As a State of Hawai‘i government agency, the Office of Hawaiian Affairs comes under the Sunshine Law. The purpose of the sunshine law is to provide public input and oversight for board and commission meetings of the State of Hawai‘i government. The State of Hawai‘i Office of Information Practices (OIP) oversees compliance to the Sunshine Law, which is a criminal statute.

According to the OIP Guide to the Sunshine Law for State and County Boards, “the intent of the Sunshine Law is to open up governmental processes to public scrutiny and participation by requiring state and county boards to conduct their business as openly as possible. The Legislature expressly declared that ‘it is the policy of this State that the formation and conduct of public policy—the discussions, deliberation, decisions, and actions of governmental agencies—shall be conducted as openly as possible.’”

All meetings of the Office of Hawaiian Affairs Board of Trustees (BOT) must be open to the public and the BOT must accept testimony, both written and oral, at its meetings. The BOT, however, can hold meetings that are not open to the public, which are called “executive meetings.” Executive meetings can only be convened for eight reasons: licensee information, personnel decisions, labor negotiations/public property acquisition, consult with Board’s attorney, investigate criminal misconduct, public safety/security, private donations, and State/Federal law or court order.

The OIP Guide states, that in order to “convene an executive meeting, a board must vote to do so in an open meeting and must publicly announce the purpose of the executive meeting. Two-thirds of the board members present must vote in favor of holding the executive meeting, and the members voting in favor must also make up a majority of all board members, including members not present at the meeting or membership slots not currently filled. The minutes of the open meeting must reflect the vote of each board member on the question of closing the meeting to the public.”

The BOT, however, could hold an “emergency meeting” that does not require notification with the Lieutenant Governor’s office and agenda only if there’s “an imminent peril to the public health, safety, or welfare.”

The OIC Guide states, “A willful violation of the Sunshine Law is a misdemeanor and, upon conviction, may result in the person being removed from the board. The Attorney General and the country prosecutor have the power to enforce any violations of the statute.”

As reported by Larry Geller of the Disappeared News.com, there is no evidence that the BOT complied with the Sunshine Law and that the BOT’s meeting in Washington, D.C., where the Trustees voted to rescind the CEO Dr. Kamana‘opono Crabbe’s letter to Secretary of State Kerry, was held in secret. Information is now surfacing that there was no meeting of the BOT in Washington, D.C., and consequently if there was no meeting then there could have been no votes. The only evidence to confirm that a meeting was held is to have minutes of the meeting that would signify each of the Trustee’s votes and the discussion that preceded it. Furthermore, in order for this meeting to be in compliance with the Sunshine Law, the Lieutenant Governor’s office was supposed to have been notified six days in advance with the agenda for the meeting that was supposed to have been open to the public. But the Lieutenant Governor’s office has no record that any meeting took place in the month of May.

If there was to be a meeting, which we know there wasn’t, the Chairperson of the BOT could have convened an “special meeting” in Washington, D.C., where there existed an unanticipated event that requires a board to take immediate action. On this matter, the OIC Guide states that a “board may convene a special meeting with less than six calendar days’ notice because of an unanticipated event when a board must take action or a matter over which it has supervision, control, jurisdiction, or advisory power.” However, as confirmed by Mr. Gellar of Disappeared News.com, the Lieutenant Governor’s office has no record that notice of the May 9, 2014 BOT meeting was filed, thereby signaling a clear violation of the Sunshine Law and calling into question the validity of the May 9, 2014 BOT meeting and all actions allegedly discussed and voted on by the BOT.

On May 13, 2014, the Lieutenant Governor’s office received a request from OHA Trustee Colette Y. Machado, Chairperson, Board of Trustees announcing an “Executive Session” meeting of the BOT for Monday, May 19, 2014, to “consider appropriate action with respect to the conduct of Dr. Crabbe,” and “questions and issues pertaining to the Board’s powers and duties under its governance initiate.” This is an executive meeting not open to the public.

The glaring problem with having this closed “executive meeting” is that it required an open “meeting” first. According to the Sunshine Law, “two-thirds of the board members present must vote in favor of holding the executive meeting, and the members voting in favor must also make up a majority of all board members,” and that “the minutes of the open meeting must reflect the vote of each board member on the question of closing the meeting to the public.” If there was no open meeting in Washington, D.C., to begin with, how could Trustee Chairwoman Colette Machado call for an “executive meeting” without first having a open meeting? Simply answered, she can’t because there was never a meeting to begin with.

Further complicating this issue for the BOT is that the Sunshine Law was directly addressed in an open meeting at the Office of Hawaiian Affairs on January 13, 2014. The issues centered on the commercial development of Kaka‘ako and whether or not actions taken by the Board violated the Sunshine Law. Former Associate Justice of the Hawai‘i Supreme Court and now BOT Counsel, Robert Klein, made the following statement to the Board’s open meeting of the Committee on Beneficiary Advocacy and Empowerment, which are reflected in the minutes. All nine of the Trustees were present.

Minutes of January 13, 2014:
Board Counsel Klein shares that there are a few exceptions. We operate on the principle that if you have two trustees, you’re fairly safe in not filing agendas for meetings between the two. The whole point of the sunshine law is to give notice to the public; if you’re having something that resembles a meeting (a quorum of Trustees that are meeting about anything).

In the case where you have two trustees who are meeting, in most situations that is way short of a quorum. Whatever they’re discussing, as long as they’re not trading votes or making arrangements on a certain issue, you’re not going to run afoul of the sunshine law.

When you get to three trustees, you need a special exemption. Many boards and commissions have 5 members, so when you have 3 together, you have quorum. However, this is a large board where there are 9 of you, so you don’t have a quorum until there are 5 you; so 3 is a safe number. The question is whether you can find an exception in the sunshine law for 3 trustees to meet together and when you look at the sunshine law there are certain exceptions called “Permitted Interactions” and what that means is you can have interactions with 2 or more trustees short of a quorum as long as you’re not trading votes and deciding things away from the public eye.

Under these circumstances the legislature has provided for exceptions. In this situation, the only exception that potentially applies is the exception where two or more but less than a quorum of trustees meet to discuss or negotiate a point that the trustees as a whole in public have already agreed to be the position of OHA and that commission or committee of the Board is moving forward running with the proposal already approved in public by the trustees.

Trustee Chairwoman Machado cannot claim ignorance of the Sunshine Law and nor can all nine of the Trustees. The actions taken by the Board in Washington, D.C., clearly was in violation of the Sunshine Law. The irony of the whole situation is that the May 9 letter to Secretary of State Kerry attempting to rescind the CEO’s letter of inquiry, which has all nine signatures of the Trustees, is the evidence of the violation of the Sunshine Law. As such, this would consequently render the Trustees’ letter to Secretary of State Kerry “void” because it stemmed from a direct violation of the law itself.

Trustees Dan Ahuna and Hulu Lindsey took the right steps in removing their names from the May 9, 2014 rescinding letter because it shows that there was no “willful violation of the Sunshine Law,” which is a misdemeanor, on their part. It would make sense for all of the Trustees to follow their example before its too late.

CORRECTION: It was incorrectly stated that the meeting scheduled for Monday, May 19, 2014, was an executive meeting closed to the public. The meeting is an open meeting, but a portion of the meeting would be closed to the public. Since the closed meeting is an extension of the original violation of the Sunshine Law that took place in Washington, D.C., the Monday meeting is illegal.

Disappeared News.com reports “OHA apparently violated state Sunshine Law with secret meeting(s) in Washington, DC”

Tuesday’s Star-Advertiser reported a meeting of OHA trustees held in Washington DC at which the trustees discussed a letter sent to U.S. Secretary of State John Kerry by OHA Chief Executive Officer Kama­na‘o­pono. The trustees then voted to send a rescinding letter:

“After learning about the letter Friday while on business in Washington, OHA trustees voted unanimously to fire off another letter to Kerry rescinding Crabbe’s letter, explaining that it doesn’t reflect the position of the board.” [Star-Advertiser p. A1, OHA executive defends letter to Kerry, 5/13/2014]

It appears that whatever meetings the OHA trustees may have held in Washington, or any meetings since that time, were held in secret—that is, no agendas were filed in advance with the Lieutenant Governor’s office, and no public notice appears to have been given.

I attempted to call OHA Chair Colette Machado, but was routed to voicemail, so I checked instead with the Lieutenant Governor’s office. They were able to confirm that no notice is on record with them, a requirement of the Sunshine Law.

The calendar page for the OHA Board of Trustees on the eHawaii.gov website shows no events for the entire month.

I learned yesterday that someone has filed a complaint on the same issue with the Office of Information Practices. Today, since telephone contact with the Chair was not successful, I faxed a request for any agendas that might have been filed, and a request for minutes of the meetings.

Stay tuned.

Although a board or commission may be traveling outside of Hawaii, the responsibility for complying with the Sunshine Laws still holds. Otherwise, boards could (for example) escape to Vegas and hold meetings outside of public scrutiny. So it’s appropriate that someone filed a complaint, and I don’t mind that they beat me to it.

[Thanks to the astute Disappeared News reader who called this to my attention. I’ll have to admit that in reading the article, I was drawn to the significance of the letter to Kerry and didn’t notice that the trustee meeting might itself be illegal under state law. OHA is a state agency and subject to open meeting and open records laws.]

KITV News reported “OHA CEO defends decision citing risk management”

HONOLULU —“I take this responsibility very, very seriously,” said Kamana’opono Crabbe, chief executive officer of the Office of Hawaiian Affairs during a morning news conference.

Flanked by his chief financial officer and other Native Hawaiian scholars and lawyers, Crabbe defended his decision to send a letter to Secretary of State John Kerry without consulting with OHA trustees first.

The letter asked for a legal opinion to clarify whether Hawaii’s sovereignty is recognized under  international law.

“It is imperative for us to move forward to have at least accurate information, and truth so that our people can make well-informed decisions,” said Crabbe.

The rift went public when OHA trustees asked to have the letter rescinded, although at least two trustees, Dan Ahuna and Carmen Hulu Lindsey, are now siding with Crabbe.

The Hawaiian community is in the process of political self-determination. The deadline for signing up for the Native Hawaiian Roll in order to be counted ended May 1.

“A well-informed decision may be, in our Hawaiian community, is that we need to stop this whole process until these questions are answered. There are reasonable questions to ask of the right authority,” said attorney Dexter Kamiama.

But this internal clash has trustees scrambling for damage control.

Supporters of OHA’s CEO were out in force Monday. Although Crabbe says he has not been asked to resign, some fear he may lose his job over this.

“Over 800 Hawaii residents have signed on to this petition we simply want to support pono leadership and we feel Dr. Crabbe has embodied that,” said University of Hawaii professor Kamana Beamer.

OHA Chairwoman Collette Machado said she sent a two-page letter to staff outlining the difficult position Crabbe’s letter has put the office in.

OHA chairwoman Collette Machado said trustees will meet with Crabbe next week to talk about the letter and the breach of process and take appropriate action.
Machado said Crabbe disrespected the trustees, Hawaii lawmakers and the 125,000 native Hawaiians who signed the roll.

Former Gov. John Waihee who heads the Native Hawaiian Roll Commission said he does not believe this rift will affect the process.

He said the next step is to verify the signatures on the roll and to elect delegates to a convention, something he hopes is still possible.

Maui Now.com reports “OHA to Host Two Maui Meetings Amid Nation Building Concerns”

Two meetings are planned on Maui following public concerns raised over a letter sent from the top executive at the Office of Hawaiian Affairs to the US Department of State, seeking an opinion on the legal status of Hawai‘i under international law.

Kamana‘opono Crabbe, Ka Pouhana and CEO at the Office of Hawaiian Affairs submitted the formal request to US Secretary of State John Kerry, “as part of the organizationʻs broader effort to facilitate a Hawaiian nation-building process.”

Crabbe explained in a press release statement that the action was prompted by a presentation and panel discussion last month that featured former Hawai‘i Governor John Waihe‘e, III, Chairman of the Native Hawaiian Roll Commission, senior Law Professor Williamson Chang, and Dr. Keanu Sai, a political scientist.

“The presentations of Professor Chang and Dr. Sai provided a legal analysis of the current status of Hawai‘i that appeared to undermine the legal basis of the Roll Commission, and, as alleged in the panel discussions, the possibility of criminal liability under international law,” Crabbe said in a press release.

Crabbe continued saying, “These matters have raised grave concerns with regard to not only the Native Hawaiian community we serve, but also to the vicarious liability of myself, staff and Trustees of the Office of Hawaiian Affairs, and members of the Native Hawaiian Roll Commission. The community we serve, the Trustees, and many of my staff members, to include myself, and the members of the Roll Commission are Native Hawaiians, who are direct descendants of Hawaiian subjects of the Hawaiian Kingdom.”

In a press conference held on Monday, Crabbe said, “I continue to believe my decision to send the letter was in the best interest of OHA and the beneficiaries we serve. I stand behind this decision and accept full responsibility for it.”

Maui Trustee Carmen Hulu Lindsey wrote a formal request on Monday asking that her name be removed from a letter in which trustees of the Office of Hawaiian Affairs rescinded Crabbe’s letter sent to the Secretary of State.

Lindsey said she called Crabbe and listened to his account of what transpired, and said, “I am now confident that he acted in good faith and with the powers vested in him as CEO to safeguard the interests of those we serve.”

She continued saying, “I have attended the many community town hall meetings OHA has held throughout the islands and heard the concerns articulated in Dr. Crabbe’s letters expressed by several people.  While those questions may be troubling and difficult to address, it is precisely because they are so that I now believe Dr. Crabbe demonstrated courage and integrity in moving those concerns forward to try to get the clarity we need.”

In conclusion, she stated that, “I regret the circumstances that led me to allow my name to be added to a letter that I now believe was sent off without adequate reflection and discussion among the trustees.”

Native Hawaiians on Maui will get an opportunity to provide feedback to the Office of Hawaiian Affairs at a community forum as well as a regular meeting scheduled by the Board of Trustees this week.

The community meeting is designed for OHA officials to listen to concerns and highlight efforts to improve conditions within Hawaiian communities.  That meeting will take place at 6:30 p.m. on Wednesday, May 14, 2014, at the Waiola Church Hall on Waineʻe Street in Lahaina.

The Board of Trustees meeting will be held the following day at 9 a.m. on Thursday, May 15, 2014, at the Cameron Center Auditorium in Wailuku.

Both meetings are open to the public.

KHON News reports “Embattled OHA official receives community support“

Controversy continues to grow at the Office of Hawaiian Affairs (OHA).

Last week, the CEO of OHA, Kamanaopono Crabbe, sent a letter to U.S. Secretary of State John Kerry asking for legal clarification on the issues surrounding the re-building of a Hawaiian nation. Crabbe said that “the Hawaiian community needed to know that I was inquiring about the very matters they sought to bring forward.”

But OHA trustees quickly rescinded the letter, essentially scolding Crabbe by claiming he exceeded his powers.

But now members of the Hawaiian community are coming to Crabbe’s defense with an online petition.

“There’s been over 1,100 people that have signed on in a little over two days,” said Dr. Kamana Beamer of the University of Hawaii. “We have about a thousand Hawaii (signees), as well as (those from) 19 other countries.”

Beamer supported Crabbe’s decision to ask for legal clarity when it comes to Hawaiian independence.

“What is the status of the Hawaiian kingdom under international law? We’re not committed to any particular outcome per se, but we feel like we need to get these questions addressed so we can make informed decisions in the future,” he said.

All nine OHA trustees had originally signed a letter asking that Crabbe’s inquiry to the State Department be rescinded, although trustee Dan Ahuna wanted his signature be removed a day later, in support of Crabbe.

“All sides agree, Hawaiian independence, sovereignty, is a complex issue,” said trustee Colette Machado via a teleconference call. “This is just the latest in discussions that have been going on for years.”

Crabbe’s supporters say he did the right thing.

“When’s the last time that you’ve heard that the conversation is about doing the right thing, about the pono thing,” said University of Hawaii student Donovan Preza. “For me, that’s the takeaway from this experience.”

From the Office of Hawaiian Affairs website

Kamana‘opono Crabbe, the Ka Pouhana and CEO at the Office of Hawaiian Affairs, held a press conference today to address much-publicized concerns over a letter he sent to U.S. Secretary of State John Kerry as part of the organizationʻs broader effort to facilitate a Hawaiian nation-building process.

Below are the prepared comments of Dr. Kamana‘opono Crabbe.

—

Prepared Comments of Dr. Kamana‘opono Crabbe
Office of Hawaiian Affairs Ka Pouhana and CEO
Press Conference of May 12, 2014
(Spontaneous comments were also provided in addition to what is noted below.)

Aloha mai kākou,

I called this media conference today to offer additional information about my letter to U.S. Secretary of State John Kerry, which was sent within my authority under OHA’s governing documents and Hawai‘i statutory law.

As with any leader, I am often called upon to make tough decisions, which are sometimes controversial. I continue to believe my decision to send the letter was in the best interest of OHA and the beneficiaries we serve. I stand behind this decision and accept full responsibility for it.

As Ka Pouhana and CEO of the Office of Hawaiian Affairs, I must ensure that the policies and commitments of the OHA Board of Trustees are implemented with thorough due diligence and a minimization of risk to the Office of Hawaiian Affairs. I take this responsibility seriously. And that was the chief reason for my inquiry with Secretary Kerry.

As stated in the media release sent out this past Friday, I requested that U.S. Secretary of State John Kerry seek a legal opinion of the Office of Legal Counsel regarding the status of Hawai‘i under international law. I also posed additional questions to clarify how the answer to that primary question impacts current efforts to rebuild a Hawaiian nation.

Answers from the Office of Legal Counsel are needed for OHA to effectively facilitate a process of rebuilding a Hawaiian nation. We must start with agreed upon facts (or begin identifying points of disagreement that require clarification).
Highly qualified experts have provided their answers to the questions posed. However, the stakes are far too high for OHA to proceed under assumptions. We need clarity to understand the United States’ position.

A second reason for my questions to Secretary Kerry stems from our Hawaiian community. My staff and I have held some 30 community meetings in the past two months regarding our proposed process to rebuild our nation. In that same period we also held two governance summits with key community leaders. At these gatherings, and in other virtual contexts, we heard repeatedly concerns about engaging in a process of rebuilding a nation when—following the research of many legal, historical, and political experts—our nation continues to exist in the context of international law.

Such concerns have led our community to request more time in the nation rebuilding process to have questions—such as I raised with Secretary Kerry—fully explored and shared with our people so that they can make well-informed decisions throughout the process.

The Board of Trustees, OHA staff, and the Hawaiian community needed to know that I was inquiring about the very matters many of them sought to bring forward. And this is the reason I felt it was imperative not only that I ask the questions but that everyone be aware of the inquiry.

However, recognizing the gravity of the questions posed, I met with Chair Machado before making the letter public. I explained that my questions were a matter of due diligence and risk management to avoid OHA missteps in its nation rebuilding facilitation. I believed I had her assent to proceed with sharing publicly my letter to Secretary Kerry. Unfortunately, it is now apparent that we walked away from that meeting with a misunderstanding and misinformation.

Despite disagreements that will need to be worked out between myself and OHA’s trustees, I am certain that the Board and I stand firmly together in our commitment to do all that we appropriately can to reestablish a Hawaiian nation. I look forward to engaging with the trustees in the ho‘oponopono, which Chair Machado graciously suggested, so that we can work collectively to Ho‘oulu Lāhui Aloha, to Rebuild a Beloved Nation. We must succeed in our efforts for the good of our lāhui, our community, and our families for generations to come.

Videographer Pono Kealoha uploaded this video of OHA CEO Dr. Kamana‘opono Crabbe’s press conference on the morning of May 12, 2014 at the headquarters of the Office of Hawaiian Affairs.

Hawaii News Now reports “Hawaiian Affairs CEO moving forward after letter”

HONOLULU (HawaiiNewsNow) – Does the Hawaiian Kingdom still exist? That’s the question the CEO of the Office of Hawaiian Affairs wants answered by the U.S. Justice Department.

His inquiry has sparked an internal dispute within OHA, as several trustees have attempted to rescind the request, but he’s standing by his decision and now a few trustees are switching sides and backing him as well.

Dr. Kamanaʻopono Crabbe addressed the public today for the first time since submitting a formal request to Secretary of State John Kerry seeking clarification on the legal status of the Kingdom of Hawaiʻi.

Flanked by dozens of supporters, Dr. Crabbe held a press conference Monday morning to clarify the intent of his inquiry, which he says was sent within his authority under OHA’s governing documents and Hawai’i statutory law.

He says the chief reason for requesting that Secretary Kerry seek a legal opinion of the U.S. Attorney General regarding the status of Hawai’i under international law is to ensure OHA can effectively facilitate a process of rebuilding a Hawaiian nation.  Dr. Crabbe went on to say highly qualified experts have provided their answers to the questions posed, but it would be irresponsible for OHA to assume the United States views the situation similarly.

“My staff and I have held some 30 community meetings in the past two months regarding our proposed process to rebuild our nation. In that same period we also held two governance summits with key community leaders. At these gatherings, and in other virtual contexts, we heard repeatedly concerns about engaging in a process of rebuilding a nation when — following the research of many legal, historical, and political experts — our nation continues to exist in the context of international law,” Dr. Crabbe said.

Dr. Crabbe says he made the inquiry because these claims appear to be valid, but for over 120 years, Native Hawaiians voices and concerns have not been properly answered.

“It is imperative for us to move forward to have at least accurate information and truth so that our people can make well informed decisions,” Dr. Crabbe said.

Among the questions Dr. Crabbe asked in his letter to Secretary Kerry:

“First, does the Kingdom of Hawaiʻi, as a sovereign independent State, continue to exist as a subject of international law?
Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?”

Experts say these are questions that have come up for decades, since the illegal overthrow of the Kingdom of Hawaiʻi in 1893 and since the U.S. government formally apologized for the illegal overthrow in 1993, but supporters say this is the first time the State Department has ever been asked point blank for an answer.

OHA’s CEO says his inquiry is not intended to invalidate the nation-building efforts of Kanaʻiolowalu but to make sure self-determination is achieved legally and with no unanswered questions.

“I can only imagine the burden that our Queen Lili’uokalani faced in 1893, but her charge and her legacy, and most of all, her spirit remains with us today, but most of all we must heed not only her guidance but each other,” Dr. Crabbe said.  “For we are all Natives.  We are patriots.  We are sons and daughters of this great land and as we move forward let not the differences divide us, but let our common beliefs and values and the principals of our kupuna unite us.  That is the call I ask from our people, from our trustees and our staff as we move forward in unity,” said Dr. Crabbe.

Only one trustee was present at Monday morning’s press conference, Oswald Stender.  Dr. Crabbe addressed the disagreement that exists between himself and OHA’s trustees since they learned of his inquiry, but says he has not been asked to resign or step down from his position as CEO.

“I continue to believe my decision to send the letter was in the best interest of OHA and the beneficiaries we serve,” said Dr. Crabbe. “The Hawaiian community needed to know that I was inquiring about the very matters they sought to bring forward.  And this is the reason I felt it was imperative to not only ask the questions but that the community be aware of the inquiry.”

Initially, all nine trustees signed a letter asking Secretary Kerry to rescind Dr. Crabbe’s inquiry, which was sent by OHA Chair Colette Machado Friday afternoon.

However, over the weekend Trustee Dan Ahuna sent another letter to Secretary Kerry — this time, asserting his support for Dr. Crabbe’s initial inquiry.

“It clearly appears that Dr. Crabbe is carrying out his fiduciary authority of due diligence in gathering evidence needed to make decisions as the Chief Executive Officer of the Office of Hawaiian Affairs,” Ahuna wrote.  “It is the best interest of our people to gather further information and pertinent documents.”

Immediately following Dr. Crabbe’s press conference Monday morning, Trustee Carmen Hulu Lindsey sent a letter to Chair Machado asking her name be removed from the rescind request.

“I have attended the many community town hall meetings OHA has held throughout the islands and heard the concerns articulated in Dr. Crabbe’s letters expressed by several people.  While those questions may be troubling and difficult to address, it is precisely because they are so that I now believe Dr. Crabbe demonstrated courage and integrity in moving those concerns forward to try to get the clarity we need,” Lindsey wrote.

More than 1,200 people have signed He Mana’o Pono, a petition in support of Dr. Crabbe’s State Department request since Saturday.

“Really what we’ve sought in that letter of support is first to honor Dr. Kamana’opono Crabbe and the position that he’s taken and really bringing to the forefront questions that have plagued our community for generations.  We’re not committed to any particular answers to those questions or outcome , but we are committed to having those questions asked,” said said Dr. Kamanamaikalani Beamer, a law professor with the University of Hawaiʻi at Manoa.  “Hawaiʻi is at a pivotal time.  We need facilitative leadership.  We need people that are going to bring our communities together and I feel like answers to these questions and clarifications will help and I want to support a leader that listens to our people.”

“Those are important questions — some of which are coming out of the University right now.  This is cutting edge research on the legal political history of Hawaiʻi that I think is prompting a new kind of awareness in the community.  What you’ve seen the CEO do today is respond to that new awareness — this new curriculum, this new education and research that’s coming out of the university,” said Dr. Willy Kauai, a UH Manoa lecturer in the Ethnic Studies department.  “I think what’s paramount in what took place today was kind of a call for education that, ʻEh, if we’re going to go about doing these important things, such as nation-building, we should probably have a very clear understanding of our own history’.”

Hundreds have commented on the petition.

“The truth can only be hidden from the world for so long. People in positions of power and policy making who have a conscience must speak out to the truth and challenge those who continue to perpetuate the lie that Hawaiʻi is a state of the USA.  Kamanaʻopono Crabbe is another champion in our history of leaders to step forth and question what is perceived to be the truth.  Mahalo nunui e Kamanaʻopono and to all who continue to keep the fire alive!” one supporter wrote.

“As a person of non-Hawaiian ancestry, I stand in solidarity with the statement of support by He Mana’o Pono.  It has been over 100 years of illegal occupation by the US goverment of these sovereign islands and it is high time the US government obliged to its obligations under international law as an occupying power, to uphold the Hawaiian constitution until such time as to the end of said occupation,” wrote another who signed the petition.

In a statement from OHA Chair Colette Machado sent to Hawaii News Now and all of the OHA staff, Machado writes she agrees Dr. Crabbe “has identified important questions that have been asked by many advocates for Hawaiʻi’s independence throughout the decades since the illegal overthrow of our Queen”, but says his actions “by-passed our Hawaiian legislators who have worked diligently, against great odds, to protect our Native Hawaiian trusts, programs, lands and entitlements.  They also sponsored and promoted Act 195 for the Kanaʻiolowalu roll.”

“I believe that the action pursued by Ka Pouhana demonstrates a lack of respect for the over 125,000 Native Hawaiians who registered to participate in the process,” Machado wrote.

According to Machado, an executive session will be held to address the trustees concerns with Dr. Crabbe next week at which time they will “initiate an investigation of the breach of established processes” and decide on a strategy to have the questions Dr. Crabbe raised addressed “without affecting the Kanaiʻiolowalu process and OHA’s commitment to facilitating a process to reorganize a Native Hawaiian Governing Entity.” Machado says the trustees will take “appropriate action” following their meeting.

Statement of Chair Colette Machado – http://bit.ly/1onwhim

Chair Machado’s Message to all OHA – http://bit.ly/1onwkdW

Here is a copy of Dr. Crabbe’s address from Monday morning’s press conference in its entirety:

Prepared Comments of Dr. Kamana’opono Crabbe 
Office of Hawaiian Affairs Ka Pouhana and CEO Press Conference of May 12, 2014 

Aloha mai kakou, 

I called this media conference today to offer additional information about my letter to U.S. Secretary of State John Kerry, which was sent within my authority under OHA’s governing documents and Hawai’i statutory law.  As with any leader, I am often called upon to make tough decisions, which are sometimes controversial. I continue to believe my decision to send the letter was in the best interest of OHA and the beneficiaries we serve. I stand behind this decision and accept full responsibility for it.

As Ka Pouhana and CEO of the Office of Hawaiian Affairs, I must ensure that the policies and commitments of the OHA Board of Trustees are implemented with thorough due diligence and a minimization of risk to the Office of Hawaiian Affairs. I take this responsibility seriously. And that was the chief reason for my inquiry with Secretary Kerry. 

As stated in the media release sent out this past Friday, I requested that U.S. Secretary of State John Kerry seek a legal opinion of the U.S. Attorney General regarding the status of Hawai’i under international law. I also posed additional questions to clarify how the answer to that primary question impacts current efforts to rebuild a Hawaiian nation. 

Answers from the U.S. Attorney General are needed for OHA to effectively facilitate a process of rebuilding a Hawaiian nation. We must start with agreed upon facts (or begin identifying points of disagreement that require clarification).  Highly qualified experts have provided their answers to the questions posed. However, it would be irresponsible for OHA to assume that the United States views the situation similarly. The stakes are far too high for OHA to proceed under assumptions. 

A second reason for my questions to Secretary Kerry stems from our Hawaiian community. My staff and I have held some 30 community meetings in the past two months regarding our proposed process to rebuild our nation. In that same period we also held two governance summits with key community leaders. At these gatherings, and in other virtual contexts, we heard repeatedly concerns about engaging in a process of rebuilding a nation when-following the research of many legal, historical, and political experts-our nation continues to exist in the context of international law. Such concerns have led our community to request more time in the nation rebuilding process to have questions– such as I raised with Secretary Kerry– fully explored and shared with our people so that they can make well-informed decisions throughout the process. 

The Hawaiian community needed to know that I was inquiring about the very matters they sought to bring forward. And this is the reason I felt it was imperative not only that I ask the questions but that the community be aware of the inquiry. 

However, recognizing the gravity of the questions posed, I met with Chair Machado before making the letter public. I explained that my questions were a matter of due diligence and risk management to avoid OHA missteps in its nation rebuilding facilitation. I believed I had her consent to proceed with sharing publicly my letter to Secretary Kerry. Unfortunately, it is now apparent that we walked away from that meeting with a misunderstanding and misinformation. 

Despite disagreements that will need to be worked out between myself and OHA’s trustees, I am certain that the Board and I stand firmly together in our commitment to do all that we appropriately can to reestablish a Hawaiian nation. I look forward to engaging with the trustees in the ho’oponopono, which Chair Machado graciously suggested, so that we can work collectively to Ho’oulu Uihui Aloha, to Rebuild a Beloved Nation.

We must succeed in our efforts for the good of our lahui, our community, and our families for generations to come.

HONOLULU (AP) – The chief executive of the Office of Hawaiian Affairs said Monday he’s moving forward after a disagreement with the organization’s trustees over seeking clarification on the legal status of the Hawaiian Kingdom.

But CEO Kamanaopono Crabbe told reporters Monday he stands behind a letter he sent to U.S. Secretary of State John Kerry last week that sought a legal opinion on whether the kingdom continues to exist under international law.

“I continue to believe my decision to send the letter was in the best interest of OHA and the beneficiaries we serve,” Crabbe said.

The request revealed divisions within the state agency that has a mission of protecting Native Hawaiians and perpetuating Hawaiian culture.

After Crabbe revealed the letter on Friday, all nine trustees signed a different note to Kerry saying Crabbe’s letter didn’t reflect their position or that of the agency.  On Monday, one trustee, Dan Ahuna, mailed yet another letter to Kerry reversing his position, removing his signature from the trustees’ letter and giving his support to Crabbe.

Crabbe, speaking at a news conference with nearly 100 supporters at the agency’s headquarters in Honolulu, said he thought he had the blessing of the board’s chairwoman, Colette Machade, before sharing the letter with the public.  He said he believes answers to the questions in the letter are crucial for moving forward withpursuing a Native Hawaiian governing entity.

Machado, who was in meetings on Molokai on Monday, did not immediately return a message seeking comment from the Associated Press.

Crabbe said the board took a position, and it’s his role to implement that decision.  “We are currently moving forward,” he said.

Crabbe said he had had several discussions with a majority of the board’s nine trustees and looked forward to meeting with them again next week.  “They have not asked me to resign,” he said.

In his original letter, Crabbe wrote that he was concerned with an analysis by scholars alleging the federal and state governments were illegal regimes.  The scholars said Office of Hawaiian Affairs trustees and Native Hawaiian Roll Commission members may be criminally liable under international law.

Crabbe said he would ask trustees to put off pursuing a Native Hawaiian governing entity until they confirmed the kingdom doesn’t exist under international law.

Crabbe said supporters of building a governing entity should continue their discussions.

“Remain vigilant and to be aware and to participate regarding their choice,” he said.  “That’s what this is all about.”

KITV News reported “OHA CEO explains disagreements with trustees: Crabbe stands behind letter to Kerry seeking legal opinion”

HONOLULU —The chief executive of the Office of Hawaiian Affairs explained to the media on Monday a disagreement with the organization’s trustees over seeking clarification on the legal status of the Hawaiian Kingdom.

CEO Kamana’opono Crabbe told reporters Monday he stands behind a letter he sent to U.S. Secretary of State John Kerry last week, seeking a legal opinion on whether the kingdom continues to exist under international law.

After revealing the letter, all nine trustees signed a different note to Kerry saying Crabbe’s letter doesn’t reflect their position or the agency’s.

“The Hawaiian community needed to know that I was inquiring about the very matters they sought to bring forward,” said Crabbe.  ‘And this is the reason I felt it was imperative not only that I ask the questions but that the community be aware of the inquiry.”

Crabbe says he thought he had the blessing of the board’s chairwoman before sharing the letter publicly.  He says he believes answers to the questions in the letter are crucial for moving forward with pursuing a Native Hawaiian governing entity.

“Despite disagreements that will need to be worked out between myself and OHA’s trustees, I am certain that the Board and I stand firmly together in our commitment to do all that we appropriately can to reestablish a Hawaiian nation,” said Crabbe.

Here follows the letter Office of Hawaiian Affairs CEO Kamana‘opono Crabbe submitted to the Department of State dated May 5, 2014. What will be gleaned from the letter itself is that the CEO was well within his vested power to seek clarity on the question of the continued existence of the Hawaiian Kingdom.

After the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe submitted a formal request to Secretary of State John Kerry seeking clarification on the legal status of Hawai‘i under international law, all nine OHA Trustees yesterday signed a letter to the Secretary of State, stating:

“We understand that you received a letter from Office of Hawaiian Affairs Chief Executive Officer Kamana‘opono M. Crabbe, PhD dated May 5, 2014. The contents of that letter do not reflect the position of the Board of Trustees of the Office of Hawaiian Affairs or the position of the Office of Hawaiian Affairs. That letter is hereby rescinded.”

Did the Trustees even read Dr. Crabbe’s letter? How do you rescind a letter that seeks clarification for risk management purposes. You can’t. The only person that can rescind the letter is the CEO himself, and only when the risks identified have been found to not be risks in the first place. Another word for this is fiduciary duty.

This morning’s front page article in the Star-Advertiser reported that Trustee Chairwoman Colette Machado said “Crabbe exceeded his authority as chief executive officer that requires him to consult the board on such matters.” Is Dr. Crabbe’s request for clarification a management issue or a board issue. Does the CEO need Board approval to ask questions? What is the position of the Board of Trustees of the Office of Hawaiian Affairs? We don’t want clarification? The so-called rescind letter is not only odd, but it is disingenuous and has nothing to do with Dr. Crabbe’s letter. It also raises the question of who is pulling the strings.

After carefully reviewing Dr. Crabbe’s letter, he did not state or even imply that he was taking any position on whether or not the Hawaiian Kingdom continues to exist. He merely sought clarification on a legal issue that the Department of Justice’s Office of Legal Counsel is more than capable of answering. If there is any position taken by Dr. Crabbe its responsible management and the well-recognized principle “risk management.” His letter begins with:

“As the chief executive officer and administrator for the Office of Hawaiian Affairs, being a governmental agency of the State of Hawai‘i, the law places on me, as a fiduciary, strict standards of diligence, responsibility and honesty. My executive staff, as public officials, carry out the policies and directives of the Trustees of the Office of Hawaiian Affairs in the service of the Native Hawaiian community. We are responsible to take care, through all lawful means, that we apply the best skills and diligence in the servicing of this community. It is in this capacity and in the interest of the Office of Hawaiian Affairs I am submitting this communication and formal request.”

The performance of risk assessment begins with identification of risks. Once the risk or risks have been determined the management can choose to avoid the risk, reduce the risk, share the risk or retain the risk. After the option is made, management then calls for a plan for contingencies, create safeguards, and, lastly, to monitor.

Dr. Crabbe has clearly taken the path to avoid the risk by seeking clarification from the State Department and the Department of Justice’s Office of Legal Counsel.

From his letter he specifically states the risks began to surface when one of his executive managers attended a presentation and panel discussion at the University of Hawai‘i Law School featuring former Hawai‘i governor John Waihe‘e, III, senior Law Professor Williamson Chang and political scientist Dr. Keanu Sai. The law student chapter of the American Constitutional Society sponsored the presentation. Dr. Crabbe provided Secretary of State Kerry an online link to view the video of the law school presentation.

https://vimeo.com/92655472

Crabbe wrote, “The presentations of Professor Chang and Dr. Sai provided a legal analysis of the current status of Hawai‘i that appeared to undermine the legal basis of the Roll Commission, and, as alleged in the panel discussions, the possibility of criminal liability under international law. Both Professor Chang and Dr. Sai specifically stated that the Federal and State of Hawai‘i governments are illegal regimes that stem from an illegal and prolonged occupation by the United States as a result of the illegal overthrow of the Hawaiian Kingdom government. As a government agency of the State of Hawai‘i this would include the Office of Hawaiian Affairs, and by enactment of the State of Hawai‘i Legislature, it would also include the Roll Commission. Both Act 195 and U.S. Public Law 103-150, acknowledges the illegality of the overthrow.”

Here are some quotes from senior Law Professor Chang:

“The power of the United States, over the Hawaiian islands, and the jurisdiction of the United States in the State of Hawai’i, by its own admissions, by its own laws, doesn’t exist.  And so that means that ever since the 1898 annexation of Hawai’i, by a Joint Resolution, they say, we have been living a myth.” (3:01 min/sec.)

“If you don’t have legal power over a territory, you’re governing without jurisdiction.” (4:20 min/sec.)

“…there’s no treaty between the United States and Hawai‘i by which Hawai‘i was acquired by the United States…” (4:41 min/sec.)

“A joint resolution, as an act of Congress, cannot acquire another country …If the United States could acquire Hawai‘i then the House of Nobles and the Legislative Assembly of Hawai‘i could acquire the United States.” (4:54 min/sec.)

“If two sovereigns are equal … one cannot acquire the other by its own laws.” (5:17 min/sec.)

“If Congress cannot, by Joint Resolution in 1898, acquire Hawai‘i unilaterally, it cannot do so in 1959.” (9:42 min/sec.)

“So in short, the United States by its own hands admits that it didn’t acquire the Hawaiian Islands, and all those Hawaiians, who have been saying the United States doesn’t have jurisdiction, have been right.” (11:25 min/sec.)

“So the annexation, that we all admit that nothing can be achieved without the United States going along with it, that’s the 900 lbs. elephant in the room. But we have to come in with the best leverage we have, and the best leverage we have is a hundred years of being lied to, being misrepresented, being told that we were part of the United States, and that has been legally false.” (17:19 min/sec.)

“…we’re all in this boat together in this journey of knowledge, and when I talk about the state of emergency, being the United States, how it is able to govern us for a hundred years without putting guns to our heads, it’s us.  We’re the problem, the law school is the problem. Why, because judges and lawyers have a duty of candor and truth. Judges, on their own, have to tell the courts, tell the attorneys that there is no jurisdiction.  It’s a duty of zealous representation for attorneys to present the best defense, and isn’t it the best defense that there’s no jurisdiction.” (1:36:41 hr/min/sec.)

Here some quotes from political scientist Dr. Keanu Sai:

“Without a treaty, the United States has enacted “internal laws,” by its Congress, imposed in Hawai‘i…1898 Joint Resolution of Annexation, 1900 Territorial Act, 1959 Statehood Act, 1993 Joint Resolution of Apology for the 1893 Overthrow” (1:37:17 hr/min/sec.)

“Now the first and foremost restriction imposed by international law upon a State is that it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” (1:36:53 hr/min/sec.)

“military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.” (1:13:19 hr/min/sec.)

Even former governor and chairman of the Native Hawaiian Roll Commission Waihe‘e was in agreement with Dr. Sai’s analysis that Hawai‘i is not a part of the United States. Waihe‘e told the audience:

“I have absolutely no doubt that Hawai‘i is in an illegal occupation, I have absolutely no doubt. I mean, you’ve got to be illiterate not to finally get to that point.” (1:19:04 hr/min/sec.)

Can a CEO of the Office of Hawaiian Affairs take this lightly, especially when the Chairman of the Native Hawaiian Roll Commission himself stated he has no doubt that Hawai‘i is occupied and that you’ve got to be illiterate to not see it. Dr. Crabbe correctly states:

“These matters have raised grave concerns with regard to not only the Native Hawaiian community we serve, but also to the vicarious liability of myself, staff and Trustees of the Hawaiian Affairs, and members of the Native Hawaiian Roll Commission. The community we serve, the Trustees, and many of my staff members, to include myself, and the members of the Roll Commission are Native Hawaiians, who are direct descendants of Hawaiian subjects of the Hawaiian Kingdom. And as a State of Hawai‘i governmental agency, it would also appear that I am precluded from seeking any opinion on the veracity of these allegations from our in house counsel or from the State of Hawai‘i Attorney General, because there would appear to exist a conflict of interest if these allegations are true.”

Dr. Crabbe then provided the questions he’s seeking to be answered as part of the process of risk management.

• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?

• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?

• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?

• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”

Dr. Crabbe’s conclusion in his letter clearly speaks to risk management and his determination to avoid the risk of criminal liability under international law. He stated, “While I await the opinion from the Office of Legal Counsel, I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom, as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have not incurred any criminal liability in this pursuit.”

At no point has Dr. Crabbe taken a position for the Office of Hawaiian Affairs and nor has he taken a position of whether the Hawaiian Kingdom continues to exist. He’s seeking clarification from a federal agency who is more than capable of providing the answers. As chief executive officer, Dr. Crabbe is responsible for the protection of the staff at the Office of Hawaiian Affairs, which includes the Trustees, and to the Native Hawaiian community OHA serves. The Trustees’ so-called rescind letter is a blatant attempt to undermine the very duty Dr. Crabbe was appointed to do as the CEO of the Office of Hawaiian Affairs. The Trustees’ do not manage the Office of Hawaiian Affairs, the CEO does.

The irony is that Dr. Crabbe’s request for clarification is to protect the Trustees, even from themselves.

HONOLULU (HawaiiNewsNow) – Does the Kingdom of Hawai’i exist today — and are we all subject to its rules? Those questions have triggered an internal dispute within the Office of Hawaiian Affairs.

OHA’s Chief Executive Officer created a firestorm Friday when word spread he sent a letter to the Secretary of State asking for an official opinion on whether the Hawaiian Kingdom still exists as an independent sovereign state under international law.  Problem is, it appears no one else at OHA knew about or agreed with the letter, stirring an internal controversy that has raised concerns the inquiry could derail or delay Kana’iolowalu nation-building efforts.

Officials confirm the letter was quietly sent out on Monday by OHA CEO Dr. Kamana’opono Crabbe, in which he requested a formal legal opinion from the Justice Department.

“I will be requesting approval from the Trustees of the Office of Hawaiian Affairs that we refrain from pursuing a Native Hawaiian governing entity until we can confirm that the Hawaiian Kingdom  as an independent sovereign State, does not continue to exist under international law and that we, as individuals, have no incurred any criminal liability in this pursuit,” Crabbe wrote.

OHA Chair Colette Machado tells Hawaii News Now she and fellow trustees only learned of the letter Friday afternoon.

“Our whole goal is to establish a Native Hawaiian governing entity and we are very close in achieving that.  The Trustees fully support this, that’s why we’re quite surprised — how did our Chief Executive Officer not understand this by sending the letter to the state Department especially to the Secretary John Kerry?  That’s why we had to respond quickly on a unanimous position to rescind that letter, because it is not an official position of OHA,” Machado said by phone from Washington, D.C., where she and Crabbe are attending a meeting about the upcoming World Conference on Indigenous Peoples at the invitation of the Department of State.

All nine trustees signed off on retracting the letter, which Machado confirms has already been sent to the Department of Justice.

“I want to assure the Hawaiian people that the Board of Trustees has not changed its position towards facilitating a process to reorganize a Native Hawaiian governing entity,” Machado said.

Native Hawaiian Roll Commission Chair, former Governor John Waihe’e, says he was also surprised by the letter.

“For all of us that know our history, there’s no doubt in our mind that the government of Queen Lili’uokalani was illegally overthrown and that the United States annexation of Hawaii was not done properly, was not done legally.  In fact, this was admitted by the United States Congress when they passed the resolution — the apology resolution — in 1993.  Any of us that know our history, know that we don’t need to ask anybody, know whether or not any of these things were proper — what we need to do is go about organizing ourselves and beginning to assert our own self governance.  I don’t know what motivated Kamana’opono to do this, but personally I think it’s sort of disempowering.  It’s a disempowering tactic to ask for permission to pursue your own destiny,” Waihe’e said.

More than 125,000 people have signed up for Kana’iolowalu to pursue a Native Hawaiian self-governing entity, an effort which OHA is financing.

“That’s more people than all the labor unions in Hawai’i combined,” said Waihe’e.  “As far as we’re concerned, the Roll Commission is concerned, we’re still proceeding forward.”

Hawaii News Now was unable to reach Dr. Crabbe directly Friday.  Officials confirm he scheduled a press conference for next week Monday to explain the inquiry, but now that the trustees have rescinded that letter it’s unclear if the press conference will still be happening.

To view Dr. Crabbe’s request letter, click here.

HONOLULU (AP) – Office of Hawaiian Affairs CEO Kamanaopono Crabbe says he will seek approval from the agency’s trustees to refrain from pursuing a Native Hawaiian governing entity.

Crabbe says the agency would put nation building efforts on hold until officials are able to confirm the Hawaiian Kingdom doesn’t continue to exist under international law.

Crabbe outlined his proposal in a May 5 letter to Secretary of State John Kerry. The agency released a copy of the letter Friday.

The letter says an analysis from scholars alleging federal and state governments are illegal regimes has raised concerns. The analysis says OHA trustees and Native Hawaiian Roll Commission members may be criminally liable under international law.

Crabbe is asking the State Department to request an opinion from the Justice Department’s Office of Legal Counsel.

HONOLULU — Office of Hawaiian Affairs CEO Kamanaopono Crabbe says he will seek approval from the agency’s trustees to refrain from pursuing a Native Hawaiian governing entity.

Crabbe says the agency would put nation building efforts on hold until officials are able to confirm the Hawaiian Kingdom doesn’t continue to exist under international law.

Crabbe outlined his proposal in a May 5 letter to Secretary of State John Kerry. The agency released a copy of the letter Friday.

The letter says an analysis from scholars alleging federal and state governments are illegal regimes has raised concerns. The analysis says OHA trustees and Native Hawaiian Roll Commission members may be criminally liable under international law.

Crabbe is asking the State Department to request an opinion from the Justice Department’s Office of Legal Counsel.