Mahalo to Professor Chang for sharing his 'Aha Objectives, Campaign Statement, and Personal Profile
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Professor Williamson B. C. Chang, Personal Profile, Objectives for the 'Aha, September 17, 2015
Candidate for Delegate, O'ahu
Telephone: 808-956-7136
Email: wbchang@hawaii.edu
Position on the “Aha
I. Process, Purpose and Constraints:
I write and publish this with the hope of feedback. Please disagree if you like, as that is the best of way of informing me as to how I should honorably represent your points of view if elected.
If I had the honor, responsibility and kuleana to serve at the ‘Aha I would agree with many that the ‘Aha does not represent the Hawaiian people. The ‘Aha could not write a constitution, enter into an agreement with the United States or State or Hawaii nor could it present itself as a “tribe” for federal recognition.
Even though the Hawaiian people would have the opportunity to “ratify” such documents or commitments after the ‘Aha I do not believe the ‘Aha was property constituted and the ratification adequate as to constitute the voice of the Hawaiian people. I believe that who votes in the ratification is still an open question. I do not assume that non-Hawaiian nationals of the Kingdom, or of a Hawaii Governing Authority are automatically disqualified.
The proceedings of the ‘Aha should be fair, open and transparent. It should be devoted to historical and legal fact finding, and seeking agreement as to the legal consequences that flow from the true relationship between the United States and Hawaii.
There is not enough time, nor knowledge and public education to create a constitution. The ‘Aha could set forth a proposed means of establishing a body that could prepare governing documents. I do not believe the ‘Aha is procedurally or educationally capable of writing documents of governance in this short period of time.
As you will see, I have strong objections to federal recognition as forever enslaving the Hawaiian people to a false history, that the United States acquired Hawaii by a joint resolution, that is the root and basis of long occupation and of our oppression. Thus, federal recognition is not a valid objective of this ‘Aha.
II. Objectives for the ‘Aha:
A. My Objection to Federal Recognition of the Hawaiian Roll as a Native American Indian Tribe
I am opposed to using the ‘Aha to create a tribal governing entity that President Obama, by executive order, would recognize as a Native American Indian Tribe. My objections are many:
1) Recognition as a tribe is largely a “defensive” measure based on the hope that Hawaiians would be deemed a “political,” not “racial” grouping under Supreme Court precedent, thus protecting Hawaiian-only entitlement programs such as the many Federal Acts as well as State and Private Hawaiian-only programs including the admissions policy of the Kamehameha Schools.
As a matter of historical fact, Hawaiians are not a tribe, and conservatives on the Supreme Court may see this as attempt to skirt the intent of the tribal designation and rule against Hawaiians in any event.
2) If the tribe were to include only members of the Hawaiian roll—such would constitute a minority of all Hawaiians-- driving a further wedge into Hawaiian unity.
3) Hawaiians will not receive the lands to create a contiguous “reservation”—as there are very few crown and government lands not yet developed by others, including the United States military, who would claim a strong reliance interest in their continued use of such lands.
4) Whether “Hawaiian” is political or “race-based,” the concept of “Hawaiians,” as opposed to “nationals” or “citizens,” of a Hawaiian nation was created by the United States. Such a distinction would be an obstacle to moving in the direction of non-race based Hawaiian sovereign.
5) The reality of Federal Recognition is the reliance on President Obama, as the last political hope, of Hawaiians. Even if true, tribal recognition does little to address the truth of the historical wrongs, an unlawful overthrow and an impossible annexation.This assumption is based on the view that this is the last and only opportunity for Hawaiians to receive anything more from the United States.
Thus, federal recognition is based on the prevailing deception and historical fallacy by which the United States assumes sovereignty over Hawaii: Namely, that the United States acquired Hawaii by a joint resolution.
That is impossible for if the United States could acquire Hawaii by a mere act of its Congress, Hawaii could have acquired the United States. Accepting federal recognition would amount to Hawaiian consent in the fallacy of this history and the fallacy and unlawfulness of United States occupation for more than a century.
B. First Objective of the ‘Aha”: Education and the True History of Hawaii
We cannot negotiate with the United States without a truthful understanding of the history of Hawaii. The vast majority of Hawaiians have accepted the United States program of deception that Hawaii was acquired by a joint resolution in 1898. We cannot approach the future from a false history.
The ‘Aha should strive to reach a consensus as to the real relationship between Hawaii and the United States. By my 20 years of research, the United States unlawfully “occupies” Hawaii. There is still debate whether such occupation is “belligerent” or of some other unique nature, such as “transformative” or “coercive.”
In any event, the United States occupies Hawaii in the very real sense that the United States asserts the power of an occupying power and lacks underlying sovereignty. Whether or not “belligerent” and whether or not the Hague and Geneva Conventions apply, United States occupation is not justified under the doctrines of conquest or prescription, and the principles of the international law of occupation apply, even if the United States claims its presence is based on some concept of “necessity.” These principles apply under necessity, even if the Hague and Geneva provisions do not formally apply.
The State of Hawaii is a proxy or “puppet” government of the United States under the Stimson Doctrine of 1933 which would apply to admission as a State in 1959. The State of Hawaii has no more legitimacy than the United States.
Under the law of occupation, the United States must terminate occupation. Occupation has persisted by propaganda and the deception of the people as well as the pretext of consent derived at statehood.
[For my discussion of the “new” history of Hawaii see:
1) https://scholarspace.manoa.hawaii.edu/bitstream/handle/10125/35795/Darkness-23Apr2015.pdf?sequence=3
2) https://scholarspace.manoa.hawaii.edu/handle/10125/35797
C. Post-occupation obligations of the United States—Ensuring Civil Order during the Transition Period
The United States, under the principles of occupation cannot simply leave Hawaii whereby what remains is a state of chaos, economic disruption, and the violation of the expectations built up over a century of deception. The daily quality of Hawaiian lives has come to depend on many United States programs and entitlements.
Such programs cannot be immediately terminated. To immediately terminate the obligation of the United States would violate the principles of occupation. For example, social security payments, SSI entitlements, the funding of many programs, including those of environmental protection, transportation, education, must continue during the transition period --for the community as a whole, not just Hawaiians.
Thus, the State of Hawaii must continue to operate and govern, during the transition period, in the many areas necessary for stability. The State must not walk away from the provision of necessary services and government operations, as to conservation, land use, zoning, shoreline protection, education, health and safety and the like.
At the same time, the State of Hawaii must work with the new, Hawaiian Governing Authority to transfer expertise, knowledge and technology to the new Hawaiian government, whether it be the Kingdom of Hawaii or some other sovereign authority.
Most important, the State should, in conjunction with a possible Hawaiian Governing Authority, adopt a Court of Native Hawaiian Claims, much as it has created the new Environmental Court. That Court would be an equitable court where Hawaiians and others could go if dissatisfied with State Court judgments—much like the chancery, courts were developed to provide relief in England when a law court judgment was unsatisfactory.
This Court of Native Hawaiian Claims would have different door-closing rules. Any claim, with any nexus to Hawaiian affairs could be brought. The door-closing rules used today against Hawaiians, such as laches, the statute of limitations, the requirement of “injury,” “mootness” “ripeness” “stare decisis,” pre-emption and the doctrine of “absurd results” would not bar a court from taking cases involving claims over the past 122 years.
As to older claims that are not practically feasible given the powers of the State and Federal Court, the compilation of such claims, after full and fair judicial proceedings, will become the record of “wrongs” necessary to determine the size of reparations and redress. The Court would be free to choose to apply any substantive law of a sovereign that it chooses---it may apply Kingdom law, State law, the common law of England, or of other nations, as well as international law.
The second function of this Court would be to hear present “live” contemporary claims—such as the validity of the TMT permit. Again, this court could have a free hand to incorporate Kingdom law, or other laws, without restriction. There would be a right to appeal from this Court to an en banc proceeding requiring that both the Hawaii Supreme Court and the Native Hawaiian Court of Appeals, equal in number would be the final arbiter of all disputes. There would be no appeal to the United States Supreme Court.
D. The creation of a Hawaiian Governing Authority
Second, the ‘Aha will recommend that, in a process separate from this Na’i Aupuni, that the Hawaiian people and non-Hawaiian nationals, proclaim and create a Governing Hawaiian Sovereignty, whether that be the government of the Kingdom of Hawaii or some other form, that is the vessel that is a autonomous and sovereign vis a vis the United States.
This governing sovereignty would not immediately meet the requirements of nationhood, but would seek recognition by the State of Hawaii first, and then the World, and finally the United States as sovereign over Hawaii. The Hawaiian Governing authority would define the terms of transfer for the transition period.
Even though the Hawaiian Governing Authority will not be a nation under the Montevideo criteria at the start, it will seek full national status by the end of the transition period. This non-nation entity would, over the transition period, adopt a constitution. It would, step by step, create executive, judicial and legislative branches, as knowledge, technology and resources are transferred from the State and the United States to this evolving entity.
The Hawaiian Governing authority would, during the transition period, exercise the powers of foreign affairs, to the extent permissible under international practice without United States interference.
E. The Argument that Federal Recognition is the only “Realistic” Alternative
The argument that federal recognition as a tribe is the only “realistic” alternative is based on the persistence of the falsehood of United States sovereignty over Hawaii and the belief that Hawaii was acquired by a joint resolution. Federal recognition is a reality because it persists in the transparent invalidity of the present reality.
The option of recognition is a knowing choice to accept a lie—for what?—for money. It is a reiteration of the old game by which foreigners traded their money for our land.
The argument that the United States would never terminate occupation and never hand over power to a Hawaiian Governing Entity, much less participate in the transition of that entity to full nationhood is based on the assumption that the United States as the world’s greatest power is also “cruel, barbaric and unwilling to give any weight to the rule of law.”
If this assumption is true Hawaiians never had a chance anyway. Hawaii is occupied by barbarians who care not for the truth or for the law. However, it is not true. The deception of Hawaiians practiced for a century by the United States by which Hawaii was supposedly annexed by a joint resolution reveals the need of the United States to maintain the appearance to the world of abiding the law of nations and basic principles of human rights.
The United States does not claim Hawaii by conquest or debellatio, If the truth be known to the world the United States would lose the moral currency by which it assumes it deserves the role of “policeman of the world.” Its only real interest in Hawaii is that of national security.
It was true in 1898 and it is true today—the United States need not take Hawaii to use Pearl Harbor as a coaling station. Today, the United States cannot quiet title to the lands it claims. It cannot justify its sovereignty over Hawaii. Indeed, the United States admits the State of Hawaii has no territory and no boundaries.
Once occupation is fully terminated, the Hawaiian Nation will have full sovereignty over the Hawaiian Islands. Valid land titles will become a reality. As to its military bases and other economic interests in Hawaii, it would only be upon termination of occupation, and the re-accession of a sovereign government over Hawaii that foreign ownership in Hawaii would again be valid. If the Hawaiian Governing Authority, or the eventual nation to evolve from that entity so chose it could lease-back lands and military facilities to the United States under mutually agreed upon status of forces agreements.
National defense concerns of the Hawaiian sovereign nation could be shared with the United States as defined by treaties with the United States. The United States will, and must, terminate occupation. However, this process will take place with the United States as friend and ally, with post-occupation obligations, not as an enemy.
F. Conclusion:
In conclusion, two powerful forces, the only forces more powerful than the United States itself, define the “path” for the ‘Aha: the search for the truth and the application of international law.
The United States can seek to defy both, and it has. Yet, the truth shall prevail—and so shall the Rule of Law. The only question is “when?” The moment has come. That truth is to be found in the destiny of the Hawaiian Islands, and all its people, as well as the will of Ke Akua.
Career Profile:
Professor Williamson Chang was born and raised in Honolulu, Hawai`i. He graduated from Princeton University with degrees in Asian Studies and from the Woodrow Wilson School of Public and International Affairs. Thereafter, he attended the University of California, Berkeley [Boalt Hall] where he was an editor of both the California Law Review and the Ecology Law Quarterly. He clerked for U.S. District Court Judge Dick Yin Wong in Honolulu and began teaching at the University of Hawai`i the following year.
He has taught a wide variety of courses including corporations, securities regulations, Native Hawaiian Rights, Indigenous People’s Law, Legal Aspects of Water Resources in Hawai’i, Jurisprudence, Conflict of Laws and Legal Practice. Recently, he continues to teach Conflict of Laws, Jurisprudence, Legal Practice, Legal Aspects of Water Resources in Hawaii and Business Associations. He has been a visiting professor at various law schools including the University of Wisconsin, the University of San Francisco, Hiroshima University, and the University of Western Australia. He was a Senior Fulbright Scholar in Australia and served as a staff member to the United States Senate Select Committee on Indian Affairs.
Professor Chang has done extensive work in the development of water rights and the state water code. He served as a Deputy Attorney General and represented Chief Justice William S. Richardson in a number of critical property rights cases, such as McBryde Sugar Co. v. Robinson [water], Sotomura v. County of Hawai`i [beaches] and Zimring v. State of Hawai`i [volcanic accretion]. Prof. Chang was extremely active in the development of the state water code and drafted the state water code as a reporter for the Advisory Commission on Water Resources.
He also helped to found the Native Hawaiian Advisory Council where he also served as Litigation Director. While at NHAC, he helped Hawaiians and other register their water rights. He has represented numerous individuals and groups in litigation in state and federal courts, including the Pai Ohana, Public Access Shoreline Hawaii, Catholic Action Peace and Freedom Party and the Kalamaula Hawaiian Homestead Association.
He is currently working on an account of the actual history of the United States acquisition of Hawai`i titled: "A Rope of Sand: The United States Annexation of Hawai`i." He is presently representing Skippy Ioane, one of the Mauna Kea protectors who was arrested for obstructing. He has also brought suit in state court seeking to declare the DLNR emergency rules invalid.