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I think you severely misinterpreted these terms. Section 7 is because previously the State of Hawaii did not fully recognize those rights. The 1978 Constitutio

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)?
- eesmith 4y ago
  My point is Section 7 doesn't appear to be relevant at all. > in practice they're both very strongly correlated to race It's not like there isn't court history on this very topic. https://imagesofoldhawaii.com/protection-of-traditional-customary-practices/ https://imagesofoldhawaii.com/protection-of-traditional-cust... ] The Pele Defense Fund decision extended rights to non-Hawaiians, noting, “Accordingly, non-Hawaiians could have the same right as Hawaiians, irrespective of Article XII, § 7, if they could prove that their rights were based on custom and usage.” Can you prove your rights to Maunakea were based on custom and usage? Then go ahead and get in on this agreement! The court even traces the principle back to English common law. > I know they're different things, but in practice they're both very strongly correlated to race. It looks like your objection was addressed head-on in https://en.wikipedia.org/wiki/Peyote_Way_Church_of_God,_Inc._v._Thornburgh https://en.wikipedia.org/wiki/Peyote_Way_Church_of_God,_Inc.... , on the non-drug use of peyote in the Native American Church: ] The court found that because the [Native American Church] limited membership only to those of Native American ancestry the exemption was for a political group and it was "rationally related to the legitimate governmental objective of preserving Native American culture". Hence there was no equal protection problem in only giving the exemption to the NAC. That's a direct parallel to the issue in Hawaii - it's a political group, not a religious one nor racial one. > Native Hawaiian cultural traditions include religion To be clear, the disagreement is because Native Hawaiian cultural practitioners argue that they have a custom and usage of regarding Maunakea as a sacred mountain. Now that I've read more about the issue, yes, you are right - it doesn't make since for someone who doesn't uphold that belief to be part of the group. On the other hand ... I now really don't understand your issue. We make special accommodations for the exercise of religion, like the use of peyote above. ] "The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church" - https://en.wikipedia.org/wiki/Peyote#United_States https://en.wikipedia.org/wiki/Peyote#United_States . You aren't a member of the Native American Church so you aren't allowed to use peyote, even for non-drug religious ceremonies. You don't follow a long-held religious belief that Maunakea is a sacred mountain so you don't get to sit on the committee which oversights activities on that mountain. > Does enrollment in an Indian tribe affect anything in non-tribal government? I don't understand your question. That is, I don't see how the answer is anything other than "yes, absolutely." > 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 Umm .. that makes no sense. Hawaii was bound to follow the US Constitution when the US annexed the islands in 1900 as an organized incorporated territory. It was never an unincorporated territory like American Samoa where the full Constitution does not apply. Annexation of Hawaii was done despite the opposition of most native Hawaiians, and https://en.wikipedia.org/wiki/Newlands_Resolution https://en.wikipedia.org/wiki/Newlands_Resolution points out: ] Debate between anti-sovereignty and sovereignty activists still exists over the legality of the acquisition of Hawaii under the US constitution.[4][5] The Hawaiian sovereignty movement views the annexation as illegal.[4][6] However, the U.S. Supreme Court gave tacit recognition to the legitimacy of Hawaii's annexation in De Lima v. Bidwell, 182 U.S. 1, 196 (1901). And in any case, Hawaiians aren't recognized as a tribe, while my comment regarded recognized tribes. I made that transition because your arguments are equally applicable to both situations, which suggest you also want to reduce tribal sovereignty.

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)?

eesmith 4y ago
My point is Section 7 doesn't appear to be relevant at all. > in practice they're both very strongly correlated to race It's not like there isn't court history on this very topic. https://imagesofoldhawaii.com/protection-of-traditional-customary-practices/ https://imagesofoldhawaii.com/protection-of-traditional-cust... ] The Pele Defense Fund decision extended rights to non-Hawaiians, noting, “Accordingly, non-Hawaiians could have the same right as Hawaiians, irrespective of Article XII, § 7, if they could prove that their rights were based on custom and usage.” Can you prove your rights to Maunakea were based on custom and usage? Then go ahead and get in on this agreement! The court even traces the principle back to English common law. > I know they're different things, but in practice they're both very strongly correlated to race. It looks like your objection was addressed head-on in https://en.wikipedia.org/wiki/Peyote_Way_Church_of_God,_Inc._v._Thornburgh https://en.wikipedia.org/wiki/Peyote_Way_Church_of_God,_Inc.... , on the non-drug use of peyote in the Native American Church: ] The court found that because the [Native American Church] limited membership only to those of Native American ancestry the exemption was for a political group and it was "rationally related to the legitimate governmental objective of preserving Native American culture". Hence there was no equal protection problem in only giving the exemption to the NAC. That's a direct parallel to the issue in Hawaii - it's a political group, not a religious one nor racial one. > Native Hawaiian cultural traditions include religion To be clear, the disagreement is because Native Hawaiian cultural practitioners argue that they have a custom and usage of regarding Maunakea as a sacred mountain. Now that I've read more about the issue, yes, you are right - it doesn't make since for someone who doesn't uphold that belief to be part of the group. On the other hand ... I now really don't understand your issue. We make special accommodations for the exercise of religion, like the use of peyote above. ] "The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church" - https://en.wikipedia.org/wiki/Peyote#United_States https://en.wikipedia.org/wiki/Peyote#United_States . You aren't a member of the Native American Church so you aren't allowed to use peyote, even for non-drug religious ceremonies. You don't follow a long-held religious belief that Maunakea is a sacred mountain so you don't get to sit on the committee which oversights activities on that mountain. > Does enrollment in an Indian tribe affect anything in non-tribal government? I don't understand your question. That is, I don't see how the answer is anything other than "yes, absolutely." > 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 Umm .. that makes no sense. Hawaii was bound to follow the US Constitution when the US annexed the islands in 1900 as an organized incorporated territory. It was never an unincorporated territory like American Samoa where the full Constitution does not apply. Annexation of Hawaii was done despite the opposition of most native Hawaiians, and https://en.wikipedia.org/wiki/Newlands_Resolution https://en.wikipedia.org/wiki/Newlands_Resolution points out: ] Debate between anti-sovereignty and sovereignty activists still exists over the legality of the acquisition of Hawaii under the US constitution.[4][5] The Hawaiian sovereignty movement views the annexation as illegal.[4][6] However, the U.S. Supreme Court gave tacit recognition to the legitimacy of Hawaii's annexation in De Lima v. Bidwell, 182 U.S. 1, 196 (1901). And in any case, Hawaiians aren't recognized as a tribe, while my comment regarded recognized tribes. I made that transition because your arguments are equally applicable to both situations, which suggest you also want to reduce tribal sovereignty.