Lt. Gov. Duke Aiona announced that the Con Con question would be included on the 2008 election ballots. - Photo: Blaine Fergerstrom

Debating the Constitution

A Constitutional Convention, if held in 2010, could
bring Native Hawaiian issues to the forefront

By Lisa Asato | Publications Editor

A state Constitutional Convention – a possibility for 2010 – offers not only an opportunity to expand Native Hawaiian rights and programs, but also provides opponents a chance to attack them, several Hawai'i leaders said last month.

“If a state Constitutional Convention is held, Native Hawaiians must be in the mix,” said Office of Hawaiian Affairs Chairperson Haunani Apoliona, in the State of OHA address. “We must determine now how we will get involved so the Native Hawaiian voice is heard regarding what happens to our homeland, to our native people and our natural, public, social and economic resources for the good of all Hawai'i.”

Apoliona said the 1978 Constitutional Convention produced “great advancements for Native Hawaiians,” such as establishing 'ōlelo Hawai'i as an official state language, instituting Hawaiian studies in public schools, upholding traditional and customary native gathering practices and creating OHA.

A Con Con in 2010 “could build upon that beginning or it could reverse progress and eliminate these past Constitutional advancements,” she said, adding that she expects those continue to challenge Hawaiian programs through the courts to try to do so through a Constitutional Convention.

Senate President Colleen Hanabusa stressed awareness that there may be efforts at a ConCon to diminish Native Hawaiian rights. “Get involved,” said Hanabusa (D-Ko 'Olina, Leeward Coast). - Photo: Blaine Fergerstrom

H. Willliam Burgess, an attorney behind legal challenges to OHA and the state Department of Hawaiian Home Lands, said he supports the idea of a Con Con and would run for delegate with the main goal of eliminating OHA, DHHL “and any other entitlement in the Constitution that gives treatment to persons of Native Hawaiian ancestry that are greater than those given to other citizens.”

Burgess, a delegate to the '78 Con Con, said he would work to get other like-minded people elected who believe in equal protection under the law. Entitlement programs hurt those they intend to serve, keeping them “imprisoned in a state of dependency,” he said.

“Duke Kahanamoku didn't ask for a head start against the other swimmers in the Olympics,” Burgess said. “He got there because he had the skill, and he had the discipline to be the best swimmer in the pool that day. That's the way it works, that's the way it should work.”

Any changes proposed by a Constitutional Convention would have to be ratified by voters.

On Dec. 11, Lt. Gov. Duke Aiona announced that voters would decide in the 2008 election whether to hold a Con Con. The question must be put on the ballot every 10 years, if not sooner by legislative action. The last Con Con took place three decades ago, in 1978, when delegates included future government leaders John Waihe'e, Jeremy Harris and Joe Souki.

“The world as we know it is changing rapidly, and we need to be willing to take a fresh look at how we operate our government,” Aiona said, adding that a Con Con could address issues such as education, natural resource management, government accountability and “innovative solutions” to the state's energy needs that “capitalize on Hawai'i's natural sustainable environment.”

He also said he sees a Constitutional Convention as an “opportunity for Native Hawaiians to not only stabilize their rights and the offices they have in the state, but to also increase it.”

Others, meanwhile, advised caution.

“I know the Lt. Gov. has stated there's a great opportunity, but with that comes a great responsibility,” said Sen. Jill Tokuda, committee chairwoman for Agriculture and Hawaiian Affairs. “I think we have to take a look at what the Constitution means to our state – is it such that the one we currently have in place isn't meeting the needs of our people that they feel it's necessary to go in and redo the whole thing?”

Tokuda said the top topics she would watch for at a ConCon are Native Hawaiian issues, land-use policies, civil rights and efforts to dismantle the statewide school board into seven local school boards. She said people should also be aware that a ConCon would attract outside attention and influence on Hawai'i. “The Akaka Bill is a perfect example of where people around the country are watching this bill and taking a position,” said Tokuda (D-Kāne'ohe, Kailua). “I would not be surprised if a ConCon were to be put forward that they would use this as an opportunity to push their side.”

Senate President Colleen Hanabusa also stressed awareness that there may be efforts at a ConCon to diminish Native Hawaiian rights, including efforts to merge OHA and DHHL –
which has happened unsuccessfully at the state Legislature in the past – and weaken the protection offered to homesteaders through the Congressional act that established DHHL. She called the ConCon a “doubled-edged” sword” that is capable of producing good but also requires mobilizing people to carry out the message. “Get involved,” said Hanabusa (D-Ko 'Olina, Leeward Coast). “Decide as a group whether you want to stop (the ConCon), or if you're going to do it, then make sure you have those people ready to go.”