Ka Wai Ola - Office of Hawaiian Affairs, Volume 34, Number 1, 1 January 2017 — REFLEGT AND RE-IMAGINE [ARTICLE+ILLUSTRATION]

REFLEGT AND RE-IMAGINE

By Derek H. Kauanoe The Office of Hawaiian Affairs' investiture is always a good time for reflection on the passing year while also looking forward to the oncoming year. In this article, we invite Hawaiians to imagine and dream of a future where the long-time aspirations for Hawaiians are fulfilled. We share the original intent for creating OHA as described in the 1978 Constitutional Convention Hawaiian Affairs' Committee reports. We briefly review how that intent was impacted by various court decisions. We encourage Hawaiians to explore options available today for fulfilling the intended goals and to ask whether a Hawaiian government ean better improve Hawaiian well-being, independent from the State of Hawai'i or OHA. The 1978 Constitutional Convention's lntent in Establishing OHA The 1978 Constitutional Convention delegates envisioned Hawaiians exercising self-determination through autonomy and self-governance. Convention documents make clear that delegates found it important to "provide for accountability, self-determination, methods for self-sufficiency through assets and a land base, and the unification of all ... Hawaiian people." The Hawaiian Affairs Committee explained how accountability could be achieved. It believed that a Hawaiian institution where Hawaiians exclusively and "direct[ly] participat[ed] in the selection process" of their own leaders to manage assets and develop policies would "enhanee representative govemanee and decision-making accountability." The committee delegates recognized that exclusive participation was important because "people to whom assets belong should have control over them" and Hawaiians "would best protect their own rights." The committee

delegates also reasoned that the needs of the Hawaiian community would be adequately responded to if Hawaiians directly chose their own leaders. The delegates also acknowledged that Hawaiians had "the right to determine the priorities whieh will effectuate the betterment of their condition and welfare by granting . . . powers to 'formulate policy relating to affairs of . . . Hawaiians.'" Convention delegates also envisioned a Hawaiian institution that operated with a high degree of autonomy and self-governance. OHA was designed so that it "could have maximum control over its budget, assets, and personnel." One way to maximize control over its budget and assets was to keep Hawaiian assets "separate from the rest of the state treasury." They also provided OHA with the "power to accept the transfer of reparations moneys and lands," demonstrating an expectation that OHA's assets would grow while maintaining its autonomy. The delegates

expressed their intent that OHA "be independent from the executive branch and all other branches of government." As a Hawaiian institution, OHA would be unlike other state entities and "be unique and special." Impacting the Original lntent The 2000 Rice v. Cayetano decision hampered the self-determination and selfgovernance goals that Hawaiians and the people of Hawai'i envisioned for improving Hawaiians' conditions. In summary, the U.S. Supreme Court ruled that the State of Hawai'i could not limit voting for OHA Trustees solely to those of Hawaiian ancestry. The Rice decision changed the voting process for the selection of OHA leaders by allowing non-Hawaiians to vote. A subsequent court decision allowed non-Hawaiians to run as candidates for an OHA elected leadership position. As a result, Hawaiians do not have the exclusive control over their

resources as was intended. In Rice, the Supreme Court explained that the exclusive and direct participation of Hawaiians in choosing leaders to manage their assets was an "affair of the State of Hawai'i" rather than "the internal affair of a quasisovereign" where only members of such a sovereign exclusively elect their leaders. Re-imagining a Better Hawaiian Future After reflecting on the past, we encourage Hawaiians to dream of a future where Hawaiian families ean afford to own homes in our ancestral land, Hawaiians have meaningful employment and ean take care of their families, a greater number of Hawaiians pursue higher education, significantly fewer Hawaiians are plagued with diabetes and breast cancer, Hawaiians do not experience disparate treatment in the criminal justice system, and Hawaiians have direct and exclusive control and management over their assets and resources with an adequate amount of autonomy from the state. After imagining this preferred future in our minds, let us consider how we might go about making this a reality. What important steps must Hawaiians take to organize our internal affairs, independent of OHA and the State of Hawai'i? While the Rice decision changed how the state government handles OHA elections, it did not take away the Hawaiian peoples' right to choose their own leaders, independent of OHA and the State of Hawai'i. Acknowledging the Supreme Court's own distinction between a state election and the elections of an indigenous quasi-sovereign, Hawaiians may want to consider whether an indigenous Hawaiian quasi-sovereign ean accomplish what the Rice decision stopped OHA and the people of Hawai'i from doing for Hawaiians. ■ Derek Kauanoe is the Office of Hawaiian Ajfairs Govemance Manager.

lnvestiture of the first OHA Board of Trustees on Jan. 1 7, 1 981 . - Photo: KWO archives