Aren't we all sovereign now?

The following essay is by Mr. Patrick W. Hanifin, a Honolulu attorney. It was never published in hardcopy, but Mr. Hanifin was very kind to permit its posting to this website.

Unfortunately, Patrick Hanifin is no longer able to respond to inquiries about his work. He died on June 14, 2003 at the age of 48. A webpage tribute to him, focusing on his scholarly writings and legal work on behalf of unity and equality in Hawai’i, can be found here: Patrick W. Hanifin

WE’RE ALL SOVEREIGN NOW

by Patrick W. Hanifin

(c) Copyright Patrick Hanifin 2001, all rights reserved.

You, whoever you are, if you are an American citizen, you share in a common sovereignty. Whatever your ancestry, you have freedom of choice and the right to participate with other citizens in running a sovereign government. Citizens of Hawaiian ancestry, like all other citizens, already are sovereign. Demands for something extra in the name of “Hawaiian Sovereignty” amount to claims for exclusive political privileges for a hereditary elite. They are undemocratic and unjustified.

HOW "SOVEREIGNTY" IS USED

Words mean what they are used to mean. Because “sovereignty,” is used inconsistently, it can have no single, consistent meaning. Indeed, its vagueness is its value: people who agree on nothing else can agree to use “sovereignty” as a slogan and so can appear to agree on substance (until they begin to discuss specifics). If someone could decree a precise definition, everyone else would abandon “sovereignty” for something more vague.

Although irremediably vague, “sovereignty” is not utterly meaningless. Its varying uses in the current debate are contradictory precisely because they point to contrary proposals regarding the same subjects. A rough checklist of the word’s uses suggests two broad themes: individual freedom of choice and collective political power.

Individual freedom of choice encompasses freedoms of thought, expression, religion, and association. It includes the right to try to learn a culture and a language and so make them your own. The federal and state Constitutions guarantee all of these rights equally to everyone. However, the right to choose does not entail the right to be subsidized. I may desire a lifestyle that requires buying things I cannot afford, like a mansion or a farm, but I have no right to force you to pay for my choices with your taxes.

The second theme, political power, includes the right to vote, to run for office, and to try to persuade others about political issues. Every adult citizen of the United States and of Hawai`i has these rights. In a democracy, sovereignty in this political sense is shared. No one can be all-powerful unless everyone else is powerless. Each of us is sometimes in the minority, unable to imagine how the majority elected such an idiot or enacted such a foolish law. But with raucous debate, together we exercise the political power of sovereign national and state governments. Hawaiians, like their fellow citizens, freely participate in these public debates.

Thus, in our individual and collective exercise of self-government, we are all sovereign.

WE ALL HAVE SOVEREIGNTY BUT SOME DEMAND EXCLUSIVITY

Those who demand something more for themselves are really demanding exclusivity. Their basic problem is arithmetic. Because they have defined themselves as a minority, they can seize power only if they can somehow disenfranchise the majority. The competing advocacy groups have contradictory plans for doing this. Some want to tear Hawai`i away from America to form an independent country. Some aim to create a government modeled on those of certain American Indian tribes. Others prefer a special state agency with restrictions on voting and holding office. Each of these plans would give the new minority government exclusive power over some or all of Hawai`i’s public lands and funds.

All of these plans would restrict voting and holding office to an exclusive, hereditary group. The competing factions split over how to define the group that will be treated better than everyone else.

Some definitions are exclusively racial. The privileged group could be limited to “Native Hawaiians” in the sense specified in the Hawaiian Homes Commission Act, that is, those having at least 50% Hawaiian ethnic ancestry. Other proposals discriminate in favor of a class of persons descended from the inhabitants of Hawai`i in 1778 (the year Captain Cook arrived). “Descendants of the inhabitants of Hawai`i in 1778” singles out a racial group as clearly as “descendants of the inhabitants of sub-Saharan Africa in 1492” singles out blacks.

Other definitions add political criteria to the racial criteria. One plan extends the privileged class to include persons of other races who pass a test of political correctness defined by members of the racial elite. In a democracy the people choose the government, but under this plan the government chooses the people. Those who disagree with the government would be stripped of their citizenship and would become aliens in their own homes. Another proposal defines a hereditary aristocracy consisting of all descendants of the citizens of the Hawaiian Kingdom in 1893. That excludes descendants of the Asian immigrants who constituted most of the Kingdom’s population in 1893 but who were not citizens. It also excludes everyone whose family arrived here later. Racial discrimination combined with political discrimination is still racial discrimination. Recall how the government imprisoned Japanese Americans during World War II because of their ancestral and “political” connections to an enemy country.

Discrimination based on ancestry is generally conceded to be undemocratic and unfair. However, the advocates of various versions of “Hawaiian Sovereignty” are not racists. They sincerely believe that there are nondiscriminatory justifications for privileging “Hawaiians” (however defined) over all others. There are five common justifications but none of them works.

FIVE FAILED ARGUMENTS FOR EXCLUSIVITY

The first common justification is that the overthrow of the monarchy in 1893 and the annexation of Hawai`i to the United States in 1898 were undemocratic because they were not supported by the majority at the time. Historically, this was true. This argument appeals to the democratic principle of majority rule, a principle that was not followed anywhere in the 1890s but that should have been.

However, if the principle of majority rule should have been followed then, it should be followed now. The principle of majority rule cannot justify minority rule by the descendants of people who were in power long ago. No one is entitled to extra power because some of his ancestors once belonged to a ruling class. For instance, the heirs of French King Louis XVI are not entitled to the land and power he lost when he lost his crown and head.

The second justification is, in essence, “We were robbed.” The argument is that, before 1893, the lands of Hawai`i belonged to the Hawaiian people. Overthrowing the Kingdom of Hawai`i with the assistance of American troops, a small faction seized power and later transferred the Government Lands and Crown Lands of the Kingdom to the United States. That stolen property should be returned.

But everyone who was involved in the events of 1893 and 1898 is dead. The exclusive powers demanded in the name of “Hawaiian Sovereignty” would go to people who were not alive then. This is not a matter of inheriting private property. It is a claim for hereditary political power. Private land was not seized as a result of the Revolution. Individual ethnic Hawaiians and the group of ethnic Hawaiians did not own the Government Lands; the government did. For instance, an individual could not have sold or willed a personal share of the Government Lands to another person. Nor could he have excluded anyone from any part of the Government Lands. Nor did ethnic Hawaiians, individually or as a group, have any special legal privileges to the use of those lands. As the term “sovereignty” suggests, what was at stake in 1893 was political power over the government and hence over the Government Lands and the Crown Lands (which had come under control of a government commission in 1865). An oligarchy of the richest men governed the Kingdom. Most ethnic Hawaiians had no power to lose. They were a minority in Hawai`i and most of them could not even vote.

Political power is still at stake today. We who are alive now have the right to decide by majority vote how government land should be used now. The “we were robbed” argument does not justify hereditary political power for a minority. No one deserves more than equality.

The third justification draws an analogy to American Indian tribes. It contends that, as a general rule, all “Native Americans” have a right to tribal land and to tribal governments with political rights restricted to tribal members. Hawaiians are “Native Americans.” Therefore, Hawaiians have a right to form a racially restricted government and to claim some land exclusively for themselves.

However, there is no such general rule. What each Indian group has is a matter of historical happenstance. Some have tribal governments and large reservations while others have nothing. One thing that American Indians do seem to share is a conviction that they have been mistreated. Indian law is grounded in nineteenth century racial discrimination. The special laws applying to Indians are not the result of special constitutional privilege for Indians but of special “plenary” power of Congress over Indians. This was the power that Congress used to order Indian tribes rounded up at gunpoint and locked up on reservations. Reclassifying ethnic Hawaiians as an “Indian tribe” would jeopardize their right to equal protection and would leave them at the mercy of any future congressional majority.

Moreover, the analogy to Indian tribes does not fit the history of Hawai`i. Hawaiians were never organized as a tribe. The Kingdom of Hawai`i was not a tribe. Tribesmen are tribesmen because their parents were tribesmen. But under the laws of the Kingdom, anyone born in Hawai`i was a citizen of the Kingdom, no matter where his family came from. The annexation of Hawai`i was not the incorporation of a tribe into the United States with a racially defined government intact. Unlike Indian tribes on reservations, Hawaiians do not live in segregated communities that could make and enforce laws without affecting others. Neither policy nor history support extending the racially discriminatory rules of Indian law to Hawai`i by inventing a “Hawaiian Tribe.”

Fourth, some argue that the Annexation and the overthrow of the Kingdom violated international law. Therefore, the United States should return power to descendents of those who held power under the Kingdom. However, “international law” is an oxymoron. Each country is sovereign in the sense that it is not bound by any law that it does not accept (subject, of course, to being attacked if it angers a more powerful country). Furthermore, because there is no world government with effective power to make, interpret, and enforce international law, anyone can argue anything about it without fear of being proven wrong.

Even if international law arguments could prove something, we would have to look back to the 1890s to determine what was “illegal” at the time of the overthrow and Annexation. It is futile to try to squeeze late-twentieth century democracy into nineteenth century international law. In the 1890s the rules of international law, to the extent there were any, were made by the colonial empires and amounted to the law of the jungle: big swallowed little. Most governments did not even pretend to be democracies and none would have qualified by today’s standards. The legitimacy of a government depended on its control of its territory, not on its popularity. The government of the Republic of Hawai`i, although undemocratic, maintained effective control, was recognized by the major powers, and so could make a binding agreement for annexation.

Finally, some advocates cite statistics showing that on average ethnic Hawaiians have less money and more disease than some other ethnic groups. From this they conclude that the government should give all ethnic Hawaiians land, money, and political power. But why should well-off Hawaiians get special benefits while poor and sick members of other groups do not? This argument does not justify handing out exclusive benefits to a group defined by ancestry.

In short, there is no valid justification for awarding any group defined by race or ancestry any exclusive privileges or powers that are denied to other citizens. Hawaiians, along with the rest of us, are sovereign now. No one can fairly ask for more.

Longer Version

A much longer and very scholarly version of this essay was published in 1982 in the Hawai'i Bar Journal, containing 152 footnotes. That article can be seen on this website here - Are kanaka maoli entitled to reparations?

Mr. Hanifin also wrote a scholarly essay showing that all the people of Hawai'i today are the rightful inheritors of the Kingdom of Hawai'i, because the Kingdom had a law that all persons born in Hawai'i or naturalized into Hawai'i were subjects of the Kingdom with voting rights and property rights equal to the rights of the natives. That essay, with 243 footnotes including numerous legal citations, is on this website here - A Brief History of Citizenship and Voting Rights in Hawai'i

Mr. Hanifin also published an informal article in the Honolulu Advertiser newspaper of Sunday, April 8, 2001 responding to the usual diatribe of a sovereignty activist claiming that racially-defined Hawaiians are entitled to a "restoration" of a "nation." Mr. Hanifin points out that there are five different meanings of "nation" used interchangeably and incorrectly by sovereignty activists. That article is copied below:

The Honolulu Advertiser, Sunday April 8, 2001

http://the.honoluluadvertiser.com/article/2001/Apr/08/op/op05a.html

When 'nation' is given five meanings with inconsistent use, that's confusion

By Patrick W. Hanifin

Alani Apio ("Kanaka lament," March 25) admits to being in a "place of ... confusion" and then proves it: The Hawaiian nationalism he advocates is indistinguishable from the racism he denounces.

His confusion arises from using the word "nation" in five inconsistent ways:

1. A government — specifically, the monarchical government of Hawai'i that was overthrown in 1893.

2. An independent country — specifically, the country that Kamehameha I founded and that endured until 1898 when America annexed the Republic of Hawai'i.

3. An Indian tribe — without precedent in Hawaiian history, because there has never been a Hawaiian Indian tribe.

4. A territory — the 'aina that he loves and that was here millions of years before any human.

5. A group of individual citizens.

The last use of "nation" is the most confused. He never explicitly tells us how the members of this group can be identified.

Apio does say that the "nation" that he wants to restore is the one that Kamehameha I created — the Hawaiian Kingdom. He acknowledges that "the Hawaiian Kingdom wasn't race-based." Kamehameha created the kingdom by conquering his rivals with the help of immigrants like Englishman John Young (Queen Emma's grandfather). Under the kingdom's rule of citizenship, anyone born here was a citizen and anyone who came here could become a citizen.

Many immigrants and their children became judges, legislators and government executives.

Like the multi-ethnic kingdom, its multi-ethnic successors, the state of Hawai'i and the United States, follow the rule of citizenship by birth and naturalization. Apio shares with his fellow citizens the equal right to participate in a sovereign government. He has an equal right to try to learn whatever he thinks is deepest and most valuable in human culture and so make it his own culture. (Like the rest of us, he gets no guarantee of success.)

He has what he says he wants. Why is he so angry?

Equality isn't good enough for Apio. He claims to belong to a group that deserves more than equality with the rest of us.

In his superior group he includes himself, his family, and other people he calls "Kanaka." What these "Kanaka" have in common is "shared genealogy"and "shared ancestors." He also mentions a "shared culture," but he describes people as "Kanaka" even though they are happily "assimilated" into American culture. He ignores people who participate in Hawaiian culture but lack "Kanaka descent." Thus, living a distinctly Hawaiian culture is neither necessary nor sufficient to be "Kanaka."

Ancestry is necessary and sufficient. Anyone who can trace his ancestry in Hawai'i back to 1778, before the first non-"indigenous" people arrived, gets to be a member of Apio's "nation." This definition picks out the same individuals as the state's definition of "Hawaiian," which the Supreme Court held in Rice v. Cayetano is racial. Only the label has changed.

Apio defines "racism" as a doctrine of "inherent differences" among groups and "the idea that one's own race is superior." The moral evil of racism is that it divides people into superior and inferior groups based on ancestry.

As the Supreme Court said in Rice, "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit." The evil is the same regardless of the size of the hereditary group: a race, a nationality, a tribe or an aristocracy.

Apio rightly attacks the Hawaiian Homes program as racist because it requires a certain blood quantum. But so does his "nation." He reverts to "the racist ideology of blood quantum" that he denounces: A member of Apio' s "nation" must have Hawaiian blood. As the Supreme Court said: "Ancestry can be a proxy for race; it is that proxy here."

The nationalism Apio advocates is actually another one of those alien imports he despises. It is the blood nationalism invented in central and eastern Europe in the 19th century. Blood nationalism excludes everyone who lacks the blood of the indigenous group; for instance, a Jew or a Turkish immigrant can never be a true indigenous German.

Governments based on blood nationalism claim to "preserve and perpetuate" the nation's culture, as Apio hopes to do, but ultimately they destroy culture. If you want to see where blood nationalism leads a multi-ethnic society, look at the bloody ruins of what used to be Yugoslavia.

Interpreting Hawaiian culture in terms of a blood nationalism that is alien to Hawaiian history is what keeps Apio in his "place of anger and confusion." He rejects the "infuriating implication that we as Kanaka are not capable of handling life" but claims that some people commit suicide — the most extreme case of not being capable of handling life — because they are "Kanaka."

Apio sincerely believes his gut feelings about Hawai'i's history. But where historical facts are at issue, gut feelings aren't enough. The courts are full of plaintiffs who sincerely believe that they have been wronged. Some are right; some are wrong. That's why we hire judges and juries: to look beyond feelings and find the facts.

Once the confusion created by using "nation" in five different ways is sorted out, all the rhetoric about an "oppressed nation" demanding the return of a "stolen nation" comes down to this story: A group defined by ancestry — the "Kanaka" — exclusively controlled the government of the independent country of Hawai'i. In 1893, America invaded and stole from the Kanaka group that government and the territory it owned.

But Apio admits this story is false: "because the Hawaiian Kingdom wasn't race-based, therefore it's wrong under both nations' laws for America to acknowledge only indigenous Kanaka" as entitled to privileged status.

An oligarchy of the richest Hawaiian and haole men governed the kingdom in 1893. Most ethnic Hawaiians could not even vote. Ethnic Hawaiians were a minority in Hawai'i. They did not own the Government Lands, the government did. As Apio admits, they did not have any special group rights to land or power. When you've got nothing, you've got nothing to lose.

Apio's admission of error is not altered by his anti-American diatribe.That is merely "yo' momma" rhetoric (as in, "I'm wrong, but yo' momma's an [expletive deleted].")

Apio abhors racism, yet he advocates superior privileges for his own group defined by ancestry. He tries to reconcile his confused feelings by advocating a Kanaka "nation." But at bottom his "nation" amounts to a demand that Hawai'i should be torn out of the American Union so that a minority defined by racial ancestry can have a privileged position over their million fellow citizens.

Ultimately, Apio faces a choice: Does he stand by what he calls "the ideals of America — truth, justice, equality," that "provide the groundwork for the denial of any and all inequalities and discrimination"? Or does he stand with the Confederacy of the Civil War — for secession, division and racial privilege?

Like Apio, Hawai'i faces a choice. In Apio's words, will we "continue to fight and divide ourselves and 'ohana over an arbitrary, baseless, racist notion of koko — blood"? Or will we pursue the American ideal of equal rights for all — never fully achieved but still worth striving for?

Patrick W. Hanifin is a Honolulu attorney