> 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?
> (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.
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.
> 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)?
] 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.
] 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 .
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.
] 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.
> We make special accommodations for the exercise of religion, like the use of peyote above.
But here we're not giving Native Hawaiians extra permissions. Instead, we're taking away permissions from everyone else. If we were just giving them extra permissions, then I wouldn't be nearly as upset about this.
> You aren't a member of the Native American Church so you aren't allowed to use peyote, even for non-drug religious ceremonies.
The difference is that peyote was already illegal, and Native Americans got an exception to be allowed to use it. Now imagine an alternate reality in which peyote used to be legal for everyone, and then Native Americans said it was a sacred plant to them, so the law should be changed to prevent anyone else from possessing any. That's what this decision feels like to me.
> 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.
If the committee only had power over other Native Hawaiians, then again, I'd be fine with this. The issue is that they're making rules for the rest of us. They now get to tell us "building a telescope on this mountain is against my religion, so you can't do it."
> 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.
Yes, the Constitution applied even before statehood. My point was that if the people living there didn't want it to apply to them, they would have asked for independence instead of asking for statehood.
> But here we're not giving Native Hawaiians extra permissions. Instead, we're taking away permissions from everyone else. If we were just giving them extra permissions, then I wouldn't be nearly as upset about this.
The argument is that customary practices they enjoyed were taken away from them.
Therefore your objection does not apply.
Similar to how some indigenous people in the Arctic have special permission to hunt whales, or how some Native Americans may possess eagle feathers.
Plus, we've seen how Neo-Druids have right to worship at Stonehenge, and that's a relatively new cultural tradition.
> My point was that if the people living there didn't want it to apply to them, they would have asked for independence instead of asking for statehood.
Annex a kingdom, move in a bunch of non-indigenous people until they are a large majority, then hold a vote on statehood. The majority wants statehood.
And you think that's deeply meaningful way to understand how to treat the minority population whose country was stolen from them though a coup d'état which occurred with the active participation of agents and citizens of the United States?
Surely the results of the 1978 Constitutional Convention give a stronger indication of what Hawaiian self-determination means in this regard.
> Similar to how some indigenous people in the Arctic have special permission to hunt whales, or how some Native Americans may possess eagle feathers.
> Plus, we've seen how Neo-Druids have right to worship at Stonehenge, and that's a relatively new cultural tradition.
Again, all of those special permissions are fine since they can be granted without making it illegal for the rest of us to do things that were previously legal. A better comparison would be if the neo-Druids were given exclusive right to visit Stonehenge.
The new Hawaii law doesn't grant practitioners of Native Hawaiian cultural traditions the exclusive right to visit or use Maunakea. They now have a seat at the table, rather than having decisions be the exclusive right of the University of Hawaii.
Anyone used to be able to whale. Now it's illegal in the US except for Alaska Natives and the Makah of Washington State.
The University of Hawaii does not own the Mauna Kea Science Reserve. The owner is the State of Hawaii, who leased it to UH in 1968.
The owner of a piece of land can generally decide to switch to another steward, which is what happened here.
So far every issue you've raised seems to at odds with established legal precedent and common practice, and some drastically misunderstand history or, if true, would totally destroy the remaining Native American treaty rights.
To be clear, I'm pretty ignorant about these topics as well. But it's not hard to research, which is what I did for my answers.
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?