Musings: Moral Issues

The world at 4 a.m. was silent, clear, calm and star-studded, but by 6 a.m. all celestial objects had disappeared, covered with thick, gray clouds blown in by a strong, chill wind that also delivered smatterings of fine rain. And now, an hour later, it is golden, the rising sun sparkling through branches and leaves tossing in the gusty trades as meadowlarks and shama thrushes warble, trill and sing.

What a difference even a short passage of time can make!

It took only an hour or so for attorneys on both sides of the so-called “ceded” lands issue to argue their cases before the U.S. Supreme Court, although gauging from the transcripts, they spent most of their allotted time answering questions from the Justices.

Reading through, I was struck by the way the Justices touched on the issue of moral vs. legal claims to the land, and also how the attempt by some to turn this into a race-based issue doesn’t seem to hold much weight here:

JUSTICE BREYER: And all we can say is that this Resolution of the Apology doesn't really say who's right. And if Hawaii wants to give some more money, or whatever they want to do, to the Native Hawaiians, that's their affair. What's the -- what's the problem?

MR. BENNETT: Well, Your Honor, it is certainly true that the Apology Resolution does not as Respondents state recognize the validity of any claims, but federal law forecloses the validity of any claims. And we believe that that is a question that is fairly included interior to the question of whether the Resolution stripped Hawaii of its sovereign authority. It's only natural for the Court to declare what we believe is the indisputable proposition that Hawaii's sovereign authority is based on --

JUSTICE BREYER: Could the Hawaiian Legislature pass a law saying that the Native Hawaiians have claims? Those claims, because of the Federal 1950 -- whatever it is -- are not valid any more. But that was pretty unfair to them. And, therefore, what we think we should do is the following. And then they pass a whole lot of things that they think would be appropriate to do in light of what I just said. What stops that?

MR. BENNETT: Your Honor, the -- legislature has wide discretion in managing and disposing of the assets.

JUSTICE GINSBURG: And the legislature, if they had wanted to -- as I understand the Admission Act, it lists five purposes to any one purpose. And the legislature, if it so chose, could say, we want this property -- the proceeds from this property to be for the exclusive betterment of the conditions of the Native Hawaiians. They could. It would be up to the legislature to give it all to the Native Hawaiians.

MR. BENNETT: That would not violate the Admission Act, Your Honor.

JUSTICE SCALIA: That -- that would not?

MR. BENNETT: That would not.

JUSTICE SCALIA: Would it violate the Admission Act if the legislature had not said -- said we are giving it to them because we want to, because we think it's a good idea. No, we are giving it to them because we think they have a right to it.

MR. BENNETT: Your Honor-

JUSTICE SCALIA: And we feel that we must give it to them because it's theirs.

MR. BENNETT: Your Honor, the --

JUSTICE SCALIA: Would that violate the Admission Act?

MR. BENNETT: The legislature believed that it bettered the condition of Native Hawaiians to provide proceeds from land to the Native Hawaiians. The Admission Act gives them that ability to do it.

JUSTICE SCALIA: Did you answer my question just then?

MR. BENNETT: Yes. I'd -- I'd like to --

JUSTICE SCALIA: Please, let me put my question again. Let's assume that the legislature does not say, we want to give it to the Native Hawaiians because we like the Native Hawaiians or because we think they deserve it; but, rather, we think we have to give it to the Native Hawaiians because it's theirs.

MR. BENNETT: I think that would be contrary to Federal law, Your Honor.

JUSTICE SCALIA: I think it would be.

This is interesting because previously, Bennett was reported as saying:

“The Hawaiian people have a moral claim to the land, but not a legal one,” Mr. Bennett said. “These decisions are committed to the discretion of Congress, whether or not it is immoral.”

So if everybody agrees it's a moral issue, and the Justices say it’s OK for the Lege to give the kanaka the land because we like them and they deserve it, but not because they have a legal claim, then why not just do the right thing that way? Independence advocates don’t put any stock in state or federal legal claims to the land anyway, saying that's a matter of international law, because you can't expect an imperial power to act impartially or fairly toward its colony.

Yet some still hold out hope that Americans, who orchestrated and then sanctioned the seizure of these lands, will somehow now do the right thing. As the Star-Bulletin poignantly reported:

OHA Trustee Colette Machado said on the courthouse steps that the bottom line is fair compensation for the lands taken away from the Hawaiian kingdom.

"We want justice to be done," Machado said, wiping away tears. "We stand for our queen, who went home empty-handed, and from there the overthrow took place and she was imprisoned."

Will the kanaka again come away from the American system empty-handed? I guess we’ll know in June, when the High Court is expected to issue its decision. In the meantime, the Lege can still act to put a moratorium on ceded land sales, although I'm not sure that's likely, either, given how they're dawdling.

A subject that is decidedly not a moral issue, no matter how much the religious right tries to make it one, is the civil union bill. I appreciated The Garden Island’s report today on how Kauai legislators voted on the measure. Gary Hooser and Mina Morita are indeed rare gems in the political world. To quote Gary:

“I think it’s the right thing to do. It’s overdue. It’s a fundamental value to protect the rights of people in the community who have been discriminated against,” he said. “If this bill passes, it means people will be treated equally and I believe that’s my responsibility. It’s in our constitution and this bill would accomplish that.”

And Mina:

Asked if she had done any informal polling of her constituents or weighed letters or e-mails she’d received when formulating her position, Morita said, “I think this is one issue, because it involves individual rights, it should not be gauged on polling. This isn’t a decision based on popularity. This is a question of civil rights, which government protects.”

Now compare that to Jimmy Tokioka:

Asked if representatives ever vote against public opinion if they feel passionate about an issue, Tokioka said, “That happens all the time. You take your personal conviction and it may not reflect the wishes of your district, but there are bills like this, the Superferry and gambling that you’d better make sure you check with the community before you vote.

“Especially on big issues like this, they want to know how you feel,” he said. “This is a big one.”

Yes, Jimmy, it’s a big one, so you’d best make sure you play it safe and don’t step on any toes, especially since you're eyeing that State Senate seat.