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 Posted: Mon 13 Aug 2007 13:40 Post subject: "One Drop" v. "Fifty Percent or More" Hawaiians |
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| Quote: |
http://www.angelfire.com/planet/big60/HighQuantumvOHA.html
Lawsuit against OHA by native Hawaiians with high
blood quantum
SUMMARY: On August 7, 2007 the 9th Circuit Court
of Appeals ordered Judge Susan Oki Mollway of the
U.S. District Court in Honolulu to reinstate a
lawsuit she previously dismissed. The 5
plaintiffs are native Hawaiians with at least 50%
native blood quantum who complain that the State
of Hawaii Office of Hawaiian Affairs (OHA) is
improperly spending enormous amounts of money on
programs for low-blood-quantum ethnic Hawaiians.
Those OHA programs include lobbying for the Akaka
bill, advertising for the Kau Inoa racial
registry expected to be used for a membership
roll for the Akaka tribe, small-business loans,
etc. The plaintiffs point out that the Hawaiian
Homes Commission Act of 1920 (HHCA) set aside
203,500 acres of land for Hawaiian Homelands
exclusively for the benefit of native Hawaiians
of 50% or higher native blood quantum. The
Statehood Act of 1959, section 5(f) specified
that the new State of Hawaii can use revenues
from the ceded lands for any one or more of five
purposes, one of which is the betterment of
native Hawaiians as defined in HHCA; i.e., at
least 50% native blood quantum. In 1978 a state
Constitutional Convention created OHA. The
Legislature subsequently provided a permanent
funding source for OHA of 20% of ceded land
revenues. 90% of the money OHA spends comes from
current ceded land revenues, and from investment
income from previously hoarded ceded land
revenues (the remainder of OHA's money comes from
annual appropriations of taxpayer dollars from
the general fund; and plaintiffs are NOT
complaining that those funds are spent to benefit
low-quantum ethnic Hawaiians). Plaintiffs
complain that ceded-land money should be spent
for programs to benefit exclusively native
Hawaiians with at least 50% blood quantum; and
that the Akaka bill dilutes the moneys belonging
to high-quantum native Hawaiians by creating a
government that would control those assets, in
which every person with a single drop of native
blood has voting rights. This webpage provides
the full text of the 9th Circuit Court decision,
news reports and commentaries about this lawsuit,
and commentary by Chief Maui Loa asserting the
special rights of high-blood-quantum native
Hawaiians. |
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| Quote: |
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070808/NEWS01/708080395
| Quote: | Honolulu Advertiser, Wednesday August 8, 2007
5 Hawaiians' lawsuit against OHA back on
By Gordon Y.K. Pang
A group of five Native Hawaiians who want the
Office of Hawaiian Affairs to spend most of its
money on people with 50 percent Hawaiian blood or
more will get another day in court.
A panel of the 9th U.S. Circuit Court of Appeals
in San Francisco yesterday ordered U.S. District
Judge Susan Oki Mollway to hear the case in her
Honolulu court after she rejected it last year.
The five Native Hawaiians are suing OHA because
they believe the agency has too many
beneficiaries. They argue that most of OHA's $28
million annual budget should be spent on people
with 50 percent Hawaiian blood or more.
The lawsuit was filed by Virgil Day, Mel
Ho'omanawanui, Josiah Ho'ohuli, Patrick
Kahawaiola'a and Samuel Kealoha, all of whom are
50 percent Hawaiian or more.
OHA officials said it would be a mistake to limit
its programs to the 50 percent or more group.
"When you look at OHA's mandate ... it's a very
broad mandate," said OHA administrator Clyde
Namu'o. "It simply talks about bettering the
conditions of Hawaiians and native Hawaiians.
"So we believe in order to satisfy our mandate,
we can't simply isolate that one group and say
'Well, if we better the condition of 50 percent
Hawaiians, we will have bettered the conditions
of everyone else.' The reverse is actually true.
If you better the condition of all Hawaiians,
regardless of blood quantum, then you are in fact
raising the standard of living for the 50 percent
Hawaiians as well. That's our position."
Most other challenges against OHA and other
Hawaiians-only programs have come from those who
feel that funds should not be given to specific
groups based on race. The lawsuit filed by the
five men is unique in that it argues OHA has too
many beneficiaries.
NO OPINION ON MERITS
The three-member panel of the 9th Circuit Court
reversed Mollway's decision in August 2006 to
throw out the case on the grounds that prior case
law could not support it. Recent U.S. Supreme
Court cases have undermined prior case law that
formed the basis for the Day lawsuit, Mollway
said.
In their opinion, however, the appeals panel
stated, "Each Native Hawaiian plaintiff ... has
an individual right to have the trust terms
complied with, and therefore, can sue ... for
violation of that right."
Yesterday's decision by three of the 28 members
of the 9th Circuit allows the case to proceed,
but does not not express an opinion on the merits
of the allegations.
Walter Schoettle, attorney for the five men, said
in a statement that he and his clients are elated
that the court affirmed that they have a right to
sue in federal court.
Schoettle blasted the state, and not OHA, for
challenging the standing of his clients.
"However, OHA, as trustees for the native
Hawaiians, should have been defending my clients'
rights to sue even though they were the ones on
this particular occasion being sued."
He added that "none of the other so-called native
Hawaiian advocacy agencies came to the defense of
the native Hawaiian beneficiary in this case. It
was my clients standing alone who have prevailed
in preserving this precious right."
The five men charged that OHA "expended trust
funds without regard to the blood quantum
contained in the definition of native Hawaiians"
as spelled out in the Hawaiian Homes Commission
Act of 1920.
OHA WILL FIGHT
OHA officials, however, have said their mandate
is different and that they are bound not by the
blood quantum requirements found in the homestead
act but rather the Hawai'i Admission Act of 1959.
OHA, in a statement yesterday, said that while
the appeals court reaffirmed the right of native
Hawaiians to sue, it will continue to defend
against the claims brought by the group.
"OHA continues to believe that there is no merit
in the plaintiff's position," OHA Board
Chairwoman Haunani Apoliona said. "We believe we
will ultimately prevail based on the merits of
this case."
State Attorney General Mark Bennett said the
appeals court is wrong in believing that
individuals can sue over alleged violations of
the land trust law.
"At this point, we're going to look at whether or
not we have the ability to seek to intervene and,
on appeal, file for a suggestion for a rehearing
en banc," Bennett said. "I don't know if we're
able to do that."
An en banc hearing would require a larger
percentage of the 9th Circuit appeals court
judges to make a decision on whether to accept
the decision of its three-member panel that the
case should be reinstated.
The thrust of the lawsuit is the charge that the
trustees have spent trust funds lobbying Congress
for passage of the Akaka bill, which seeks to
create a government entity that would represent
all with Hawaiian blood regardless of their
quantum.
Additionally, the lawsuit alleges trustees have
"expended trust funds for all-expense-paid
vacations and political junkets for themselves
and their staff in the guise of lobbying for
passage of the Akaka bill."
OHA trustees have previously stated that they
have spent at least $1 million lobbying for the
Akaka bill.
FUNDING CHALLENGED
The lawsuit also challenged OHA's funding of the
nonprofit Native Hawaiian Legal Corp. and Na Pua
No'eau Education Program, saying it goes beyond
what is allowed in the Hawaiian Homes Commission
Act, language that was later incorporated into
the state Constitution.
Under the Hawaiian Homes Commission Act, money
generated by the so-called ceded lands â?" former
Hawaiian crown and government lands â?" is
supposed to benefit those with 50 percent blood
quantum.
Currently, about 10 percent of OHA's $28.5
million in funding comes from state taxes, with
the rest from ceded lands.
OHA administrator Namu'o said that there are
currently no programs designed to benefit 50
percent Hawaiians specifically. In the past, the
agency had a homesteader loan program that
benefited homesteaders, who need to be at least
50 percent Hawaiian.
The Department of Hawaiian Home Lands and the
homestead act are targeted for 50 percent
Hawaiians, he said,
"Our money is not the Hawaiian Homes Commission
money," Namu'o said. "The authority for our money
comes from the Admission Act that established the
public land trust. Obviously the money that
(DHHL) gets is specifically for 50 percent
Hawaiians. We don't believe that that's true with
ceded lands revenue that come off the public land
trust."
============
Full text of actual court decision
The actual decision of the 9th Circuit Court in
Day vs. Apoliona, published Auust 7, 2007, is
available in pdf format directly from the 9th
Circuit Court's website. Here's the decision (it
makes interesting reading).
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A866B1856168B97D8825732F007C39E8/$file/0616625.pdf?openelement
===============
How this lawsuit is related to the Akaka bill
There are at least three basic and conflicting
positions in opposition to the Hawaiian
Government Reorganization bill (Akaka bill).
(1) The mainstream opposition, which has been
most successful in preventing the bill from being
passed for seven years, is the "Aloha For All"
argument that it would be historically, legally,
and morally wrong to create a racial separatist
government for ethnic Hawaiians. Hawai'i should
remain unified under a single sovereignty with
equality for all persons regardless of race.
(2) A secessionist viewpoint is taken by
supporters of re-establishing Hawai'i as an
independent nation. Most supporters of this
position are ethnic Hawaiians; and all supporters
of this position believe that ethnic Hawaiians
are entitled to racial supremacy in voting rights
and property rights in a restored nation of
Hawai'i under a theory of "indigenous rights."
They believe Hawai'i is under a long-standing
illegal military occupation by the United States.
(3) A third position is taken by some of the
ethnic Hawaiians who have at least 50% native
blood quantum. They point to laws enacted by both
the federal government and the State of Hawai'i
that already give special rights to "native
Hawaiians of the blood." They say it is
historically, legally, and morally wrong for the
special rights established for native Hawaiians
of the blood to be broadened (and diluted) to
include the far larger number of "one drop" or
"toenail" Hawaiians.
An open letter to President Bush by Chief Maui
Loa is in this third category. Maui Loa is NOT
one of the plaintiffs in the lawsuit revived by
the 9th Circuit Court of Appeals. But his views
are easily accessible and are essentially the
same as those of the actual plaintiffs.
==============
Chief Maui Loa's published views similar to
plaintiffs
There are various groups of ethnic Hawaiians who
have a native blood quantum of at least 50%. The
"Hou Hawaiians" under Chief Maui Loa is one of
those groups. They claim that the Hawaiian Homes
Commission Act of 1921 already constitutes
federal recognition of their special rights as
comparable to an Indian tribe. That law set aside
203,500 acres of the "ceded lands" exclusively
for ethnic Hawaiians of at least 50% blood
quantum for long-term residential and
agricultural leases. The Admissions Act
(Statehood act) of 1959 included a provision in
section 5(f) that revenues from the ceded lands
can be used for any one or more of five purposes,
with one of those purposes being "for the
betterment of native Hawaiians" as defined in
HHCA. The state Constitutional Convention of 1978
established the Office of Hawaiian Affairs, and
legislation two years later specified that 20% of
all ceded land revenues must be diverted to OHA
for the benefit of native Hawaiians as defined in
HHCA (i.e., 50% blood quantum). But the Hawaiian
Homelands have always had a very long waiting
list, with nowhere near enough resources to "put
Hawaiians back on the land." Although nearly all
of OHA's $400 Million is earmarked by law for the
50% Hawaiians of the blood, OHA has lost sight of
that blood quantum restriction and focuses most
of its attention on the larger group of one-drop
Hawaiians (which, of course, includes the
50%ers).
Maui Loa's open letter to President Bush strongly
opposes the Akaka bill on the grounds that it
would be a theft of the lands and special rights
of "native Hawaiians of the blood" by opening up
those lands and resources to the larger group of
"one-drop" or "toenail" Hawaiians. The full text
of the letter is at
http://www.angelfire.com/hi5/bigfiles/ChiefMauiLoa040605.html
Essentially the same content was published in the
nationally-circulated journal "Indian Country
Today" on April 26, 2005, under the title "An
Open Letter to the White House: native Hawaiian
sovereignty" at:
http://www.indiancountry.com/content.cfm?id=1096410836 |
The basic concepts in this document were
published as a paid advertisement in the form of
a two-page spread in the Honolulu Star-Bulletin
(print edition) on April 26, 2005. A photo image
of that ad can be seen at:
http://www.angelfire.com/hi5/bigfiles3/MauiLoaAkakaAd.jpeg |
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