Thursday, May 7, 2009


NOT EVEN A BONE: It’s never easy to fight city hall but in Hawai`i it’s usually downright impossible.

Trying to accomplish anything in the public interest is an exercise in frustration as officials simply stonewall and deny, deny, deny, often in defiance of the law, telling citizens “if you don’t like it, sue us”.

But even if you had the money for a lawsuit just try to finding a lawyer willing to buck the system, take on the deep pockets of government and developers and risk never getting a hand into those pockets with one of those well-paying “special counsel” or corporate gigs in a state where revenge is the top coin of the realm.

So your average Joe Activist ends up depending on a dwindling handful of attorneys and organizations to defend our rights by going though the often interminable process that leads to the little victories that uphold the law in what should be no-brainer cases.

The problem is that when we put ourselves at the mercy of those who filed the suit, when they get paid off or when their self-interest wins out over principle not only are we left on the losing side with little or no recourse but a precedent is set that makes re-filing the case all but impossible.

Once again the people have been sold down the river with an unfathomable “settlement” by the Office of Hawaiian Affairs (OHA) and a string of litigants, after they were hoodwinked into signing away all rights to pursue the stolen lands case that was recently returned to the state courts by the US Supreme Court.

After reading the settlement agreement it’s apparent that we got exactly nothing and in addition the plaintiffs are forbidden from ever again pursuing any legal action the case.

OHA’s press release makes a big deal out of what they supposedly did get- the settlement is dependant on the about-to-become law requiring a 2/3 vote of the legislature to dispose of any of the so-called “ceded lands”- an Orwellian construction that wrongly presumes anyone ever did any ceding.

And that and $10 billion will get you onto the Honolulu elevated subway because what the legislature giveth, the legislature taketh away.

The agreement says that

Senate Bill 1677 Conference Draft 1 is condition precedent to this Settlement Agreement, and if it does not become law, this Settlement Agreement shall be of no force and effect.

But sly Attorney General Mark Bennett, in the ignominious American tradition of genocide by pen, got them to sign without any “out” if the law is repealed or even “amended” by a future legislature- something that would only take a majority vote.

We all remember how effective HRS 343 was in stopping Act 2 when the state’s environmental protection act was “amended” to give it absolutely no effect on the Hawai`i Superferry’s illegal exemption from completing an environmental assessment as a “condition precedent” to operation.

It was only a constitutional provision having nothing to do with environmental law that saved us here on Kaua`i from the invasion of thousands of cars and tens of thousands of campers descending on our fragile environment and underfunded and inadequate infrastructure.

The law- which will apparently become law with or without the settlement after passing through conference committee- is not just subject to repeal but subject to the same kind of “act”, “amending” it to allow Hawaiian land to be sold by the state.

But one thing that OHA did get is a paragraph saying that

Nothing in this Settlement Agreement shall prohibit OHA plaintiffs from seeking payments as set forth in Act 318 (SLH 1992) should the Hawai`i State Legislature hereafter approve the sale of Act 318 lands to third parties.

Act 318 of course is designed to comply with the one condition of the transfer of the stolen lands from the USA to the State that list five purposes the lands can be used for, one of which is to benefit the kanaka maoli or “native Hawaiians”.

Although one plaintiff, UH Professor Jonathan Kamakawiwo`ole Oshiro, refused to sign- perhaps seeing that it was nothing but another con job from shyster Attorney General Mark Bennett, the agreement actually asks the court to dismiss his case too... and even if they don’t Oshiro certainly doesn’t have the resources to pursue a case that the attorneys involved don’t want to pursue any more.

In her post today Joan Conrow relates the story of a young kanaka who was harassed away from his traditional fishing hole in a river his family has fished for generations by a rich, illegal-vacation-rental owner who treated him as an “outlaw”, threatening to have him arrested despite his constitutionally protected right to fish there as a kanaka maoli.

When it comes to American genocide some things never change.

As Woody Guthrie wrote in the 1939 Ballad of Pretty Boy Floyd

Yes, as through this world I've wandered
I've seen lots of funny men;
Some will rob you with a six-gun
And some with a fountain pen.

And as through your life you travel,
Yes, as through your life you roam,
You won't never see an outlaw
Drive a family from their home.

1 comment:

Katy said...

Looks like Audre Lorde was right: the master's tools will never dismantle the master's house.