The Native Hawaiian Vote
Price of Paradise · Hawaii Public Radio · aired 1996-08-25
Guests: Jim Mee (attorney); Haydon Aluli (attorney representing two members of the Hawaiian Sovereignty Elections Council); Lela Hubbard (litigant); Jon Van Dyke (Professor, UH Law School); John Goemans (attorney)
Duration: 1:04:34

[00:00:02] Randall Roth: Aloha, this is Randy Roth, host of the Price of Paradise radio show. We're sponsored each week by the Hawaii Community Foundation, an organization that supports grass roots efforts to improve the quality of life in Hawaii and that administers charitable funds with efficiency and compassion. Today's show has to do with two lawsuits that are about to be decided by federal judge David Ezra. One was brought by a non Hawaiian, Harold Rice. Basically, he's arguing that the recently completed native Hawaiian vote is unconstitutional because qualification to vote in it was based on race. I'll refer to this case from time to time as the Rice case.
[00:00:39] Randall Roth: The lead attorney, John Goemans, is a former legislator and former deputy attorney general here in Hawaii. He'll be on the air in just a few minutes to tell us a bit more about the Rice case. The other case, which I'll be calling the Kalalea case, was brought by three Hawaiians and one non Hawaiian. This lawsuit, like the other, is more complex than I'll make it sound in this brief introduction. But at its core is the argument that the state of Hawaii has no business being involved in the sovereignty process.
[00:01:07] Randall Roth: One of the Hawaiian plaintiffs in this case, Leila Hubbard, is here with us in the studio. I'll ask her to tell us a bit more about the case in just a minute or two. We'll also be hearing from two of the lawyers involved in the defense of one or both of these lawsuits. One of these lawyers, Hayden Aluli, is a founding member and director of the Native Hawaiian Bar Association. The other, John Van Dyke, is a law professor at the University of Hawaii School of Law. Hayden's clients in this case are two members of the Hawaiian Sovereignty Election Council. John is representing OHA, the Office of Hawaiian Affairs.
[00:01:41] Randall Roth: Before beginning our conversation, I want to acknowledge the obvious that this is a particularly controversial topic and that many people feel very strongly about their position. My hope and expectation is that everyone involved in this morning's conversation will show proper respect to everyone else. A basic guideline on this show is that it's okay to attack a person's position, but not the person. Well, with that introduction, we have John Goemans on the line. John, are you there?
[00:02:09] John Goemans: John, can you hear me? I can.
[00:02:12] Randall Roth: There you are. Uh John is the lead attorney in the Rice case. John, can you very briefly tell us what's at the heart of that lawsuit?
[00:02:19] John Goemans: Yes, and it can be brief because the heart is is very clearly seen. The Constitution prohibits racial qualifications for voting in the United States of America. This statute, Act 359, on its face sets out a racial qualification for voting. Therefore, it's clearly a violation of the US Constitution. There hasn't been a law such as this in the United States since before the Civil War.
[00:02:43] Randall Roth: And the people who say that that somehow or another, native Hawaiians are like native American Indians and that there have been various elections over the years involving native American Indians in which only the Indians could vote, you're saying that just doesn't apply here?
[00:02:59] John Goemans: It doesn't apply because there has been no such election that qualified by race. The holdings are that that Indians are a political group separated by tribes federally recognized. Now the only elections that have been held are federal elections that have been authorized by by that have been conducted by the Bureau of Indian Affairs. They are not restricted by race.
[00:03:20] Randall Roth: I see. So you're saying that the Indian tribes, that's a political entity rather than than one based on race.
[00:03:25] John Goemans: I'm not saying that. The Supreme Court's saying it.
[00:03:27] Randall Roth: Okay. John, I really appreciate your being with us this morning. If you can stick around, I'd like to come back to you later on in the show. Surely. Thank you, John. Here in the studio, I have Leila Hubbard, who's one of the named plaintiffs in the other lawsuit, the Kalalea lawsuit. I'm sorry, Kalalea lawsuit. Um Leila, could you tell us briefly what that lawsuit's all about?
[00:03:49] Lela Hubbard: We Hawaiians have a dispute with the United States, not with the state of Hawaii. And in dealing with uh the state of Hawaii and the Hawaiians, the US has passed the buck on what is owed to Hawaiians. So, we are saying that constitutionally we should be dealing not through an intermediary, the state of Hawaii, but directly with the federal government. We support a Hawaiian vote, but not a Hawaiian vote under these conditions which can limit our opportunities in the future. That is what we're worried about.
[00:04:29] Randall Roth: So you're for sovereignty, but you're against this particular process, which is one that has been set up by and funded by the state of Hawaii.
[00:04:37] Lela Hubbard: Absolutely.
[00:04:38] Randall Roth: Okay. Well, like I say, Leila is here with us in the studio and we're going to be hearing from her more this morning. But let's shift gears just a little bit and go to John Van Dyke, who also is with us by phone. John is a colleague of mine at the University of Hawaii and he is representing, I believe, and John correct me if I'm wrong, I believe you're representing OHA in at least one of these lawsuits. John, are you there?
[00:04:59] Jon Van Dyke: Yeah, good morning, Randy. Um yes, I I'm not representing OHA. OHA is not a party to these lawsuits. Um they've not been served, they've not been named as parties although um there's a lot at stake for OHA. If the plaintiff's view should prevail here. Uh I'm I'm representing the members of the Hawaiian Sovereignty Election Council. Uh and uh they, of course, are defending the Native Hawaiian vote and they are arguing that the vote is proper in all respects. Uh as I believe it to be. The um issues um are are not too complicated here as Mr. Goemans said.
[00:05:41] Jon Van Dyke: There's 200 years of history in which preferences and separate programs for native peoples have been permitted by the US Supreme Court. This is an unbroken line of cases. Uh the analysis has been that these are not racial classifications, these are political classifications. There's a political relationship between the United States and native people. This was recognized in the US Constitution in three different places and it's been recognized in umpteen cases. So the only remaining question is whether or not Native Hawaiians can benefit from this line of cases. Uh and then, uh a kind of a subsidiary issue is whether the state of Hawaii is able to help facilitate this process.
[00:06:28] Jon Van Dyke: Well, Native Hawaiians, of course, are native people, just as other Native Americans are. They were here when white folks arrived. They then had the same sad, sorry history that other Native Americans experienced, of losing their lands, of being oppressed, of of having substantial populations loss, population losses, of having their culture destroyed and so on. Uh their their kingdom was overthrown illegally by the United States. This has been acknowledged by the US Congress and they lost both their land and sovereignty and and they were they lost their language and culture and so on, as we know.
[00:07:08] Jon Van Dyke: Uh the Congress has recognized this in the 1993 apology bill and in a 1994 piece of legislation called the Native Hawaiian Education Act. Both of these are very significant because they recognize Native Hawaiians as peoples as a distinct group. And in the 1994 act, they the Congress uses the term special relationship and says there's a special relationship between the United States and the Native Hawaiian people. This language is important because it is exactly the same kind of language that Congress uses when it deals with Indian tribes.
[00:07:43] Randall Roth: John, um am I correct in in the way I hear it, and I know very little, as you know, I know very little about this topic, but you're saying that that you believe John Goemans is simply wrong, that Native Hawaiians should indeed enjoy whatever sort of of rights or privileges are afforded Native American Indian tribes via the Constitution, Native Hawaiians should enjoy those as well.
[00:08:06] Jon Van Dyke: Absolutely, and we've had two federal court decisions. We've had a decision of the Hawaii Supreme Court along those same lines. There's no case that supports Mr. Goemans' position.
[00:08:16] Randall Roth: Okay, John, stay stay on the line if you can.
[00:08:18] Jon Van Dyke: Can I just say one word about uh Leila Hubbard's position about the role of the state? You bet. Sorry to go on and on here.
[00:08:26] Randall Roth: We professors are like that. Go ahead, John.
[00:08:28] Jon Van Dyke: But, uh it's important to understand that uh Leila, of course, is correct that the federal government has primary responsibility for relationship between with the native people, but states also have played a substantial role. Uh states have nurtured their native people, have facilitated self-determination processes historically. And in Hawaii, it's particularly appropriate for the state to do that because the state, after all, does have possession of of the public lands, the lands that are in dispute. These lands, uh were were seeded to the United States in 1898, but then most of them were transferred back to the state in 1959.
[00:09:05] Jon Van Dyke: And so the state possesses 1.4 million acres of these lands. It makes a lot of money off these lands. And so it's entirely appropriate for the state to use a little bit of that money to help the native Hawaiian people in their self-determination process.
[00:09:17] Randall Roth: Okay, John, thank you very much, and and if you can stick around, we'll come back to you toward the end of the show.
[00:09:21] Jon Van Dyke: Thank you. Thank you.
[00:09:23] Randall Roth: Uh with me in the studio is Hayden Aluli, and like John Van Dyke, Hayden is involved in in these cases, representing and in Hayden Hayden, in your case, I believe you're representing two of of the members of the Hawaiian Sovereignty Elections Council. Um one of the things that John Van Dyke said is that a lot is at stake here and and he said that in in the context of my having uh pointed out his association with OHA.
[00:09:46] Randall Roth: Uh in your article in this morning's advertiser, you begin by saying what I kind of read as being a a set of dominoes that if the plaintiffs win this case on the native Hawaiian vote, you think that maybe everything that gives special treatment to Native Hawaiians is at stake, whether it's the Native Hawaiian Homes Land Act or it's uh OHA or um admissions at Kamehameha school, I guess.
[00:10:15] Haydon Aluli: That's how a court could rule in one holding that could have the president uh effect for subsequent cases. In other words, in if the plaintiffs prevail on their ruling from a court from a court, that the preferential treatment for Native Hawaiians is unconstitutional under federal constitutional principles.
[00:10:39] Randall Roth: And I know you're not saying that would happen, but just so our audience understands, there's a lot more at stake in these arguments that are being made this week in front of Federal District court judge um uh David Ezra. There's a lot more ultimately, potentially at stake than just the Native Hawaiian vote.
[00:10:58] Haydon Aluli: Absolutely. It could be an example where even the proponents of sovereignty could win this battle, but ultimately, all Hawaiians could lose this war.
[00:11:09] Randall Roth: Well, and that's one of the confusing things I think for our listeners is that, for example, you and and Leila here in the studio are both very pro sovereignty, but you're very far apart on the specific issue of of whether this native Hawaiian vote is is constitutional or not.
[00:11:24] Haydon Aluli: Absolutely.
[00:11:25] Randall Roth: Okay. I interrupted you before. Um put your main thoughts out on the table and then I know Leila has has some comments about it.
[00:11:32] Haydon Aluli: Okay, I think the Native Hawaiian vote really represents a maturation of the a political movement, the Hawaiian Sovereignty movement. There are so many uh pro sovereignty proponents uh articulating their positions, but there is really no real um inclusive process to allow all Native Hawaiians who may not be as um as articulate or let's say, uh uh pro stance that's that may be outside of the system, so to say.
[00:12:25] Haydon Aluli: So this process really is a mainstream approach to invite all Native Hawaiians who want to join in a process that we all know, to vote, to help voice our opinion that wrongs have been committed and the state of Hawaii and the federal government need to address a process to write that wrong.
[00:12:46] Randall Roth: So for example, some individuals in the Hawaiian community and some organizations seem to be particularly good at getting media attention, and others don't know how to do that. And I think what I hear you say is that the Native Hawaiian vote is a step in the direction of a process where the playing field is going to be level and trying to determine what sovereignty might look like.
[00:13:07] Haydon Aluli: Right, and to give everyone a chance to have their views um heard rather than just have one pro sovereignty group uh who may try to force their views on the majority of Hawaiians.
[00:13:21] Randall Roth: Okay. Leila Hubbard, I'll bet you've got a few thoughts to share about that.
[00:13:24] Lela Hubbard: Absolutely. The state is in conflict of interest. The state holds our lands. You admitted that they make major revenue, millions of dollars. The state exists on our seeded lands. So therefore, helping in this process is very suspect. And what we said before is, this is not an exercise in true self-determination because we would be forced into this process which has parameters set up by the state. Because section 14 of the bill says that as long as we go along with the state constitution and laws, fine. Now the majority of Hawaiians at this point favor uh a nation to nation status, probably. They certainly are not in favor of independence.
[00:14:17] Lela Hubbard: But what we would like to see is the door kept open in case someday, Hawaiians and their supporters, because again, this is limited um in this uh question simply to uh indigenous Hawaiians. But aren't we an even more unique situation because we had many, many non Hawaiians that were citizens of our kingdom. And in limiting such, this limits our self-determination. Moreover, you spoke of a process, and that is true. Um there is a process. This is the first step. The second step is an election of delegates, the third step is a Constitution, a fourth step is ratification. Where is self-determination all along the way and where is the voice of the people, the ordinary people?
[00:15:16] Randall Roth: So to to go back to my metaphor, you're saying that the state is designing the playing field, and you're thinking that maybe it's not going to be level because it's the state that's defining the playing field.
[00:15:28] Lela Hubbard: Well it isn't level.
[00:15:29] Randall Roth: Okay. Uh Hayden a brief response from you and then I'm going to invite calls. Go ahead.
[00:15:33] Haydon Aluli: Okay, the state um is helping facilitate a process that really was started by the apology bill of 1993, where that uh Congress encouraged reconciliation. The state of Hawaii, really made up by people, being represented by people like you and me, are trying to fulfill its duty in a spirit of well intentions in a spirit of writing a wrong. To take the position that the state is somehow some big bogey man that we can't trust, it really, you know, we are trusting ourselves. This is our voice.
[00:16:05] Haydon Aluli: To to read uh Miss Lello's argument, she seems to say that anyone who is taking let's say state uh paychecks because they perhaps may work for the state government, either as a professor or whatnot, really is an illogical and untrue argument. I'm not going to say that those persons are controlled by the state just because they get paid by the state. State is made up of people like you and me. We are all trying to include everyone's voice here, and that's the key. We need to all be united on one front.
[00:16:32] Randall Roth: Speaking of other voices, and uh Leila I know you you want to respond to that and and I'm going to come to you in just a moment, but we want to invite a lot of other voices to get involved. You're listening to the Price of Paradise radio show. My name is Randy Roth, and we're talking about the Native Hawaiian vote. If you would like to ask a question or make a brief comment, just call us at 9558821. If you're on a neighbor Island, the number is 1-800-955-8821. With me in the studio is Leila Hubbard, who is a plaintiff in the Kalalea case.
[00:17:06] Randall Roth: And in that case, the plaintiffs are basically arguing that the state has no business being involved in the sovereignty process. Also in the studio is Hayden Aluli, who is an attorney on the defense side, and he sees the Native Hawaiian vote as an important first step on the road to sovereignty. We've heard by phone from John Goemans, who's the lead attorney in the Rice case, and in that case, John and his client Harold Rice are arguing that the Native Hawaiian vote is unconstitutional because it allows only Native Hawaiians to vote.
[00:17:35] Randall Roth: And then we also have heard on the phone from John Van Dyke, who is uh defense council in in the case representing the uh Native Hawaiian Sovereignty Election Council. And uh uh he's told us a bit about the background and and how he feels the whole Indian tribe issue fits into this framework. So again, this is the Price of Paradise radio show and now is the time in the show where we invite callers. The number is 9558821. We start with Wilma from Molokai. Good morning, Wilma.
[00:18:04] Caller: Good morning. Um my name is Wilma Kamakana Grambush. I am the president of Kalamaula Homestead Association. My gripe is that the sovereignty issue has really not been discussed in the communities. They've had poor showings, they've had a lot of money to do their work. They have not. They have confused the community. I'm speaking about the grass roots, the people who live Hawaiian, not the ones that have the pala pala and the ones that are have. These are the have not people. Who speak for them? What is this one step? One step to what? and it myself have done a poor job.
[00:19:02] Randall Roth: Well, let me get a reaction to that. Um, first, uh, Lela Hubbard, what's your reaction?
[00:19:07] Lela Hubbard: Well, all the money went to one side, and the Hawaiian Sovereignty Elections Council said, in open hearings, uh, that they were not to educate the Hawaiian people on the impacts of this vote, they were simply to educate the people to vote.
[00:19:27] Randall Roth: To vote on what?
[00:19:28] Lela Hubbard: Well, that's the problem.
[00:19:30] Caller: That is a problem.
[00:19:31] Randall Roth: Okay, let me get uh Hayden Aluli in on this and then our our phone lines are all full, and I've got a feeling that we could have about 25 more lines and they would be full, so we're going to try to keep moving. Hayden Aluli, what do you think about Wilma's comment?
[00:19:43] Haydon Aluli: Thank you, Wilma. I think the only simple question is asked is shall the Hawaiian people elect delegates to propose a native Hawaiian government. It's a harmless question. It's like a straw vote. It is an answer that should be resounding with a yes because most of Hawaiians want some type of writing a wrong. What will come later is really up to people like you and me, Wilma, to get out there in the grassroots, to educate our people, that there is really one enemy here, and that is those that took away our sovereignty. We should not be fighting against one another, whether or not there is not enough grassroots, or whether it's like um you perceive the Pala Pala Hawaiians having more say, that's not the issue here. The issue here is us getting together and looking united, because we all want the same thing.
[00:20:26] Caller: How can I get together when you don't understand what you're getting together for?
[00:20:29] Randall Roth: Well, I I really appreciate your call. You you've introduced a a very important uh aspect to this conversation. Thank you.
[00:20:35] Caller: The neighbors come first, because people always have a say. Get the neighbor island people to respond.
[00:20:40] Randall Roth: Okay, Wilma. Thank you very much.
[00:20:42] Caller: Mahalo Wilma.
[00:20:43] Randall Roth: Speaking of neighbor islands, we go to Ralph on the Big Island. Good morning, Ralph.
[00:20:46] Caller: Uh, good morning. I'm enjoying your show quite a bit. Uh, on the way to church, so I want to call you maybe it's a little bit loud right now.
[00:20:53] Randall Roth: You know, I'll tell you what, Ralph. We can just barely hear you. If you can possibly get to another phone during the hour, and if you call in and and tell Suzy on the phone that it's you, we'll get you on right away. We'll put you at the top of the list, but we can just barely hear you now on the cellular.
[00:21:08] Caller: Okay, how's this? Is this any better?
[00:21:09] Randall Roth: Oh, much much better. Go ahead.
[00:21:11] Caller: Okay, I have a question concerning fee simple uh lands that uh maybe owned by uh non-Hawaiians that maybe have retired here. What would be the status of uh of that and their ownership under Hawaiian sovereignty?
[00:21:24] Randall Roth: Okay, let's go to Lela Hubbard.
[00:21:26] Lela Hubbard: You own your lands. We are not uh trying to take away privately held fee simple lands. The the lands we are addressing are the ceded lands which are the crown lands and the government lands that were ceded to the State of Hawaii at the time of statehood. Um they were ceded to the United States by uh the Newlands Resolution.
[00:21:52] Randall Roth: Okay. Hayden Aluli?
[00:21:53] Haydon Aluli: Absolutely. The fee simple interest would not be affected whether or not the uh a new Hawaiian sovereignty government will ultimately take possession of these ceded lands. However, we have to be understand that all fee simple interest came from a pre-existing Hawaiian sovereignty, and to the extent that out of the Mahele of 1850s when private title was created, those titles are all subject to the customs that were present at the time these deeds were cut out. So to the extent that there's there's no upsetting of fee simple interest, we also must recognize and understand that all our interests are subject to Hawaiian customs and practices.
[00:22:28] Randall Roth: Does that, and I know this is another subject, but does that mean that people can come into somebody's um backyard and pick their mangoes?
[00:22:36] Haydon Aluli: Absolutely not. The White State Supreme Court recently um said that all title is subject to Hawaiian customs, but it must be exercised in a reasonable fashion. If you have your fee simple 10,000 square feet whatnot, or an acre, whatever, if it's enclosed, it's if it's been that way for a long period, that's not going to be allowed. It is these areas that are are subject to development, masses uh thousands of acres, hundreds of acres, all of these uh items must really, uh we must be conscious that we preserve the rights of our customs on these projects.
[00:23:08] Randall Roth: Okay, let's go to John and Makiki. Good morning, John.
[00:23:10] Jon Van Dyke: Good morning, sir. Uh, two points quickly. First of all, one of the gentlemen mentioned that if a vote was taken that there's some big risk for the Hawaiian Nation.
[00:23:21] Jon Van Dyke: I was curious about that. Did anything like that happen to the Alaskan votes to the American Indian votes? Is this a fallacy leading on to trick people into making a decision, because I don't recall the Alaskans ever in that particular problem elevating from their votes, neither the American Indians. So that is something I think is a is a smoke screen. Number two, the State should only participate in offering all the options the Hawaiians may have, and one in particular, I am concerned about, is their loss in relationship to the United Nations. That I think is a very, very critical area.
[00:24:03] Randall Roth: Okay. John, I appreciate your comments. Aloha. We go to oh, Hayden Aluli has a reaction.
[00:24:08] Haydon Aluli: Yes, hi John. Thank you. I I think um you may be alluding to my editorial this morning about um whether or not the plaintiff's arguments uh are successful, whether or not that would challenge all the Hawaiian entitlements. The arguments of the plaintiffs in that no uh preferential treatment should be given the native Hawaiians is at stake with these lawsuits. It is a defendant's contention that Hawaiians are should be similarly treated to Native Americans who are under United States law, given preferential treatment. The holding that the federal judge could hold uh simply is that native Hawaiians, because of their similar histories, first being aboriginal to the Hawaiian Islands, is so similar to Native Americans, the aboriginals to the the continental United States, that Hawaiians should be treated similarly. In other words, we could um have a nation within a nation as Lela has has talked about, or perhaps we could have something more. Um, your your comment about the loss of the United Nations status is very, very important. The native Hawaiian vote does not exclude that. The native Hawaiian vote only represents the voice of our people saying, we want to write a wrong. It's important that people like you get involved in the process and help put up the different options that may occur later, and that's what it's all about.
[00:25:26] Randall Roth: Hayden, can you very, very briefly tell us what went on at this conference at the East-West Center last week that Senator Akaka convened, where they were talking about something to do with United Nations rules in this area?
[00:25:40] Haydon Aluli: It's my understanding that uh that there what's at stake now is a revamping of the United States policy toward indigenous people. Uh when uh in 1946 before we became a state, Hawaii was on the decolonization decolonization list of the United Nations. In other words, the United States had a duty to assist the Aboriginal people of Hawaii to decolonize. We were only a territory. So to the extent that United States policy has has shifted since we became a state, they are not recognizing recognizing the rights of the indigenous people, including Hawaiians.
[00:26:16] Randall Roth: So that is very important, especially for those people who want total independence.
[00:26:20] Haydon Aluli: Absolutely.
[00:26:21] Randall Roth: Okay. I I want to hear from uh Lela Hubbard.
[00:26:23] Lela Hubbard: Um, actually what was being discussed at the university was a draft declaration of Indigenous Rights and the US position is, they do not recognize people with an S, uh that is uh communal rights and throughout the draft, um this United States presented this position. Now, this summer, the US representative in Geneva stated that the only way they're going to recognize Hawaiians is as a tribal reservation.
[00:26:59] Randall Roth: Okay. Well, let's uh go to Bill in Pololo. Good morning, Bill.
[00:27:03] Caller: Hey, good morning. Uh I wanted to ask a question, not about uh or I didn't want to comment on the vote itself. I wanted to I wanted to mention just the ballots. The ballots were printed by Sequoya Pacific. They print our primary and general election ballots every year, for many years back. Um, there the guy that's running the counting center and he was uh scheduled to count on the 23rd and 24th, that's uh that's a Friday and Saturday. On the 5 o'clock news, um TV news, I see that he uh has already counted these ballots. He's paying $7,000 to count them. Uh why is the same man who is counting the primary and general election ballots involved and being paid by OHA or whoever uh $7,000 to be in the native Hawaiian?
[00:29:25] Randall Roth: Okay. Let let me ask Lela, do you know about what Bill is raising about this issue?
[00:29:28] Lela Hubbard: Yes, um can you very briefly elaborate? The Hawaiian Sovereignty Elections Council is totally in charge of the election, so they have contracted out uh to Sequoya, uh to uh the Hawaiian expert and the computer operators uh to count the vote. The League of uh Women Voters has been um hired uh to ensure uh that there aren't any problems um with the the ballots the the integrity of the ballots.
[00:29:41] Lela Hubbard: However, when you mentioned the ballots bill, um initially, in applying uh to uh sign up for the Native Hawaiian Vote, there was no qualification where you had to put documentation to say uh that you were uh Hawaiian, and we were considerately concerned because we know there are a number of native uh non-Hawaiians who are on the list, and we approach not only OHA uh but the State and the Hawaiian Sovereignty Elections Council.
[00:31:16] Caller: Hawaiian people educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people, educate the Hawaiian people.
[00:34:10] Randall Roth: said well it's job and the State said it's Oha's job and I know that Ac has received them uh number of ballots from non-Hawaiians but you know how in how true is this vote? So Lela and Bill are questioning whether this vote is actually being carried out competently. Hayden Aluli, quick reaction.
[00:34:32] Haydon Aluli: There is a affidavit that you signed uh stating that you are part Hawaiian when you send in your native Hawaiian vote and it is uh a statement you sign on the envelope and it must be witnessed too. I think there is is adequate uh assurances within this process to make it justified and legitimate. Uh the concerns we hear from these uh these opposers. Really let's take a big picture here. Are you really pro sovereignty for our people or are you really trying to find some type of argument to confuse us?
[00:35:09] Randall Roth: Okay. We'll do that, Bill.
[00:35:11] Randall Roth: Thank you very much. Thank you. I want to remind listeners that this is the Price of Paradise Radio show. My name is Randy Roth. With me in the studio is Lela Hubbard and Hayden Aluli. Lela is one of the plaintiffs in the Kakale case which is uh saying that the native Hawaiian vote is uh is not legal and uh the results should not even be revealed. Hayden Aluli is an attorney defending the native Hawaiian vote and he sees it as an important first step on the road to sovereignty. We've heard from John Goman and John Van Dijk on the phone. We're going to hear more from them a bit later. John Goman is the lead attorney in the Rice case which is also attacking the native Hawaiian votes and it's unconstitutional because the ability to vote is based on race and John Van Dijk who is uh counsel on the defense side of these actions and he feels very strongly that there's nothing constitutionally or otherwise wrong with the native Hawaiian vote. If you tuned in late and you'd like to hear the show in its entirety tonight on KIFO 1380 AM at 8 o'clock, you can hear the show in its entirety. If you have a question or brief comment, and believe it or not, we have some open lines, so we'd like to hear from you. The number is 955-8821. Or if you're on a neighbor island, it's 1-800-955-8821. Again, we're talking about the native Hawaiian vote. We go to Michael from Manoa. Good morning, Michael.
[00:36:31] Caller: Good morning uh Randy. I'd like to ask a very simple question and ask that your participants uh respond to it individually briefly if they could. Basically uh no one as yet this on this program stated exactly what is the question being voted on and as I understand the question is really not whether there should be sovereignty or not sovereignty or whether people want it or not or it's favorable or not but merely the question is to have a meeting, a convention of some sort or rather to discuss the issues.
[00:36:57] Randall Roth: Michael, I'm going to come back to you. Let me read it so all of our listeners know exactly what it says and then I'm going to come and come right back to you. It says, shall Hawaiian people elect delegates to propose a native Hawaiian government. That's how it reads. Go ahead, Michael.
[00:37:10] Caller: And given that's a relatively innocuous issue at least, uh I'd like to just have them tell us as informed persons how that may lead to some sort of dominoes falling in one direction or another and what would be the logical process thereafter. And if there is a threat to the native Hawaiian's rights as as sovereign peoples, simply by having this meeting or agreeing that the meeting should be held um even those who don't agree can come to the meeting and then discuss that, aren't we then airing these uh doubts and concerns a little early and shouldn't they be aired at that to form? Okay. Thank you Michael. I'm going to get a reaction from Hayden and just so our listeners understand, uh Hayden feels there's nothing wrong with the Native Hawaiian vote, but he does feel that potentially there is a domino set of consequences here, a falling domino set of consequences. Could you briefly restate what you'd said earlier about that, Hayden?
[00:37:58] Haydon Aluli: Hello Mike. First off, thank you very much for coming on this show. First off,
[00:38:00] Randall Roth: This question that's been posed, shall the Hawaiian people elect delegates to propose a native Hawaiian government in my view is really harmless. There's no risk in that question. And that's really in my view the first step in a political and democratic process to gather all the proponents, the different kind of proposals that are out you know, in Hawaii and get their minds together and get them in one place and let's all start together, together, united toward the world toward sovereignty. The problem that's at issue here is that the so-called proponents uh the Little Hubbard and some other plaintiffs have filed a federal lawsuit challenging this harmless question.
[00:38:37] Randall Roth: And if they are successful, arguably, their arguments will gut all the Hawaiian entitlements because they are arguing that under the Federal Constitution, there can be no special election just for native Hawaiians to come together and ask this harmless question. That's the danger I see. That's the problem with this type of lawsuit and it really um is problematic because it's brought really by Hawaiians versus Hawaiians when we should all be together together toward the road toward sovereignty.
[00:39:05] Lela Hubbard: And that invites a conversation other than what Michael just raised. Leila, I know you're not a lawyer, but I know both you and your lawyers feel strongly that you can win this case without Domino's falling.
[00:39:17] Lela Hubbard: Right, because we're not challenging the unique status of Hawaiians at all. Really, we want to see that expanded so that others in the Hawaiian kingdom would be included. That's my point of view, because this isn't a racist vote and it shouldn't be. Okay, but the, this is a red herring to say that all the Hawaiian entitlements are going to fall. That's not true. We're saying the state has no right to um have these special programs, this special vote to muck up the issue of sovereignty that the proper entity is the federal government.
[00:40:05] Randall Roth: I whether the federal government calls the elections and supports the elections or the state has the elections or if the Makiki uh junior League calls the elections or this convention, what difference does it make? It gives an opportunity to discuss these issues.
[00:40:19] Lela Hubbard: But you see, there's there is a domino effect because we then have to elect delegates, then they go to a convention. I'm saying I don't want to pay $300 a week for a delegate to determine my government. Step by step, the Hawaiians have been acted to, not with. And that's the key. When the Hawaiians be electing the delegates and the delegates presumably be Hawaiian, and I don't think I'd be elected a delegate as a Caucasian uh, you know, citizen of the state of Hawaii. So wouldn't it then be Hawaiians electing Hawaiians and at some point in time they could have this convention to discuss these issues?
[00:41:03] Randall Roth: You know as referee, I'm going to blow my whistle because Michael as good a point as that is and it really is a good point, we're kind of going back and restating some things, no thank you. We we're restating some things that we said before and I've got some other folks on the line. We want to get to them. Uh but the bottom line is both of the people in the studio are very much in favor of sovereignty. They're totally together on that. Where they're apart is the best way to get there. Let's go to, oh we have one of the Hawaiian Sovereignty Election Council members uh and also one of my colleagues at the University of Hawaii, Daviana McGregor calling from Molokai. Good morning, Daviana.
[00:41:36] Speaker 2: Oh, good morning. What do you have for us this morning? Well, I wanted to know if um the panel members think that Hawaiians have totally assimilated or if Hawaiians actually still do have a right to control our own national national resources and um and that why should we postpone controlling the national resources until everybody's ready for independence?
[00:42:02] Randall Roth: Okay, and because you and Hayden are in basic agreement, I'm going to ask just Leila to respond to that. Uh Leila, any comments?
[00:42:10] Lela Hubbard: Um, the vote is a vote for our nation, and now I think every person hearing hears the real intent for the vote. We are determining a national roster. Therefore, a small group can go and negotiate reparations for with the Hawaiians. Now, I'm not against that, but that's really the intent and Hawaiians are not aware of this process. There has been legislation introduced in Congress, which included Hawaiians as a tribal uh entities. And we questioned Congress about that. You read Senator Inouye's letter saying he didn't know anything about that, which seems very strange since Noel Kohanu um, and I'm sure Senator Inouye talks with her, um is the minority council on the Senate select committee, which deals with Hawaiian affairs.
[00:43:12] Randall Roth: So I I think if I'm right, Leila, you're very skeptical of any process that's set up by the state of Hawaii.
[00:43:20] Lela Hubbard: Absolutely. You see, I feel that even 100 or 200 delegates at this point in time is insufficient. The question has not been thoroughly discussed in the Hawaiian community and the mandate should come from them step by step on apportionment. Do we want a convention or do we want a totally Hawaiian process?
[00:43:42] Randall Roth: Okay, and I know everyone has a lot more they would like to say about this. Daviana, I'm sure you've had a have a lot more you'd like to say. I do need to move on though. Thank you for calling this morning. Aloha. We go to Pat in Hilo. Good morning, Pat.
[00:43:55] Caller: Aloha, Randy.
[00:43:56] Randall Roth: Pat, can you keep it real tight? We've got a bunch of people we want to hear from and we're down to about 19 minutes.
[00:44:01] Caller: Okay. Um Aloha, my name is Pat Kahui Ola. Aloha, Hayden.
[00:44:06] Randall Roth: Aloha, Pat.
[00:44:07] Caller: I uh the problem that I have and I see for the people that Native Hawaiians that I represent is the matter of uh the compact. The compact and and and at that statehood when vote was taken, an agreement, a contract was made between the United States and the state of Hawaii and its people to take care of the native Hawaiians.
[00:44:24] Caller: The problem that I see as as the way how sovereignty whatever aspect is going to be for the Native Hawaiians is getting around that compact. That compact when you deal with it has to deal with US Constitution, impairments of contract. You made a contract, the state and its people has made a contract. How are we going to get our sovereignty when there's possible violations of Article 1, Section 10, which deals with impairments of contract? I think that also deals with Mr. Rice's position, uh titles of nobility, if if if it can be stretched out to that, and uh the law, there's a law. The people that I represent in Hilo have Native Hawaiians uh can only see sovereignty through the law. We are not going to get it by a convention. If we want to get it as Leila says, get all the people involved, I believe we should take the $900,000 that already somewhat is going to give it to us, whether it's a state or anybody and have a $900,000 luaow and bring all Hawaiians together. That's the only way you're ever going to get all the people together to discuss who's going to represent who.
[00:45:29] Randall Roth: Pat, let me get a quick reaction to that first one from Hayden and Leely. Thanks Pat, Aloha. Um the compact you're talking about is the Admissions Act where the state um agreed by a federal mandate that it would uh basically guard and treat the seeded trust lands for the benefit of Native Hawaiians and the general public. Okay. The arguments that the plaintiffs are raising here, Mr. Rice and the other Hawaiian plaintiffs are saying that under Federal constitutional principles, just treating native Hawaiians as a separate group is a racial classification.
[00:46:00] Randall Roth: So to the extent that Mr. Rice may prevail with a federal district court, it's so troubling because Pat arguably, that contract you you say you want to rely upon, that that is the law, a court could rule that law is unconstitutional because you're not supposed to treat native Hawaiians only because they're brown. That's the problem with this lawsuit. And to the extent that I hear Leila saying she's pro sovereignty, it's just really surprising because why would a pro sovereignty proponent argue that we are entitled to nothing, not even sovereignty, not even, you know, some of the pennies that come our way because we are half Hawaiian under the Hawaiian Homes Commission Act. So that's the danger in this lawsuit. The only way I think this Native Hawaiian vote is trying to do is trying to propose a political statement to bring the Hawaiians uh with politically saying, we want to go forward and that question is simply, yes let's go forward. All the other nuances of how it goes, delegates or convention or whatever, is for another day.
[00:48:07] Randall Roth: I've got some more callers on the line and I am going to get to them. But I also have our two attorney, John Gomans, who's the lead counsel in the rice case, and John Van Dyke, who's working uh on the defense side in uh in both cases and I want to hear uh their thoughts about everything they've been listening to over the last 45 minutes or so. Let's go to John Gomans. Good morning again, John.
[00:48:28] John Goemans: John Gomans? Yeah, I'm here.
[00:48:30] Randall Roth: Okay. You've listened to 45 minutes of conversation, John. Any thoughts?
[00:48:34] John Goemans: Well, I my position is so crystal clear uh Randy, uh but I would would say uh to expand somewhat, there's no question when you have a racial qualification on on the face of a statute, that that is a suspect classification and is subject to strict scrutiny. The Supreme Court has not overturned a strict scrutiny uh analysis uh in a case that was subject to strict scrutiny in 45 years and that was the uh Japanese interment cases and the war. It's not going to happen now and it uh it's just as clear as can be.
[00:49:06] Randall Roth: Well, and John, I know on this this domino issue that has come up three, four times this morning. Uh you've written a couple letters to the editor in the last few weeks that I've noticed, and uh one of your letters to the editor was suggesting that uh and in fact, I'll quote from it, you say, uh no private school that practices racial discrimination is entitled to a federal tax exemption and so one of your uh positions is that because of the argument you're making in the native Hawaiian vote case, uh one of the implications is that the Bishop estate uh tax exempt status could be at stake for the same reasons.
[00:49:37] John Goemans: The uh that position in stated in my letter is the position of the IRS. Uh that's very clear. Now I understand you're just arguing the law. Uh again, I just want listeners to understand that potentially there's a lot at stake here, even though we're focusing on the Native Hawaiian vote.
[00:50:07] Randall Roth: John, thank you very much for participating this morning and I'm not going to wish you good luck in the case because I've got people on both sides of the case here and so we'll just see uh who wins this thing.
[00:50:29] Jon Van Dyke: Yes, uh thanks, Randy. Uh well, first, um Mr. Gomans is is incorrect that that there's never been a finding of strict scrutiny. United States versus Paradise, Lee versus Washington are all all both cases where the US Supreme Court has found that the requirements of strict scrutiny are met in situations involving affirmative action and and racism. Uh but more to the point, um the um reasons why native people are given special status uh need perhaps to be just laid out. Uh there are of course the political relationship of oppression and uh broken treaties and so on that we see with Native Americans as well as Native Hawaiians. But we also have a a situation where uh native people have um uh have a different relationship with our with our country. Every other ethnic group in the United States came to the United States with some understanding that they were coming to a multicultural pluralistic country and at some level of of consent to agreed to to do that. The African Americans of course are an exception, but the rest of us wanted to participate in a multi-ethnic community. But the Native Americans and the Native Hawaiians never made that choice. They were simply here when the rest of us came. So they they deserve a right of self-determination that uh that continues and every other native American group has had that right except for Native Hawaiians. Every other native American group and and here we're we're talking about basically the largest group of Native Americans, 200,000 or so Native Hawaiians and they have not had the same chance that every other Native American group has had. The other um reason why natives are treated differently is that every other culture, um every other ethnic group has what we might call a mother culture somewhere else in Europe, in the Philippines, in Japan, in Africa or wherever, but for the Native Hawaiians, this is their place. This is the only place they have. And if they're not entitled to have some um separate protected arena when it where their culture can continue, then their culture will die and that will be to the loss of all of us, because we benefit by the diversity, rich diversity that the each culture brings.
[01:01:22] Randall Roth: can do whatever it wants with it. Under the nation within a nation model, Native Americans their sovereignty can be taken away by a stroke of a Congress's pen. So to the extent that Lela's position is to seek a sovereign within a nation and to seek the protection of a federal court is so ironic and so troubling to me as a Hawaiian. Okay. And everyone here is in great spirit, uh filled with aloha. People in the studio want sovereignty, but disagree on how to get there. Folks, you've been listening to Price of Paradise radio show. Our director is Suzy Roth, Director of Operations at Public Radio is Jeff Ilarty.
[01:01:57] Randall Roth: If you'd like to comment on the show, email me at rroth@hawaii.edu. You've been listening to the Price of Paradise Radio Show. Aloha.