Clifton M. Hasegawa
Chairman and CEO
Kaimanu Maritime Corpration
1044 Kilani Avenue 12, Wahiawa, Hawaii 96786
Telephone: 8...
DEPARTMENT OF THE INTERIOR
Office of the Secretary
[43 CFR PART 50]
Procedures for Reestablishing a Formal Government-to-G...
Syllabus
Hawaiians, being the group to whom trust obligations run and to whom OHA
The Hawaiian Constitution limits the rig...
The ancestral inquiry … is forbidden by the Fifteenth Amendment for the
further reason that the use of racial classificati...
[T]he United States has not partnered with Native Hawaiians on a government-to-
government basis, at least partly because ...
The Department would like to receive public comment on whether documenting
descent from a person enumerated on the 1890 Ce...
The Kingdom of Hawaii. “The nationality or political status of persons ancillary to
the Hawaiian Kingdom are termed Hawaii...
Conclusion
Hawaii is a multi-cultural society that has evolved throughout history as a place where
the contributions each ...
of 8

Native Hawaiian Recognition - Department of Interior - Notice of Proposed Rule Making - CMH Comment October 4, 2015

“If we desire respect for the law, we must first make the law respectable.” Justice Louis D. Brandeis, United States Supreme Court
Published on: Mar 3, 2016
Published in: Law      
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Transcripts - Native Hawaiian Recognition - Department of Interior - Notice of Proposed Rule Making - CMH Comment October 4, 2015

  • 1. Clifton M. Hasegawa Chairman and CEO Kaimanu Maritime Corpration 1044 Kilani Avenue 12, Wahiawa, Hawaii 96786 Telephone: 808.498.8408 Email: clifhasegawa@gmail.com LinkedIn: http://www.linkedin.com/in/cliftonhasegawa October 4, 2015 The Honorable Sally Jewell Office of the Secretary Department of the Interior 1849 C Street NW Room 7228 Washington, DC 20240 Dear Madam Secretary, Thank you for the opportunity to comment on the Proposed Rule to Re-Establish a Formal Government - to - Government Relationship with the Native Hawaiian Community. Your purpose to facilitate the establishment of this process should be harmonized and broadened consistent with case and statutory laws. Predicating the beginning of Department of Interior process on the contingency "if the Native Hawaiian community forms a unified government" undermines the success of the Department of Interior proposal as acknowledged and stated in the Notice of Proposed Rule Making, i.e., the long standing nature of the issue and multiple participants with separate agendas. Recommended is the Department of Interior taking the proactive and leadership role to achieve excellence and maximize the opportunity for success. Thank you very much. Respectfully, Clifton M. Hasegawa
  • 2. DEPARTMENT OF THE INTERIOR Office of the Secretary [43 CFR PART 50] Procedures for Reestablishing a Formal Government-to-Government Relationship with the Native Hawaiian Community Docket No. DOI–2015–0005-2438 [145D0102DM DS6CS00000 DLSN00000.000000 DX.6CS25241A0] RIN 1090–AB05 DATE: October 4, 2015 COMMENTER: Clifton M. Hasegawa Chairman and CEO - Kaimanu Maritime Corporation 1044 Kilani Avenue 12 Wahiawa, Hawaii 96786 Direct: (808) 498.8408 Email: clifhasegawa@gmail.com Internet: http://www.linkedin.com/in/cliftonhasegawa Recommendation The Secretary cites with favor and affirmation the case of Rice v. Cayetano, 528 U.S. 495 (2000) and governing authority of the Office of Hawaiian Affairs. Respectfully, recommended is the Notice of Proposed Rulemaking be amended and be aligned to be specific and consistent with the decision in Rice v. Cayetano and “Native Hawaiian” as defined by the Office of Hawaiian Affairs and The Kingdom of Hawaii be utilized for purposes of this Rule Making and henceforth be applied to and for all laws utilizing and referencing the term “Native Hawaiian”. Background SUPREME COURT OF THE UNITED STATES _________________ No. 98–818 _________________ HAROLD F. RICE, PETITIONER v. BENJAMIN J. CAYETANO, GOVERNOR OF HAWAII ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
  • 3. Syllabus Hawaiians, being the group to whom trust obligations run and to whom OHA The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs, or OHA. The agency administers programs designed for the benefit of two subclasses of Hawaiian citizenry, “Hawaiians” and “native Hawaiians.” State law defines “native Hawaiians” as descendants of not less than one-half part of the races inhabiting the Islands before 1778, and “Hawaiians”–a larger class that includes “native Hawaiians”–as descendants of the peoples inhabiting the Hawaiian Islands in 1778. The trustees are chosen in a statewide election in which only “Hawaiians” may vote. Petitioner Harold F. Rice, a Hawaiian citizen without the requisite ancestry to be a “Hawaiian” under state law, applied to vote in OHA trustee elections. When his application was denied, he sued respondent Governor (hereinafter State), claiming, inter alia, that the voting exclusion was invalid under the Fourteenth and Fifteenth Amendments. The Federal District Court granted the State summary judgment. Surveying the history of the Islands and their people, it determined that Congress and Hawaii have recognized a guardian-ward relationship with the native Hawaiians, which is analogous to the relationship between the United States and Indian tribes. It examined the voting qualifications with the latitude applied to legislation passed pursuant to Congress’ power over Indian affairs, see Morton v. Mancari, 417 U.S. 535, and found that the electoral scheme was rationally related to the State’s responsibility under its Admission Act to utilize a part of the proceeds from certain public lands for the native Hawaiians’ benefit. The Ninth Circuit affirmed, finding that Hawaii “may rationally conclude that trustees owe a duty of loyalty, should be the group to decide who the trustees ought to be.” 146 F.3d 1075, 1079. Held: Hawaii’s denial of Rice’s right to vote in OHA trustee elections violates the Fifteenth Amendment. JUSTICE KENNEDY delivered the opinion of the Court. [A]ncestral inquiry … implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.
  • 4. The ancestral inquiry … is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name. When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii. It is so ordered. [Emphasis Supplied] SOURCE: Cornell University School of Law https://www.law.cornell.edu/supct/html/98-818.ZS.html References from the Notice of Proposed Rulemaking [T]he proposed rule would establish an administrative procedure and criteria that the Secretary would use if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States. [Emphasis Supplied] The Secretary of the Interior (Secretary) is proposing an administrative rule to facilitate the reestablishment of a formal government-to-government relationship with the Native Hawaiian community. [Emphasis Supplied]
  • 5. [T]he United States has not partnered with Native Hawaiians on a government-to- government basis, at least partly because there has been no formal, organized Native Hawaiian government since 1893, when a United States officer, acting without authorization of the U.S. government, conspired with residents of Hawaii to overthrow the Kingdom of Hawaii. [Emphasis Supplied] The United States nevertheless annexed Hawaii ‘‘without the consent of or compensation to the indigenous people of Hawaii or their sovereign government who were thereby denied the mechanism for expression of their inherent sovereignty through self-government and self-determination.’’ 42 U.S.C. 1701(11). [Emphasis Supplied] Although the indigenous people shared a common language, ancestry, and religion, four independent chiefdoms governed the eight islands1 until 1810, when King Kamehameha I unified the islands under one Kingdom of Hawaii. See Rice v. Cayetano, 528 U.S. 495, 500–01 (2000). [Emphasis Supplied] Hawaii was a U.S. territory for six decades prior to 1959, and during much of this period, educated Native Hawaiians, and a government led by them, were perceived as threats to the incipient territorial government. Consequently, the use of the Hawaiian language in education in public schools was declared unlawful. 20 U.S.C. 7512(19). [Emphasis Supplied] The term ‘‘Native Hawaiian,’’ as used in the proposed rule, means an individual who is a citizen of the United States and a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii. This definition flows directly from multiple Acts of Congress. See, e.g., 12 U.S.C. 1715z–13b(6); 25 U.S.C. 4221(9); 42 U.S.C. 254s(c); 42 U.S.C. 11711(3). To satisfy this definition would require some means of documenting descent generation-by- generation, such as enumeration on a roll of Native Hawaiians certified by a State of Hawaii commission or agency under State law, where the enumeration was based on documentation that verified descent. And, of course, enumeration in official DHHL records demonstrating eligibility under the HHCA also would satisfy the definition of ‘‘Native Hawaiian,’’ as it would show that a person is an HHCA-eligible Native Hawaiian and by definition a ‘‘Native Hawaiian’’ as that term is used in this proposed rule. 1 Each Independent Chiefdom was referred to as a “Mokupuni” (Large Island District). The 4 Island Districts were Oahu, Kauai, Maui (comprised of the islands Maui, Lanai, Molokai and Kahoolawae) and Kauai (comprised of the islands of Kauai and Niihau). Today, the State of Hawaii, the Governor, Legislature and the Supreme Court is on Oahu with 4 county governments each with an elected Mayor.
  • 6. The Department would like to receive public comment on whether documenting descent from a person enumerated on the 1890 Census by the Kingdom of Hawaii, the 1900 U.S. Census of the Hawaiian Islands, or the 1910 U.S. Census of Hawaii as the as ‘‘Native’’ or part ‘‘Native’’ or ‘‘Hawaiian’’ or part ‘‘Hawaiian’’ is reliable evidence of lineal descent from the aboriginal, indigenous, native people who exercised sovereignty over the territory that became the State of Hawaii. NOTES: The OHA (Office of Hawaiian Affairs) Hawaiian Registry Program (HRP) provides registered Hawaiians, worldwide, with a card verifying their Hawaiian ancestry. The Office of Hawaiian Affairs issues the card after verifying indigenous Hawaiian ancestry through biological parentage. No blood quantum is required. [Emphasis and Clarification Supplied] Source: http://www.oha.org/registry The legal basis for the establishment of the Department of Hawaiian Home Lands (DHHL) is the Hawaiian Homes Commission Act, 1920, as amended (HHCA). Passed by Congress and signed into law by President Warren Harding on July 9, 1921 (chapter 42, 42 Stat. 108), the HHCA provides for the rehabilitation of the native Hawaiian people through a government-sponsored homesteading program. Native Hawaiians are defined as individuals having at least 50 percent Hawaiian blood. [Emphasis Supplied] Source: http://dhhl.hawaii.gov/hhc/laws-and-rules/ Kana'iolowalu Native Hawaiian Roll Commission. The law [Act 195] that authorized this effort defines a Native Hawaiian as (A) Any person who is a lineal descendant of the aboriginal people who resided in the Hawaiian Islands prior to 1778, or (B) Any person who is eligible for Hawaiian Home Lands or (C) Is a lineal descendant of a person who is eligible for Hawaiian Home Lands. [Emphasis and Clarification Supplied] Source: http://www.kanaiolowalu.org/about/procedures/
  • 7. The Kingdom of Hawaii. “The nationality or political status of persons ancillary to the Hawaiian Kingdom are termed Hawaiian subjects. The native inhabitants of the Hawaiian Islands became subjects of the Kingdom as a consequence of the unification of the islands by His Majesty King Kamehameha I at the turn of the 19th century. Since Hawai'i became constitutional, foreigners were capable of becoming Hawaiian nationals either through naturalization or denization. Under the naturalization laws of the Kingdom, foreigners who resided in the Hawaiian Islands for at least five years could apply to the Minister of Interior for naturalization, whereby "Every foreigner so naturalized, shall be deemed to all intents and purposes a native of the Hawaiian Islands, be amenable only to the laws of this Kingdom, and to the authority and control thereof, be entitled to the protection of said laws, and be no longer amenable to his native sovereign while residing in this Kingdom, nor entitled to resort to his native country for protection or intervention. He shall be amenable, for every such resort, to the pains and penalties annexed to rebellion by the Criminal Code. And every foreigner so naturalized, shall be entitled to all the rights, privileges and immunities of an Hawaiian subject." Denization was a constitutional prerogative of the Office of the Monarch, whereby, a foreigner may have all the rights and privileges of a Hawaiian subject, but is not required to relinquish his allegiance to his native country as is required under naturalization. Denization was "dual citizenship," which was accompanied by an oath of allegiance to the Hawaiian Kingdom.” It was reserved to those foreigners who may not have resided in the Kingdom for five years or more, but their services were necessary in the affairs of government both local and abroad. The children of Hawaiian denizens born on Hawaiian territory were considered Hawaiian subjects. Examples of Hawaiian denizens were special envoys who negotiated international treaties and officers serving in the Hawaiian government. Source: http://www.hawaiiankingdom.org/political-history.shtml Remarks by Barack Obama, President of the United States of America “The legacy of discrimination - and current incidents of discrimination, while less overt than in the past - are real and must be addressed.” “And I will do everything that I can as long as I am President of the United States to remind the American people that we are one nation under God, and we may call that God different names but we remain one nation.”
  • 8. Conclusion Hawaii is a multi-cultural society that has evolved throughout history as a place where the contributions each generation of Native Hawaiians strive to preserve, protect, maintain and restore the knowledge, wisdom, standards of living and lifestyle of their elders and forefathers. We, of non-Hawaiian ancestry, have been assimilated and have graciously been made part of the Native Hawaiian culture. The breadth, reach and lineage of the Native Hawaiian people who settled the Hawaiian archipelago as early as 300 A.D. has grown and been extended over the years. The measure of their ancestry is broad. All restrictive processes should be eliminated from this Rule Making. They are Native Hawaiians. Each person is justly, rightfully, deservedly and inclusively part of Native Hawaiian Recognition and the proposed Government-to-Government process. Thank you for the opportunity to share my thoughts with you. Respectfully submitted, Clifton M. Hasegawa Copy provided via Email The Office of the Secretary, Department of the Interior [part50@doi.gov]

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