Malu 'Aina

Dear Ohana Ho`opakele members and friends,

Ohana Ho`opakele presents the following draft statement to be presented at the Public Hearing on Tuesday, January 22, 2013 at 4 pm in the Aupuni Conference Room in Hilo.  Please send in specific comments to change the draft!  Mahalo!

Ohana Ho`opakele finds the Draft Environmental Assessment, “Reactivation of Kulani Correctional Facility: District of South Hilo, Island of Hawai’i” of November 9, 2012 grossly inadequate.  An adequate Environmental Assessment needs to include within it the following documents which have legal ramifications on the land and facility being assessed:

A.  The Mahele

B.  “A Brief History of Land Titles in the Hawaiian Kingdom” by W.D. Alexander, Superintendent of Government Survey, 1891

C.  Public Law 103-150

D.  Protest and Demand of the prolonged occupation of the Hawaiian Kingdom that was deposited with the President of the United Nations General Assembly pursuant to Article 35(2) of the United Nations Charter on 10 August 2012

E.  The Hawaii Constitution, Article XI, Section 1

F.  The Hawaii Constitution, Article XII, Section 7

G.  Act 117 Relating to Public Safety, signed June 15, 2012

H.  Game Management Advisory Commission, Hawai`i County Charter

I.  “To Reestablish the Puuhonua” a resolution passed by the Hawaii State Democrat Party at their 2012 State Convention

J.  Unanimous vote at the Hawaiian Affairs Caucus of the Democratic Party of Hawaii, January 14, 2013 supporting the concept of a Hawaiians only Pu`uhonua

K.  Department of Public Safety Report to the 2013 Legislature, “Act 117: Wellness Center that Reestablishes Native Hawaiian Cultural Practices”, November 2012

L.  Ohana Ho`opakele Kahea with a total of 1119 signers.  (Included in DPS report to the 2013 legislature)

M.  Quote by Mr. Palikapu Dedman.  (Also included in DPS report to the 2013 legislature)

N.  The Disparate Treatment of Native Hawaiians in the Criminal Justice System, 2010, Office of Hawaiian Affairs

O.  The Native Hawaiian Justice Task Force Report

P.  Marilyn Brown & Sarah Marusek, “`Ohana Ho`opakele: The Politics of Place in Corrective Environments” International Journal for the Semiotics of Law, Vol. 25, No. 4, 2012

Content that should be included in the final Environmental Assessment:

1.  Tax Map Key (3) 2-4-008:009 is originally “Crown Lands.”  Under the Mahele Laws of the Hawaiian Kingdom the Waiakea Ahupuaa in Hilo district and the Olaa Ahupuaa in Puna District were designated as Crown Lands.  (“Crown, Government and Fort Lands, Enumerated. L. 1848, p. 22; C. C., p. 374, “An Act Relating to the Lands of His Majesty The King and of the Government.”

2.  Explanation of “Crown Lands” is found in “A Brief History of Land Titles in the Hawaiian Kingdom” by W.D. Alexander, Superintendent of Government Survey, 1891.  In a section “Crown Lands” are the following:

“The term “Crown Lands” is here applied to those lands reserved by Kamehameha III., March 8, 1848 “for himself, his successors forever,” as his private property.  . . .   “At the death of Kamehameha IV., it was decided by the Supreme Court that under the above mentioned instrument executed by Kamehameha III, reserving the Crown Lands, and under the confirmatory Act of June 7^th, 1848, “the inheritance is limited to the successors to the throne,” “the wearers of the crown which the conqueror had won,” and that at the same time “each successive possessor may regulate and dispose of the same according to his will and pleasure as private property, in like manner as was done by Kamehameha III.” (Hawaiian Reports, Vol. II., p. 725.)  Afterwards an Act was passed January 3, 1865, “relieve the Royal Domain from encumbrances and to render the same inalienable.”  This Act provided for the redemption of the mortgages on the estate, and enacted that the remaining lands are to be “henceforth inalienable and shall descend to the heirs and successors of the Hawaiian Crown forever,” and that “it shall not be lawful hereafter to lease said lands for any terms of years to exceed thirty.”

3.  The Mahele, in a section “Principles Adopted by the Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented to Them” clearly established the rights to tenants to the land.  It established, “that there are but three classes of persons having vested rights in the land,–1^st, the government, 2^nd, the landlord, and 3^rd, the tenant, ….”

4.  US Public Law 103-150, November 23, 1993 which admits to the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, includes the following:

“Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government; …

“Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum; ….”

5.  Melody MacKenzie, associate professor at the William S. Richardson School of Law and director of Ka Huli Ao Center for Excellence in Native Hawaiian Law, in an essay, “The Value of Hawaii: Law and the Courts by Melody Kapilialoha MacKenzie” discussing the interpretation of the 1993 Apology Resolution wrote:

“Congress specifically recognized that the Government and Crown Lands were taken without the consent of or compensation to the Native Hawaiian people or their sovereign government, and that “the indigenous Hawaiian people never directly relinquished their claims . . . over their national lands to the United States.”

And, in discussing a 2008 unanimous opinion by Chief Justice Ronald Moon, writes the Hawaii Supreme Court found it significant that:

“Congress the Hawaii state legislature, the parties, and the trial court all recognize (1) the cultural importance of the land to native Hawaiians, (2) that the ceded lands were illegally taken from the native Hawaiian monarchy, (3) that future reconciliation between the state and the native Hawaiian people is contemplated, and (4) once any ceded lands are alienated from the public land trust, they will be gone forever.
Notably, in placing a permanent moratorium on land sales, the Court recognized that the trust lands or aina hold unique, cultural, spiritual, and political significance for the Native Hawaiian people—they are not fungible or replaceable:

“Aina is a living and vital part of the [n]ative Hawaiian cosmology, and is irreplaceable.  The natural elements—land, air, water, ocean—are interconnected and interdependent.  To [n]ative Hawaiians, land is not a commodity; it is the foundation of their cultural and spiritual identity as Hawaiians.  The aina is part of their ohana, and they care for it as they do for other members of their families.  For them, the land and the natural environment [are] alive, respected, treasured praised, and even worshiped.”

6.  Dr. David Keanu Sai, Ph.D. submitted a Protest and Demand of the prolonged occupation of the Hawaiian Kingdom that was deposited with the President of the United Nations General Assembly pursuant to Article 35(2) of the United Nations Charter on 10 August 2012.  This document provides proof of the illegality, under International Law, of the United States of America exercising its authority on the territory of the Hawaiian Kingdom.  This document questions the legality of the Executive Orders that appropriated the “Crown Lands” of the Hawaiian Kingdom into the “Kulani Prison Farms” or “Kulani Honor Camp.”

7.  Although the DEA identifies that “Kulani CF was founded as a work camp under Governor’s Executive Order (EO) Nos. 1225 and 1558, setting aside approximately 7,244 acres,” it does not acknowledge that this land was originally (and still is under Hawaiian Kingdom laws) “Crown Lands.”  The DEA does not cite the original Governor’s Proclamations that supposedly took the lands from “Crown Lands” into “Forrest Reserves” (Governor’s Proclamation dated October 13, 1913, withdrawing 51,800 acres from “Government lands” to form the Upper Waiakea Forest Reserve and 9,280 acres from “Government lands” to form the Upper Olaa Forest Reserve.  Governor’s Proclamation dated December 31, 1918 (C.S.F. 326) withdrawing 20,030 acres from “Government lands” to form the Olaa Forest Reserve; and Governor’s Proclamation dated January 3, 1923 (C.S.F. 3876) modifying 62,862 acres to form the Upper Waiakea Forest Reserve).

8.  The Tax Map identifies the portion of land identified in this DEA as “State of Hawaii (Dept. of Social Services) 7244.27 Ac. Exec. Ord. 1224 & 1588 Kulani Honor Camp.”  What was the original vision of the Department of Social Services in naming this project as “Kulani Honor Camp”?  Shouldn’t that vision help define the purpose of this project?

9.  The Hawaii State Constitution contains wording that should assist in defining the scope of this project.

Article XII  Hawaiian Affairs

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 ahupuaa 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.”

Mr. Moses Haia, Executive Director of the Native Hawaiian Legal Corporation (NHLC) in written testimony before the Senate Ways and Means Committee, Friday, April 1, 2011, wrote:

“Section 1 of Article XI of the Hawaii Constitution recognizes the application of the public trust doctrine to all of Hawaii’s resources including land and requires that the State protect all such resources for the benefit of its people.  (and)

“Article XII, section 7 of the Hawaii Constitution recognizes the importance of such rights by placing an affirmative duty on the State and its agencies to preserve and protect traditional and customary native Hawaiian rights and confers upon the State and its agencies a solemn duty to protect these rights and prevent any interference with the exercise of these rights.”

10.  Act 117 Relating to Public Safety was signed into law on June 15, 2012 by Neil Abercrombie, Governor, State of Hawaii.  The purpose of the Act is:

“The legislature finds that a pu`uhonua, or wellness center, based on Hawaiian cultural practices will help the native Hawaiian community and the community at-large.  Unquestionably, many high-risk persons need to be cared for in a much more sensitive intervention program that will address solutions that will alleviate their problems.  The greatest potential to stem the tide of this horrific situation lies in the creation of a pu`uhonua comprising a culturally-based substance abuse treatment and intervention program that takes a holistic approach based upon cultural identity and strength to get to the core of substance abuse.  The cultural practices of pule, ho`oponopono, aloha `aina, mahi`ai, la`au lapa`au, and aloha will help create a sensitive setting.  These cultural practices have been successful in the past, possessing the optimal potential to heal and individual.  A culturally-based pu`uhonua will restore and maintain a better atmosphere and relationship between family, friends, community, and society.

The legislature further finds that the site formerly used as the Kulani correctional facility in east Hawaii would be an ideal site for such a wellness center.  It is a place of deep spirituality for the Hawaiian people and, pragmatically, it has the infrastructure and historical precedent for use in sustainable living.”

SECTION 2.  The department of public safety, in cooperation with Ohana Ho`opakele and other restorative justice groups, is directed to prepare a plan for the creation of a pu`uhonua, or wellness center, on lands owned or controlled by the State.  The public land development corporation shall assist in determining an appropriate site for the center; provided that the site formerly used as the Kulani correctional facility on the island of Hawaii shall be given preference, unless another site will provide a greater possibility of success.

The department of public safety shall submit a report to the legislature on its plan, findings, and recommendations, including the factors used in determining site selection, and any budget requests necessary to achieve the purposes of this Act, no later than twenty days prior to the convening of the regular session of 2013.”

Section 3 of this Act allows pa`ahao (incarcerated persons) to participate in a work release pilot program on the island of Hawaii.  This allows pa`ahao to assist in the building of the infrastructure of a pu`uhonua that moves toward self-sufficiency and lowering the cost of incarceration.

11.  No public hearings were held prior to the closing of the Kulani Correctional Facility by then governor Linda Lingle.

12.  The Department of Public Safety Report to the Legislature, Act 117 “Wellness Center that Reestablishes Native Hawaiian Cultural Practices”, dated November 2012 was submitted to the governor without prior review by Ohana Ho`opakele.  This whole report should be part of this final EA.

13.  “Why is Kulani the best site for the Pu`uhonua?” (And no other site will provide a greater possibility of success) was prepared by Ohana Ho`opakele and shared widely.  It consists of ten points:

1)  The site lends itself to the spiritual component of a Pu`uhonua necessary for success.  The name “Kulani” means, “Stand to Heaven.”  This land is originally “Crown Lands” [TMK (3) 2-4-008-009] which should be used for the rehabilitation of Hawaiians.  Ola`a Ahupua`a, located within this area was a sacred forest.  No problem with community acceptance since the site has already been used for a minimum security prison.  The Kulani site is an immersion with the land.  The atmosphere is restorative and healing, a place ideal for balancing spiritual, mental, physical, where people can find themselves and reconnect with the land and culture.

2)  Kulani would safe the state money and be the most cost-effective site.  Warden Peter McDonald submitted a report to the DLNR indicating that Kulani saved the State of Hawaii a minimum of $200,000 per year over a twelve-year period.  In addition, Pa`ahao at Kulani have helped control invasive species.

3)  Ohana Ho`opakele has already completed with the assistance of Ms. Chelle Shand (nor Pahinui) a Feasibility Study of a Pu`uhonua which incorporates and spells out the Hawaiian cultural values that will be used.

4)  Ohana Ho`opakele has with the assistance of Kumu Richard and Lynette Paglinawan did a series of Ho`oponopono training workshops that have trained more than ninety (90) people in leading Ho`oponopono sessions and has continued these training sessions.

5)  Ohana Ho`opakele has since 2004 helped to lead the opening and closing of Makahiki ceremonies at Diamondback Correctional Facility in Watonga, OK, Red Rock Correctional Facility and Saguaro Correctional Center both in Eloy, AZ.

6)  Ohana Ho`opakele has accumulated top personnel ready to create and train personnel for a Pu`uhonua.  (See the members of its Board of Directors, Advisors Uncle Joe Tassill and Dante Carpenter, Mr. Tetsuya “Grizzly” Yamada who worked for the University of Hawaii Experiment Station as a Ranch Manager providing Kulani with 26,000 pounds of meat annually, a Think Tank of twenty (20) that participated in a Brainstorming session led by Mr. Stephen Morse, and a Kahea list of over 1100 people including cultural practitioners, University professors, Social Workers, Religious leaders, lawyers and Pa`ahao.

7)  The past experience at Kulani Prison Farm is the closest to what is needed in a Pu`uhonua: raising of 300 pigs, 200 cattle, woodwork facilities, motor vehicle repair shop, gym with body-building equipment, educational center and computer center, raising of agricultural products: cultivation fruits and vegetables, planting and managing koa forests, caring for endangered species of plants, gathering of maile, etc.  Kitchen, living-sleeping, and other facilities are already there and ready to go.

8)  The water resources are adequate: recently new pipes were put in from the reservoir reclaiming 1/3 water loss, the reservoir is now covered to prevent evaporation, new science can convert mist into water, and an underground water source at Kulani can be tapped.

9)  Funding possibilities are best for beginning a model Pu`uhonua to house Hawaiians (and hanai family members) by challenging Hawaiian trusts and Hawaiian organizations to provide long-term funding and future land sites for other Pu`uhonua.

10)  The best chance of building a financial resource for Pa`ahao by constructing solar panels for sale to County of Hawaii and the state.

14.  Warden Peter McDonald presented a paper “Kulani Correctional Facility Community Service Cost Savings” for the years from 1997 through June 2009 which saved the State of Hawaii $2,267,387.91.  This total does not include the savings to the State of Hawaii from the woodwork produced at KCFG, the repairs to transport vehicles, picking of maile leis, raising of cattle and pigs, and the growing of vegetables.

15.  Proposal No. 6: Establishing a Game Management Advisory Commission was placed on the November 2012 election ballot and passed.  The definition of the Game Management Advisory Commission:

“For the benefit of present and future generations, the game management advisory commission shall advise County, State and Federal agencies on matters related to the preservation of subsistence hunting and fishing, as well as protecting traditional and cultural gathering rights.  The commission may also advise County, State, and Federal agencies on any matter affecting the taking and conservation of aquatic life and wildlife including proposed rules, and shall communicate its finding and recommendations to these agencies.  The commission shall promulgate recommendations that conserve and protect the natural and cultural resources of Hawai`i in furtherance of the self-sufficiency and long-term subsistence sustainability of aquatic life and wildlife in the County.”

16.  The Hawaii State Democrat Party at their 2012 State Convention passed, “To Reestablish the Puuhonua”:

WHEREAS, the Hawaiian Culture had a system of protecting all levels of life, man, animal, and environment; and

WHEREAS, this system consist of rules and regulations (kanawai) law that governed their way of life; and

WHEREAS, this system was call (KAPU) taboo, forbidden; and

WHEREAS, if a law was broken the penalty could be anywhere from a mere forgiveness to a severe life sentence with many penalties in between; and

WHEREAS, the Cultural did have a place to go to if one needed refugee, a city of refuge; and

WHEREAS, the name of this place was called a Puuhonua or the place of refuge: and

WHEREAS, if an individual did break a KAPU and made it safely to the Puuhonua he or she was protected by the KAHU, in this case KAHUNA, or keeper of the secret, forgiven, healed and prepared the offender for re-entry into the community; and

WHEREAS, the individual could return to live without fear of retaliation from anyone in the community: therefore

BE IT RESOLVED, that the Hawaii State Democrat Party at their 2012 State Convention, that the Hawaiian Affairs Committee, take up the issue of reestablishing the practice of rehabilitation and healing within a Puuhonua setting; and

BE IT FURTHER RESOLVED, that the Hawaiian Affairs Committee of the Hawaii State Democrat Party work with the State of Hawaii task force addressing the Puuhonua concept which is charged with developing the rehabilitation and healing program within a Puuhonua setting; and

BE IT FURTHER RESOLVED, that the Hawaiian Affairs Committee, of the Hawaii State Democrat Party submit a report of their findings with their recommendation to the Hawaii State Democrat Party, Board of Directors, prior to the convening of the Hawaii State Legislative session of 2013, and

BE IT FURTHER RESOLVED, that the Hawaii State Democrat Party send letters of support to the appropriate committees and legislators; and

BE IT FURTHER RESOLVED, that the Hawaii State Democrat Party, also encourage members to present written and, or, oral testimony when possible to the appropriate committees and legislators, and

BE IT FURTHER RESOLVED, that certified copies of this resolution be transmitted to the Hawaii State Democrat Party Board of Directors: and

BE IT FURTHER RESOLVED, that certified copies of this resolution be made available upon request to all members of the Hawaii State Democrat Party.

17.  The Hawaiian Affairs Caucus of The Democratic Party of Hawaii, at their General Membership meeting on Monday, January 14, 2013, voted unanimously “to support the concept of a Hawaiians Only Pu`uhonua.”  Ohana Ho`opakele was invited to share our concept of a Pu`uhonua to about thirty people.  Fifteen of the voting members of the caucus voted unanimously to support the Hawaiian Only Pu`uhonua.

18.  Wording of the Ohana Ho`opakele Kahea, which to date 1119 people have signed on:  (Please see the names and organizations of the signers at www.ohanahoopakele.org)

We support the mission of `Ohana Ho`opakele (To Rescue the Family) in establishing Pu`uhonua (decentralized wellness centers—residential and non-residential) on all islands as an alternative to building more prisons.  Pu`uhonua are places open to all, not just Kanaka Maoli, where traditional ho`oponopono process of making right will be used to help heal individuals, families and communities.  We believe Pu`uhonua centers are for the good of all Hawai`i’s people and can provide real hope in saving money reducing recidivism, crime prevention, and long-term positive change.

19.  In the “Summary of the Pu`uhonua Summit Discussions”, November 2-3, 2012, Mr. Palikapu Dedman is quoted, “Alter the environment of the Hawaiian and you alter the Hawaiian.”  (P. 2).  The environment of the Hawaiian has been radically altered by the arrival of foreigners to its shores and especially by the presence of the United States of American through its military force and imposition of its laws forming the Territory of Hawaii and the State of Hawaii.  The best short-term solution to heal pa`ahao is through the positive development of a model Pu`uhonua at the site of the previous Kulani Honor Camp.

20.  The Native Hawaiian Justice Task Force Report, in its Key Findings, under “The disproportionate representation of Native Hawaiians in the criminal justice system” writes:

“The general perception in the Native Hawaiian community is that the criminal justice system is broken.  There has been ongoing, tremendous frustration in the Native Hawaiian community regarding the disproportionate representation of Native Hawaiians in the criminal justice system.” (P. 8)

Among its Key Recommendations, under “Restorative justice practices and their application to Native Hawaiians” is:

“The State should recognize and support community and grassroots efforts that promote indigenous cultural practice models demonstrated to be successful in Hawai`i or elsewhere.”

21.  Marilyn Brown & Sarah Marusek, in “`Ohana Ho`opakele: The Politics of Place in Corrective Environments” discussed the Office of Hawaiian Affairs 2010 report:

“At virtually every decision point in the system, the report notes, racial disparities continue to mount so that the indigenous people of Hawai`i, who make up roughly 24 percent of the adult population, comprise 39 percent of the State’s prisoners.”  In a footnote on this sentence is added, “Keahiolalo-Karasuda argues that the current proportion of Native Hawaiians in prison is far above that acknowledged by the Department of Public Safety.” (Quoting from Keahiolalo-Karasuda, R.  2008.  The colonial carceral and prison politics in Hawai`i. Honolulu: University of Hawai`i at Manoa.)

CONCLUSION:  Ohana Ho`opakele strongly urges the Proposed Action to read:

The Department of Public Safety, State of Hawai`i (PSD) together with Ohana Ho`opakele and other restorative justice groups, proposes to reactivate (reopen) developed portions of the 280-acre Kulani Correctional Facility closed in 2009, and develop it as a model Pu`uhonua for Hawaiians only to accommodate approximately 200 inmates.

If the final Environmental Assessment is not willing to accept this change, Ohana Ho`opakele concludes that the Draft Environmental Assessment is woefully inadequate and requests an Environmental Impact Statement be done.  If this is not done, Ohana Ho`opakele requests a Contested Case Hearing be held on this land and project.