tribunal, after lengthy hearings, made recommendations for each Maori group, which led to settlements negotiated with the government. The Maori have received lands, factories, fishing vessels and fishing rights, and are now economic players, leading to greater prosperity for all the people of New Zealand. Similarly, passage of the Akaka Bill will be a "win-win" solution, addressing and resolving long-festering injustices, and encouraging our host people to once again play a major role in our economy and community.
Jon M. Van Dyke, law professor and Carlsmith Ball Faculty Scholar at the William S. Richardson School of Law, UH-Manoa, authored "Who Owns the Crown Lands of Hawaii?" and is an occasional Office of Hawaiian Affairs consultant.
Here is a pdf file of the Star-Bulletin article of August 31, 2009 by Tom Macdonald and H. William Burgess (including the beautiful illustration):
For those who prefer a simple-text file, here it is:
Honolulu Star-Bulletin, Aug 31, 2009
Akaka Bill a zero-sum game, not 'win-win'
By Tom Macdonald and Bill Burgess
Jon Van Dyke's Aug. 24 "Island Commentary" asserts that passage of the Akaka Bill would be a win-win situation for all the people of Hawaii. Everybody would win. We strongly disagree: It is a zero-sum game, where for every winner there is a loser.
The main objective of the bill, according to Rep. Neil Abercrombie, one of its major supporters, is the transfer of land and money from ownership of the state, where it benefits all Hawaii's people, to ownership by a new Hawaiian governing body, where that same land and money would be available to benefit only so-called "native Hawaiians." Every dollar or acre of land transferred to the new governing body would be a dollar less, or an acre less, available for the benefit of everyone in Hawaii. That is a classic zero-sum game, not a "win-win."
Let us focus on just who these "native Hawaiians" are who would benefit under the Akaka Bill. The definition of "native Hawaiian" in the bill is so broad as to be ludicrous. Anyone, living anywhere in the world, with at least one ancestor indigenous to Hawaii before 1778, when Captain Cook and Westerners first arrived in Hawaii, would be eligible to participate in the formation of the new Hawaiian governing body. The vast majority of these people would have less than 2 percent Hawaiian blood and large numbers of them would never even have visited Hawaii. Why should they have higher priority to benefit from state land and money than their next door neighbors who do not have that precious drop of Hawaiian blood?
Professor Van Dyke asserts that the bill would "certainly be found constitutional" and he cites the 1993 Apology Resolution as the foundation for his certainty. But earlier this year, the U.S. Supreme Court ruled that all the "whereas" clauses that Professor Van Dyke relies on for his argument had no legal force and effect, and did not change the legal landscape in Hawaii. The court ruled that the Republic ceded absolute title free and clear from any trust or claim whatsoever that arose before 1898, whether from native Hawaiians or any other party.
And Professor Van Dyke fails to mention the real constitutional problem with the Akaka Bill: that the U.S. Supreme Court has already ruled in Rice v. Cayetano that the definitions of "Hawaiian" and "native Hawaiian," essentially the same ancestral definition used in the Akaka Bill, are racial classifications. The court ruled that use of ancestry as a test for voting was clearly a proxy for race, and violates the 15th Amendment to the U.S. Constitution. The Akaka Bill calls for elections and referenda in which eligibility to vote is restricted by the same unlawful racial restrictions. The bill will almost certainly be found to be unconstitutional.
The U.S. Civil Rights Commission reached a similar conclusion in 2006: Recommending against passage of the bill or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.
Unfortunately, it will take several years for litigation on the Akaka Bill to pass through the lower courts and reach the U.S. Supreme Court. And during that time, the incipient inter-ethnic conflicts we are already beginning to see in Hawaii will in all likelihood grow significantly, and the ethnic harmony that has been a major benefit of living in Hawaii will be severely frayed, perhaps beyond repair.
Much of Professor Van Dyke's commentary rehashes the now discredited "whereas" clauses of the Apology Resolution. The Akaka Bill purports to provide a "reconciliation." But despite Professor Van Dyke's protestations to the contrary, any "reconciliation" provided by the Akaka Bill will be one-sided and lead to more conflict, not more aloha, in Hawaii.
Tom Macdonald and Bill Burgess are founding directors of Aloha for All, a nonprofit group dedicated to equal rights for all citizens of Hawaii. Macdonald is the retired president of Hawaiian Trust Co.; Burgess is a lawyer who has represented Hawaii plaintiffs in several lawsuits pursuing equal rights.
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(c) Copyright 2009 Kenneth R. Conklin, Ph.D. All rights reserved