Honolulu Star-Bulletin from Honolulu, Hawaii on December 20, 1992 · 39
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Honolulu Star-Bulletin from Honolulu, Hawaii · 39

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Honolulu, Hawaii
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Sunday, December 20, 1992
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39
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' The Sunday Star-Bulletin & Advertiser Honolulu. December 20, 1992 B3 V(Mignty ; By U.K. Brass Keppeler ; Special to The Advertiser HY would the State pay more than $100 million in damages to Hawaiians and go alone with demands for 'sovereignty? r . Some of the issues are pretty complex, but: Hawaiians are legally and morally entitled to much more than the $100 million-plus they are likely to receive from the state; Sovereignty is not as crazy as it may sound; And it will happen. Don't go blaming the present administration and legislators. To really understand what happened and why the taxpayers of today and tomorrow are getting stuck for the tab, you have to go 'way back. The root cause. Ho'okipa, in a sense, was the root cause. This Hawaiian value translates to hospitality of the highest order. In ancient days, it applied to members of the same 'ohana or when kama'aina (old timers) entertained - malihini (newcomers). When haole (at first Caucasians, later other races) began arriving, conflict was inevitable. These malihini were , welcomed with full .nn r rvb-i v a Keppeler inkling of how their Western mores would clash with Hawaiian values. At first, I'm sure, this hospitality was accepted graciously and little thought was given to its implications, but all that changed about the time that the first . foreigner realized the strategic advantage and economic viability of these islands. (If space permitted, I would tell you a number of stories, including a very sad one about a Hawaiian population, conservatively put at 200,000 in 1778, plunging to 34,000 by 1893.) Some people blame the Hawaiians for having let others run roughshod over them. Well, I guess that just brings us back to ho'okipa. To ask how the Hawaiians could allow this to happen is a bit like asking how Bambi's mother could have allowed the hunter to shoot her. , , , But that's ancient history, you might say. Why make a big deal of it now? I could answer in many ways. I happen to be a lawyer, so I'm going to focus on the legal analysis. First; crimes have been committed. Like most crimes, these were about money and passion particularly about sugar fortunes, tariffs and "American Destiny." By 1887, an unfamiliar Western political system and a new land-title regime had been superimposed on the kingdom. King Kalakaua was balking at the latest demands of the haole businessmen. What they really wanted was annexation by the United States, to get around sugar import tariffs. But, aware of popular opposition to annexation, they sought a renewal of the Reciprocity Treaty that let Hawaiian sugar into the United ,. States duty-free. The U.S. government wanted Pearl Harbor in exchange for the treaty's extension. The king refused. So, in January of 1887, a "Hawaiian League" was formed and by mid-year membership had grown to about 400. The few part-Hawaiian members were far outnumbered by Americans, English, Germans and Portuguese. Orientals were barred from membership. Also in 1887, the Honolulu Rifles, a para-military group of foreign nationals, built up its membership and prepared for battle.. "Bayonet Constitution. On July 6, while the Rifles patrolled the streets outside the palace with bayonets fixed, the League's leaders Fault lines: Government FROM PAGE B1 trust you will agree, is one on which women are accorded the dignity to pursue their careers. They are entitled to be free of the pressure of being made sexual objects. They should not have to endure being the targets of power games. These have no place in a fair and inclusive society. Age discrimination is still rampant in the United States. At the same time, there has been significant shift of generational wealth distribution to those past age 65. These two competing sets of reality have spawned what some describe as intergenera confronted King Kalakaua and forced him to sign a new constitution. When Lili'uokalani ascended to the throne in 1891, the Hawaiian political base was so eroded that a Western takeover was inevitable. On Jan. 14, 1893, at the end of a frustrating and unfruitful session of the Legislature, Queen Lili'uokalani announced to the cabinet that she would proclaim a new constitution restoring some of the monarch's powers stripped away by the Bayonet Constitution, and restricting voting to those born in Hawai'i or naturalized. This was the opportunity the annexationists wanted. A "Committee of Safety" of 13 men took it upon itself to declare that the actions of the queen were revolutionary. The queen yields and appeals. In three short days, it was all over. American troops had landed from the U.S.S. Boston; a provisional government, formed by the 13 non-Hawaiians (without so much as an attempt to organize a vote of the people), had been recognized by the U.S. minister; and the queen, in carefully phrased words, had agreed to "yield to the superior force of the United States ... to avoid any collision of armed forces and perhaps the loss of life." The queen immediately appealed to the president of the United States. After an investigation, President Grover Cleveland was appalled. He strongly expressed his support for the queen in a message to a U.S. Congress that did nothing. The annexationists simply waited until Cleveland was out of office and William McKinley was in before again seeking annexation in 1898 this time, successfully. (Ever wonder why there are a McKinley Street and a McKinley High School, but no Cleveland anything in Hawai'i?) . In 1895, Robert Wilcox, a part-Hawaiian, instigated a counter-revolution aimed at restoring the monarchy. It was quickly put down and about 200 Hawaiians and haole sympathizers were arrested. Queen Lili'uokalani, forced to abdicate, was fined and imprisoned. All the foregoing may be true, "-' 0ms ' ' i " J On Jan. 17, Hawaii will observe the 100th anniversary of the overthrow of the Hawaiian monarchy. The Advertiser on Nov. 19 printed a special section, "Overthrow," providing what we feel is an objective look at the events and issues, involved. Here is the fifth in a series of weekly articles by others, offering their subjective views of those events and their meaning today, as the issues of sovereignty gain new attention. This is a shortened 'version of an article published as Chapter 30 of "The Price of Paradise: Lucky We Live Hawaii?" (Mutual Publishing). Author H.K. Bruss Keppeler, of Lyons Brandt Cook & Hiramatsu, is a lawyer concentrating on real estate. He is of Hawaiian ancestry and a student of Hawaiian history. tional warfare. Those intergenerational tensions will worsen. Government, in my view, must be the honest broker between the generations. In California, political power in the hands of the elderly resulted in Proposition 13, which permitted older citizens to retain more of their wealth, but denied educational and recreational opportunities to many young people. . Many of those young people now engage in recreational violence. Violence against whom? The elderly. The result: Older people have more wealth and less freedom. They remain locked behind closed doors, cringing in fear of the idle young. Community means bringing the generations together to strengthen the bonds of family and community. The main geographic fault line to which I wish to call your attention today does not concern North versus South or East versus West. Those still exist. They present difficulties of all sorts in apportioning our national resources. I want instead to touch on the serious geographic tension between rural America and urban America. The issue is guns and gun control. Guns claim one life on our city streets about every 20 minutes. Those of us who live in cities want to see legislation and regulation to curb this carnage. Americans in rural areas of such places as Texas, Mon- m will ihLrmppeiii J 1" f -' Advertiser file photo After Queen Lili'uokalani was overthrown, Sanford B. Dole (center, white beard) was elected president of the new republic. Others are identified as "American officers and officers of the Hawaiian National Guard." The boy (seated) was their mascot. you might say, but could anyone even begin to untangle the current situation in such a way that all fruits of these crimes could be returned to their rightful owners? Shouldn't we let bygones be bygones? Wait. There's more to the story. The U.S. Congress in 1921 established the "Hawaiian Homes" program, a land trust of roughly 200,000 acres for homesteading by persons of 50 percent or more Hawaiian blood. But sugar interests conditioned their support of this legislation on exclusion of the prime agricultural land they were using. As a result, the homestead trust consisted largely of the worst land in the territory. Also, opponents of Hawaiian Homes insisted that the homestead program be self-supporting, without direct federal assistance. So most of the land just sat there. D Breached duty. During the territorial years, some egregious breaches of fiduciary duty were committed. Thousands of acres of homestead land were transferred to federal and territorial agencies by executive orders and proclamations of federally appointed territorial governors. In the end, 29,633 acres were lost In addition, vast Hawaiian Home acreage was leased at pittances to private sugar and ranching interests. These breaches and other failures in the administration of the program are well documented in reports of federal agencies. At the time of statehood (1959), the federal government transferred administration of the homestead program to the new state of Hawaii, retaining only "oversight" responsibilities. So why haven't Hawaiians sued? Under the Hawai'i Admission Act, only the United States itself can bring suit in federal court for breaches of the homestead trust and no suit has ever been filed. At the state level, Hawaiians have sued and won. In 1988, realizing that these controversies would not just go away, the state Legislature required the governor to present a proposal for resolution of the controversies that had developed since statehood. Gov. John Waihee submitted an action plan in 1991. In February 1992, a task force recommended to the Legislature that $12 million be appropriated to pay back-rents for state use of Hawaiian Home lands since statehood, and that future use be compensated under general leases or by land exchange. , One reason that amount is low is the difficulty in establishing with must ease intergenerational it "3 i - - Maynard gun ownership means the beginning of gun confiscation. In my opinion, the Second Amendment has been bent out of all relationship to its original intent. Emotion on both sides has triumphed over reason. Here is a fault line in desperate need of a bridge for the sake of the safety and health of our whole nation. 1 fl t , 5 any degree of precision the exact amount of damages. The range of possibilities is wide and the report opts for a number at the low end. I hate to sound like a complainer, but this goes against the grain of established trust law. When a fiduciary duty has been breached, any uncertainty in the calculation of damages is supposed to be resolved against the fiduciary. Whatever the state finally decides to pay, it will be peanuts compared to the next little matter. D The Ceded Lands Trust. At the time of statehood, another important trust was created. Under the Admission Act, 1.2 million acres of the land ceded to the United States by the Republic of Hawai'i was ceded back to the state of Hawai'i. The income derived from this land was to be used for five stated purposes, including "the betterment of the conditions of Native Hawaiians." Until 1980, however, not one penny of this income ever made its way. to these intended beneficiaries. The Office of Hawaiian Affairs was funded in 1980 and, for the first time, ceded-land income began to benefit Hawaiians directly. Not until 1990, however, was the full extent of this income determined. Negotiations between OHA and the state for a settlement of unpaid . benefits continued through early 1992 when it was announced that the settlement would be for $111.8 million. At this writing the amount is being reviewed, but it is contemplated that the settlement will be paid some in cash, the rest in land. Let's summarize. The Kingdom of Hawai'i was illegally overthrown with the direct assistance of the U.S. government, and the trustees of the several trusts established by the U.S. government for the benefit of Hawaiians have repeatedly breached their fiduciary duties. Is it any surprise that Hawaiians want more than apologies and social services? Hawaiian sovereignty. Recently initiatives for a restored sovereign Hawaiian nation have emerged. The Reagan and Bush administrations inadvertently pressured Hawaiians into thinking more seriously about sovereignty by formally rejecting federal funding of the Hawaiian Home program on the basis that it would require illegal preferences based on racial classification, as distinguished from use of the constitutional authority to benefit "Native Americans as members of tribal nations." If this position is correct, Hawai tana and Idaho will hear none of it. They and their spokespersons in the National Rifle Association fear that any restriction on 1 it A V 1 Well, when we come to gun control in Boston versus Boise, we are indeed a long way from Mogadishu. Ultimately, the issues in Mogadishu and Manhattan have this in common: To achieve a credible basis for the maintenance of order, the peace-keeper must have moral authority. That authority is based at bottom on two things. First is the material ability to prevail. The second is the moral right to prevail. Moral imperative must be based, if it is to last, on a foundation of fairness and even-handedness. That, in turn, is rooted in dignity and respect for the individual wherever he or she is found. It is for that reason that I ,j - 1 - J1 1 1 X ft V IK -ST" L - , -; I ians must have sovereignty! In early 1991, Hui Na'auao, a coalition of more than 40 organizations representing the full spectrum of , Hawaiian political thought, from conservative to self-proclaimed radical, was formed to seek a grant from the U.S. Administration for Native Americans. Hui Na'auao is embarking on a remarkable odyssey in search of a form of sovereignty, self-determination and self- governance Hawaiians can choose for themselves. Under any scenario, the land base for the new nation will surely incorporate the tracts set aside for the Hawaiian Home Land Trust and at least a portion of the Ceded Lands Trust. If the "nation within a nation" option is chosen, there may be an attempt to consolidate, but more likely it will retain a "checkerboard" pattern. Just as you don't really know now whether you're on ceded land, you wouldn't necessarily know when you were on land of the new sovereign nation. During deliberations over the Hawaiian Home legislation in 1920, then-Gov. Charles J. McCarthy wrote: "Personally, I have my doubts as to whether the Act will do all that is claimed, but I am strongly in favor of it ... "If it works it will be the best thing that could possibly happen to the Hawaiians and also the Territory at large. Should it fail, the Hawaiian people will have only themselves to blame." If Hawaiians are to be blamed for the failure of programs always administered by others, perhaps it is time for them to determine their own destiny. In a monumental clash of cultures over which they have had no control, Hawaiians continue to dominate the "bad lists" in criminal justice, health, education and welfare. It is sadly ironic that in many ways this is a direct result of their traditions of ho'okipa and aloha. It's as if their lunch keeps getting eaten by others, , and then they are blamed for being malnourished. The trust assets represented by the Hawaiian Home Land and Ceded Lands trusts should place Hawaiians among the wealthiest people in the United States. Despite this, they are the poorest, the sickest and the least educated of the state of Hawai'i. With any luck, the many breaches of trust will be settled, Hawaiians will be given political and economic autonomy, and the land of aloha can truly begin to heal its wounds. tensions argue that we can only fulfill our superpower role successfully if we set our own house in order, and then work to establish a world order based on consensus with other governments. I place Japan at the top of that list. ! Churchill called the West to I arms in 1946, urging us to con- front a potential international ; terror. And it was a nightmare half century. This post-Cold War era has ; been ushered in with new nightmares aplenty. My thesis here today rests on this simple ', proposition: If these night-mares are to be transformed to ; a new, acceptable and civil re- ; ality, the transformation must , begin with ourselves.

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