CONSTITUTION OF THE NATIVE HAWAIIAN NATION

Na’i Aupuni Constitution Documents

Message from Poka Laenui:

Date: Sat, 12 Mar 2016 13:01:18 -1000

Please find a set of documents containing a principle evaluation and 6
attachments to the Na’i Aupuni “Constitution.” Feel free to circulate.

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Note: For more information, visit: http://www.naiaupuni.org

PREAMBLE

We, the indigenous peoples of Hawaiʻi, descendants of our ancestral lands from time immemorial, share a common national identity, culture, language, traditions, history, and ancestry. We are a people who Aloha Akua, Aloha ‘Āina, and Aloha each other. We mālama all generations, from keiki to kupuna, including those who have passed on and those yet to come. We mālama our ‘Āina and affirm our ancestral rights and Kuleana to all lands, waters, and resources of our islands and surrounding seas.  We are united in our desire to cultivate the full expression of our traditions, customs, innovations, and beliefs of our living culture, while fostering the revitalization of ʻŌlelo Hawaiʻi, for we are a Nation that seeks Pono.

Honoring all those who have steadfastly upheld the self-determination of our people against adversity and injustice, we join together to affirm a government of, by, and for Native Hawaiian people to perpetuate a Pono government and promote the well-being of our people and the ‘Āina that sustains us. We reaffirm the National Sovereignty of the Nation.  We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence.  Our highest aspirations are set upon the promise of our unity and this Constitution.

UA MAU KE EA O KA ʻĀINA I KA PONO.

 CHAPTER I – OF THE NATION

Article 1 – Territory and Land

 

1. The territory of the Native Hawaiian Nation is all lands, water, property, airspace, surface and subsurface rights, and other natural resources, belonging to, controlled by, and designated for conveyance to and for the Hawaiian Nation.
2. The Native Hawaiian people have never relinquished their claims to their national lands. To the maximum extent possible, the Government shall pursue the repatriation and return of the national lands, together with all rights, resources, and appurtenances associated with or appertaining to those lands, or other just compensation for lands lost.

Article 2 – Citizenship

 

1. A citizen of the Native Hawaiian Nation is any descendant of the aboriginal and indigenous people who, prior to 1778, occupied and exercised sovereignty in the Hawaiian Islands and is enrolled in the nation.
2. Citizenship in the Native Hawaiian Nation shall not affect one’s citizenship in the United States.
4. All citizens that have attained the age of eighteen years are eligible to vote.

Article 3 – National and Official Languages

 

1. ʻŌlelo Hawaiʻi is the National language.
2. ʻŌlelo Hawaiʻi and English shall be official languages.
3. The Government shall respect the right of its citizenry to understand the actions and decisions of its Government, and endeavor to communicate effectively with the citizenry while supporting the national language.

CHAPTER II – DECLARATION OF RIGHTS

 

Article 4 – National Right to Self-Determination

 

The Nation has the right to self-determination, including but not limited to, the right to determine the political status of the Nation and freely pursue economic, social, cultural, and other endeavors.

 

Article 5 – Collective Rights

 

1. The Native Hawaiian people shall have the right to honor our ancestors; maintain, protect, and repatriate iwi kūpuna, funerary, and cultural objects; protect sacred places; and protect the knowledge and wisdom from traditional and customary sources.
2. The rights of Native Hawaiian tenants in the ʻĀina (land, water, air, ancestor) and ahupuaʻa, shall not be abridged.
3. The Native Hawaiian people have the right to maintain, control, protect, and develop their intellectual property over cultural heritage, traditional knowledge, and traditional cultural expressions.

Article 6 – Rights of the Individual

 

1. No person shall be deprived of life, liberty, or property without due process of law.
2. All people shall be guaranteed equal protection of the law.
3. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated and no warrants shall issue except upon probable cause, supported by oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized.
5. No person shall be twice put in jeopardy for the same offense, nor be compelled to be a witness in a criminal case against himself or herself.
6. In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of not less than 12 jurors of his or her peers; to be informed of the nature and cause of the charges against him or her; to be confronted with the witnesses against him or her; to have a compulsory process for obtaining witnesses in his or her favor; to have assistance of counsel for defense at his or her own expense.
7. Every person is presumed innocent until proven guilty by law.
8. Bail shall be set by the judicial authorities and shall be available to all defendants, except where the granting of bail would constitute a danger to the community. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
9. The writ of habeas corpus (of the body) shall be granted without delay and free of cost. The privilege of the writ of habeas corpus shall not be suspended.
10. There shall be no imprisonment for debt, except in cases of fraud.
11. No ex post facto law, nor any law impairing the obligation of contracts, shall be imposed.
13. Every citizen shall have the right to bear arms.
14. Citizens have a right to traditional medicines and to maintain their health practices, including the conservation of their vital medicinal and cultural plants, animals, and minerals.
15. Every child citizen has the right to parental care, or to family or appropriate alternative care, when removed from the family environment; to basic nutrition, shelter, basic health care services, and social services; and, to be protected from maltreatment, neglect, abuse, or degradation.
16. All persons have the right to be free from exposure from harmful substances used in warfare, nuclear power plants, and waste materials.

Article 7 – Customary Rights

 

1. The Native Hawaiian people reserve all rights and responsibilities customarily and traditionally exercised for subsistence, cultural, medicinal, and religious purposes.
2. The Native Hawaiian people have the right to manifest, practice, develop, and teach their spiritual and religious traditions, customs, and ceremonies.
3. Ola i ka wai, water is life; and the Native Hawaiian people shall exercise traditional and customary stewardship of water. The Nation shall protect, control, and regulate the use of water resources under its jurisdiction for the benefit of its people.
4. The Nation has a right, duty, and kuleana, both individually and collectively, to sustain the ʻĀina (land, kai, wai, air) as an ancestor, source of mana, and source of life and wellbeing for present and future generations.

Article 8 – Government Prohibitions

 

The Government shall not:

 

1. Pass any law that abridges a citizen’s right to make end of life decisions, be treated with dignity, and a humane death;
2. Take private property for public use without just compensation;
3. Make any law respecting the establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people to peaceably assemble; or
4. Make any law with the intent to suppress traditional Native Hawaiian religion or beliefs.

Article 9 – Reservation of Rights & Privileges

 

1. All rights, privileges, and powers not articulated in or pursuant to this Constitution shall be reserved in common to the citizens.
2. The Nation has the inherent power to establish the requirements for citizenship in the Nation. The Nation reserves the right to modify or change citizenship requirements solely through a constitutional amendment.
3. Any benefits accorded to the citizenry, by virtue of their status as citizens of the United States, shall not be diminished or impaired by the provisions of this Constitution or the laws of the Nation.
4. The rights of beneficiaries of private and other trusts, programs, or services shall not be diminished or impaired by the provisions of this Constitution or the laws of the Nation.
5. The rights of beneficiaries of the Hawaiian Homes Commission Act, 1920, as amended, shall not be diminished or impaired by the provisions of this Constitution or the laws of the Nation. The kuleana toward these beneficiaries is affirmed.
6. CHAPTER III – PURPOSE AND PRINCIPLES OF GOVERNMENT

Article 10 – Kuleana

 

1. The kuleana (right; responsibility; jurisdiction) of Government is to ʻĀina (land; water; air; ancestor); citizens; and Ke Ao Hawaiʻi (All things Hawaiian).
2. The Government shall provide for the prudent stewardship of the ‘Āina as the source of life and well-being, as expressed through the values reflected in the ‘Ōlelo No‘eau: He ali‘i ka ‘Āina, he kauā ke kanaka.
3. The Government shall provide for the prudent stewardship of water resources, as expressed through the values reflected in the ‘Ōlelo No‘eau: Ola i ka wai.
4. The primary purpose of Government is to meet the needs and priorities of its citizens, protect their rights, and care for the ʻĀina.
5. The Government shall ensure the liberty of the citizens and groups of citizens to mālama kuleana and pursue happiness.
6. The National Government shall empower kuleana-based governance, and support homerule and local governance.
7. The Government shall provide support to the citizens for housing, healthcare, food, and education.
8. The Government shall prioritize Hawaiian culture, history, language, traditions, customs, knowledge, and ancestral wisdom.
9. The Government shall pursue the repatriation and return of the national lands, together with all rights, resources, and appurtenances associated with or appertaining to those lands, or other just compensation for lands lost.
10. The Government shall ensure reasonable traditional and customary access to water on National lands.
11. The Government shall manage the Nation’s assets in a fiscally responsible manner, balancing the needs of today with the needs of future generations.
12. The Government shall enact laws, create policies, and act in such a way that is resonant with and honors the traditions, customs, usage, and practices of the nation.
13. The Government shall protect and seek repatriation of iwi kūpuna, cultural objects, sacred places, and knowledge and wisdom from traditional and customary sources.
14. The Government shall seek repatriation of iwi kūpuna and cultural objects.
16. National Government shall advocate for Native Hawaiian rights, services, trusts, and programs with other sovereigns, institutions, and organizations.
17. The Government shall focus on restorative justice principles that follow on the traditions of puʻuhonua, mālama, and hoʻoponopono.
18. The Government recognizes the rights of traditional and customary units of Native Hawaiian society, especially that of ʻohana.
19. The Government shall provide for a certification process to enable a group of citizens to assert their collective kuleana in service of the nation.
20. Consistent with the first right articulated by Ka Mōʻī Kamehameha in the Kānāwai Māmalahoe, the Government shall promote the safety and security of all citizens and the Nation.E nā kānaka,E mālama ‘oukou i ke akua honor the divineAnd respect all people, great and humbleAnd let no one cause them harm.The Seat of Government shall be located in the Hawaiian Islands.
21. Article 11 – Seat of Government
22. E hele ka ‘elemakule, ka luahine, a me ke kama a moe i ke ala Let the elderly and the child lay down by the roadside ‘A‘ohe mea nāna e ho‘opilikia.
23. A e mālama ho‘i ke kanaka nui a me kanaka iki;
24. To my people,
25. Kānāwai Māmalahoe – The Law of the Splintered Paddle:

Article 12 – Rule of Law

 

The Government shall be bound by the Constitution, laws of the Nation, the customs of the Native Hawaiian people, and the rule of law.

 

Article 13 – Foreign Relations

 

1. The President shall have the power to conduct negotiations and enter into treaties, compacts, and other agreements with other sovereigns, political sub-divisions of such sovereigns, or other organizations and entities for the benefit of the Nation.
2. Treaties and compacts shall be subject to a two-thirds ratification by the Legislative Authority.

Article 14 – Sovereign Immunity

 

The Nation and its Government possess sovereign immunity, which can only be waived in accordance with the law.

 

Article 15 – Appointments

 

1. Judicial Authority appointments by the President are subject to confirmation by simple majority of the Legislative Authority.
2. The President may appoint members of the Legislative Authority in the event of a vacancy; except that where more than two (2) years remain in the term, an election shall be held to fill the vacant seat.

Article 16 – Oath of Office

 

1. Every public official, before entering upon the kuleana of their respective office, shall take and subscribe to the following oath in either ‘Ōlelo Hawai‘i or English language: I do solemnly swear that I will faithfully support and defend the Constitution of the Nation, and conscientiously and impartially discharge my duties as ___________ to the best of my abilities.
2. No person shall be compelled to take an oath or make an affirmation that is contrary to their religion or belief.

Article 17 – Removal From Office

 

1. Impeachment proceedings and removal of judicial appointments may be initiated by the President subject to a trial conducted by the Legislative Authority and two-thirds majority vote of the body.
2. The Legislative Authority may, following a trial to determine cause, impeach the President through two-thirds majority vote of the body.

Article 18 – Office Limitation

 

(1)       Public officials may not hold any other position within any branch of the Government, or within any other government, while holding an elected office.

 

Article 19 – Judicial Autonomy

Legislative Authority may not diminish the Judicial budget, without the consent of the Judicial Authority, except where proportionate government-wide reductions are in effect.

 

Article 20 – Special Session

 

The President may call a special session of the Legislative Authority.

 

Article 21 – Moku Council

 

1. Within four (4) years of ratification of the Constitution, there shall be established within the Office of the President, a Moku Council with no less than nine (9) members.
2. The Moku Council shall advise the President on the needs of its respective districts, the delivery of relevant services to its districts, and on other decision-making that would benefit from the Moku Council’s place-based expertise.
3. The President shall appoint one (1) representative from each district, until such time as the Moku Council shall recommend a statutory process of determining council membership.
4. The Moku Council shall elect, from among its members, a representative to serve in the Executive Cabinet.

Article 22 – Local Government

 

1. The Legislative Authority may create political subdivisions within the Nation and provide for the government thereof.
2. Each political subdivision shall have and exercise such powers as conferred under general laws.
3. Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law.

Article 23 – Elections

 

1. The Vice President shall establish an Office of Citizenship and Elections whose responsibilities shall include, but not limited to, the following: (1) Enroll, manage, and maintain the list of citizens of the Hawaiian Nation; and (2) establish procedures for voting that includes residency, age, disqualification, and recall requirements.
2. The Office will establish and execute a process to enroll, create, and maintain a list of Nation citizens.
3. Office will administer elections for the Legislative Authority and President and VicePresident, including procedures to demonstrate residency.
4. All citizens who have attained the age of eighteen (18) shall be allowed to vote for the seats associated with their permanent residency, where citizens may provide only one permanent residency. Kahoʻolawe residency may be established by demonstrating at least four (4) consecutive years of stewardship to the island.
5. Citizens shall be automatically registered to vote upon reaching the age of eighteen (18), unless disqualified by law.
6. The Legislative Authority shall enact campaign finance laws on the financing of political candidates seeking public office. These laws shall include, but are not limited to: (1) ceiling limits on public funding by political entities; (2) public disclosure of contributions; (3) contribution limits; (4) corporate donation prohibitions; and (5) expenditure limits.

Article 24 – Recall of Elected Officials

 

All elected officials are subject to recall for cause, which may be initiated by signature of twenty-five (25) percent of the votes cast in the last election for that office. Any recall is subject to the majority vote of eligible votes cast for the respective office.

 

Article 25 – Statutory Initiative and Referendum

 

1. The Legislature may vote by two-thirds of the body to send questions directly to the citizenry through a ballot referendum.
2. The citizenry may, by petition signed by at least ten (10) percent of the number of voters in the last Executive election, place a statutory amendment on the ballot for direct vote.

Article 26 – Law Enactment

 

Bills passed by the Legislative Authority are subject to the veto of the President. In the case of a veto, the Legislative Authority may override the veto with two-thirds vote of the body.

 

 

CHAPTER IV – LEGISLATIVE AUTHORITY KULEANA

 

Article 27 – Legislative Power

 

1. The legislative power shall be vested in the Legislative Authority, which shall be unicameral and consist of Representatives.
2. Legislative Authority shall have the power to pass legislation with regard to any matter.

Article 28 – Legislative Qualifications

 

1. Any person who is a citizen and has reached the age of eighteen (18) may be elected.
2. Representatives shall be citizens, eighteen (18) years of age, and reside in the district at the time of election, and for the duration of their time in office.

Article 29 – Term of Office for Representatives

 

Representatives shall be elected for four years; no Representative shall serve more than a total of twelve (12) years.

 

Article 30 – Legislative Elections

 

Representatives shall be elected by voters who have established residency in the respective district.

 

Article 31 – Representatives Count

 

1. The initial Legislative Authority shall be comprised of forty-three (43) land-based and population-based Representatives to be elected at-large from the legislative districts.
2. Following the first election, the individual districts shall create sub-districts for their district seats and stagger the terms of office.

1. Reapportionment may be done through constitutional amendment or convention.
2. Each Legislative district shall have the following number of Representatives based on the population of each district:Maui – 1;Lāna‘i – 1;O‘ahu – 6;Ni‘ihau – 1; Kahiki – 8.
3. Kaua‘i 1;
4. Kaho‘olawe – 1;
5. Molokai – 1;
6. Hawai‘i – 2;
7. Each legislative district shall also have the following number of Representatives based on the land for each district:Maui – 4;Lāna‘i – 1;O‘ahu – 4;Ni‘ihau – 1; Kahiki – 0.
8. Kaua‘i – 4;
9. Kaho‘olawe – 1;
10. Molokai – 2;
11. Hawai‘i – 4;

Article 32 – Representative Privilege

 

Members of the Legislative Authority shall be privileged from suit for any speech or debate spoken during assembly or in execution of their duties.

 

Article 33 – Legislative Calendar

 

The Legislative Authority shall establish a calendar in coordination with cultural protocols, which shall convene on January 17 of each year.

 

 

CHAPTER V – EXECUTIVE AUTHORITY KULEANA

 

Article 34 – Executive Power

 

1. The executive power shall be vested in the President, who shall execute the laws of the Nation.
2. The President may: Issue executive orders; prepare the national budget; receive resources, assets, or gifts on behalf of the Nation; recommend legislation; grant reprieves and pardons, except in cases of impeachment; and contract to effectuate the law.
3. The President shall have the authority to appoint all executive officials of the Nation, except elected officials or as otherwise provided by law.
4. The President shall pursue the acquisition of lands for the Nation to meet the needs and aspirations of the citizenry.
5. The President may establish Executive Departments that meet the needs of the Nation, with the priority to deliver services addressing disparate needs in the community.The President and Vice-President shall be elected in an election.
6. Article 35 – Executive Elections

Article 36 – Qualifications of Executives

 

No person shall be eligible to hold the office of the President and Vice-President unless they have attained the age of thirty (30) years and have resided in the Hawaiian Islands for not less than ten (10) years immediately preceding the election.

 

Article 37 – Responsibility of the Vice-President

 

There shall be a Vice-President to serve in the Executive Cabinet who shall have the kuleana for the unique needs of the Kahiki citizenry and other responsibilities as assigned by the President.

 

Article 38 – Term of Office for Executives

 

The President and Vice-President shall be elected for a term of four years.

Article 39 – Line of Succession

 

In the event of vacancy, impeachment, death, resignation, or the absence of the President from the Nation, the Vice President will assume office of the President followed by other officials as prescribed by law.

 

Article 40 – Continuity of Governance

 

The President will maintain the immediate past President as a counselor to ensure continuity of governance.

 

Article 41 – The Executive Cabinet

 

1. The President shall convene an Executive Cabinet comprised of the Vice-President, one (1) representative from the [Cultural, Spiritual Hui], one (1) representative from the [Hui of the Royal Organizations], one (1) representative from the Moku Council, and the Heads of Executive Departments.
2. Heads of Executive Departments shall be nominated by the President, then presented to the Legislative Authority for confirmation or rejection by a simple majority.

Article 42 – The [Cultural, Spiritual Hui]

 

There shall be a [Cultural, Spiritual Hui], which shall elect within ninety (90) days of the election of a new President, by its own internal processes, a representative to serve in the Executive Cabinet.

 

Article 43 – The [Hui of Royal Organizations]

 

There shall be a [Hui of the Royal Organizations], which shall elect within ninety (90) days of the election of a new President, by its own internal processes, a representative to serve in the Executive Cabinet.

 

 

CHAPTER VI – JUDICIAL AUTHORITY KULEANA

 

Article 44 – Judicial Power

 

The judicial power shall be vested in the Judicial Authority.

 

Article 45 – Judicial Authority Qualifications 

 

The President shall establish qualifications with the consent of the Legislative Authority for Justices and Judges.

 

Article 46 – Judicial Authority Primary Focus

 

The primary focus of the Judicial Authority shall be restorative justice.

 

Article 47 – Judicial Authority Structure

 

1. The Chief Justice is the head of the Judicial Authority and presides over the courts. The Chief Justice may establish courts, tribunals, offices, and forums of general or exclusive jurisdiction as prescribed by law, and may account for customary practices of the Native Hawaiian people.
2. The scope of judicial power shall encompass all cases, in law and equity, arising under this Constitution, the laws of the Nation, treaties, compacts, and agreements made, or which shall be made, under the Nation’s authority.

Article 48 – Term of Office for Justices and Judges

 

1. The Judicial Authority shall consist of:
   1. Not less than three (3) Justices with life-time appointments; and
   2. Judges serving a term of no less than ten (10) years.
2. The Chief Justice is elected by an absolute majority of Justices.
3. CHAPTER VII – AMENDMENTS AND CONSTITUTIONAL CONVENTION

Article 49 – Amendments

 

1. Proposed amendments to this Constitution may be initiated by any of the following methods:
   1. A resolution of the Legislative Authority adopted by two-thirds affirmative votes;
   2. A valid petition submitted to the Legislative Authority signed by not less than fifteen
   3. (15) percent of the registered voters of the Nation in the last executive election; or
   4. A constitutional convention.
2. The Legislative Authority shall establish the format and rules for adopting amendments.

Article 50 – Constitutional Convention

 

1. A Constitutional Convention shall be held within four (4) years of the establishment of the Moku Council and appear as a ballot question for citizenry at least every ten (10) years after the Government’s formation. The citizenry may, through a constitutional initiative, call for such a convention earlier.
2. The Legislative Authority shall establish the format and rules for convention participation with elected delegates from each legislative district.

CHAPTER VIII – RATIFICATION

 

Article 51 – Ratification

 

The present Constitution is subject to a ratification vote.

 

1. A ratification election shall be held for the purpose of ratifying this Constitution.
2. The Constitution shall become effective upon approval by a majority vote of individuals   who are eligible to be citizens, have attained the age of eighteen (18), and cast a ballot in   the ratification election.

 

Drafting an Independence Constitution

Following is a working draft of the Independence Model Constitution of the Aha Hawai`i `Oiwi.  The underlined sections, except for headings, were added after the convention had generally agreed to the document.  It is added here for further consideration.  Please review the full document and give your input on each of the sections.  –Poka Laenui, Chairperson

Constitution of Hawai`i

Preamble

Hawai`i, bequeathed to us from the Source of all creation since time immemorial, nurtures our bodies, minds and spirits upon a foundation of Aloha.

We rise in a unified cry to our devotion for Hawaiian sovereignty.  We proclaim our right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire.

We recognize that wisdom from the past forms the spring board into our future.  Ua mau kea o ka ‘aina i ka pono.  Only in Pono are we able to build a society worthy of the dignity of our past and the hope for our future. Thus, Pono forms the guiding principle upon which Hawai`i today must stand. In Pono we have partnership, mutual respect and cooperation with all that abounds and surrounds us.

We build this government upon partnership, recognizing the integrity of the distinct host people and culture of this land and the special place to be established within the government for their protection and perpetuation.  We recognize equally the human rights and fundamental freedoms to be accorded every person of Hawai`i and commit to the protection and perpetuation of such rights and freedoms within the governmental framework.  All people are free and equal, and endowed with inalienable rights and the responsible vigil of freedom.  He pono keia.

We recognize all the Divine elements of Hawai`i – of life, of change, of fluidity, of stability, of humanity, and all of the nature elements which give physical representation to those elemental forces – the sun, the wind, the sky; the fresh water, the salt water, the land, including the mountains and the forests, and the people who populate Hawai`i.  He pono keia.

We reaffirm our belief in a government of the people and by the people; for the generations who were, are and is yet to come.  We understand our relationship to the land, the kinship responsibility that unites us as a people with those around the globe.  We recognize the harm caused by our past abrogation of this kinship responsibility and avow to vigilantly guard against such a wrong again.  We acknowledge our commitment to each other and to the land; to our kupuna and to our mo’opuna yet to come.  He ali`i ka ‘aina; he kaua ke kanaka.

Deleted DECLARATION in earlier draft except for below

E mau ke ea o ka ‘aina i ka pono.

Article I, Name

[The nation shall be called is] Hawai`i.

Article II, Territory

The national territory [of Hawai`i] consists of the Hawaiian archipelago, stretching from Kure Atoll in the North to Hawai`i in the South and all of those lands, atolls and other territories whose jurisdiction have been assumed by the United States of America previously claimed by Hawai`i prior to the US 1893 invasion.  Those territories previously part of the constitutional Hawaiian monarchy but which have subsequently been declared the territory or possession of a state other than the United States of America may be included within the territorial jurisdiction of Hawai`i upon concluding negotiation with that claiming state and Hawai`i.

The territorial waters of Hawai`i shall include the waters twelve (12) miles from the shores of all lands of Hawai`i.  The exclusive economic zone defined by the 1982 Convention on the Law of the Sea is adopted as applying to Hawai`i.

Article III, Supremacy

This Constitution shall be the supreme authority of the government of Hawai`i.

Article IV, Peoples Rights & Protections

[To be finished after National Convention.]

The rights of the people established by this constitution shall not be abridged unless as set forth by the process established in this constitution and in no other manner.

Principle I

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of Aloha.

Principle 2

The fundamental rights and freedoms set forth to all citizens are to apply without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Principle 3

Everyone has the right to life, liberty and security of person.

Principle 4

No one shall be held in slavery or servitude.

Principle 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Principle 6

Everyone has the right to recognition everywhere as a person before the law.

Principle 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any prohibited discrimination and against any incitement to such discrimination.

Principle 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by this constitution or by law.

Principle 9

No one shall be subjected to arbitrary arrest, detention or exile.

Principle 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Principle 11

1.Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

2.No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Principle 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Principle 13

1.All citizens have  the right to freedom of movement and residence within the borders of Hawai`i consistent with this constitution, and the laws established by the national congress.

2.All citizens have the right to leave the country, and to return to the country.

Principle 14

1.Everyone meeting the requirements of this constitution and of law has the right to a nationality.

2.No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Principle 15

1.Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2.Marriage shall be entered into only with the free and full consent of the intending spouses.

3.The family is the natural and fundamental group unit of society and is entitled to protection by society and subject to regulation by the State.

Principle 16

1.All citizens have the right to own property alone as well as in association with others. The State shall have the right to regulate and register ownership off all property.

2.No one shall be arbitrarily deprived of his property.

Principle 17

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. The government shall make no law establishing a religion or religious practice.

Principle 18

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Principle 19

1.Everyone has the right to freedom of peaceful assembly and association.

2.No one may be compelled to belong to an association.

Principle 20

The people shall have the right to privacy and to be secure in their persons, houses, papers, conversations, ideas and effects.  This right shall not be infringed upon through unreasonable searches and seizures.  No Warrants shall issue, but upon probable cause, supported by Oath or affirmation particularly describing the place to be searched, and the persons or things to be seized.

Principle 21

No person shall be held for a felony unless on a presentment or indictment of a Grand Jury, unless in the military service of the government in time of War or public danger.  No person shall be subject for the same offense to be twice put in jeopardy, to be compelled in any criminal proceeding to be a witness against himself, nor be deprived of liberty or property without due process of law.  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of his peers within the district wherein the crime shall have been committed, to be informed of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel.

Principle 22

The government shall have the power to impose taxes.

Principle 23

1.Every citizen  has the right to take part in the government, directly or through freely chosen representatives.

2.Every citizen has the right to equal access to public service.

3.The will of the citizens shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Every elector shall be free from arrest on election days, during his attendance at election and in going to and returning therefrom, except in cases of treason, felony, or breach of the peace.  No elector shall be obliged to perform military duty on the day of election as to prevent his voting, except in time of war or public danger.

Principle 24

All citizens have the right to social security and is entitled to realization of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. All citizens have the responsibility for the contributions to society necessary to effectuate the social security and economic, social and cultural rights accorded to its citizens.

Principle 25

1.All citizens have the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.

2.Everyone, without any discrimination, has the right to equal pay for equal work.

3.Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4.Everyone has the right to form and to join trade unions for the protection of his interests.

Principle 26

1.Everyone has the right to a standard of living adequate for the health and well‑being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 

2.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Principle 27

1.Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

2.Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities for peace in the world.

3.Parents have a prior right to choose the kind of education that shall be given to their children.

Principle 28

1.Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2.Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Principle 29

1.Everyone has duties to the community.

2.In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public, peace, safety, and the general welfare in a democratic society.

3.These rights and freedoms may in no case be exercised contrary to the purposes and principles of this constitution and of pono.

Principle 30

Nothing in this bill of Rights may be interpreted as implying for the government, any group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Article V, Aboriginal/Hawaiian Rights/Entitlements

[We respect human and civil rights.  We are favorable to, but not pa`a on, the ILO, State of Hawai`i, US Constitutions that already state basic rights.  Reserving for Ke Kumu Hawai`i.]

Right of Self-Definition: The Kanaka Hawai`i Maoli are the aboriginal people of islands of the Hawaiian archipelago and those people whom they shall define within their system of self-governance.  Individuals so defined as Kanaka Hawai`i Maoli shall have the opportunity to decline such attribution to themselves individually.

Right of Self-Government: The Kanaka Hawai`i Maoli shall have the right to decide their own priorities in the process of development, as it affects their lives, beliefs, institutions and spiritual well-being and the territories (including land and sea) under their jurisdiction, as further defined by this constitution.  They shall also have control over their own economic, social and cultural development, including management and policy control over vocational training, health services, and education.  The administration of justice and the power to retain or create social institutions to address the needs of the Kanaka Hawai`i Maoli are also reserved to them.

Territorial Rights: There shall be set aside lands, waters, and other natural resources for the exclusive control of the Kanaka Hawai`i Maoli as expressed through the Kumu Hawai`i established in this constitution at Article VII.  Such areas shall be limited to undeveloped or minimally developed lands which were previously in the inventory of the Crown and Government lands of Hawai`i prior to July 4, 1894.  Such resources shall be sufficient for the maintenance of the Kanaka Hawai`i Maoli in their traditional system of living, not less than the equivalent size of one traditional ahupua`a (including access to ocean) on each island in which a Kanaka Hawai`i Maoli population of 1,000 exist. These include the rights to hunt, fish, trap and gather, and to control mineral and subsurface resources.

Cultural Rights: The right to maintain the cultural traditions of the Kanaka Hawai`i Maoli shall not be impaired.  Included in this right shall be the right to maintain contact with other indigenous and tribal peoples across oceans to pursue shared economic, social, cultural, spiritual and environmental development, the right to educate their children in their own native language, the right to practice their own traditional health and healing practices, and the right to express their own sense of spirituality in their own form.  All of these rights shall remain subject to the limitations that they are not to be destructive to the protected rights of all other individuals in the society.

Custom and Protocol: Reserved to the Kanaka Hawai`i Maoli, as expressed through the Kumu Hawai`i, shall be all of the official state customs and protocols, including ceremonies of international import with other states.

Immigration & Population: Reserved to the Kanaka Hawai`i Maoli, as expressed through the Kumu Hawai`i, shall be the control over immigration, determining the criteria for further transfer of population into Hawai`i, the conditions of visa awards, and treaties and executive agreements touching on the temporary and permanent residents of non-Hawaiian citizens.

All of the kuleana set aside for the Kumu Hawai`i and the Kanaka Hawai`i Maoli shall be be limited by the constitutional guarantees of human rights as well as other constitutional limitations or powers specifically set forth therein.

Crown and Government Lands and Natural Resources: The Kumu Hawai`i shall have the exclusive right of management over the lands and natural resources whose titles were previously part of the inventory of the Crown and Government lands of the Hawaiian nation prior to July 4, 1894.  With the exception for the lands set aside under territorial rights described above, all net proceeds from the management of the former Crown and Government lands and natural resources under this provision shall be allocated 20% to the Kumu Hawai`i and 80% to the general Hawai`i public.

Participation in the Kumu Hawai`i: Initially, any Kanaka Hawai`i Maoli, 16 years and older, shall be permitted the privilege of participating, including voting, in all activities of the Kumu Hawai`i.  Upon adoption of this constitution, the Kumu Hawai`i shall organize itself, through the election of delegates, one per three thousand people, into a system formulated under the transitional provision of this constitution.

Article VI, Citizenship

Citizenship shall consist of three general classes:

‑all Kanaka Maoli throughout the world who elect to be citizens;

‑descendants of subjects of the Hawaiian Kingdom prior to July 4, 1894 who elect to be citizens; and

‑all persons born in Hawai`i, and other individuals who have been a resident of Hawai`i for a continuous period of five years prior to this constitution coming into force and effect, and who choose willfully to pledge their allegiance to Hawai`i, [and join our culture and society through a naturalization process which shall be provided by law.]

Five years following the ratification of this constitution by the citizens of Hawai`i, the qualifications as well as the naturalization process for citizenship may be altered by the legislative body, including changing the requirements of one or more of the above classes of citizenship but not necessarily of all the classes.

Article VII, Government Structure

The nation shall have two primary governing bodies operating in partnership for the Kanaka Hawai`i Maoli public and the general Hawai`i public.

1. I) The Kumu Hawai`i, comprised of Kanaka Hawai`i Maoli, whether citizen or not, shall have exclusive management rights over crown and government lands and natural resources; the right to self‑definition; the right to self‑governance; control over immigration and population transfer; indigenous education and health care; and international protocol all as set forth above in Article V.  All other powers not specifically reserved to the Kumu Hawai`i shall accrue to the General Government.

[Ownership, use and control of territories and resources specifically delineated herein shall be under the exclusive jurisdiction of the Kumu Hawai`i.]

2)  The General Government, comprised of all citizens, shall have all powers not reserved to [Ke] the Kumu Hawai`i. [Upon adoption of this document by the Kanaka Maoli people there shall beheld a National Convention within twelve months of ratification wherein all naturalized citizens shall construct the general governing structure of this independent nation.  The resulting structure will be incorporated into this constitution.]

Either or both of these bodies, the Kumu Hawai`i or the General Government, may permit appropriate political subdivisions within their realm of responsibilities, such as counties, ahupua`a, townships, etc. These bodies may also create other branches of government, including an executive and judicial branch, for the nation.

An advisory conflict resolution office shall be established to which disputes not readily resolvable between the two bodies shall be submitted.  This office shall consist of five members, two of whom shall be appointed by each government partner and the fifth appointed by the members appointed by the partners.  Should it not be able to resolve any dispute of a non‑constitutional nature, this office shall be empowered to put the question of controversy before all the citizens of Hawai`i for a vote and require a mere majority of the votes cast to decide the matter.  If a dispute of a constitutional nature should arise calling for an amendment to this constitution resulting in a detraction of the rights and powers of the Kumu Hawai`i or of the Kanaka Hawai`i Maoli citizen, both [bodies] government partners would have to ratify said amendment [if it will result in a detraction of the rights and powers of the Kumu Hawai`i].  Otherwise, only a majority of the votes cast would be required to amend the constitution.

Article VIII, General Provisions

Private Real Property Ownership

1. Assurances to Private Ownership:

Hawaiian citizens and non‑citizen residents may own their residence in their own name.

1. Forfeiture for Non‑residents

Non‑citizen, non‑residents: Non-citizen non‑resident [foreign] ownership of land may be subject to termination within ten (10) years following their [departure] continuous non-residence of [departure from] Hawai`i.  If terminated, said land ownership will be included in the inventory of the general government.

Citizen, non‑resident:  Citizen, non‑resident ownership of land may be subject to termination within twenty (20) years following their continuous non-residence [departure from] of Hawai`i.  If terminated, said land ownership will be included in the inventory of the general government.

III. Prohibition of Sale of Real Property to Non‑residents

Transfer of real property title to non‑resident, non‑citizens shall be prohibited.

There shall be no transfer of real property to non‑residents with the exception of citizens who establish residence in Hawai`i within five years from date of transfer.

Official Languages

`Olelo Hawai`i and English shall be the official languages of Hawai`i in which any and all official proceedings and legal transactions may be conducted.

The Education Department of the General government shall be required to incorporate the teaching of `Olelo Hawai`i co‑extensive with the teaching of English.

[The public laws shall require training of] Within ten years after the formation of the general government, all public employees [to become] shall be proficient in both languages as working languages. [Within ten years after the formation of the general government all new hires are required to have a working knowledge of both languages.]

Flag

[A national contest shall be held to choose an official flag.]

A national flag design shall be chosen by agreement of the two governing partners.

Motto

[The nation shall have a motto.]

A national motto shall be chosen by agreement of the two governing partners.

Anthem

[The nation shall have a government.]

A national anthem shall be chosen by agreement of the two governing partners.

National Security Board

A National Security Board shall be established to advise on the nation’s security from

domestic or external influences.  This board shall consist of 15 members from among whom

shall be individuals with education, training and experience in the fields of economics,

agriculture, international affairs, public health, military defense, and local cultures.  Members

of the board shall be appointed, 8 by the general governing body and 7 by

the Kumu Hawai`i.  The members shall appoint their leadership from among themselves

and may otherwise organize their work as they deem appropriate.  None of these

members may hold any elective office nor any rank within any military force, and

shall resign from office and remain out of office for a period of two years prior to undertaking

any public office or military post.

Outstanding Claims Post‑Colonization

[Certain claims against the United States would of course remain unresolved for a number of years.]  A claims resolution panel consisting of the members of the National Security Board, shall advance the claims against the United States of America, through any and all avenues deemed appropriately by said board.  Among such claims are:

1)      Claims for damage over a period [of one hundred years] since January 17, 1893, upon the indigenous language, culture, tradition, use of lands and waters and for destruction of certain aspects of the environment including the radioactive and chemical waste left in Hawai`i [upon decolonization] following independence.

2)      Claims against the U.S. social security, veterans benefits, and all other benefit programs for contributions by Hawaiian citizens who have not yet collected upon said benefits to its full extent up to the time of [decolonization] independence;

3)      Individual claims for forced military services and for individuals deprived of property rights.  Such claims in this category shall be made only on behalf of individuals or their descendants who register their individual claims with the panel.

4)         Other claims determined by the board to be just and appropriate.

Article IX,  Amendments

Any amendment to this Constitution must be approved by a majority of the citizens of Hawai`i.

Furthermore, any amendment to this constitution which would alter the defined rights of the Kumu Hawai`i or of the Kanaka Hawai`i Maoli would require the [official consent of Ke Kumu Hawai`i] approval of the Kumu Hawai`i.

Article X, Ratification & Transition Process

Upon approval of this constitution by the Aha Hawai`i `Oiwi, it shall be presented to the Kanaka Hawai`i Maoli population throughout the world for ratification.  If ratified by a majority of the votes cast, an election for 51 members of the Kumu Hawai`i shall be held.

Upon election of said members of the Kumu Hawai`i, this constitution shall be presented to the eligible citizens of Hawai`i for ratification.  If ratified by a majority of the votes cast, an election of 51 delegates constituting the general governing body shall be held.

Upon election of said members of the general governing body, the Kumu Hawai`i and the general governing body shall collaborate in the review of this constitution, determine their on-going structure of governance, and establish the mechanism for the safe and smooth transition of authority in Hawai`i from the United States of America.

 

 

For further information, please contact Pōkā Laenui, Chairperson, Aha Hawai`i `Oiwi, 86-641 Pu`uhulu Rd., Wai`anae, HI 96792 plaenui@hawaiianperspectives.org  (800)200-2682

 

Poka Laenui, Feb. 23, 2016, plaenui@hawaiianperspectives.org

Unity & Transition Statement

These are critical times for Hawaii and for our people. We are at important cross-roads which can divide or unite us.  One path is called United States “Federal Recognition” – an unequal treaty relationship between a colonized dependent race and its colonial master.   The other path calls for the formal recognition as an independent nation-state by the U.S. and other world bodies and states.

That divide has caused injury to the Hawaiian national body. It has caused a schism between friends and family, churches and civic organizations.  We have seen our communities torn apart with rancor and distrust.  We have somehow put aside the right of our people to their freedoms, out of a fear that a choice in one direction may terminate our right of choice in the other.

We have allowed ourselves to be fooled into believing that the choices we make are exclusive to one another. The fact is, the choices we make are not exclusive, indeed our people can choose one or the other, both or neither of these options.  We can even choose the unequal treaty option now and the independence option later.

The domestic laws of a colonial nation cannot extinguish human rights and fundamental freedoms of peoples recognized in international law. Under international law, all peoples have the right to self-determination; by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.  These rights are not extinguishable.

The Native Hawaiian people have a right to choose U.S. recognition, independence, both or neither. Any action taken by a people who are under conditions of occupation and/or colonization are not permanently attached to the people. 

Our Hawaiian people must remain unified, respecting our difference of opinions but not break the bonds which unite us. Let us set ourselves free from the fantasy of this false separation.  Let us be respectful of one another and remain patient and united in our devotion to Hawaiian Sovereignty.

To move this agenda forward, a Hawaii National Transitional Authority should aid people’s understanding and to help make the transition in relations with the U.S., other international bodies, and the State of Hawaii.

 

Institute for the Advancement

of Hawaiian Affairs

86-649 Pu`uhulu Rd.

Wai`anae, Hawai`i 96792

 

Tel: (808)697-3045 Fax: (808)696-5516

http:\\www.hawaiianperspectives.org

February 14, 2000

 

 

On Deep Cultures in Hawai`i

 

There are cultural codes in the collective sub-conscious of all societies which defines within that society what is right and wrong, what is moral and natural, what forms of behavior is appropriate in given circumstances.   These codes derive from the myths and legends, from the deep national memories, from the environmental conditions, from the internal conflicts and from a multitude of other processes which have taken place over long periods of time in a society.  These codes are generally unwritten.  They do not form a constitutive document or are in some explicit statement. They are generally unspoken.  But they are so ingrained in a society that they become the driving force of the society.   You can oftentimes see them in the routines and habits of people, in the fears and pleasures of a people, in their dreams and expectations and the systems of reasoning.

 

I call these codes the deep culture of a society.

 

The deep culture lies at the foundation of a society. Sitting immediately upon that deep culture is a wide social system including economic relations, health care, families, shelter and clothing practices, food and eating customs, education forms and environmental attitudes.  A political system develops upon and protects the social system and a military system upon that, protecting, of course, the political system.

 

When Deep Cultures Clash

 

What happens when a people who have existed upon such a deep culture comes into contact with another people? Such contacts can result in very little change or it can result in a total upheaval of the society.  Many factors play a role in the effects of such contacts.  One of the factors is the place in which contact and change comes about.

 

 

Contacts can be made at any one or at a combination of places in that societal framework. There can be contact on the basis of religious proselytizing, on trade and cultural/intellectual exchange, or military conquest.  These contacts may affect changes in that level of the framework for a period of time, but unless they make fundamental change in the people at the deep culture level, the society will find a continual pull toward those systems which express the existing deep-culture of the place.

 

In the Hawai`i experience, we find a society which had developed a strong deep culture

upon which a particular social, political and military structure formed. On-going contact with Europeans came about in 1778 by the visits of Captain James Cook of the British admiralty.  Those initial contacts were largely based upon trade.

 

Hawai`i, meanwhile, was undergoing an upheaval in its political order, with chiefs fighting for territory and power over one another. Those internal political upheavals were by and large settled by 1819 through the unification of these islands under Kamehameha I, resulting in a consolidated political system governing Hawai`i.

 

Immediately thereafter, Hawai`i underwent a widespread, internal, even formalized upheaval of its religious underpinnings, instigated through edicts (`ai noa, the releasing of the kapu) from the government for the people to step away from their traditional religious practices. Christian missionaries from the American Board of Commissioners for Foreign Missions arrived from Boston, Massachusetts, amid this religious turmoil.  This timely arrival provided those conditions resulting in their direct influence in the religious order of the society.   Both the `ai noa and the coming of the missionaries split the society in ways which are still being felt today by the combining and clashing of two major systems of religious practices.  We find the emblems of the ancient religious practice still reflected in the wide practice of cultural dances and chants, styles of eating, reverence for nature, health practices, naming of children, etc.  Yet, we also find constant outward appearances of Christian beliefs side by side with the ancient practices.

 

Products of Christian Missionaries

 

The missionaries played a significant role in the widespread formal education system as well as the political reformation of the society. From a society which had no writing system (aside from the traditional petroglyphs) in merely ten years after missionary arrival, a writing system had been introduced and the bulk of the Hawaiian population became literate, far in advance of other nations of the world.

 

Another decade later, a Hawaiian Magna Charta was instituted, observing the fundamental rights of all human beings and the equality of all, chiefs and commoners, before the law. This was followed immediately by a written constitution beginning a political system of human rights and a constitutional representative form of government with a monarch at the helm.

 

Hawai`i developed a pattern of international relations engaging in trade and intellectual commerce and exchanging formal political recognition and diplomats with nations throughout the world. Hawai`i soon became the most literate nation in the world.  It had 99 diplomatic and consular posts around the world, and was a member of one of the first international governmental organizations, the Universal Postal Union.  Its international status as an independent and sovereign state was recognized world-wide.

 

As all of this was happening, many more cultures came into Hawai`i, from both the East and West, having continuing impact upon the Hawaiian society.

 

American Invasion

 

On January 16, 1893 United States troops invaded Hawai`i and participated in establishing a puppet government for the explicit purpose of ceding Hawai`i to the United States of America. After four years of investigation and debate within Hawai`i and the United States, including an admission by the U.S. President that an invasion did occur which violated international law and the treaties between the two countries, the U.S. Congress (in the turmoil of the Spanish American War) voted to annex Hawai`i as an American territory in 1898.  This act violated the U.S. Constitution requiring treaties to be approved by 2/3rd of the U.S. Senate.   It refused to consult with the people of Hawai`i who, there is no debate, were overwhelmingly against the annexation.

 

In 1900, the U.S. government restructured the Hawai`i political system along the lines of a colonial/military outpost and governed Hawai`i in this manner. It held direct control over all military forces, over the political, including the judicial system, over immigration, and over all trade with foreign countries.  In 1959, it placed the question of Statehood before the Americans in Hawai`i who voted in favor.  The Congress switched Hawai`i political relationship from a Territory to a State of the U.S. union.  (See separate article on Hawaiian Statehood.)

 

Results

 

Given this brief review of Hawai`i’s history of foreign contact, especially a colonial contact with the U.S.A., let us return to the analysis of the societal framework, in particular the deep culture of Hawai`i. We have seen Hawai`i’s deep culture established over generations of existence, by 1820, undergoing major impact through the religious edict of the government, the unification of the government structure, the formation of new economies, and the expansion of the awareness of the international community.  All of this was occurring in a general environment of self-determination by which indigenous leadership, in the final analysis, determined the national policy.

 

U.S. military act resulted in a reversal of that indigenous led constitutional monarchy. It brought about an American controlled economy, political structures and relationships, heavy militarization, as well as unfettered immigration from the United States and other areas.  The U.S. also dictated education, media, and finance.

 

DIE & OLA

 

 

Today, what we find is a jumbled flow of at least two distinct deep cultures within the Hawai`i society.   One is prominent in the formal and the other in the informal systems of community life.  The first contains strong elements of:

 

Domination – especially reflected in the formal economic, education, political, military and judicial systems. Ingrained within this element is the idea of expansion, an ever enlarging territory, market, or field of conquest as being a natural order of things.

Individualism – protected in the legal system, elevated in the expression of history and dominant Western philosophies. Ingrained within this element  is the idea of singularity, a continual parceling apart, fragmenting of things, concepts, persons from people.

Exclusion – often accomplished by the depersonalization of the “other,” the stranger. One favorite technique is by referring to others as non-human entities, “gooks” and “commies” for example instead of men, women and children, the “evil empire” instead of the people of another nation.

 

The acronym DIE is an easy reminder of the elements of that deep culture stream. It is prevalent in the formal economic, education, judicial and political systems of the Hawai`i society today.

 

The second stream contains elements of:

`Olu`olu – compatible, agreeable, creating relationships of comfort, of inter-relating with a high degree of respect and trust, even alongside one’s competitor, of finding contentment with what one has, of staying within one’s kuleana, territory or property;

Lokahi – collective effort, many working together for a common goal which gives a foundation for looking at the wide implications of small things,

Aloha – a propensity toward inclusion of other people and different philosophies, a searching out for the humanity within others and trying to urge that humanity to the surface of inter-relationships.

 

This “OLA.” is generally attributed to the underlying Hawaiian culture and the multiplicity of added cultures to Hawai`i. It is entrenched in the informal economy of sharing and caring, of non-formal education, of traditional healing, of alternate dispute resolution systems and community organizing.  In the Hawaiian (and other Polynesian) language, it means both health and life.

 

Of course, one would have to look long and hard to find a pure DIE or OLA in the general community. These deep cultures continually mix, clash, and cooperate within individuals, families, situations, and systems.  They add to the schizophrenia and to the compatibility of the society which makes Hawai`i so incomprehensible for some and so delightful to others.  These deep cultures are more than interesting anthropological points of inquiry.  They have very serious implications to our society.  They form the foundation upon which we build our relationships with one another, how we interact with our environment, our attitudes to time, justice, sharing and caring, family, medicine, . . .  They are guiding forces to our individual and collective futures.

 

 

Here’s a simplified example of the practice of DIE and OLA deep cultures. Two young men come into a large source of cash and decide to buy a car for each of them.  One goes out and buys a two seat, two door, convertible sports car to “go cruising” with a friend on date nights.  The other buys a van so he can take the whole family around the island, to the “games” or just to “go holo holo” (visiting without a specific destination).  Those choices are expressions of deep culture.

 

Consider the implications. Hawai`i’s environmental policy can be used as a study. If those who make decisions over such a policy follow a DIE cultural concept, the environment will be treated from a “domination, fragmentation” approach – man has the right, (some argue, even the responsibility) – to conquer, dominate, and subdue the environment.  The value of the forests are to be measured only in terms of its utility to the human population.  Likewise, the ocean, the streams, the sky, the plants and animals, the winds, etc.  Alterations to the natural elements are accomplished without any second thought: the first and only one being the “good” of man.

 

An OLA concept would approach the environment from a kinship and a unification approach. The `āina and the kai, the land and the ocean, would be treated as ohana, family.  The cutting down of plants or the fishing in the ocean may or may not incorporate ceremony, but in the doing, there is certainly a sense of reverence, of operating within and of performing a special, sacred task.^[1]

 

The operator of a machine uses it and applies it to the environment by creating within him/her self a relationship. He feels the mood and the spirit of the tractor, he can tell when he is pushing it too hard, or not enough.  He feels the contours of the earth and the spirit within those contours.  He may not be able to explain it, but those feelings are there deep inside.

 

Hawai`i has a unique food dish called “plate lunch.” It is filled with a mixed variety of food.  One could find rice, mashed potato, sweet/sour spare ribs, hamburger, chicken or pork adobo, hot dog, chili, laulau, spaghetti and meat balls, kim chee, daikon, macaroni and/or potato salad, toss green salad, and a whole assortment of other dishes.  Malihini or newcomers to Hawai`i are generally puzzled by this customary food practice and why it is so popular throughout Hawai`i and among the local population.  Their choice of lunch is at McDonald or Burger King.  It is another reflection of deep culture.

 

 

Visit any public high school in Hawai`i and you can find expressions of DIE and OLA in practice. The morning bell rings and students are in their classes knowing, without naming it, that they are under the DIE culture.  There is a clear pecking order and a DIE code to follow.  The teacher is the boss, there is a clear division of intellectual structure, and the rules of system are well understood – grades are spread along a curve, no sharing of answers on tests, gain recognition, put yourself forward, and respond in a loud, clear and confident tone your answer or ideas, gaining points or merits for correct responses.

 

Ring the bell again and students immediately switch to an OLA culture. Sharing and caring become major means of transaction, as food, stories, problems, and joys are circulated among the group.  Differences are celebrated.  Help is always available.  As students return home, sharing continues to be a code.  One should not be too proud, know-it all, and act better than others.

 

The Hawai`i case is not materially different from many other peoples’ experience with the mixing of deep cultures from different parts of the world. Generally, we like to limit such mixtures to the will of the host people who are receiving the incoming peoples and cultures.  The problem with colonization, however, by its very definition, is that the host people are merely overrun by a foreign, uninvited government.

 

If we are truly to control our own future, if we are to have real self-determination, if we are fully to appreciate our public policies and private behavior patterns, we must be aware of these streams of deep cultures within our society and where they come from. We need to teach ourselves to be more observant, to recognize within our own selves that we are playing out our deep culture patterns accumulated over the years, and are passing them to others we influence, especially the children.  In this way we become clear of why we think and live the ways we do, of our options, and we are able to be more deliberate in directing our paths to be taken as we unfold into our futures.

 

 

This paper was originally printed in the Institute for Zen Studies, May 1997 and subsequently expanded for further publication.  Contributors to the ideas come from many sources including Archbishop Tanouye Tenshin, Puanani Burgess, Pilahi Paki, `Imiola Young, Pualani Hopkins, Professor Johan Galtung, Sylvia Krewson-Reck, and of course,  the general Hawai`i society.  Pōkā Laenui

^[1] An Introduction to Some Hawaiian Perspectives on the Ocean, a paper by Poka Laenui, Institute for the Advancement of Hawaiian Affairs, presented at a conference FREEDOM FOR THE SEAS IN THE 21ST CENTURY:  A NEW LOOK AT OCEAN GOVERNANCE AND STEWARDSHIP, December 10 – 12, 1990, Honolulu, Hawaii, posted at http:\\www.opihi.com\sovereignty and Reprinted in a book named after the conference, Jon Van Dyke, editor.

 

Hawaii National Transitional Authority

February 23, 2016

The Hawaii National Transitional Authority (HNTA) is formed to bridge those who support Integration (Federal Recognition) and who support Independence so we are no longer divided by an “or” but united by an “and” conjunction. United under a common purpose, we will raise our nation, calling us to our common devotion to Hawaiian sovereignty.

To operationalize the Hawaii National Transitional Authority (HNTA) we will need a clear organizational structure and a demarcation of responsibilities.

I: Administration

There shall be an administrative office to coordinate the overall work of the Hawaii National Transitional Authority, undertake responsibilities for organizing staff, communication, accounting, book-keeping, fund raising, and reporting obligations.  It shall open a treasury from which those individuals choosing to may give private contributions or assign funds which would otherwise have been paid to the U.S.A. or to the State of Hawaii to finance those governmental operations, to the Hawaii National Transitional Authority.

This office will be the headquarters from which information and coordination would flow among its members and the general public. All contracts, agreements, and documentation officially representing the Hawaii National Transitional Authority, will emanate from this administrative office.

The office shall be under an Executive Director, who is in charge of the selection of staff and for its day to day operation. This director shall be answerable to the Board of Directors (BOD) consisting initially of fifteen of its originating members of the Hawaii National Transitional Authority.  In its initial year of operation, the BOD shall meet every three months or sooner at the call of the Executive Director, or at the call of 50% or more of its membership.  Such meetings may be held in person or through the participation of various methods including telephonic conferences, “go-to-meeting” technologies, or other forms of gatherings.  Each member of the board shall be notified of such meetings 7 days in advance in the form in which the member has registered communication with the administrative office.  Organizational documents of the Hawaiian National Transitional Authority will be adopted by the BOD and its general membership.

There shall be a membership of the Hawaii National Transitional Authority consisting of all those in support of the purpose and practice of the Authority. Future members of the Board of Directors shall be taken from this membership body.

 

 

II: Research and Documentation:

There shall be a research and documentation unit to examine the intricacies of Federal recognition with the United States of America and of recognition and other relations with international bodies including individual states, regional organizations, governmental organizations, international non-governmental organizations, offices and agencies of the United Nations, and the various committees, councils and ruling bodies of the United Nations. This unit shall, under the administrative office, coordinate its research and documentation with the overall Hawaii National Transitional Authority. This unit will also study special inter-nation relationships, such as a compact of free association with the United States, for defense and monetary gain of the new government.

This unit will also be tasked with inter-relating with the non-Hawaiian population, preparing them and getting their support for the transfer of government. It shall determine initial requirements for citizenship of Native Hawaiians and non-Hawaiians, and begin the process of nationalizing those interested.

 

III: Domestic Oversight:

There shall be a domestic oversight unit to investigate, negotiate, and report on the progress being made under a treaty or constructive arrangement for recognition of the Native Hawaiian people by the United States government.  This unit will detail the many issues of concerns, including identification and separation of assignments of lands which remain under State of Hawaii and U.S.A. control which are commonly regarded as part of the ceded lands trust; continued claim and exercise of jurisdiction over Hawaii and its Hawaiian nationals; the integration of Native Hawaiian laws with State of Hawaii and U.S. laws; issues of choice of laws and supremacy of laws between Hawaii, the State of Hawaii, and the U.S. government; application of criminal jurisdictions during this period of jurisdictional conversion to Hawaii; and other issues regarding the coordinated and methodical transfer of authority and responsibility to the Hawaii national government.  This unit shall begin review of policies and practices over current practices in international trade and other relations with foreign states and corporations, address concerns of population expansion of Hawaii, continued militarization of Hawaii by foreign governments, foreign investments in Hawaii, and  transportation and shipment to and from Hawaii.

This unit should also concentrate on the integration of the Hawaii State government, its agencies, its courts, its public education system, its University of Hawaii systems, the City and County of Honolulu, and the other Neighbor Island counties with the Hawaii National Transitional Authority. Additionally, this unit should investigate the development of a monetary and banking system that will be able to step into the flow of the economy, in the maintenance of order and proper conduct in the population, and of assuring that the transition will not disrupt the existing health and welfare systems or the penal and prison systems.

The domestic oversight unit should also examine the Hawaii tourism industry including the issuance of visas, the intervention of the “bubble tourism” packages which closes out our local business from tourists of other countries which are locked into their “package deals”, the integration of local people into all levels of foreign businesses operating in Hawaii, and the elimination of the applicability of the Jones Act. This unit shall also carry on the responsibility of addressing the U.S. military’s continued presence in Hawaii and the process of turning over  Hawaii lands back to Hawaii hands, clean and pristine as when first taken, or pay a price for any pollution left back.  This unit shall be responsible for the back rent for lands used by the U.S. government.

This unit will negotiate an interim land base for the new government during the transition period, such as West Oahu which has its own harbor, airport, heavy and light industrial areas, university and schools, shopping centers, government office buildings, and farmland, and which has the largest concentration of native Hawaiians in the world.

IV: International Relations:

There shall be an International unit responsible for training and international representations.  This unit should of course, recognize and acknowledge the many individuals and groups who have worked over the years in the international venue, and see to what extent such individuals and organizations could be incorporated with the work of the Hawaii National Transitional Authority.  In the past, we have had participants from Hawaii before the Working Group on Indigenous Peoples, the Sub-Committee on Human Rights, the Committee on the Elimination on All forms of Discrimination, the International Arbitration Tribunal, the U.N. Special Committee on Decolonization, the Universal Postal Union, and even address the General Assembly of the United Nations.  This accumulated work should be respected and to the extent possible, the experiences incorporated in the overall work of the HNTA.  The International unit working under the Hawaii National Transitional Authority, may need to establish an office, desk, agent or ambassador at the U.N. offices in Geneva Switzerland, or New York, U.S.A.  All of this will need to be properly coordinated and properly funded

Conclusion:

WE MAKE THE ROAD BY WALKING IT.  Not every aspect of the Hawaii National Transitional Authority is set forth here.

Should you wish to make this happen, please note your support by contacting me, Poka Laenui at plaenui@hawaiianperspectives.org  and submit your name, contact information, and any special gift you bring to this work.

 

Review of the Na`i Aupuni’s

Constitution of the Native Hawaiian Nation

Adopted February 26, 2016

By

Pōkā Laenui

Participant, Na`i Aupuni Aha

plaenui@hawaiianperspectives.org

86-641 Pu`uhulu Rd., Lualualei Valley

O`ahu, Hawai`i 96792

March 12, 2016

 

Introduction:

This review, like any other, is through the eyes of the beholder, therefore, skewed to my personal point of view, experience, and training. My personal point of view is one which favors Hawaiian independence, instead of free association (Commonwealth) with the U.S.A., or integration (Federal Recognition) into the U.S.A.  Those are three points along a panorama of “determination” choices peoples and nations are entitled to in their exercise of self-determination.   I also believe that the “self” in self-determination, need not, and for Hawai`i, should not be restricted by one’s racial ancestry, but should be inclusive of many other people.

 

I believe the best proposed constitutional structure for Hawaii’s independent government so far is the one drafted by the Native Hawaiian Convention (Aha Hawai`i `Oiwi or AHO) and which has been subsequently added to by my comments.  Part of this review will be a comparison between the Na`i Aupuni document (attachment 1) as against the AHO document with proposed changes (attachment 2).

 

My experience in matters of this nature dates back as early as 1968 when I was elected to represent the people of Nanakuli and Wai`anae (to Ka`ena) to the State Constitutional Convention.  I had just graduated with a Bachelor’s Degree from the University of Hawaii.  Following 4 years of service in the United States Air Force, I attended the University of Hawai`i School of Law and graduated in 1976.  I am licensed to practice law in all of the courts in Hawaii and in the 9<sup>th</sup> Circuit Federal Appellate Court as well as its Tax Court.  I have represented numerous cases challenging jurisdiction by the United States and the State of Hawaii over Hawaiian nationals.  From 1982 to 1986, I served as Trustee with the Office of Hawaiian Affairs as the O`ahu Island Trustee, deciding not to seek further terms with that office at the end of my 4 year term.

 

From 1983 to 1990, I served as the Vice-President and Chief political advocate for the World Council of Indigenous Peoples and played the lead role for that organization before the United Nations and the International Labor Organization. I addressed the U.N. General Assembly in 1993 and was recognized as one of 5 pioneers of the development of Indigenous Peoples’ Rights in the world.

I instructed at the U.H. Institute for Peace with Professor Emeritus Johan Galtung, on Decolonization of the Pacific and International Law. I have been included in various Marquis’ Who’s Who publications (in the World, In the West, In American Law, etc.) for my work in International Advocacy. In 1997, I was elected Delegate to represent the Lualualei portion of Wai`anae in the Native Hawaiian Convention, and I am currently that convention’s Chairperson.

I have worked in the field of behavioral health, serving as the Executive Director for 17 years, of the Wai`anae Coast Community Mental Health Center. I have since resigned and am now returned to my solo law practice in Wai`anae.

For more of my background, writings, publications, etc. you may visit www.hawaiianperspectives.org.

SUMMARY:

The process by which this Na`i Aupuni congregation was called was a valiant effort of a people laboring under the yoke of colonization, trying to reach the next step in exercising its right of self-determination; i.e., to determine if it wanted to move from the status quo of colonization to independence from the United States of America, to be in free association with the U.S.A. and/or to be integrated into the U.S.A. as a “Federally Recognized” arrangement similar to the “recognition” given to the native peoples of the U.S.A. This was not the only process which could have been followed.  Another process is what was started in the 1990s in Hawaii and is almost complete, but for the failure of the state legislature and OHA to continue funding to completion, a process known variously as the Native Hawaiian Convention, the Aha Hawai`i `Oiwi, and the Native Hawaiian Vote (AHO).

 

Political Cross-currents

 

This Na`i Aupuni process has suffered the cross-currents in the political waters of Hawai`i, with one current flowing in the direction of democratic participation of Native Hawaiians, the aboriginal people of Hawai`i, even though their indigenous government was aggressively overthrown by the U.S.A. in 1893, and as a result of this aggression, is that the U.S.A. now “possesses” the “ceded” territories and the “ceded” citizens-offspring of that independent constitutional monarchy.

 

 

The second current is the colonial U.S.A. law which restricts those very Native Hawaiian people from engaging in a democratic process of voting among their numbers to select their chosen leaders to gather and take that first step to self-determination. A lawsuit attempting to stop an election from taking place among the Native Hawaiian people reached the U.S. Supreme Court which issued a temporary restraining order over concern that this process violates the colonial law of voter discrimination, i.e. that all U.S. settlers now residing in Hawai`i should participate in such an election process.  On a larger stage, it raises the question of the extent to which domestic colonial law should be used to prevent the liberation of a people presently under colonization.

 

The third current is the fear of Native Hawaiian people of being the victims of yet another scam to steal their fundamental human rights, of being swallowed by the colonial forces of the U.S.A. and its puppet, the State of Hawaiʻi, and its suspect off-shoot, the Office of Hawaiian Affairs. There is a continuing suspicion of the motives of each one of those governmental entities attempting to deny the right of self-determination of these peoples.

Ship-worthiness of the wa`a

 

Besides these ocean currents, another matter to contend with was the “ship worthiness” of the “vessel” upon which the hopes and dreams of the people were to sail. The original plan was for a gathering of 40 specially chosen (elected) delegates to crew the ship which was to take 40 days to reach its “destination.”  The election of delegates were scuttled and every candidate was welcomed upon the Na`i Aupuni vessel intended for 40. Over 150 came aboard.  The days were shortened from 40 to 20 days to reach their destination.

 

The vessel was not adequately provisioned. There were inadequate meeting spaces for the number of people attending, no adequate support such as copying machines, computer communication, secretarial pool, and other support normally provisioned to a legislative body or to a constitutional convention.  The specially made electronic polling system was new and many participants were kept out of electronic voting and communication by the lack of familiarity with such systems, and the lack of system response in a timely fashion.

 

As a result of the above, and the additional choppy waters and windy conditions brought about by the sniping, accusations, distrust, and other general suspicions both in and out of the meeting space, the vessel was pushed off to sail across the waters and return in half the time, with a document or two detailing the map which was to set the course for the future.

 

Sparks of beauty and color along the journey

 

While faced with these challenges, there were beautiful and colorful aspects along the journey. The participants consisted of a wide mixture of Native Hawaiians, from various ports across the world, from various age group and levels of academic background, and different experiences and perspectives.  Some were familiar with the contending issues of Hawaiian Self-Determination. Others were at the introductory stage of the subject.  Each participant brought a particular viewpoint, and the vast majority were willing to listen to opposite views.

 

The absolute thinking of either a choice for Independence or for Integration (Federal Recognition) was softened, and there seem to be a movement toward shifting the view from not what position was correct or better, but to the view of what would be the best approach to raise the nation rather than divide the nation. The language of the discourse began to shift. (See as an example, a handout –attachment 3, which seemed to resonate with many of the participants.)

 

Other discussions, while not finding their way into the document, revolved around new economic visions and models of an independent Hawaii, a shift in the deep culture – away from D.I.E. (Domination, Individualism, and Exclusion) and toward O.L.A. (`Oluolu, Lokahi, and Aloha) (See handouts – attachments 4 and 5).

 

 

Another subject was a reframing of the constitutional history of Hawaii, – asking whether or not there really are a variety of Constitutions, or whether our fundamental Constitution remains today as what was pronounced by the founder of the modern Hawaiian state, Kamehameha I, on his deathbed said “E na`i wale no `oukou, i ku`u pono . . .” and later reiterated by his son, Kamehameha III, “Ua mau ke ea o ka `āina i ka pono.” Pono, being treated as the basic constitution, what followed were merely different expressions of that fundamental constitution, moving from one based deeply in culture, customs and deep and ancient laws of proper behavior, toward literacy and new concepts, yet still an attempt to express Pono by those in power.

 

 

These important deliberations occurred in small discussion groups, in lunch circles, or in caucus. The relationships formed among the participants have carried forward.  One such relationship is the formation of the Hawaiian National Transitional Authority which is now in its early formation stage.  (see attachment 6)

 

The return from the journey

 

The Na`i Aupuni canoe beached after 20 days to reveal a “Constitution for the Native Hawaiian Nation.”  Given the challenges which the voyage faced, this roadmap to the Native Hawaiian’s and Hawai`i’s future suffers from good intentions along various spots, questionable and contradictory deviations, and in sum, lacks a comprehensive plan for the future. There can be no question about the good faith and effort of the crew, but good faith and effort does not turn a badly written and misdirected roadmap into one that is worthy of adopting for the future course of the nation.

 

According to the earlier schedule announced by Na`i Aupuni, a ratification vote is to take place 2 months following the close of the gathering, i.e., on or about the 1^st of May, 2016.  See Star Advertiser, July 5, 2015. 

 

What’s in this Constitutional Roadmap?

The Constitution of the Native Hawaiian Nation document is 15 pages long, generally single space.  (See attachment 1) It begins with a preamble and moves across eight chapters, “OF THE NATION,” “DECLARATION OF RIGHTS,” “PURPOSE AND PRINCIPLES OF GOVERNMENT,” “LEGISLATIVE AUTHORITY KULEANA,” “EXECUTIVE AUTHORITY KULEANA,” “JUDICIAL AUTHORITY KULEANA,” ‘AMENDMENTS AND CONSTITUTIONAL CONVENTION” and “RATIFICATION’.

The document purports to be a continuation of the Hawaiian government following the overthrow through the conspiracy of the agents of the United States of America and the “Committee of Public Safety” consisting of mostly U.S. citizens resulting in the establishment of the Provisional Government, the Republic of Hawaii, the Territory of Hawaii and the State of Hawaii.

The document is the result of a process as well as a product.  I will add to the description of the process briefly.

The Process

1. The process ignored earlier efforts beginning from 1993 with the formation of the Sovereignty Advisory Council appointed by the State Legislature and its report and recommendation essentially finding that the current U.S. and State regime was a product of a set of violations of International obligations, Hawaiian national law as well as U.S. Constitutional and regulatory laws.
2. The process ignored the earlier effort of the Hawaiian Sovereignty Advisory Council and its report to the State Legislature which accepted said report and converted that entity to become the Hawaiian Sovereignty Elections Commission. In July 1996, 81,598 ballots were sent throughout the world, asking, “Shall the Hawaiian people elect delegates to propose a Native Hawaiian government?” Discounting for returned mail, deceased addressee, and ballots returned by non-Hawaiian individuals, the list was reduced to 81, 507. Of that, 30,783 valid, signed ballot envelopes with ballots were returned constituting 38% of the list. Of the resulting list, 2% were disqualified because of the failure to affirm their qualification to vote and 360 ballots were disqualified due to torn, stubs or empty secret ballot envelopes. The League of Women Voters did the final tally and reported 30,423 (37%) of the votes were counted of which 22,294 (73.28%) voted YES and 8,129 (26.72%) voted NO.
3. An election of delegates was held and a Native Hawaiian Convention aka Aha Hawai`i `Oiwi (AHO) was convened on July 1, 1999. By July 29, 2000, it produced two preliminary documents; one calling for independence and the second for integration relative to the United States of America. (See http://www.nhconvention.org)
4. After reporting on its progress, the AHO could not continue effective meetings due to refusal of the State Legislature and the Office of Hawaiian Affairs to fund the AHO to complete its work. AHO today is in recess and has not adjourned sine die (without day to reconvene, essentially closing the assembly).
5. Following years of failure to have the U.S. Congress adopt the Akaka Bill, this ʻAha grew from a proposal for the U.S. government to formally recognize the Native Hawaiian people as a native, indigenous, or Indian people within the borders of the United States, subject to the superior jurisdiction of the United States. The State Legislature adopted in its 2011 session, Act 195 – calling for the formation of a Roll Commission to create a list of voters (Ka Na`i Olowalu) to elect delegates to a new convention, to adopt a document to meet the requirements of Federal Recognition. The State’s Office of Hawaiian Affairs was charged with financing this Commission, election of delegates and funding a convention. Only those of the Native Hawaiian blood were permitted to register. Failure to register a sufficient number of voters resulted in the cobbling together of other lists of names, not intended for this registration and voting process, resulting in an enlarged voter list.
6. Candidates were nominated by 10 other registered voters of the list(s). Before the votes could be tallied and the elected delegates announced, the U.S. Supreme Court enjoined the process. In response, all of the delegates were declared qualified participants in the convention by the organizer, Na`i Aupuni. Of a total of almost 200 candidates, approximately 150 accepted the invitation to participate, each being offered stipends for their participation, inclusive of transportation costs for those flying into Hawaii.
7. Originally set for 40 days, by the intervention of the U.S. Supreme Court enjoining the election process, the number of candidate-delegates increased to almost 4 times the expected amount and the number of days of convening was decreased by ½ the original time allotted. This congregation began meeting on February 1 and ended on February 26, 2016.
8. The meetings were held behind a secured entrance gate at the Royal Hawaiian Golf Course in Maunawili, Kailua, O`ahu. Only the candidate-delegates (participants) were allowed into the meetings with the exception of 3 trained mediators, a support staff, Olelo Public Access T.V. crew, invited guest (expert) speakers for the first week of meetings, a security team, a registration team contracted  by Na`i Aupuni (Commpac), and a food staff.
9. Support equipment and staffing was lacking for a gathering of this nature. There were no copying machines, and no printers, requiring attendees to bring their own, making it difficult or near impossible to make and distribute hand-outs for 150 participants. The participants were expected to bring their Ipads, Iphones, or other like instruments and communicate via a custom-made electronic polling system (training included) which took up a lot of time, and which left many out of the loop because of the lack of equipment, sophistication or the inability of the system to handle the load of input. Even with such electronic systems, many participants, usually  of the older generation, were not able to or felt uncomfortable with the electronic media and were thus kept out of the ability to receive and to communicate adequately in the deliberations.
10. There were no State or Federal government officials, no OHA trustees in their official capacities, no legislative representatives in their official capacity, and no special guests. There was some suspicion raised given the behavior of at least one individual that an agent of a government agency was also on assignment to be among the conventioneers. One exception was made at the request of one private T.V. crew, requesting a non-delegate staff support of such crew to assist in recording the proceedings.
11. The plenary sessions (General Assembly) were recorded and broadcast by ʻŌlelo Television. The Committee or Caucus meetings were not recorded by ʻŌlelo. For the other private T.V. crew, each committee or caucus decided for itself whether or not to allow recordation. Individuals were permitted to record and many people did so, posting such records on a variety of social media.
12. The congregation adopted “Robert’s Rules of Order, Newly Revised 11^th Edition” and a slate of Executive Officers were elected. For a time, the practice of these rules of order resulted in discouraging of deliberation and debate, resulting in issues being shut down once anyone “called the question” from the floor and a mere majority vote taken to stop such debate. After this practice was protested, the chair changed his practice to refusing to call for the question unless he saw no one coming to the microphone to engage in debate on a question. He did, however, terminate debate where there were no longer any speaker either on the pro or con side of a question, although there may have been additional speakers still lined up to speak on the opposite side, in essence cutting off debate as well, without a vote.
13. This convention was stuck between a gathering for deliberative purposes and one for negotiation, bargaining, and producing a position statement. The three “professional” mediators were indicative of a gathering for the purpose of mediating or settling disputes or oppositional positions, not for engaging a deliberative assembly. Yet, these three tried to also provide for a smooth and friendly conversation among its participants. They were not trained and ineffective in encouraging the respectful deliberation of important issues, nor in the Roberts Rules of Order. There should have been a clear distinction between the nature of deliberation and mediation, more emphasis on hearing the voices of one another than to take a vote and move onward.
14. The congregation were divided into various caucuses spread across various rooms including the dining areas. Each of the caucuses met simultaneously. If a participant wanted to participate in one or another caucus, he was free to attend any caucus, but it also meant he could not be engaged in more than one at a time. This made continuity of one’s work impossible. For  example, many people were interested in the preamble drafting caucus as well as the International caucus, as well as the rights of citizen caucus. All were in operation at the same time, along with all other caucuses. Leaving the preamble caucus after it appearing that certain agreements and directions had been made and attending another caucus could easily result in the agreements and direction in the preamble caucus changing dramatically as other members attended and changed earlier agreements and directions. The earlier deliberations in the caucus were lost or re-threaded.
15. The only consistency were the chairs of each caucus. At the end, each caucus contributed their work-product to a drafting committee which, at times, took the opportunity to make substantive changes to the caucus work product. The drafting committee, at times, used the excuse that the changes were made because of their consultation with expert legal advice. While any participant could attend the drafting committee’s meeting, because of the arrangements of these caucus meetings, such attendance was not realistic. This all goes to the impossible time-frame in which this gathering met to produce a product.
16. The congregation gave inadequate attention to the work of the Native Hawaiian Convention’s (AHO) independence and integration frameworks, allowing the formal presentation of that work a presentation of 10 minutes with five minutes for questions and answers. The work of AHO was a culmination of 10 years of gatherings, a ratification vote to form the convention, and an election of delegates to attend its convention. It held meetings throughout Hawai`i and in the various States of the United States. The exhibit of the AHO independence model will be a reflection of the high quality of work accomplished and which should have been used as a foundation for the Na`i Aupuni gathering.
17. At the end of the Na`i Aupuni congregation, two documents were issued, one, the “constitution” adopted by a majority of the members by roll call (80 in support, 33 opposed and a number who refused to respond to the roll call and whose absence was determined to be added to the majority, now making it 88), the second, a Declaration of the Convention by voice vote which appeared unanimous.

 

The Product

This “Constitution of the Native Hawaiian Nation” is 15 pages long, generally single space. It begins with a PREAMBLE and moves across eight chapters, beginning with “OF THE NATION” and moving on to “DECLARATION OF RIGHTS”, “PURPOSE AND PRINCIPLES OF GOVERNMENT”, “LEGISLATIVE AUTHORITY KULEANA”, “EXECUTIVE AUTHORITY KULEANA”, “JUDICIAL AUTHORITY KULEANA”, ‘AMENDMENTS AND CONSTITUTIONAL CONVENTION”  and ending in “RATIFICATION’.

The People:

This document excludes from the members of this “nation” those people not of the indigenous Hawaiian blood. As a “continuum” from our overthrown government to the present time, this fact leaves a large hole in the document. The Hawaiian government, beginning with the reign of Kamehameha I, non-native Hawaiians were part of the Hawaiian political body.  Furthermore, one of the fundamental principles of Indigenous people’s rights in developing international standards, is the right of self-definition, including the right of the indigenous peoples to describe for themselves, who are members of their political group.

While the general U.S. government practice is to limit the membership of their “recognized” nations to only indigenous peoples, this document is a turn away from Hawaii’s history, culture, and the more enlightened view of the rights of the Hawaiian people. It is a concession to the Federal Recognition standards of U.S. policy.  It raises a central question of whether or not this is a document written for the people or one written to appease the colonial government at the expense of the historical, political and cultural integrity of the Hawaiian people.

The Name:

There is no name for this nation! It is missing throughout the document.

The Preamble:

The document opens with a preamble which does an excellent job at incorporating ancient history and deep cultural concepts using the Hawaiian language to anchor the document in Hawaiian beliefs. It closes with UA MAU KE EA O KA `AINA I KA PONO.  The strongest line is contained in the second paragraph, “We reaffirm the National Sovereignty of the Nation. We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence.”

There was much consternation over the subject of self-determination and independence, but the Preamble caucus was clear after long discussion and debate, that they wanted the preamble to use that language which was meant to incorporate the meaning as used in the International Bill of Human Rights and other international language regarding the right of self-determination. The floor debate and the testimony of the caucus chairperson left no uncertainty over those words.

In comparison to the proposed independence constitution founded on the initial work of the Native Hawaiian Convention, one could see the different approach of the constitutional framework, as well as the aspirations for each of the documents. That constitutional proposal is attached as 2.

Article 1 – Territory and Land:

This section follows convoluted language which does not set forth clearly whether or not the subject is one of territorial jurisdiction or of land title. In the first paragraph, it reads as if the subject is territorial jurisdiction, claiming the territory to include “all lands, water, property, airspace, surface and subsurface rights, and other natural resources, belonging to, controlled by, and designated for conveyance to and for the Hawaiian Nation.”  It is a one-dimensional statement of time, as it exists in the present, and lacks a “looking back” claim of the territory of the Hawaiian government. It asserts no claim over Maunakea, Haleakala, and other land areas of recent controversy.  It makes no claim of waters including the 12 miles beyond the shores of the islands, or the 200 mile exclusive economic zone.  All of the fisheries are lost, the sub-surface minerals, the deep ocean waters used for heat transfer and energy creation, potential for cage culture in the harvesting of fish, etc.

The next paragraph deals with title in the Native Hawaiian people, stating:

The Native Hawaiian people have never relinquished their claims to their national lands. To the maximum extent possible, the Government shall pursue the repatriation and return of the national lands, together with all rights, resources, and appurtenances associated with or appertaining to those lands, or other just compensation for lands lost.

The language here is unclear regarding   the claims which belonged to the Native Hawaiian people to their national lands. If it is a reference to the Hawaiian government pre-overthrow, it should have stated clearly that the Hawaiian Monarchy never relinquished its national lands.  The people owned no such lands as a group but only through its government.  This paragraph seems to prance around the fact of the taking of the Monarchy’s Government  and Crown lands, and carries on a pretense that there were lands set aside for the native Hawaiian people in mass. The people owned rights in the land to have access across them for purposes of traditional, cultural and sustenance purposes, but these rights were never seen as title to the lands.

Both paragraphs make reference to a superior entity, in the first, a reference to “belonging to, controlled by, and designated for conveyance to and for the Hawaiian Nation,” and in the second, a more oblique reference by stating, “To the maximum extent possible, the government shall pursue the repatriation and return of . . .”  Both of these paragraphs suggest but refuse to simply state that the lands and territories belonging to the Native Hawaiians are now in the hands of the U.S. government through theft and all of it should be given back!

The language in the AHO document for independence is much clearer and states:

Article II, Territory

The national territory [of Hawai`i] consists of the Hawaiian archipelago, stretching from Kure Atoll in the North to Hawai`i in the South and all of those lands, atolls and other territories whose jurisdiction have been assumed by the United States of America previously claimed by Hawai`i prior to the U.S. 1893 invasion.  Those territories previously part of the constitutional Hawaiian monarchy but which have subsequently been declared the territory or possession of a state other than the United States of America may be included within the territorial jurisdiction of Hawai`i upon concluding negotiation with that claiming state and Hawai`i.

The territorial waters of Hawai`i shall include the waters twelve (12) miles from the shores of all lands of Hawai`i.  The exclusive economic zone defined by the 1982 Convention on the Law of the Sea is adopted as applying to Hawai`i.

In one fell swoop, the AHO document takes in all of the Hawaiian territory including the 200 mile exclusive economic zone, all of the lands including Kalama (Johnston) atoll, Palmyra Island, Sinkian Island among the Solomon group, and lands to the Northern most island in the Hawaiian archipelago. It does not address the return of private lands taken in this section but does so in the section regarding outstanding claims post colonization.

Article 2 – Citizenship  (Na`i Aupuni’s Aha document)

This article deals with two subjects: who are the citizens and who has the right to vote. It is an example of poor writing.  In its first section it declares a citizen as being “any descendant of the aboriginal and indigenous people who, prior to 1778 occupied and exercised sovereignty in the Hawaiian Islands and is enrolled in the nation.” In Article 9, Section 2, the document states, “The Nation has the inherent power to establish the requirements for citizenship in the Nation. The Nation reserves the right to modify or change citizenship requirements solely through a constitutional amendment.”  It is unclear how the “Nation” is to take any action. Normally, it would be the state or the Government which acts on behalf of the “Nation.”  This section should have further added, “Enrollment shall not require citizenship in the U.S.A. or any other foreign state. Enrollment shall be made by declaration of Hawaiian ancestry with penalty of perjury under Hawaiian criminal laws.”

In Section 2 the document says citizenship in the United States is not to be affected by citizenship in the Native Hawaiian Nation. This is a curious incursion into the domestic laws of the United States and how it treats its citizenry.   It is also a curious statement in terms of what is left out, i.e., citizenship in other than the United States of America. This oddity becomes completely understandable when one appreciates that this section 2 is to alleviate any concern of impact to one’s U.S. citizenship, acting as a drafter’s “wink” to the reader that one need not worry, this is all part of a plan to fit within the U.S. framework.

In Section 3, it declares that all citizens attaining the age of 18 years are eligible to vote. This is an excellent statement if it is treated as a protection against laws which deprive citizens from voting because of criminal convictions, declaration of mental status, etc.

The AHO independence document treats Citizenship as follows:

Article VI, Citizenship

Citizenship shall consist of three general classes:

all Kanaka Maoli throughout the world who elect to be citizens;

descendants of subjects of the Hawaiian Kingdom prior to July 4, 1894 who elect to be citizens; and

all persons born in Hawai`i, and other individuals who have been a resident of Hawai`i for a continuous period of five years prior to this constitution coming into force and effect, and who choose willfully to pledge their allegiance to Hawai`i,

The major difference here is that citizenship is not limited to one’s Native Hawaiian ancestry, but included those of other ancestry. To fully appreciate this arrangement of citizenship, one must study the whole arrangement of the government as proposed by AHO’s independence model.  (See page 13 below)

Article 3 – National and Official Languages (Na`i Aupuni)

`Ōlelo Hawai`i is the National language. That along with English are official languages.  The document does not distinguish between a National and an official language.

The AHO document states:

Official Languages

`Olelo Hawai`i and English shall be the official languages of Hawai`i in which any and all official proceedings and legal transactions may be conducted.

The Education Department of the General government shall be required to incorporate the teaching of `Olelo Hawai`i coextensive with the teaching of English.

Within ten years after the formation of the general government, all public employees shall be proficient in both languages as working languages.

Chapter II – DECLARATION OF RIGHTS (Na`i Aupuni Aha)

      Article 4 – National Right to Self-Determination.

The Na`i Aupuni document makes a bold statement declaring “The Nation has the right to self-determination, including but not limited to, the right to determine the political status of the Nation and freely pursue economic, social, cultural and other endeavors.”

It does a good job of attempting to track the language of international law, found in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political rights; where each states in its respective Article 1.: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

When questioned on the language of the Preamble which uses the same term, self-determination, the Preamble caucus chair testified that the term was indeed a reference to the right referred to in both of these international covenants.

Article 5 – Collective Rights

This article does a good job of declaring the right of traditional and customary practice, recovery of bones and funerary objects, the protection of rights of Native Hawaiian tenants (thus excluding the rights of Non-native Hawaiian) and a claim for intellectual properties. It completely ignores the claim of self-definition, i.e. the right to determine its membership in the Hawaiian nation.  This is a fundamental right fought for and won in the international development of Indigenous peoples’ rights and should be added.

Article 6 – Rights of the Individual

With some exceptions, this article is an excellent article protecting individual rights. The language can be edited for consistency and improvement, e.g. “all people” altered to “Every person.”  Some serious flaws are found in Section 5 where the right to counsel is to be paid for at the defendant’s own expense. Another flaw is found in Section 9, where no imprisonment for debt is assured “except in cases of fraud” (which is not necessary because fraud is a crime which permits imprisonment on its own and not for debt). Section 11, which provides “Every citizen” the right to bear arms, should be struck as bad social policy. As written it would allow children to carry weapons as well as those with history of violent criminal and non-criminal behavior, etc.

Section 14 is a marvelous attempt at protection of the people’s right to a healthy environment! It states, “All persons have the right to be free from exposure from harmful substances used in warfare, nuclear power plants, and waste materials.”  It should be rewritten to the following:

Hawaii shall be free from all atomic, biological and chemical weapons and weapons residue, from nuclear power plants, from waste materials used as weapons such as depleted uranium, from weaponized drone planes, and from any weapon, whether considered offensive or defensive, with capability of reaching beyond 200 miles of the archipelagic line of the Hawaiian Islands.

In comparison with the AHO proposed submission, that document has instead a much expanded listing of rights which delineates such rights over 30 sections in its Article 4 regarding Peoples’ Rights and Protections.  Furthermore, the Kumu Hawai`i, or the Native Hawaiian house of the independent government, reflects the following rights:

Article V, Aboriginal/Hawaiian Rights/Entitlements

Right of Self-Definition: The Kanaka Hawai`i Maoli are the aboriginal people of islands of the Hawaiian archipelago and those people whom they shall define within their system of self-governance.  Individuals so defined as Kanaka Hawai`i Maoli shall have the opportunity to decline such attribution to themselves individually.

Right of Self-Government: The Kanaka Hawai`i Maoli shall have the right to decide their own priorities in the process of development, as it affects their lives, beliefs, institutions and spiritual well-being and the territories (including land and sea) under their jurisdiction, as further defined by this constitution.  They shall also have control over their own economic, social and cultural development, including management and policy control over vocational training, health services, and education.  The administration of justice and the power to retain or create social institutions to address the needs of the Kanaka Hawai`i Maoli are also reserved to them.

Territorial Rights: There shall be set aside lands, waters, and other natural resources for the exclusive control of the Kanaka Hawai`i Maoli as expressed through the Kumu Hawai`i established in this constitution at Article VII.  Such areas shall be limited to undeveloped or minimally developed lands which were previously in the inventory of the Crown and Government lands of Hawai`i prior to July 4, 1894.  Such resources shall be sufficient for the maintenance of the Kanaka Hawai`i Maoli in their traditional system of living, not less than the equivalent size of one traditional ahupua`a (including access to ocean) on each island in which a Kanaka Hawai`i Maoli population of 1,000 exists. These include the rights to hunt, fish, trap and gather, and to control mineral and subsurface resources.

Cultural Rights: The right to maintain the cultural traditions of the Kanaka Hawai`i Maoli shall not be impaired.  Included in this right shall be the right to maintain contact with other indigenous and tribal peoples across oceans to pursue shared economic, social, cultural, spiritual and environmental development, the right to educate their children in their own native language, the right to practice their own traditional health and healing practices, and the right to express their own sense of spirituality in their own form.  All of these rights shall remain subject to the limitations that they are not to be destructive to the protected rights of all other individuals in the society.

Custom and Protocol: Reserved to the Kanaka Hawai`i Maoli, as expressed through the Kumu Hawai`i, shall be all of the official state customs and protocols, including ceremonies of international import with other states.

Immigration & Population: Reserved to the Kanaka Hawai`i Maoli, as expressed through the Kumu Hawai`i, shall be the control over immigration, determining the criteria for further transfer of population into Hawai`i, the conditions of visa awards, and treaties and executive agreements touching on the temporary and permanent residents of non-Hawaiian citizens.

All of the kuleana set aside for the Kumu Hawai`i and the Kanaka Hawai`i Maoli shall be limited by the constitutional guarantees of human rights as well as other constitutional limitations or powers specifically set forth therein.

Crown and Government Lands and Natural Resources: The Kumu Hawai`i shall have the exclusive right of management over the lands and natural resources whose titles were previously part of the inventory of the Crown and Government lands of the Hawaiian nation prior to July 4, 1894.  With the exception of the lands set aside under territorial rights described above, all net proceeds from the management of the former Crown and Government lands and natural resources under this provision shall be allocated 20% to the Kumu Hawai`i and 80% to the general Hawai`i public.

Participation in the Kumu Hawai`i: Initially, any Kanaka Hawai`i Maoli, 16 years and older, shall be permitted the privilege of participating, including voting, in all activities of the Kumu Hawai`i.  Upon adoption of this constitution, the Kumu Hawai`i shall organize itself, through the election of delegates, one per three thousand people, into a system formulated under the transitional provision of this constitution.

 

The Na`i Aupuni document has a separate article (7) dealing with Customary Rights.  It lists 4 specific rights protecting subsistence, cultural, medicinal and religious purposes; to manifest, practice, develop and teach spiritual and religious traditions, customs and ceremonies; stewardship of water under its jurisdiction; and to sustain the `Āina.

These are important rights which should be specifically set forth. However, there is some confusion in the drafting where it says the Native Hawaiian people shall have the first 3 rights but that the Nation shall have the fourth right, leaving the question, “what’s the difference, and if none, why the distinction?’

Important is what is left out of these rights for the native people. Under this Na`i Aupuni document, there are important rights left out.  The document should have included the following statement:

The Nation shall have the right to:

• Control population transfers into Hawai`i;

• Control foreign investments in Hawai`i;

• Control international and intra-national trade;

• Manage visa for travel into Hawai`i;

• Apply departure taxes for exiting Hawai`i;

• Exclusive taxation over the population and the territory of Hawai`i;

• Provide for the national security and defense;

• Oversee foreign military use and abuse of lands, airspace, and waters of the territory of Hawai`i;

 

 

The Na`i Aupuni document at Article 8 provides for Governmental prohibitions from engaging in laws abridging the right to die with dignity, to take private property without just compensation, to make laws establishing religion or abridging its free exercise, to freedom of speech, of press or to peaceably assemble; or, suppress traditional Native Hawaiian religion or beliefs.

Missing from this article is the right and responsibility of government. It should have added, The government shall have the right to protect the general welfare and provide for the common defense of the Nation.  It has the right to exercise police powers, maintain life-long educational systems and protect the maintenance of good health of the population.

Article 9 – Reservation of Rights & Privileges

The drafting of this article is awkward, using “the Nation” when it would have been more appropriate to use “the government” in its stead. It reserves rights to the citizens when not articulated as belonging to the nation, and it meanders into domestic laws of the United States and the laws of “Nation.”  In the next section, it protects the rights of beneficiaries of private and other trusts, programs or services from provisions of this “Constitution or the laws of the Nation.”  It is questionable exactly what this is supposed to mean in terms of limiting the powers of the government. Finally, it protects the Hawaiian Homes Commission Act from “this Constitution or the laws of the Nation.”

CHAPTER III – PURPOSE AND PRINCIPLES OF GOVERNMENT

Article 10 – Kuleana

This article is unique, somewhat in a redundant way, an attempt to restate the first paragraph of the Preamble, – dedicating the Government to Hawaiian culture, Hawaii’s environment, protect the rights of its citizens, support home rule, provide for the general welfare, repatriation of national lands, and reasonable traditional and customary access to water on National lands, etc. Article 10 seems to be the “catch – all” article reflective of a general desire for good government, but written in a sloppy manner such that its item (14) is redundant to the first line of item (13).

Its language is awkward and may prove more troubling in the future. For example, in its item (10), it provides the Government shall ensure reasonable traditional and customary access to water on National lands.  “Reasonable” gives way to various interpretations, allowing government or private interests to block access.  When the water board digs dykes into water tunnels in mountains for distributing water to new housing developments, commercial enterprises, and tourist water parks, cutting off the flow of water for taro farmers in the valleys, as they practice their traditional farm practice, what is reasonable?  Either traditional or customary access to water is to be prioritized above subsequently arising uses or not.

In another section (8), calls for government to “prioritize Hawaiian culture, history, language, traditions, customs, knowledge, and ancestral wisdom.” But it does not say what this priority is in comparison to!  Is this priority above new science and technology, medical development and emergency care, religious and intellectual freedoms?

Altogether, this article has 19 specific items which reads like a wish list of congregation members, trying to get their favorite cause given constitutional dimension by this listing. Apparently, there were not sufficient debate and discipline in the drafting of this article.

Article 11 – Seat of Government

The Seat of Government shall be located in the Hawaiian Islands.

This article is useless, filling up space but saying nothing! If a specific place could not be agreed upon, this caucus should have simply left the matter out of the document.

Article 12 – Rule of Law

The Government shall be bound by the Constitution, laws of the Nation, the customs of the Native Hawaiian people, and the rule of law.

This article, for its lack of precision in writing, will create more problems in the future than the drafter anticipated. First, is the listing of these sources of laws to be given priority?  If so, is there really a difference between the Constitution and the laws of the Nation?  What are the customs of the Native Hawaiian people?  Is the practice of lending money and expecting to be paid back a custom?  How do we identify and what do we elevate above the “rule of law?”  What law are we to follow?  Is the law of a case, decided by a district court in Lahaina to have applicability to the Government?  If the court decides that the Native Hawaiian Government constitution is not applicable to a family matter in which a child’s need for shelter and education is made subservient to the parent’s need for health care, does the law of the case apply? This is another incompletely thought-out article which should probably have been aborted.

Article 13 – Foreign Relations

This article identifies the President as being empowered to negotiate and enter into treaties with other sovereigns and other organizations, subject to two-thirds ratification by the Legislative Authority. It is unclear whether or not the president may assign an agent or agents to act on his behalf to negotiate or sign agreements.  It is also unclear if the process of the “Legislative Authority” is the legislature or a separate authority created by the Legislature.

Article 14 – Sovereign Immunity

This Article declares ‘The Nation and its Government possess sovereign immunity, which can only be waived in accordance with the law.’

This statement may have various readings. It may be considered a position of independence from the United States, and that in having sovereign immunity, its citizens and territories may be beyond the jurisdiction of the United States, including its powers of taxation, judicial authority, police powers, etc.

This statement could also be interpreted as having a subservient “sovereign immunity” which becomes a concoction of U.S. demotion of such terms below the authority of the United States.

This article will have to wait the test of how the government decides to express this sense of Sovereign Immunity.

Article 15 – Appointments

This article gives authority of appointments to the President of the judiciary by simple majority approval of the legislative body, and of the legislature in the event of vacancy.

Article 16 – Oath of Office

An oath swearing to support and defend the “Constitution of the Nation” but excusing the taking of such oath for religion or belief. It leaves the question of what such belief can consist of such that the oath need not be taken.

Article 17 – Removal From Office

The members of the judiciary may be impeached when action is initiated by the president subject to trial and 2/3 majority of the legislative body. The President can be impeached by a trial and a 2/3 majority of the legislative body.  No power is given to the impeachment of a member of the legislature.  There are no appeals to the lack of due process from any trial and vote.  In a highly politicized body, and when no appeal is possible outside of the legislative process, this power of removal can become abusive or a form of removing the President or a member of the judiciary for unpopular decisions or actions.  This article leaves out any question of impeachment of the Vice President.  In the event of a president’s impeachment, Article 39 requires the Vice-President to undertake the position of the President.

Article 18 – Office Limitation

Elected officials cannot hold any other position within the government or with any other government. Judges, not being elected officials, are not subject to this limitation.  Nor are other officials who are not elected to their positions.

Article 19 – Judicial Autonomy

The judiciary budget is protected from diminishment by the legislature unless it is a government-wide reduction, proportionately applied to the Judiciary. Besides budgetary consideration, nothing more is said with regard to judicial autonomy, such as protecting the judicial decisions from political questions, i.e., laws of marriage, divorce, sexual identity, abortion, etc.

Article 20 – Special Session

This article empowers the president to call special session of the legislature. In doing so, it does not allow the legislature to call itself into session.  This matter is not expanded on in the Constitution dealing with the legislative branch.

Article 21 – Moku Council

The President shall have the power to appoint no less than nine individuals to serve on a Moku Council to advise the President on the needs of its respective districts. One of its members will sit on the president’s cabinet, elected from the council. This sounds like a ready-made campaign team for the President!  This Article belongs under the article describing the Executive team.

Article 22 – Local Government

The legislative body may create political subdivisions, similar to county governments, and such governments may adopt their own charters.

Article 23 – Elections

This article discusses how voting lists are created and maintained, including giving to an Office of Citizenship and Elections, procedures for voting including residency, age, disqualification and recall requirements. It would seem more appropriate to have the legislative body pass on such procedures and criteria rather than placing such powers in the hands of an appointed body under the control of the vice president.  The article does not provide for oversight of the process of enrolling, maintaining and creating a list of the nation’s citizens.

This article (5) also allows for disqualification for voting but does not give any guidelines or identify the body which may determine disqualification, leaving this matter to the vagary of “unless disqualified by law.”

The article makes a valiant stab at controlling campaign financing through the legislature, permitting ceiling limits on public funding by “political” entities, public disclosure of contributions, contribution limits, corporate donation prohibitions, and expenditure limits.

Overall, this particular article should be reviewed and the decision to allow so much power over elections to be placed in the hands of a political officer, the Vice-President, should be reconsidered for its potential of major conflicts of interest. If the Vice-President should become a candidate for the Presidency, that person would oversee his own election race and may have the opportunity to disqualify his opponent or manipulate the voting rolls to make it difficult to allow voting by a constituency in favor of the opposition.

Article 24 – Recall of Elected Officials

This is a straight-forward article allowing the recall of any elected official upon a petition of 25% of the total votes cast in the preceding election for that office. It does say that a recall must be “for cause” but does not define what the cause may be.  That lack of definition may create problems in the future.  It needs a clearer writing.

Article 25 – Statutory Initiative and Referendum

This is standard language for initiative and referendum and poses no problems I can see.

Article 26 – Law Enactment

This article focuses on the veto potential for bills and how the veto can be overcome. However, it does not adequately describe what would happen if the President takes no action to sign or to veto a bill.  From a reading of this clause, the bill would fail enactment by the lack of signature by the President.  The article should be re-written for clarity.

CHAPTER IV – LEGISLATIVE AUTHORITY KULEANA

Article 27 – Legislative Power

The Legislature shall be unicameral and empowered to pass legislation on any matter. This grand power of the legislature could run into problems with rights reserved and protected by this Constitution, including civil rights, the various powers reserved to other branches of government, etc.  This is a signal of the “rush” and the failure of the caucus and drafting committee to make the appropriate comparisons of this document.

Article 28 – Legislative Qualifications

This article describes who may be elected to the legislature, requiring a citizen who has attained the age of 18 (doesn’t say by when) and must reside in the “district” at the time of the election, and for the duration of their time in office. Presumably, the “district” is the same district in which he/she is elected to represent, but a clearer writing should be made.  The first section is redundant to the second and could be eliminated.

Article 29 – Term of Office for Representatives

This article calls for 4-year terms and no one to serve more than 12 years. It does not clarify if this limitation is for consecutive terms.  Term limitations can be seen as being oppressive to a democratic process, limiting the choices a voter may have.  In view of the fact that campaign financing limitations and disclosures are called for in this Constitution, it is questionable if this limitation is appropriate in a democratic society.  Furthermore, it is unclear what would happen if a legislator serves for 12 years representing one district, and subsequently moves to another district and is elected to represent that district?  Violation?

Article 30 – Legislative Elections

Voters in the respective districts may vote for representatives. This seems clear.  However, there will be problems in applying this provision when we hear of the districts in which representatives will come from!

Article 31 – Representative Count

This article provides for 43 representatives, 22 elected based on population and distributed as follows:

Hawai`i – 2, Maui -1, Moloka’i – 1, Lana`i – 1, Kaho`olawe – 1, O`ahu – 6, Kaua`i – 1, Ni`ihau – 1, and Kahiki (outside of Hawai`i) – 8.

Another 21 representative shall be elected based on the land of each district as follows:

Hawai`i – 4, Maui – 4, Moloka`i – 2, Lana`i – 1, Kaho`olawe – 1, O`ahu – 4, Kaua`i – 4, Ni`ihau – 1, Kahiki – 0.

This set-up of representation is a major stumbling block over the concept of a representative form of government. The general understanding is that representation should be of people, not space.  The reason for representation to be based on population is to try to bring a sense of equality among people who form the citizenry, such that a citizen who comes from O`ahu would have the equivalent weight of representation as one who comes from Maui.  The present model throws that whole theory helter-skelter.  O`ahu with the vast majority of native Hawaiians would have a total of 10 representatives while Kaho`olawe which has 0 permanent residents would have 2.  This model has no semblance to representation based on population.

If the argument is that the land needs a voice as well, than send a pohaku from each of these islands to be represented in the legislative sessions, but to pretend that the land has elected individuals is specious.

Finally, this article violates the prior article which requires that the representatives are to be elected from those who are residing in the districts, from among those who live in the district. Where will one find residents on Kaho`olawe to vote for other residents of Kaho`olawe?  Article 23 – Elections makes a special exemption for the island of Kaho`olawe, at (4) which declares that for Kaho`olawe, residency may be established by demonstrating at least four consecutive years of stewardship to the island.  It does not define what kind of stewardship, who maintains the record of stewardship, or why this special compensation is being given to Kaho`olawe.  Nor does it address the possibility of a person who has dedicated him or herself to the protection to the islands for four consecutive years in 1990 to 1994, can now vote twice for representatives, once for Kaho`olawe and once for the real island that she resides on!

No explanation is given for this representation deviation so that a special interest group is given an advantage over representation in the legislative body. Other special interest groups can just as easily argue for their interest – to represent Maunakea, Maunaloa, Kupuna, Manaleo speakers, “pure” Hawaiians, Hawaiian practitioners of the ancient religions, . . .

The idea that land masses should have a separate category of representatives should be taken out of the document. The representation of Kaho`olawe should be taken out until the situation changes and there arise a population of Native Hawaiians residing on that island over a reasonable period of time.  The representative legislature should be properly apportioned to the population of the people they represent within a reasonable deviation of 1 to 1.25 points.

Article 32 – Representative Privilege

This article provides immunity from suits or prosecution for anything said by a member of the legislature during its meeting or in execution of one’s office. It immunizes spoken “speech” but does not protect written communication or other forms of communication. Nor does it protect a representative in his travels to and from the meeting assembly.

Article 33 – Legislative Calendar

The legislature shall convene on January 17 of each year, and shall establish a calendar in coordination with cultural protocols. It doesn’t identify what cultural protocols, whether or not it includes the various phases of the moon, and if so, what moon calendar should be followed.

CHAPTER V – EXECUTIVE AUTHORITY KULEANA

Article 34 – Executive Power – to Article 43 – The [Hui of Royal Organizations]

The Executive Officers are divided between the President and the Vice-President, two offices to be elected, both of whom must be a minimum age of 30 and must have lived in Hawaii at least 10 years preceding their election. The President has the typical powers of executing the laws of the nation, authority to appoint executive officers, pursue acquisition of land and establish departments to meet the needs of the nation.  The Vice-President is charged with addressing the “unique needs of the Kahiki citizenry” without addressing those unique needs, as well as other responsibilities as assigned by the President.

The Executive Officers shall serve for a term of 4 years. The president is to retain the immediate past President as a counselor to ensure continuity of governance!    The president is also to have a cabinet consisting of the Vice-President, a representative from the Cultural, Spiritual Hui, one from the Hui of Royal Organizations, one from the Moku Council, and the Heads of Executive Departments.  The role or power of the President’s cabinet is not defined. The Cultural/Spiritual Hui and the Royal Organization Hui are not clearly defined.  They are to elect under their own internal processes, their representative to the president’s Executive Cabinet. The Constitution does not state if the members of the Cabinet or the former president are to be salaried.

Commentary:

1. The wisdom of retaining the immediate past president within the Executive office as a consultant is questioned. It is expected that the immediate past president may be an unsuccessful candidate for another term and who may have lost the election. That individual may be able to cause much head-ache for the new administration as a result of holding a constitutionally defined place in the new administration.
2. The Constitution does not have a limit to the terms of office either for the president or the vice-president, which seems somewhat inconsistent when term limits are set for lesser office holders from the legislative body.
3. The division of responsibility which charges the vice-presidency with addressing the specific needs of the Kahiki citizenry may lead to a potential situation in which, in the next run for the Presidency, the Vice-President has been able to garner the support for his Presidential candidacy because of his particular role of having to address the needs of the Kahiki citizenry which may have the potential of outweighing the votes of citizens residing in Hawaiʻi!
4. Article 13 relating to Foreign Relations assigning the President the power to conduct negotiations and enter into treaties with other sovereign powers should be included in this chapter rather than dangling in Chapter 3. The same should be said of Article 15 regarding appointments of the Judiciary and of vacancies in the legislature.

CHAPTER VI – JUDICIAL AUTHORITY KULEANA

Article 44 – Judicial Power to Article 48 – Term of Office for Justices and Judges

There is established a judicial branch consisting of a Chief Justices, 3 justices with life-time appointments, and judges who shall serve no less than ten-year terms. Article 15 calls for appointment of the judiciary by the president subject to the approval of the legislature’s simple majority. The chief justice is elected by a majority of the justices.  The chief justice presides over the courts, may establish courts, tribunals, offices, and forums of general or exclusive jurisdiction as prescribed by law, and “may account for customary practices of the Native Hawaiian people.”  What that last phrase is to mean is not explained.

The judiciary is charged as a primary focus, on restorative justice. (Art. 46)

Commentary:

1. The Chapter does not describe the scope of jurisdiction of the courts adequately. It calls for its judicial powers over all cases arising under this “Constitution, the laws of the Nation, treaties, compacts, and agreements made, or which shall be made, under the Nation’s authority.” Where does this leave cases regarding the Ali`i trusts, the Department of Hawaiian Homes lands, non-citizens violation of law upon territories under the jurisdiction of the nation, contract disputes between citizens or between citizens and non-citizens, land disputes between citizens over lands outside of the territorial boundaries of the nation, disputes over Hawaiian customs and traditions between Hawaiian and non-Hawaiian citizens, child welfare disputes, etc.
2. While Article 46 calls for the primary focus of the judiciary to be restorative justice, it gives no guidelines or explanation of what is meant here.  In the current practice of law, ‘restorative justice” applies generally to criminal cases in which justice should focus on repairing the harm, allowing people most affected by the crime the ability to participate in the resolution of the crime while the government tries to maintain order and keep the peace. A woman habitually abused by a family member who finally brings a complaint to the courts, may not want to participate in “repairing the harm” other than distancing herself from her abuser. It is uncertain to what extent the judiciary will call upon her to participate in counseling sessions or mediation to achieve “restorative justice.” Yet, this is a constitutional priority.
3. The judiciary is expected to oversee the appropriate application of laws over a wide variety of cases and controversies. Restorative justice is a term applied for criminal laws. The constitution gives no guidance for other sorts of crimes. It does call for the judiciary to “account for customary practices of the Native Hawaiian people.” It gives no guidance here as to what is meant by this phrase.CHAPTER VII – AMENDMENTS AND CONSTITUTIONAL CONVENTION
4. Article 49 – Amendments

This constitution may be amended by first receiving proposals (1) through a) two-thirds affirmation by the legislature, b) petition by 15% of the registered votes of the nation in the last executive election; or c) a constitutional convention. Furthermore, the legislature shall establish format and rules for adopting amendments.  (2)

Article 50 – Constitutional Convention

A Constitutional Convention shall be held within four years following the establishment of a moku council (See article 21 – to be established within 4 years following the establishment of the government) and appear as a ballot question for citizenry at least every ten years after the Government’s formation.

The legislature shall establish the format and rules for convention participation with elected delegates from each legislative district.

Commentary:

The drafting is unclear as to how amendments are to be made under Article 49. It first sets forth a method of making proposals in 3 ways.  It does not declare how the constitution is amended, other than that the legislature shall make rules for amendment adoption.

CHAPTER VIII – RATIFICATION

Article 51 – Ratification

This constitution is to be subject to a ratification vote. A ratification election is to be held.  The constitution becomes effective upon approval of a majority vote of individuals who are eligible to be citizens, have attained the age of eighteen, and cast a ballot in the ratification election.

Commentary:

A citizen must be enrolled in the nation. A citizen is any descendant of the aboriginal and indigenous people whose ancestors lived in Hawaii prior to 1778 and exercised sovereignty in the Hawaiian Islands.  (Article 2 – Citizenship)  A citizen need not also be a citizen of the United States of America or of any other foreign country.  There is no guidelines over the enrollment of citizens.

Summary Critique:

 

How does this process and the document measure up to International Law standards of Self-Determination?

Both the process and the document fails to meet the requirements of self-determination. The “self” should not be determined by the colonial government as to who is entitled to the right to self-determination. In this case, all people who lost the continuing right to exercise self-determination following the aggression of the United States, depriving them of their right to unfold into their futures, should continue to possess that right.  The U.S. government’s re-defining the Hawaiian nationals as only those of the Native Hawaiian blood is not consonant with Hawaiian law, Hawaiian history, or the laws of nations.

 

Self-Determination in the context of non-self governing territories should afford a people three options, independence, free association, or integration. The present document, styling itself a “constitution” fails to clearly set out a path for any of these options, but instead is an attempt to put these options under a single document.  It is unclear what is to be ratified, given the present document.

 

How did the process and the document measure up to the U.S. Department of Interior proposed Rules for Federal Recognition?

There are eight criteria to be met before the DOI will consider the governing document to have been properly ratified. These are found in the Federal Register at FR Doc. 2015–24712 Filed 9–29–15; 11:15 am, beginning with proposed Rule at § 50.10 et seq.

 

The first criteria calls for a narrative with supporting documentation describing how the Native Hawaiian community drafted the document, including how the document was drafted based on meaningful input from representative segments of the Native Hawaiian community and reflects the will of the community. It may be questioned how the “drafters” of the document were really “representative segments” and reflect the will of the community. The will of the community can be reflected on its ratification of the document.  The fact that there were over 150 participants at this ʻaha from all parts of the world could be used to indicate the “representative segments.” The fact that the drafters were not elected may be overcome by the fact of the Supreme Court’s order not to count the votes and announce the result. This criteria could be met.

 

The second criteria calls for verifying that participants were appropriate Native Hawaiians. The DHHL records or another state commission or agency which verifies descent, could be used.  However, from those lists, noncitizens of the U.S. must be excluded.

 

The proposed rule also allows for use of a roll of Native Hawaiians certified by a state commission or agency of the accuracy and completeness of a list of Native Hawaiians eligible to vote in the ratification referendum, a roll which documents descent as a Native Hawaiian, compiled with applicable due-process principles; and published and made available for inspection following certification. Non U.S. citizens would have to be removed from such rolls, those who could not document their descent would be removed, and persons who requested to be removed must be removed.

 

Under this second criteria requirement, this Constitution would not be acceptable.  Under Article 2 – Citizenship does not require U.S. citizenship.  Under Article 51 – Ratification, it calls for the Constitution to be ratified by a majority vote of individuals who are eligible to be citizens, have attained the age of 18, and cast a ballot in the ratification election.  U.S. citizenship is not required to participate in a ratification vote.

 

The third criteria, found at § 50.13 What must be included in the governing document, is not met, when compared with the proposed “Constitution of the Native Hawaiian nation.”  The document fails in the following ways:

The governing document must:

(a) State the government’s official name;  The name is not in the document, as was noted in the `aha plenary debate of the document.

(b) Prescribe the manner in which the government exercises its sovereign powers; Not a problem here.

(c) Establish the institutions and structure of the government, and of its political subdivisions (if any) that are defined in a fair and reasonable manner; The method of selecting members of the legislative authority will be questioned and could very well be considered not a fair and reasonable manner of selecting representatives. Article 31 – Representative Count is not fair and reasonable in terms of failing to meet one-person, one vote standard, allows for land mass representation, makes exception for representation from Kaho`olawe .

(d) Authorize the government to negotiate with governments of the United States, the State of Hawaii, and political subdivisions of the State of Hawaii, and with non-governmental entities; (met under Article 13 – Foreign Relations, but there may be a problem because this article actually exceeds the requirement with the addition of “other sovereign” which appears contrary to Federal policy.)

(e) Provide for periodic elections for government offices identified in the governing document; (met by Article 29 for legislature, Article 38 for Executive officers, unmet for the judiciary)

(f) Describe the criteria for membership, which:

(1) Must permit HHCA-eligible Native Hawaiians to enroll;

(2) May permit Native Hawaiians who are not HHCA-eligible Native Hawaiians, or some defined subset of that group that is not contrary to Federal law, to enroll;

(3) Must exclude persons who are not Native Hawaiians;

(4) Must establish that membership is voluntary and may be relinquished voluntarily; (this provision not included in the document) and

(5) Must exclude persons who voluntarily relinquished membership. (not specifically included in document)   This criteria (f) is met by this document.

(g) Protect and preserve Native Hawaiians’ rights, protections, and benefits under the HHCA and the HHLRA (Hawaiian Homes Land Recovery Act); (the HHLRA protection is not included in this document and therefore the document fails this requirement.)

(h) Protect and preserve the liberties, rights, and privileges of all persons affected by the government’s exercise of its powers, see 25 U.S.C. 1301 et seq.; (violates requirement to provide free counsel for a criminal defendant, Article 6, (5))

(i) Describe the procedures for proposing and ratifying amendments to the governing document; (document meets this criteria) and

(j) Not contain provisions contrary to Federal law. (many contrary provisions such as, the right to Self-Determination, including independence found in Preamble, and in Article 4; imprisonment for debt (fraud cases), Article 6 (9), to engage in treaties, compacts and other arrangements with other sovereigns, etc, Article 13, violation of principle of one person, one vote in Article 31 –Representatives Count,)

 

At this point, there being enough contradictions or violations of the proposed Constitution of the Native Hawaiian nation with DOI proposed rules, there is no reason to proceed further.

 

 

Conclusion: This document called the Constitution of the Native Hawaiian Nation fails to meet both the standards under international law as well as under the proposed rules of the U.S. Department of the Interior.  This Constitution cannot lead to Federal Recognition.

 

We must return to fundamental questions of self-determination; the meaning of a government of, for and by the people; a clear understanding of who the Hawaiian “self” really is for the purposes of a national-political identity and what the possible choices are for “determination;” there must be a clear appreciation of the five stages of decolonization and from that appreciation, an understanding of what stage we work from in our discussions of liberation; an examination of the deep-culture upon which Hawai`i unfolds into our future; an appreciation of the environmental, social, health, cultural, economic and security foundations of the Hawaiian nation. These are all matters which should be part of the grand discourses in Hawai`i before we attempt to craft a document which defines the constitution of that Hawaiian nation.  Let us raise the nation not from a checklist given to us by the U.S.A. colonial administrator meant to maintain its control over us, not even from the lofty perspective of the principles and processes of international law.  Instead, let us turn to our own examination of pono in all of its meanings for Hawai`i nei and let this be the guiding principles we live and go into our future, following the path of aloha.

 

Pōkā Laenui (Hayden F. Burgess)

 

 

 

I think it would be nice to break up the blocks of text with subheads. For example, here you could use a subhead like “Was this waʻa shipworthy?” or some such.

 

Perhaps explain this Latin term. I don’t know what this means, so maybe others will not be familiar either.

 

They were from a PR firm called Commpac.

 

This was a big problem for Moani, who had a tablet that was quite new to her, and the assistance with the technology was rarely to be had.

 

Agreed!

 

I think this shortcoming was important, too!

 

maybe “regarding” would work better here?

 

I would capitalize Government and Crown lands as proper nouns.

 

I think it would be good to inset these quoted sections from the AHO Constitution so that they are distinct from the following paragraph.

[PL10]I agree, but how do I do that with this word processing system?

 

I would suggest clarifying which document this comes from. I think itʻs the ʻAha constitution but since the AHO constitution was just referenced above it might not be clear to readers.

 

I think it would be good to elaborate here on why this is so odd, maybe provide an analogy to help the reader understand the point better.

 

Excellent point!

 

Another good point!

 

More good points!

 

I can imagine plenty of conflicts of interest arising from this article.

 

This also seemed odd to me. Why does a judiciary need special treatment when it comes to budget? That should be spelled out, as you suggest.

 

Excellent point!

 

Another good point!

 

I would like to see this example and other strong points summarized in the lead into your report. I think you will grab the attention of more readers and they will be enticed to keep reading when they see strong points like this.

 

Another excellent point!

 

Whoa! I had not realized this. Wonder if any other countries have no term limits for presidents and vice presidents? I would call this out in the summary.

 

This was a particularly concerning part for me, too. Were you present in the Preamble Committee when Makana Paris came in to explain this? The way he described it then, though not terming it “restorative justice” was as if each moku would determine their own system for regulating conflict within the moku. Do you think this is the same? Or was that idea scrapped?

I think this differs from the Paris system of justice being moku based.

 

Excellent point!

 

These articles seem to be contradicting each other somewhat, yes? If so, I would spell that out.

 

Do you think they would use this clause to disenfranchise those who chose not to participate in Kanaʻiolowalu? That is a scary thought to me!

I think they would try to use DOI proposed rules (4) and (5) to accomplish that. I think the effort will fail because, at that point, it is the “constitution” which should be controlling, and it does not disenfranchise the non-participants of Kana`iolowalu.

 

Iʻm pretty certain that the provision in the preamble about pursuit of independence will be stripped out immediately for this very reason you mention.

How and by who will do the stripping? It comes as a package!  There will be war in the community if there is an attempt to strip it out, and stripping it would be an attack on the whole document and the Na`I Aupuni process.  I think it is fatal to Federal Recognition and there’s nothing they can do about it at this point.

 

Yes!!