6 ms·

Hawaii law could break years-long astronomy impasse

2 points by sohkamyung 4y ago

josephcsible 4y ago
> one of whom must be an active practitioner of Native Hawaiian cultural traditions, and one of whom must be a descendant of a cultural practitioner who is associated with Maunakea. How is this anything but a blatant violation of both the First Amendment (as a law respecting an establishment of religion), the Fourteenth Amendment (specifically the Equal Protection Clause), and the Civil Rights Act?
- eesmith 4y ago
  Hawaiian legislators well know that requiring Native Hawaiian descent is unconstitutional. https://en.wikipedia.org/wiki/Rice_v._Cayetano https://en.wikipedia.org/wiki/Rice_v._Cayetano I don't see anything which prevents you from being an active practitioner of Native Hawaiian cultural traditions. Out of curiosity, would your objection disappear if Native Hawaiians were recognized as an Indian tribe?
  - josephcsible 4y ago
    Here's the relevant text of the law in question (from https://www.capitol.hawaii.gov/session2022/bills/HB2024_CD1_.pdf https://www.capitol.hawaii.gov/session2022/bills/HB2024_CD1_...): > (8) An individual who is a lineal descendent of a practitioner of Native Hawaiian traditional and customary practices associated with Mauna Kea; (9) An individual who is a recognized practitioner of Native Hawaiian traditional and customary practices; I don't see a definition of "traditional and customary" in it, so let's fall back to the one in Hawaii's Constitution: > TRADITIONAL AND CUSTOMARY RIGHTS > Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. Note "for subsistence, cultural and religious purposes". So a law requiring someone to practice this seems to be in direct violation of the First Amendment's ban on laws "respecting an establishment of religion". Also, from the ruling of the case you linked to: > The history of the State's definition also demonstrates that the State has used ancestry as a racial definition and for a racial purpose. The drafters of the definitions of "Hawaiian" and "native Hawaiian" emphasized the explicit tie to race. The State's additional argument that the restriction is race neutral because it differentiates even among Polynesian people based on the date of an ancestor's residence in Hawaii is undermined by the classification's express racial purpose and its actual effects. The ancestral inquiry in this case implicates the same grave concerns as a classification specifying a particular race by name, for it demeans a person's dignity and worth to be judged by ancestry instead of by his or her own merit and essential qualities. The State's ancestral inquiry is forbidden by the Fifteenth Amendment for the further reason that using racial classifications is corruptive of the whole legal order democratic elections seek to preserve. This seems really relevant to this new law as well. While it doesn't explicitly mention race, its actual effect and obvious intent is explicitly to limit those seats to only one race. For comparison, consider that literacy tests and the grandfather clause are illegal now, even though they didn't explicitly mention race either, as said ruling also brought up: > Important precedents did emerge, however, which give instruction in the case now before us. The Fifteenth Amendment was quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise. In 1910, the State of Oklahoma enacted a literacy requirement for voting eligibility, but exempted from that requirement the "'lineal descendant[sJ''' of persons who were" 'on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation.'" Guinn, supra, at 357. Those persons whose ancestors were entitled to vote under the State's previous, discriminatory voting laws were thus exempted from the eligibility test. Recognizing that the test served only to perpetuate those old laws and to effect a transparent racial exclusion, the Court invalidated it. 238 U. S., at 364-365. And no, my opinion wouldn't change if they were an Indian tribe.
    - eesmith 4y ago
      I think you severely misinterpreted these terms. Section 7 is because previously the State of Hawaii did not fully recognize those rights. The 1978 Constitutional Convention was part of the political movement to correct those historic wrongs. You'll note "subject to the right of the State to regulate such rights" means it's not meant to establish any more rights than the US constitution allows. "Persons of Native Hawaiian descent" (in Rice v. Cayetano) is not the same as "active practitioner of Native Hawaiian cultural traditions". What stops you from being the latter? > And no, my opinion wouldn't change if they were an Indian tribe. Yet Indian tribes can decide enrollment criteria based on lineage or blood quantum, and if a tribe had traditional sovereignty over disputed land then they - just like the University of Hawaii in this case - would surely need representation as part of the solution. It seems like you also want to break treaty rights. Nothing new there. Let's give the land back to the tribes this time rather than take away more rights by force.
      - josephcsible 4y ago
        > Section 7 is because previously the State of Hawaii did not fully recognize those rights. The 1978 Constitutional Convention was part of the political movement to correct those historic wrongs. > You'll note "subject to the right of the State to regulate such rights" means it's not meant to establish any more rights than the US constitution allows. The only part of Section 7 relevant to my post was the way it defined traditional and customary rights, not anything it actually allowed or didn't allow based on them. > "Persons of Native Hawaiian descent" (in Rice v. Cayetano) is not the same as "active practitioner of Native Hawaiian cultural traditions". I know they're different things, but in practice they're both very strongly correlated to race. > What stops you from being the latter? This is why I brought up the definition above and the First Amendment. Yes, I could start practicing Native Hawaiian cultural traditions, but Native Hawaiian cultural traditions include religion, so this law would seem to be respecting a particular establishment of religion. > Yet Indian tribes can decide enrollment criteria based on lineage or blood quantum, and if a tribe had traditional sovereignty over disputed land then they - just like the University of Hawaii in this case - would surely need representation as part of the solution. Does enrollment in an Indian tribe affect anything in non-tribal government? As for "disputed land", see below. > It seems like you also want to break treaty rights. Nothing new there. Let's give the land back to the tribes this time rather than take away more rights by force. Does the human right to self-determination not overrule treaty rights? The referendum for Hawaii's statehood passed with over 93% in favor, with the knowledge that being part of the US means being bound to follow the US Constitution. Doesn't that mean that 7% is the upper bound on the number of people who wanted independence (and it was probably less than that, since at least one person probably didn't want either)?

2 points by sohkamyung 4y ago

> one of whom must be an active practitioner of Native Hawaiian cultural traditions, and one of whom must be a descendant of a cultural practitioner who is associated with Maunakea. How is this anything but a blatant violation of both the First Amendment (as a law respecting an establishment of religion), the Fourteenth Amendment (specifically the Equal Protection Clause), and the Civil Rights Act?

eesmith 4y ago
Hawaiian legislators well know that requiring Native Hawaiian descent is unconstitutional. https://en.wikipedia.org/wiki/Rice_v._Cayetano https://en.wikipedia.org/wiki/Rice_v._Cayetano I don't see anything which prevents you from being an active practitioner of Native Hawaiian cultural traditions. Out of curiosity, would your objection disappear if Native Hawaiians were recognized as an Indian tribe?
- josephcsible 4y ago
  Here's the relevant text of the law in question (from https://www.capitol.hawaii.gov/session2022/bills/HB2024_CD1_.pdf https://www.capitol.hawaii.gov/session2022/bills/HB2024_CD1_...): > (8) An individual who is a lineal descendent of a practitioner of Native Hawaiian traditional and customary practices associated with Mauna Kea; (9) An individual who is a recognized practitioner of Native Hawaiian traditional and customary practices; I don't see a definition of "traditional and customary" in it, so let's fall back to the one in Hawaii's Constitution: > TRADITIONAL AND CUSTOMARY RIGHTS > Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights. Note "for subsistence, cultural and religious purposes". So a law requiring someone to practice this seems to be in direct violation of the First Amendment's ban on laws "respecting an establishment of religion". Also, from the ruling of the case you linked to: > The history of the State's definition also demonstrates that the State has used ancestry as a racial definition and for a racial purpose. The drafters of the definitions of "Hawaiian" and "native Hawaiian" emphasized the explicit tie to race. The State's additional argument that the restriction is race neutral because it differentiates even among Polynesian people based on the date of an ancestor's residence in Hawaii is undermined by the classification's express racial purpose and its actual effects. The ancestral inquiry in this case implicates the same grave concerns as a classification specifying a particular race by name, for it demeans a person's dignity and worth to be judged by ancestry instead of by his or her own merit and essential qualities. The State's ancestral inquiry is forbidden by the Fifteenth Amendment for the further reason that using racial classifications is corruptive of the whole legal order democratic elections seek to preserve. This seems really relevant to this new law as well. While it doesn't explicitly mention race, its actual effect and obvious intent is explicitly to limit those seats to only one race. For comparison, consider that literacy tests and the grandfather clause are illegal now, even though they didn't explicitly mention race either, as said ruling also brought up: > Important precedents did emerge, however, which give instruction in the case now before us. The Fifteenth Amendment was quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise. In 1910, the State of Oklahoma enacted a literacy requirement for voting eligibility, but exempted from that requirement the "'lineal descendant[sJ''' of persons who were" 'on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation.'" Guinn, supra, at 357. Those persons whose ancestors were entitled to vote under the State's previous, discriminatory voting laws were thus exempted from the eligibility test. Recognizing that the test served only to perpetuate those old laws and to effect a transparent racial exclusion, the Court invalidated it. 238 U. S., at 364-365. And no, my opinion wouldn't change if they were an Indian tribe.
  - eesmith 4y ago
    I think you severely misinterpreted these terms. Section 7 is because previously the State of Hawaii did not fully recognize those rights. The 1978 Constitutional Convention was part of the political movement to correct those historic wrongs. You'll note "subject to the right of the State to regulate such rights" means it's not meant to establish any more rights than the US constitution allows. "Persons of Native Hawaiian descent" (in Rice v. Cayetano) is not the same as "active practitioner of Native Hawaiian cultural traditions". What stops you from being the latter? > And no, my opinion wouldn't change if they were an Indian tribe. Yet Indian tribes can decide enrollment criteria based on lineage or blood quantum, and if a tribe had traditional sovereignty over disputed land then they - just like the University of Hawaii in this case - would surely need representation as part of the solution. It seems like you also want to break treaty rights. Nothing new there. Let's give the land back to the tribes this time rather than take away more rights by force.
    - josephcsible 4y ago
      > Section 7 is because previously the State of Hawaii did not fully recognize those rights. The 1978 Constitutional Convention was part of the political movement to correct those historic wrongs. > You'll note "subject to the right of the State to regulate such rights" means it's not meant to establish any more rights than the US constitution allows. The only part of Section 7 relevant to my post was the way it defined traditional and customary rights, not anything it actually allowed or didn't allow based on them. > "Persons of Native Hawaiian descent" (in Rice v. Cayetano) is not the same as "active practitioner of Native Hawaiian cultural traditions". I know they're different things, but in practice they're both very strongly correlated to race. > What stops you from being the latter? This is why I brought up the definition above and the First Amendment. Yes, I could start practicing Native Hawaiian cultural traditions, but Native Hawaiian cultural traditions include religion, so this law would seem to be respecting a particular establishment of religion. > Yet Indian tribes can decide enrollment criteria based on lineage or blood quantum, and if a tribe had traditional sovereignty over disputed land then they - just like the University of Hawaii in this case - would surely need representation as part of the solution. Does enrollment in an Indian tribe affect anything in non-tribal government? As for "disputed land", see below. > It seems like you also want to break treaty rights. Nothing new there. Let's give the land back to the tribes this time rather than take away more rights by force. Does the human right to self-determination not overrule treaty rights? The referendum for Hawaii's statehood passed with over 93% in favor, with the knowledge that being part of the US means being bound to follow the US Constitution. Doesn't that mean that 7% is the upper bound on the number of people who wanted independence (and it was probably less than that, since at least one person probably didn't want either)?