The looming war between the Hawaiians and the First Nations.

Kim Gottscalk an Attorney for the Native American rights fund [NARF] told me “He didn’t want to be involved in a native against native legal action”. Actually nor did we and didn’t know yet what he meant. As I was to find out later this was the first shot in a war of the First Nations of the Americas against the Hawaiians. Albeit a legal war, the devastation it promises may be vast in its proportions.
What had begun as a simple request for legal help and had uncovered for us some of the secret workings of our own Office of Hawaiian affairs [OHA] and its relationship with NARF. We have been looking at the upcoming case; the State of Hawaii vs. OHA and we were considering entering an Amicus brief into the case. Our problem had been all along is there was no arguing up or down the lower court decision. I believe many First Nation’s have faced the same legal dilemmas, where in to argue up or down is a choice of the lesser of two evils. We in Hawaii have been formulating a new approach not based on a nebulous rendering of law, but on the direct application of the law.
Hawaii is a Independent State, not a race!
Hawaiians have a somewhat different legal status than that of most first nations. The Americans did not occupy in 1893 a Tribal Nation or any kind of decentralized confederation of smaller governments [not that your countries were not equally sovereign]. They occupied a modern nation recognized by at least 20 of the leading world nations. Hawaii further had over 90 foreign legations and functioned as any other contemporaneous multicultural nation. We in fact have never given up our legal challenge presented by our queen Liliuokalani at the time the American seizure and it still waits for an answer.
Hawaii was and is a modern nation on any standard of measurement. In 1843 our government established the great Mahele [land distribution] assigning royal patent deeds for all the lands of Hawaii to Hawaiian subjects. The Americans accepted the validity of these royal patents and incorporated them into their occupying government. This created a problem for the occupying government on one hand they sought to embody the Hawaiian Kingdom and function as a successor or replacement and on the other hand wanted to acquire the majority of landholding in Hawaii.
In a sense it is this desire for legitimacy which created no legal basis or foundation for the seizure of the crown lands [Also known as the Ceded Lands, 1.8 million acres in Hawaii] or for the existence of State of Hawaii itself. One good way of to eliminating legal land ownership is to turn the owners into tribal people. So the United States in essence wiped out 64 years of our governments modern history and categorized Hawaiian nationals as indigenous. There has never been a discussion regarding the rights of Hawaiian nationals who were not descendants from the 1778 Hawaiians, defined by the United States has aboriginal Hawaiian people.
The firewall known as Allodial Title
Hawaiians have a long tradition of jurisprudence even before Europeans stumbled upon the Archipelago. When the King Ka’Mehameha III, transformed the government into a Constitutional Monarchy in 1839, the “Rights of Man” and the “Constitution” were rooted in the common practice of Hawaiians. Thus, the formulation of land ownership was translated into Allodial Title for the purposes of western understanding.
“Allodial Title is owned free and clear of any encumbrances, including liens, mortgages and tax obligations. Allodial title is inalienable, in that it cannot be taken by any operation of law for any reason whatsoever.”
In our legal position we can clearly assert this claim because the world accepted Hawaii as an Independent Nation State. It is the law that preserves Hawaii and the law that prevents the State from openly alienating our lands, without extinguishing our claims.
The stranglehold of Morton V. Mancari
I don’t see the problem as an indigenous issue but as a national one. If you’re going to be an American then you’re subject to its laws. In America if you’re going to ask for special treatment under the law, then you’re going to lose. Mancari creates a legal fiction! It suggests that it recognizes first nation’s sovereignty and is based on a political relationship to create a “special” legal basis. This on its face would work fine if the tribes that it applied to were truly sovereign. What I mean by that particularly, is that each nation can define its own citizens and set about its own policing and self determination. I am not going to pretend that I am any kind of expert on the application of over 250 separate sovereign nations in their relationship with the United States government. It is my understanding from discussions with several people of different first nations that many of you are subject to “blood quantum” requirements imposed by the government of the United States.
It is the policy of the Hawaiian kingdom government not to interfere with the judicial initiatives of the First Nation’s legal battles with the U.S. I think that the acceptance of Mancari is a fruitless legal position and I don’t believe it has gained you the return of any lands. It is clearly up to you and your advocates at NARF to determine your best legal strategies.
We were lied to:
Back in 1978 we were led to believe that the creation of the Office of Hawaiian affairs would be the beginning of the return to self governance. It was supposed to be funded my monies collected from the crown land trust. It was to be run by “native Hawaiians” voted into office by other “native Hawaiians”. The problem was the U.S. never intended it to succeed and funded it with Federal money and placed it under the jurisdiction of the State of Hawaii.
Rice V. Cayetano
When you except the facts that OHA was funded by Federal dollars and subject to the jurisdiction of the United States, then you find the case was decided properly. That decision allowed any citizen of the State of Hawaii to vote for the representatives of the Office of Hawaiian affairs and further allowed “non native Hawaiians” to hold office. The end result of this was the ceding of OHA’s authority completely to United States. The court also determined that the Office of Hawaiian affairs did not represent the so called “Native Hawaiians”.
So what NARF, never read the ruling?
In the process of consulting with NARF they informed us that the Hawaiians were represented by OHA. We found it strange to have to explain to them the true status of OHA and they still seemed stuck on the correctness of the ruling of Rice V. Cayetano. The court has ruled, the agency has ceded its power and it functions as a wanna be Bureau of Indian affairs. After fully disclosing our position and our strategy we were flatly turned down for help of any kind. I guess you get kinda misled by their recording while waiting for someone to pick up the phone at NARF.
“We are the Native American legal warriors fighting for justice for all native peoples.”
I believe the recording goes something like that and they got such great names- Echohawk, Brave, Gottscalk and Landreth. For a minute there I thought we had reached an organization committed to the same things we were. We went away unhappy and determined to find a way to address our legal issues. The surprise happened when we read the national Congress of American Indian [NCAI] Amicus brief to our case. Kim Gottscalk had told us that they were not going to enter this case and that they didn’t have the resources to do it. It was surprising then to see that Kim and NARF had prepared this case for the NCAI.
Hawaiians our Indians under Mancari.
The brief does start out very polite and asks the court to remove the cert and that it should not be hearing this case. But then it says if the court does decide to hear this case, it should look to Mancari. In essence it asks the court to put native Hawaiians under the same oppressive legal regime of the first nations. I have to let you know that this in essence argues diametrically opposed to the position we expressed to them.
NARF declares war of the Hawaiians.
Hawaiians are a nation and with respect were not Indians, we don’t wish to be Indians and we don’t want your legal advocates sabotaging are efforts to relieve ourselves of American oppression. Apparently at the time they already had a relationship with OHA and as I found out later it was OHA that asked them to make this argument. They would have faced a major backlash in Hawaii if Kanaka Ma’oli found out they wanted them to be under the BIA. Melody MacKensie [of OHA] told me she had worked with NARF directly on the brief. So should we work with the BIA to undermine First Nations legal initiatives? I don’t need an answer.
Do the First Nations support their advocates working with the State of Hawaii and the Federal Government to squash Hawaiian legal efforts?
We do know that several tribal governments recognize our sovereignty. The filing of this brief was a violation of our protocol and a denial of our sovereignty and an identification that NARF is an entity working for the Federal government. We want to know who if the actions of your advocates are one that you support? Because it as it turns out Kim Gottscalk did want to fight a native against native battle, he just wanted to know what our legal argument was before he went to war.
The devastated wasteland
These are the kind of things that make the American government very happy. In Hawaii we’re constantly being accused of not being unified and don’t forget living on welfare. We seek positive and constructive relationships with all of the Indian nations and this is a “special relationship” that has no basis in law, but in Aloha. Though we will always reach out and see you as our brothers and sisters we will not accept your advocates sabotaging us! No good can come from this kind of interference in our legal business. NARF told us that they were afraid that the justices might use this opportunity to introduce Mancari to their detriment. So they felt it was necessary they claimed, to enter this brief without our knowledge to prevent the court from going into a decision that might injure First Nations interests. As a result you have injured us. We wait for the Supreme Court to rule in this matter and it is very unlikely that Morton V. Mancari will have any bearing here. This is not a good precedent to set and will only end up in a diminishment of all of our nations.
The core of the Hawaiian legal problem is that America has not abided by the law [International or domestic] and we are being asked to address this illegality with an acceptance of their immunity from justice. Hawaiians are required to fulfill the letter of the law and the US can do what is convenient; this is a way forward that will create an unstable legal future for the world
A furthering of these interventions into our Kuleana [business] will create a poisoned landscape between people that should stand together. I cannot stress enough, the damage this will create will take years to fix, if we have to fight the First Nations as well as the United States. We do not seek this problem with you and invite you to a dialogue to clear up any disagreements.
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A Hui Hou Ka Kou

Kai Landow
Liaison Hawaiian Embassy

Tom Anthony
Attorney General
Hawaiian Kingdom