COMMENTARY
Our Islands shouldn't be Balkanized

By Kenneth Conklin
Writer and researcher

Hawai'i is at a crossroads. The Akaka bill and ceded-lands legislation force us to choose between racial separatism versus unity, and between racial supremacy versus equality.

Police and ceded-lands activists confront each other at Honolulu airport. The lands were never "stolen" from ethnic Hawaiians, writer Conklin asserts, because the crown had held them for the use of all races. Advertiser library photo • Jan. 31, 1999

Hawai'i's kindhearted people, and a new governor filled with aloha, might think they're supporting reconciliation and solving a problem when actually they're making things worse.

If the Akaka bill passes, our state will need all of the ceded-land revenues to help overcome a drastic reduction in our tax base. Tribal members and tribal businesses could no longer be taxed.

If Kamehameha Schools moves under the jurisdiction of the "Akakakanaka" tribe, businesses and rents from leasehold lands might no longer be taxable by the state.

The government and crown lands of the kingdom were not race-specific. All people born or naturalized in the kingdom had equal rights as natives, including ahupua'a tenant rights. After 1865, the Legislature took control of the crown lands. Government and crown lands (and their revenues) were used for government purposes serving all the residents of Hawai'i then, just as now.

At annexation, the government and (former) crown lands were ceded to the United States until statehood, as a public trust to benefit all the residents of Hawai'i just as before. No land was "stolen."

And today, the State of Hawai'i does not owe "rent" to a racial subgroup for the use of public lands for public purposes that benefit all of Hawai'i's people, including ethnic Hawaiians.

Section 5(f) of the 1959 (Statehood) Admission Act says the State of Hawai'i must use ceded-land revenues for any one or more of five purposes. One of those purposes is "the betterment of Native Hawaiians." Thus, the state might think it has permission to allocate ceded-land revenue to a racial group.

For the first 20 years of statehood, virtually all ceded-land revenue was spent on public education. About one-fourth of public-school children are ethnic Hawaiians. Thus, the race-neutral expenditure of ceded-land revenues on public education gave 25 percent of such revenues for the "betterment of Native Hawaiians," with no unconstitutional racial set-asides.

Our public schools today desperately need money. Taxpayers should not be fooled by claims that ceded-land money is unrelated to taxes. If ceded-land money is diverted from general-purpose expenditures (like education) to be given to OHA, then either those general expenditures must be reduced or taxes must be raised.

The Legislature in 1980 passed a bill to give 20 percent of ceded-land money to OHA. That figure of 20 percent has come to be based on gross revenue rather than net income.

Airports, harbors, schools, public housing and public hospitals benefit Hawaiians, and all require enormous capital investment and operating expenses. Yet OHA's 20 percent share of gross revenue has always come off the top.

OHA's 20 percent "share" of gross revenue is probably more than 100 percent of net income, which violates the rights of the other 80 percent under the 5(f) public trust.

On September 12, 2001, the Hawai'i Supreme Court handed down its decision invalidating Act 304 of 1990, invalidating Judge Daniel Heely's decision (that ordered a share of all income associated with ceded lands be paid to OHA), and dismissing OHA's ceded-lands lawsuit.

The state has no obligation to pay any ceded-land money to OHA unless the Legislature takes action.

In 2002, the Legislature stood up to OHA lobbying and chose to take no action. The Legislature should continue to be so wise in the future.

In 1995, a federal agency gave careful, extended consideration to claims that ethnic Hawaiians have special rights to own or set policy for use of ceded lands. Claims were aggressively asserted, based on the apology bill, the alleged illegality of the overthrow and annexation, and language in the Organic Act (of annexation) and the Statehood Admissions Act's section 5(f).

All such claims were totally rejected, with extensive analysis and documentation.

Another ceded-lands lawsuit was decided on Dec. 5, 2002, by Circuit Judge Sabrina McKenna.

Plaintiffs claimed the state cannot legally sell ceded lands. Plaintiffs cited all the usual sovereignty arguments. All of these claims were acknowledged by McKenna, who then either rejected them or ruled them irrelevant.

The Hawaiian grievance industry portrays Hawaiians as the neediest ethnic group and therefore entitled to special government handouts. But there are two major problems here.

First, not all Hawaiians are needy. It is a form of racial profiling and prejudice to stigmatize people as having undesirable personal characteristics merely because of race.

Second, many people with no Hawaiian blood are very needy and should receive government help. Government benefits should be given to needy people because they are needy, not because of their race.

Hawaiian activists say the issue is self-determination. That seems to mean ethnic Hawaiians should be able to exercise political power based on race. It means racial separatism and Balkanization.

All of Hawai'i's people have self-determination, collectively. That self-determination was exercised in the plebiscite of 1959, where 94 percent of all voters said "yes" to statehood.

Some say self-determination means that Hawaiians who need government help should go to agencies controlled by ethnic Hawaiians, while people with no Hawaiian blood go elsewhere.

Such an attitude is reminiscent of "whites only" signs on Mississippi drinking fountains. Did the right to self-determination mean that the Confederate states should be allowed to secede or be able to preserve de-jure segregation?

Let's focus on what holds us together rather than what rips us apart. Let's clearly acknowledge that the ceded lands belong to all the people of Hawai'i.

Reject OHA demands for ceded-land revenues or appropriations of tax dollars. Let OHA spend the $300 million it has hoarded, rather than throwing more money into this bottomless lua.

When OHA makes demands, just say 'a'ole.