OF SUGAR CANE AND QUEENS: Sovereignty in the Sandwich Islands: Part Two

I’ve heard from several folks in response to my last entry wanting to know just what in the heck that Hawaiian sovereignty stuff is all about, and what on earth would make President Clinton sign something called The Apology Bill. Well, to paraphrase Keanu Reeves in Bill and Ted’s Excellent Adventure, “Something is afoot in the Sandwich Islands.” (The movie line is actually “Something is afoot at the Circle K.”) You only have to read cases like Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 177 P.3rd 884 (HI 2008) and Rice v. Cayetano, 528 U.S. 495 (2000), and study the history and debate over “The Native Hawaiian Government Reorganization Act of 2007,” also known as the Akaka Bill (after its sponsor, Hawaii Senator Daniel Akaka) currently pending in the United States Congress, to know that.

And not only is something afoot today, it has its origins in history. So some with me now as we step into Mr. Peabody’s Wayback Machine and set it for Hawaii. (Is the reference to the world famous Sherman and Mr. Peabody from The Rocky and Bullwinkle Show too obscure? Or am I just showing my age?)

Believe it or not, Hawaii was once a royal kingdom, governed by a monarchy. The islands were divided into separate kingdoms, and the notion of private land ownership was an alien concept. Instead of “owning” the land, the people were essentially trustees of the land, administering it on behalf of the gods. It really wasn’t until the advent of the haoles, the white interlopers I mentioned before, that land ownership crept into the culture.

As an aside, haole comes from the Hawaiian words ha, which means breath, and ‘ole, which means without, so the literal translation is “without breath” or “breathless.” One etymologist says it’s a reference to the fact that when the white people in Hawaii said their prayers, they didn’t breathe three times as the ancient Hawaiians customarily did. Another story, though, says that the Hawaiians found it hard to believe that people could be that pale and actually be alive, or draw breath. Whatever its origin, though, it’s rarely used fondly. According to Wikipedia (so take it for what it’s worth), a tradition began in Hawaii’s public schools in 1950s of calling the last day of school before the summer break “Kill Haole Day,” when native Hawaiian children would harass and sometimes assault white children. An article in the Honolulu Star Bulletin published on March 24, 1999, bore this headline: “’Kill Haole Day’ linked to hate-crime bill.”

Nope, rarely used fondly.

Now where were we? Oh, yeah, no private ownership of land. At last not officially, but the haoles were already gobbling up real estate wherever and however they could. In 1839, King Kamehameha III issued a Declaration of Rights that said that property couldn’t be taken “except by express provision of law.” Sounds good, as far as it goes. But hard on the heels of that, the King also granted the first constitution to Hawaii, which changed the nation’s absolute monarchy to a constitutional monarchy. The constitution set up a bicameral legislature and a supreme court.

It also did something that was the first real crack in the dam: it declared that, even though all land belonged to the King, it was not the King’s private property. Instead, the common people also had some claim to ownership, even though they still couldn’t acquire absolute ownership. In 1845, a Land Commission was established to investigate claims to private ownership of land that were being made by some folks, particularly haoles. The Land Commission recommended to King Kamehameha III a system of land distribution, under which the King would retain his private lands, but the remaining land would be divided equally into thirds among the Hawaiian government, the chiefs (the ali’i) and the tenants or common people.

Three years later, after much debate over this recommendation, came what’s known as The Great Mahele, or the Great Division. It began in January of 1848, but it wasn’t the equitable 1/3-1/3-1/3 originally recommended. Instead, the King ended up holding almost 2.5 million acres (roughly 60%) (it’s good to be king) and the chiefs got about 1.5 million acres. The King then divided his share into two parts, setting aside 1.5 million acres as government lands and keeping 1 million acres as “crown lands.” So the ultimate result was 1.5 million to the chiefs, 1.5 million to the government, 1 million for the king and, -- you do the math -- the good old common folks got screwed, ending up with about 28,600 acres.

And here’s where it gets interesting: an 1846 law had authorized the sale of government lands, and a second law in 1850 authorized any resident of Hawaii to own and convey land, citizen or not. By 1864, Westerners had bought over 320,000 acres of government lands. According to the Native Hawaiian Handbook (University of Hawaii Press 1991), edited by Melody Kapilialoha MacKenzie, by 1890, “Of a total population near 90,000, fewer than 5,000 actually owned land. Hawaiians, if they had any lands, owned small acreages. Consequently, for every four acres belonging to private owners, three were held by Westerners. The relatively small number of Westerners owned over a million acres.”

And something was afoot at the Circle K. Stay tuned for part three.

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com

OF SUGAR CANE AND QUEENS: Sovereignty in the Sandwich Islands

“The time has come,” the Walrus said,
“To talk of many things:
Of shoes – and ships – and sealing wax –
Of cabbages and kings –
And why the sea is boiling hot –
and whether pigs have wings.”

The Walrus and the Carpenter
by Lewis Carroll


Hawaii!

The very word evokes visions of Paradise – white, sandy beaches; swaying palm trees; silver waterfalls, hula girls; mai tais; and luaus. Each year, millions flock to the islands to soak up rays, splash in the surf, play golf, and lounge around luxury resorts. But beneath the surface of this tourist Mecca, a simmering resentment threatens to boil over at any moment as a proud people, the native Hawaiians, find themselves servants in their own home, waiting hand and foot on these white interlopers – the dreaded haoles (pronounced “how-li”).

Believe it or not, there are really two Hawaii’s. One is the “tourist” ideal, consisting of the aforementioned (nice legal term, don’tcha think?) white beaches, resort hotels and golf courses, luaus, and hula dancers. The other is the “real” Hawaii – the native peoples living in near poverty because the tourism industry has created prices for food, shelter, and land that they can’t afford. They work in the taro fields, fish in the ocean, and clean up the messes tourists leave behind in hotels and restaurants. They have become second class citizens in their own land.

So what happened? Well, that takes us into a little history lesson.

On January 17, 1993, the Hawaiian people observed the one hundredth anniversary of the overthrow of the Hawaiian monarchy. On that date, one hundred years earlier, the self-proclaimed Committee of Safety, a group of haole businessmen heavily interested in Hawaii’s major crop, sugar, declared that the “Hawaiian Monarchial [sic] system of Government is hereby abrogated” and replaced by a provisional government “for the protection of the public peace . . .” Yeah, right!

That same day, the Hawaiian monarch, Queen Lili’uokalani, temporarily surrendered her sovereignty, not to the provisional government, but “to the superior force of the United States of America, whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support said Provisional Government.” Although she expressly intended her surrender to be temporary, “until such time as the Government of the United States shall . . . undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands,” the monarchy has never been restored.

While we, in the United States, celebrate the anniversary of the overthrow of English rule, for many native Hawaiians, the anniversary of the Hawaiian monarchy’s overthrow provides no basis to celebrate. Rather, they lament not only the loss of their form of government, but also the loss of a sacred way of life. Instead of reveling in their U.S. citizenship, they vilify the haoles who stripped them of their queen and their land. They demand reparations from the United States for their loss, and demand a return of their sovereignty for the Hawaiian people -- restoration of citizenship in a reconstituted Hawaiian nation, with rights of self-determination, to exercise independent control over their lands and lives. That includes a return to their native language, customs and religions. Harsh words are written and spoken, decrying the illegality of the overthrow and the unlawful intervention by the United States. These Hawaiians believe themselves to be living in a “stolen kingdom” and believe that now is the time to reclaim what was wrongfully taken.

Is this nothing more than chauvinistic saber-rattling from disgruntled natives, or is there something more to what they claim? The words of our own President, Grover Cleveland, about the question may be instructive. On December 18, 1893, he told a joint session of Congress:

"Hawaii is ours. As I look back upon the first steps in this miserable business, and as I contemplate the means used to complete the outrage, I am ashamed of the whole affair.

. . .

It appears that Hawaii was taken possession of by the United States forces without the consent or wish of the government of the islands, or of anybody else so far as shown, except the United States Minister.

Therefore the military occupation of Honolulu by the United States . . . was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.

. . .

By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair."

One hundred years later, President Bill Clinton signed Public Law 103 - 150 into effect. Known to native Hawaiians as The Apology Bill, it said:

"The Congress –
(1) on the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people;
(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians;
(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination;
(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and
(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people."

So maybe the native Hawaiians have a point. Maybe it would do us well to hear them out. To put a spin on Carroll’s Walrus, “the time has come to talk of many things . . . of sugar cane and queens.”

Mike Farris

(214) 979-0100

mfarris@tiptonjoneslaw.com