Wednesday, March 25, 2009

GETTIN’ TERRITORIAL

GETTIN’ TERRITORIAL: We had an email exchange this week with a self-proclaimed “don’t tread on me” style anti-government type who is seemingly new to the islands. But unlike many right wingers his hatred of the federal government didn’t get clouded when it comes to the rightful ownership of the lands of the kanaka maoli.

Though he was pretty well read on the subject he asked us for some more source material and we were glad to help... ya know, strange bedfellows and all that.

And it make us all the more repulsed by the type that makes some kind of statement and then in arguing their point, runs away from it in one of those smarmy “I ain’t sayin’, I’m just sayin’...” responses to “but you just said...”.

And speaking of weasels we went over to lawyer-blogger Charley Foster’s Planet Kaua`i, today to see what kind of anti-kanaka rights opinion he was running away from now.

And Charley rarely disappoints

In a post today Charley first reminds us that

It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal and traffic laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from such jurisdiction.

Of course if, if past is prologue when questioned he would probably point to his having said “as far as Hawaii courts are concerned” so he can run away from it being a position with which he so apparently agrees.

Then he reprinted part of an essay from Kai Landow in Indian Country Today, depicting a trial in a Hilo courtroom where “Rocky” Awai was “pleading sovereign” to a dozen traffic tickets and he somehow beat the rap when the ticketing officers unfathomably- at least for the judge- couldn’t remember anything about giving the tickets.

But the essay in whole is a must read because Landow goes on to juxtapose that judicial procedure with the one he next attended- the “ceded lands” case before the US Supreme Court.

To refresh people’s memory, even though many thought that the issue before the court was who actually owned the stolen crown lands taken in the illegal overthrow, that not only wasn’t an issue that the justices thought needed settling by them but those supposedly representing the kanaka’s claim – the Office of Hawaiian Affairs- seemed to agree with the state in saying that the state had “perfect title”.

Unlike a lot of those who have either looked at the transcript or listened to the tape of the hearing and answered the questions “what just happened there?”, Landow provides the most insightful of interpretations we’ve seem.

Here’s an excerpt:

I was one of the few people who got a seat to hear oral arguments in the Supreme Court. The question before the court was whether or not the Apology clouded the title the State held on the “Ceded lands.” The argument between OHA and the State of Hawaii were essentially the same. So what were they arguing before the court? And that is exactly what the Justices asked. Justice Souter interjected “This whole case seems murky to me. Am I missing something?” I looked over at Haunani Apoliona, chair of the OHA Trustees. Her face was pensive. I could see their greatest fears were materializing. The parties did not want the court to address the issue of title and for one hour most of the court’s discussion centered on just that, title, ownership of the land.

Well hasn’t the ownership of the land in Hawaii long been settled?

It was surreal to hear the State’s Attorneys General Mark Bennett argue, “Yes we illegally overthrew the Hawaiian Government,” and then to go on to argue the State had “Perfect Title.” Am I missing something, too?

I left the court to a cold sunny Washington DC February day. Liko Martin [A well known Sovereignty activist, musician, composer- “Waimanalu blues”] was outside the court after the case was accepted. He was wearing a cowboy hat, a clean pressed suit and freshly shaven. I was taken aback; he looked very different from our last meeting on the beach at KaWa, in Ka’u Hawaii. Liko had been bearded and mud covered, spending much of his time working in the lo’i [Taro patch]. We had been living rough with Abel Simeona Lui, a real champion of the sovereignty movement. A Kanaka Ma’oli who moved back to the land and despite repeated arrest for trespass managed to solidify his land claim.

“Liko cleans up good!” My friend Hanalei points out with the same surprise as mine as Liko maneuvers around the Supreme Court plaza with a film crew in tow.

Hey brah, Howzit? We wen file an intervention with the court, kay?” Liko said to me. I asked him on what basis did he file?

“That we are the true owners and that we need to enter into direct and immediate negotiations, kay!” I could see the OHA people seemed devastated and I saw Haunani Apoliona scowl at Liko’s show of force from across the plaza.

“OHA just hurt itself by arguing the Hawaiian’s had no legal claim to the land and only a moral one in State Law” I told him

“The State is dead brah, its dead” Liko answered.

I thought to myself what just happened. It had felt like we were in the court case and the justices were arguing our position. It struck me that the Office of Hawaiian Affairs changed their position to bolster the State of Hawaii’s claim to “Perfect Title”. I realized that if the State doesn’t have title; then OHA has nothing. So who represent the Hawaiian’s interests? I have no false hope that the court will rule in our favor. But it was nice to hear some of our own questions posed to people who have refused to respond to us.

The Apology bill is a sorry thing.

Have you read it? Liko Martin calls it a confession, I call it a stipulation of facts and our Attorney General for the Hawaiian Kingdom Tom Anthony calls it “Crap”. He is right of course, it is crap. If it had been anything else but crap the Hawaiians would now be living on their own land in their own jurisdiction.

From the Apology bill 103-150: “Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

It is because of statements like this that Hawaiians wave this bill as proof. It also may be why our friend Rocky got all those tickets dismissed. Judge De Frietus may also believe if he let the attorney Gary Zamber bring this Apology bill into the case he might slip up and create a federal question. And what is that federal Question?

Rocky said it to the court “You don’t have any jurisdiction over me. I am not an American citizen.”

So why is a traffic case in a small Hawaiian town connected to a Supreme Court case between the State and a State agency? My Uncle Moses He’anu would say “Do your homework!”

I’ll tell you anyway. It is because the United States of America has never been able to substantiate any lawful claim in Hawaii, period.

The Americans admit they stole the land and barred us from seeking relief in the courts and yet argue their title is “Perfect.” Everyone knows this is unjust yet they expect us to accept it. Would you?

I spoke to a pro bono legal agency this morning who told me our case is seen as frivolous. I spoke to an Indian lawyer who told me to be practical and that you can’t win on the law. Do we go to the courts as a legal fiction? I look at the law and we win. That is if we are before an impartial jurist and we note the US courts have an interest in the outcome.

Malama Pono

That’s us, do things right, Malama Pono. We can’t find any statute of limitations to file against the US occupation. We can’t build on facts that are “Murky” to file a brief that hopes the Americans will finally do the right thing. We should not have to go to court for America to do the right thing.

Something stinks!

That “something” that stinks is- as we pointed out to those whose like Foster whose lawyerly dialectic on the case concludes that somehow the “rule of law” enabled confessed theft to stand- “American Justice” is an oxymoron.

We who seek justice for the kanaka can laugh at the absurdity of those who have their noses buried in a law book in an attempt to obscure reality, as they lead us though the looking glass into a Carrollian Wonderland.

But in justice in Amerikan courts is the real joke, especially if your skin is of a darker shade.

To those who seek justice for Hawaiians through the judiciary, I’m sure we speak for many when we say “that’s mighty white of ya”.

6 comments:

Vegreef said...

Remember back when Rice v. Cayetano was heard, OHA said IT was the sovereign Hawaiian Government. The Supes said that a State agency can't be a sovereign government.

Then the is Henry Noa and the Reinstated Hawaiian Government - they went to off-limits Kahoolawe but refused to asks the State's permission first. They were arrested for trespass and defended the case on the grounds that they don't need to ask permission to enter lands that their government owns.

That case goes to verdict in 2 weeks, but the result is all but certain. They will lose, despite putting on testimony from international law experts, reams of documentary evidence, and entering the very constitution and other organic documents associated with the Reinstated Hawaiian Government into evidence. They even argued that HRS 6E (that promises to deliver Kahoolawe to a "sovereign Hawaiian entity") is a false promise, since the Akaka bill does nothing to create a truly sovereign Hawaiian entity.

In a circular opinion denying Noa's Motion to Dismiss, the Court refused to consider any of Noa's constitutional arguments or arguments based on international law on the grounds that Noa could not raise those issues because he never actually was denied permission to enter Kahoolawe, since he didn't ask first. This, of course, begs the question of whether one must ask permission to enter land that s/he owns. So circular..."But wait, you can't prove that you own the land in Court because we own it and we might have let you in if you had just asked - so try ask next time, and we'll let you go there - that way we can avoid all of thee nasty disputes about title."

And the Akaka bill really just seeks to transfer extremely limited and controlled power from OHA, the State agency - to OHA the compliant state run Hawaiian Kingdom. "Its your country, but no gambling or pakalolo."

The reasoning for the expected decision in the Kahoolawe case, when boiled down and looked at honestly, is simple: "We don't want to give it back. It doesn't matter that we stole it. We really like it and want to keep it, and will use out guns to do so." Anyone surprised by this, or thinking it is based in law, is naive. Its the exercise of pure raw military power for corporate profit.

The U.S president and the Supreme Court have been backing notions of manifest destiny for a century (Nicaragua, Philippines, Panama, Cuba Hawaii etc.). So the Reinstated guys will be headed for an appeal - but at least having made a solid and truthful record in a Court of law. The land was stolen - a Hawaiian Government is back - and the thief that apologized, now needs to stop acting su much like a lawful owner.

That Bennet could claim "perfect title" with a straight face, and that OHA would concur is like Lingle trying to tell us all that Act 2 was not written for Hawaii Superferry.

Maybe in more enlightened times, the Kahoolawe case will resolved by some appeals court saying that a government's officials cannot trespass on land that has been stolen from that government. Or maybe we'll all be resisting an occupation and debt collection from the Chinese instead.

Think I'll go work in my garden.

Kai said...

Aloha Andy,

Mahalo for the nice olelo on my piece. I think the issue lay in whether you are an American or not! He's right of course if you claim American citizenship you accept its jurisdiction and it can enforce its laws on you.
So what is the disposition of the people the Apology rez calls sovereign people who have not given up their sovereignty or claim to their lands? They were just teasing us with that whereas, but I believe there is law that backs this idea up.
That is why the courts are running from us right now. I think they believe the Akaka bill will restore their extra-territorial reach!
Can there be two States occupying the physical plane at the same time?
It would be nice if for a start they heme over a bit til we wen work dis out!

Kai Landow

clark r. said...

'right wing' guy here.

Actually I'm not right or left wing. I don't participate in that false paradigm. Perpetrated by the moneyed elite to divide and conquer, ending in tyranny and slavery.

I'm probably a libertarian, small goverment and personal freedom and all that.

Not new to the state either, grew up and lived on Oahu for 35+ years. Moved to Maui a year ago to assist in my 98 yr old grandma's care and get away from the police state the Oahu has become.

I went (late) to the local Reinstated State of Hawaii meeting last Tuesday. I spoke to some super nice people and got a media kit. I'll be at the courthouse on the 3rd, and the next meeting on the 7th.

Aloha

Joan said...

Vegreef sums it all up nicely with this akamai observation:

"We don't want to give it back. It doesn't matter that we stole it. We really like it and want to keep it, and will use out guns to do so." Anyone surprised by this, or thinking it is based in law, is naive. Its the exercise of pure raw military power for corporate profit.

So if we accept this as the reality, perhaps working in our gardens — or more specifically for kanaka, occupying loi — is an appropriate response.

Andy Parx said...

I was going to conclude with a though similar to the “but they have big guns and will never give it up no matter what we do” line. But that’s often used as an excuse not to even fight on a level such as burials. And it just reinforces plantation mentality and hopelessness.

Personally I don’t fight expecting to win. I do it because it’s the right thing to do. Who knows- things can change on a dime and maybe someday outrage will reach some kind of critical mass. It may not seem likely today but giving up and burying out heads in our gardens to the exclusion of activism certainly won’t help.

It’s like Liko’s take- he’s dirty from the lo`i yet he’s also in DC (I also note that his take on the apology is exactly what I said before the SCOTUS hearing about it being a “confession”).

Katy Rose said...

I agree with Andy that it doesn't help us to concede defeat before we've even resisted.

However, I also believe that we (and I mean all people fighting for collective liberation from oppression, exploitation and colonization) are ill-served by a poor understanding of our opponents. They DO have the guns. They WILL use them in the face of legitimate and effective resistance. Now, how do we work around that fact?

On the continent, the condition of Native Americans today gives us a glimpse of what can happen when people decide to defend themselves and their lands by any means necessary and available. They got crushed, and the remaining people are on reservations and in cities and prisons, economically devastated. Luckily, 30 years after Pine Ridge - the last uprising in a 500-hundred-year history - a new generation of Native resistance is presenting itself. But so far, the US has been devastatingly effective at crushing Indian resistance.

We need to learn from the past about how to avoid defeats like this. We must be prepared for the fact that if we ever reclaim ground and are prepared to defend it, we will face the might of the most powerful military on earth. Make no mistake: start holding ground and you'll be the next Gaza. (Well, maybe not in Hawai'i - with its intense tourist-image consciousness.)

Maybe the answer is in the courts, though I have my doubts. Maybe it's through elections. The people of Bolivia did that - though of course it was part of a mass-base social movement strategy which was aided by the fact that the Native population of Bolivia is substantial.

A Native movement in territory controlled by the US government and the forces of capitalism can't win on its own, I think. It seems to me that a mass-movement from below and to the left that understands the primacy of Native claims to land and self-determination, in combination with the liberatory politics of women, people of color, working class folk and queers, among others, will be the necessary pre-condition to a successful - and hopefully bloodless - outcome.