Why Federal Recognition Does In Fact Sell Out the Lāhui

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 by Laulani Teale Aug 6, 2016

I am someone who does my absolute best to build unity in almost every situation, given the possible options. And generally, I’m good at it. But when there is an element that is so divisive that not taking a stand allows a questionable agenda to run over others, it is better as a person of peace to stand with those who are jeopardy.
“Federal Recognition” of a “Native Hawaiian Governing Entity” is a good example of this. It puts 123 years of people fighting illegal US rule into jeopardy by accepting US rule (which has never been done before), and accepting subservient status as a “Domestic Dependent Nation”, or tribe.
I am not making this up. Last year, OHA paid two law professors, James Anaya and Robert Williams, to write a report called “STUDY ON THE INTERNATIONAL LAW AND POLICY RELATING TO THE SITUATION OF THE NATIVE HAWAIIAN PEOPLE”. This is the most often-cited document by OHA’s “nation-building” forces and their counterparts. Generally, the study is very pro-fed rec, and in my opinion, they missed a lot of stuff. However, they didn’t miss everything.
On pages 24-25 of the “Study”, Anaya and Williams examine the DOI’s proposed rule, and its possible effects. Here is what their report says: “Native Hawaiian acceptance of the proposed federal rule could be used to imply acquiescence to the sovereignty of the United States over Hawai‘i, which undoubtedly is a premise of the proposal.” P. 24
Digest that for a minute.
It goes on:
“implied acquiescence to U.S. sovereignty could be interpreted as prejudicing the claim for restoration of the Hawaiian monarchy and an independent Hawai‘i, insofar as that claim relies on the assertion that the U.S. presence in Hawaii is today illegal. But any inference of acquiescence could be overcome by a unilateral declaration by the proponents of the claim affirming that acceptance of the proposed federal rule is limited to the specific, practical objectives of the rule and does not imply a general acceptance of U.S. sovereignty over Hawai‘i or a waiver of any claim challenging that sovereignty.” p. 24-25
Ok, so letʻs get this straight. Anaya and Williams (OHA’s main international legal experts) say that acceptance of the DOI rule does in fact imply that we acquiesce to being ruled by the US.
That is a big one. There is no treaty between the US and Hawaiʻi. Our kupuna never agreed to US rule. The 38,000 signatories on the Kūʻē petitions made that very clear. The 1959 Statehood plebiscite specifically skirted international law by not even offering options for restoration, independence, or even free association, and a plebiscite that offers a choice between integration or integration is invalid. So that doesn’t count either. This would be the first time that “Native Hawaiians” (at least those recognized as such by the federal government), or the people of Hawai’i in any form, actually agreed to governance by the United States of America. Ever.
Then there is part two of their analysis, where Anaya and Williams say that “any inference of acquiescence could be overcome by a unilateral declaration by the proponents of the claim affirming that acceptance of the proposed federal rule is limited to the specific, practical objectives of the rule and does not imply a general acceptance of U.S. sovereignty over Hawai‘i or a waiver of any claim challenging that sovereignty.”
Ok, so they are now saying that the above problem of implied acquiescence can be overcome, so don’t worry. How can it be overcome? By unilateral declaration by the proponents of the claim (in other words, those advocating for fed rec) affirming that acceptance of the proposed federal rule…does not imply a general acceptance of U.S. sovereignty over Hawai‘i or a waiver of any claim challenging that sovereignty.”
So according to Anaya folks, all we need in order to ensure that fed rec is not used against us is for the advocates of fed rec to stand up and clearly declare that acceptance of the rule in no way implies acquiescence to US possession.
Well, gosh, that’s easy! …
Except that, for some reason, this is not happening. At all.
The closest thing to such a declaration, ever, was that line in the Naʻi Aupuni ʻAha’s constitution that says: “we reserve all rights to sovereignty and self-determination, including the pursuit of independence.” But this is not protective. Why? For one thing, the document represents neither the Hawaiian people nor the “proponents of the claim” (fed rec advocates). Many people opposed the process that created the document; some (including an M.D., an award-winning Hawaiian Studies Professor, and others) even got arrested opposing it. On the other hand, some of those working on the document were independence advocates who are not said “proponents” at all, and how much influence they had is unknown. It is reasonable to hypothesize that they may well have authored that line — maybe even leveraged their own participation in the process in order to get it in — and may not agree to the DOI rulemaking at all. They could easily be described by the US and its integrationists as just part of the “fringe” (a term often used by fed rec advocates to describe the entire mass of the independence movement), like the rest of us. And the document itself was written under a lot of admitted time pressure, and therefore is not, er, excellent by even its own participants’ standards.
Furthermore, since the very controversial ʻAha was not officially addressing the DOI rule in the first place, that particular connection is insufficient to serve as the protection that Anaya them say is needed to avoid the implication of acquiescence.
Back in the Kanaʻiolowalu days, I made a simple, repeated request to their Roll Commission: fairly and thoroughly articulate resistance to this process in your official report. I explained the dual purpose for this: one, to protect our lāhui from claims of acquiescence. Two, to protect you all from looking foolish when people resist you, which they will. I made this request at at least two board meetings, and personally discussed it with multiple commissioners, including the chair, John Waiheʻe.
Never happened.
The obvious question here is: why? Why would Kanaʻiolowalu refuse to include language that would protect our lāhui from claims that we were now voluntarily agreeing to US rule? Why would the Naʻi Aupuni ʻAha likewise resist such protection (note: this is admittedly hearsay; I heard it said by several ʻAha participants)? Why is there not one major federal recognition advocate visibly standing up and saying, “I do not relinquish my claim to the Kingdom,” or “Let us be clear that this Rule is limited ONLY to the claims outlined and is in no way to be construed as acquiescence to rule by the United States,” or even just plain, “we have the right to independence,” or “I stand for independence”?
Maybe they did not actually read the Anaya/Williams report. That’s fair. Heck, I will admit I only caught that particular quote in the past week or so myself. The report is long, and we are all busy people. Numerous summaries (by OHA and others) have floated around at various times, and it is way easy these days to read a summary (or even headline) and feel like you have read a whole report. Dangers of social media.
That might explain some folks. But not all. It does not explain the lack of inclusive or protective language in Kanaʻiolowalu’s report, after the matter was clearly explained to the commissioners. It does not explain the lack of protective language by OHA’s “nation-building” staff, who should be reasonably expected to have read the report in full. It does not explain the TOTAL lack of this kind of protection in federal recognition efforts.
I do not want to say that our own people are selling us out. They are in a compromised position. The process sells us out.
I know and dearly love SO many on the fed rec team. I know their families. They have been my aunties, my uncles, my brothers & sisters on other fronts, my bosses (really good bosses, btw), my aloha ʻaina partners. I’ve laughed and cried with them, carried their babies over many stones, and they have carried mine too. They are real people, they work hard, and they care about the ʻaina and people. And I am a peacemaker — intra-ʻohana accusations are something I abhor and stand very strongly against. As a peacemaker, I spend choke time reframing, re-strategizing, redirecting accusations into something more kākou. I canʻt stand being put in a position where opposing a bad maneuver means opposing kanaka.
So when I say we are being sold out, let’s be clear: federal recognition itself sells us out. It is the age-old, tried-and-true method of “carrot-and-stick”.
“Carrots”: more federal money. A seat at the table (or at least, under it). Maybe, MAYBE more land (none is “on the table” yet, but hey, if we get a seat at said table, we can at least ask nicely for some of it back). Good paying jobs, upon which those Hawaiians who are struggling to “make it” in the colonial system depend, lest they become houseless or lose their mortgaged ʻāina. A distinctive status to get the US to use that which it is willing to recognize to protect at least the “indigenous claims” it is willing to let us fight it for, and protect our ability to speak for ourselves from crazy Koch-funded, lawsuit-happy ranchers and irritating non-Hawaiian independence activists.
“Sticks”: fear of crazy Koch-funded, lawsuit-happy ranchers and irritating non-Hawaiian independence activists. Loss of federal funds, upon which important programs have become dependent. Fear of being bombed by North Korea or (fill in the blank) if the US withdraws. The very real threat that the US could withdraw and leave all of its bombs in the soil and reefs, with no EOD resources to deal with them. Fear of neocolonial dictatorship or other crappy outcomes. Fear of not being able to pay the mortgage. Fear of being cut off from overseas family, because the US might hold independence against us. Individual fears of successors being disenrolled for all eternity, as happened to so many following the Dawes roll of 1893.
Those carrots are not cheap, and those sticks are not soft. The price: acquiescence to US rule. Everyone knows this is the deal. If it were not, the “proponents of the claim” would already be making the “unilateral declaration” recommended by Professors Anaya and Williams in their report to OHA.
But they are not.
That is why I am saying that Federal Recognition sells out the lāhui.
Because it does.