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The Public Lands Development Corporation (PLDC):
The future(s) of Hawai’i’s ‘ceded’ lands
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Ua mau ke ea o ka aina i ka pono
The life of the land is perpetuated in righteousness (Hawaii State motto)
On July 1, 2011, SB1555, also known as Act 55, officially became law in
Hawai’i. This bill created what was to be known as the Public Lands
Development Corporation, the PLDC for short. With a stated mission to “create a
vehicle and process to make optimal use of public land for the economic,
environmental, and social benefit of the people of Hawaii,” (“SB1555.pdf,” p. 1)
the newly formed PLDC was given direct access to some 1.8 million acres of
Hawai’i’s ceded lands and tasked to engage private partners in developing these
lands to in order to produce a profit for the Department of Land and Natural
Resources. The language of the bill exempted this corporation from all standard
development processes including the need to apply for building permits, follow
established land use codes and indicted no structure for public input or dispute
relating to which lands would be developed. The charter of the corporation called
for a total of five individuals to oversee all operations. Three of these slots were
designated to government appointed Directors from three government agencies:
the Department of Business, Economic Development and Tourism; the
Department of Budget and Finance; and the Department of Land and Natural
Resources. The remaining two members were also to be appointed, one by the
speaker of the House of Representatives, and one by the president of Senate.
There was no provision for public election or oversight of any of the PLDC
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directors. State lands, private partnerships, no public input and no public
oversight.
The 1.8 million acres in question are those lands that were the ‘crown
lands’ belonging to the Hawaiian monarchy prior to Hawai’i’s forced annexation
by the United States government in 1898. When Hawai’i officially became a state
in the American union in 1959, these ‘crown lands’ were automatically and
forcibly transferred to the United States government in trust with the expressed
purpose that they be used for the benefit of the public, specifically the Native
Hawaiian people. At that point the lands ceased being referred to as ‘crown’
lands and began being referred to as ‘ceded’ lands. The implication that the
lands were ‘ceded’ to the U.S. and the ultimate ownership or trusteeship of these
lands is highly contested, not least because the historical overthrow of the
Hawaiian Kingdom is considered by many to be illegal and illegitimate.
Embedded in neoliberal capitalist discourses of enclosure, privatization and
accumulation by dispossession, SB1555/Act55, the bill that created the PLDC, is
the most recent assault in a long line of aggressive maneuvers aimed at
dispossessing Native Hawaiians of their ancestral lands. This state sponsored
process of genealogical erasure was an attempt to advance the processes of
accumulation by dispossession that started with the colonization of the Hawaiian
islands by Europeans. (Harvey, 2003, 45), Invoking discourses of economic crisis
and economic emergency to activate a state of exception, the proponents of
Act55 attempted to push through legislation that would have enabled virtually
uninhibited private development of Hawai’i’s crown lands, in absolute violation of
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their stated trust for the public good of the Native Hawaiian people.
The Meta-Narrative of Empire
Act55 is premised on the argument that the Department of Land and
Natural Resources (DLNR) should remedy its declining budget through the
private development of public lands. To justify this discourse, the authors of the
bill portray the lands in question as underutilized. “The legislature finds that
certain public lands under the jurisdiction of the department of land and natural
resources are not used effectively. Public lands in certain areas may serve the
State and its people better if managed and developed into suitable recreational
and leisure centers where the public can congregate and where visitors to our
State can go as part of their holiday experience.” (“SB1555.pdf,” p. 1) Positioning
the lands as ‘underutilized,’ undesirable, decaying the proponents of the bill
aimed to activate a process that David Harvey terms “accumulation by
dispossession.” This process of territorialization has its roots in colonial
imperialism and has historically enabled the “extraction of tribute from the
colonies in some of the most oppressive and violently exploitative forms of
imperialism ever invented.” (Harvey, 2003, 45) In the late-20th and early-21st
centuries, the political project of accumulation by dispossession has continued to
flourish under the guise of privatization of the public sphere(s). In neoliberal
terms, “Devalued capital assets can be bought up at fire-sale prices and
profitably recycled back into the circulation of capital by overaccumulated
capital.” (Harvey, 2003,150) This process relies upon the logics philosopher
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Giorgio Agamben’s ‘state of exception’ whereby extraordinary state powers are
legitimized through a sense of crisis, allowing the state of exception to be
normalized in service of empire (Agamben, 2003). In the case of the PLDC, the
logics of exception were activated through discourses of economic emergency
and failing infrastructure.
This meta-narrative of modern empire, which is not exclusive to Hawai’i,
must be understood as a ‘new enclosure movement.’ As Harvey explains, “The
corporatization and privatization of hitherto public assets…that has swept the
world, indicate a new wave of ‘enclosing the commons,’” whereby “the power of
the state is frequently used to force such processes through even against
popular will.” (Harvey, 2003) The PLDC charter enabled privatized development
on public lands with virtually no public oversight and spectacular exemptions
from the normal development procedures:
projects pursuant to this chapter shall be exempt from all statutes,
ordinances, charter provisions, and rules of any government agency
relating to special improvement district assessments or requirements; land
use, zoning, and construction standards for subdivisions, development,
and improvement of land; and the construction, improvement, and sale of
homes thereon;
(sb1555.cd1.pdf, 29)
In a matter of 36 pages of legislative language, this new entity was given the
keys to the kingdom.
The PLDC’s capacity for nepotism and corruption became almost
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immediately transparent. In hindsight, the genealogy of Act55 is plagued with
serious mismanagement and a series of back room dealings that repeatedly
subverted democratic process. The original bill was focused on public education
and finding profitable use for the land beneath public schools that have been
closed down. In a series of revisions, what is known in legislation as ‘gut and
replace’, the text of the bill changed drastically as it passed through different
committees in the legislature. On February 8th 2011, DLNR director William Aila
presented testimony on a version of the bill, which referred to “limited issuance of
commercial use permits for vessels in Ala Wai and Keehi harbors” as the PLDC’s
stated mission. Meanwhile, language buried deeper in the text revealed that all
DLNR lands would be opened to public-private partnerships with the objective to
develop “commercial uses; hotel, residential, and timeshare uses; fueling
facilities; storage and repair facilities; and seawater air conditioning plants.”
(Arnie, statehoodhawaii.org, 2011) At the 11th hour, the bill’s hyper-aggressive
development language was inserted with barely time for appropriate reading and
review before a vote had to be cast by legislators.
One of the first people to sound the alarm bells about Act 55 and the
PLDC was blogger and political activist Ian Lind. On June 22, 2011, after the bill
was passed but before it became law, Lind wrote, “DBEDT [Department of
Business and Economic Development and Tourism] director Richard Lim’s recent
speech at a meeting of the Hawaii Economic Association spelled out his view
that public lands represent a significant resource and opportunity for private
development. Now a bill signed into law by Governor Abercrombie provides
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muscle to move Lim’s vision towards reality.” (Lind, 2011) Lim himself depicted
the ceded lands in question as a ‘drain’ on state resources, representing
‘underutilized facilities’ in a ‘state of disrepair.’ (Lind, 2011) Richard Lim was to
be one of the five people appointed to the first board of the PLDC.
Roots of Imperialism
Jodi Byrd writing of Captain Cook’s “discovery” of the Hawaiian islands in
the late 18th century, explains how the Captain “exemplified the magical thinking
of European imperialism that sought to resurrect “discovered” lands into imperial
ownership.” (Byrd, 2011) It was this same ‘magical thinking’ that led multiple
legislators and supporters of the PLDC to believe that 1.8 million acres of land,
land that was once set aside for the King himself, could be portrayed as a ‘drain’
on resources, a commodity to be reabsorbed into the cycle of capital
accumulation and developed for profit without public oversight.
When Neil Abercrombie was elected to the office of Governor of Hawaii in
2010, he released a plan called A New Day for Hawaii. Filled with language of
equity, transparency and responsibility to the public good, A New Day for Hawaii
portrays Abercrombie as a politician concerned with the plight of the weak, a
champion of the environment and an advocate for open government. And yet,
just two years prior, Abercrombie gave his testimony to Congress regarding the
Akaka Bill and exposed a decisively imperialist perspective. The Akaka Bill was
legislation that would have created a process of federal recognition for Native
Hawaiians. Opponents of the bill argued that such a process of recognition would
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complicate Native Hawaiian claims to the illegality of overthrown and diminish the
building momentum towards more legitimate sovereignty. As Jon Goldberg-Hiller
argues, “the grand projects of recognition and apology fail to resolve historical
violence in forms acceptable to many native Hawaiians because of the
constraints of the legal form in both alternatives, a legality that has served as a
tool of colonization and subordination.” (Hiller, 2011, 485) What Goldberg-Hiller
makes clear in this argument is that legal processes such as apology for past
violence and recognition for native peoples can be important in establishing
rights and precedence, as we will see later, but that these legal frameworks
alone do not erase the prejudices, the violence, the memory, the loss of culture
experienced and they can not be viewed as wholly sufficient redress for the
legacy of colonialism. We still live in a material world and there are material
resonances that we inherit as a result of our colonial heritage. One very
importance material resonance is land ownership. There are many wealthy
missionary families in Hawai’i whose family fortunes are built upon the legacy of
colonialism and lands received as a result of indigenous dispossession. And the
‘crown’ lands of the State of Hawai’i are a critical resonance of the colonial
experience as well as a tool for expanding imperialist agendas. It almost seems
as though Abercrombie’s testimony before Congress resonates directly from Jodi
Byrd’s interpretation of the field of indigenous politics when she says that
indigenous critical theory aims to “make visible what imperialism and its resultant
settler colonialisms and diasporas have sought to obscure.” (Byrd, 2011, xxx) At
the Akaka Bill testimony in 2010, then representative Abercrombie sat with a
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smug smile on his face and stated:
The 1.8 million acres [of crown lands] essentially were seen [at the time of
the overthrow] as something the merchant bankers didn’t need. So, the
1.8 million acres weren’t seen as worth anything…we’ll just give that to the
Hawaiians, nobody wants it, there’s no water, there’s no infrastructure,
there’s nothing useful to anyone who wants to make money out of it so
we’ll give that to the Native Hawaiians. Now, come to 2010, how would
you like to have 1.8 million acres of land in Hawaii today (laughter from the
audience)… when you get right down to the nitty gritties of all of this, this
has nothing to do with the constitution, this has nothing to do with race,
this has to do with assets, land and money.
(http://www.youtube.com/watch?v=1gs-pKQHP7I&feature=youtu.be)
The specific issue of race that Abercrombie mentions is in reference to a case
brought before the Hawai’i Supreme Court by Harold “Freddy” Rice in 1996. Rice
claimed to be the victim of discrimination based on race because at that time only
Native Hawaiians were allowed to cast votes in the election of trustees to the
Office of Hawaiian Affairs (OHA). OHA presides over some 200,000 acres of
public lands, known as homestead lands, for the benefit of the Hawaiian people.
In Rice v. Cayetano the logic of discrimination was used to argue that Native
Hawaiians were enacting injustices upon the non-Native citizens of Hawai’i. R.
Hokulei Lindsey argues that contrary to Rice’s claim of discrimination, “The State
of Hawai'i does not hold these lands as a state would hold public-domain lands. It
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has been argued that the State has only ‘naked’ title to the ceded lands and
holds these lands as a trustee. Because ‘Congress has recognized . . . that
Native Hawaiians are beneficiaries of the illegally taken Ceded Lands,’ native
Hawaiians hold a property interest analogous to that of American Indians,
whereby the government holds land "for the benefit of all members of the tribe."
(Lindsey, 2009, 225) This critical distinction of the ‘ceded’ lands as lands in trust
to be used expressly for the benefit of all Native Hawaiians runs entirely counter
to the logic of the PLDC.
The Great Mahele
The historical process of land division at the heart of the ‘ceded lands’
debate is known as The Great Mahele. The Great Mahele of 1848 and
subsequent Kuleana Act of 1850 were both greatly contested events fraught with
complex and highly politicized historiographies. Prior to these two landmark
events, land in the Kingdom of Hawai’i had for generations been divided among
the people in a system known as the Ahupua’a land tenure system. Each island
was divided into pie shaped sections, which today we know were based upon
naturally occurring boundaries such as streams or ridgelines. Within each
Ahupua’a there was everything that one would need to survive from the
mountains to the ocean. A konohiki, or member of the elite, would be appointed
by the Ali’i, royalty, to preside over a given Ahupua’a and all the commoners
within that division would have different kuleana or areas of responsibility. The
fruits of the land and sea were shared in common and if a konohiki was not doing
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their job well they could be forced to move by the commoners of the area. This
subsistence based, communal form of land tenure allowed the Hawaiian people
to flourish until the arrival of the Europeans.
The Great Mahele of 1848 was a land division by decree of the King that
broke up the old system and created a new system more akin to the European
notion of private property. Professor Jonathan Osorio has argued that the Mahele
“was a foreign solution to the problem of managing lands increasingly empied of
people,” as a result of epidemics brought by colonizers and low birthrates. (Silva,
2004, 41) In most accounts, the Mahele is understood as an attempt by the ruling
monarchy to update their traditional land division system to a more ‘modern’
process. The essential outcome of the process was a new division of land
previously held in common among Ali’i (royalty), their appointed konohiki
(headman of a land division) and the maka’ainana (commoners). Notably there
were many foreigners who also benefitted from this division lands previously held
in common. Dr. Noenoe Silva explains that prior to the Mahele, “the ali’i ‘ai moku,
now the mo’i of the entire archipelago, had interests in all lands; the appointed
konohiki had interests in all lands under their control; and the maka’ainana had
interests in the lands that they worked.” (Silva, 2004, 41) This commonly held
responsibility for the land was (and is) a core ontology of the Native Hawaiian
cosmogrophy.
Dr. Umi Perkins’s work on the kuleana titles granted during the Great
Mahele sheds critical light on the often arbitrary and chaotic nature of the
process. Kuleana in Hawaiian language means ‘right, responsibility or privilege.’
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During and just after the Mahele, the kuleana lands were those lands that
maka’ainana families were granted by the Kingdom based on their geneaological
heritage. Each family had a certain amount of time to claim their lands, but the
process was fraught with miscommunication and inconsistencies. (Perkins, 2013)
Perkins explains that contrary to the general understanding of the Mahele, “the
Government held an undivided right in both the domain and dominium of the
kingdom that comprised roughly four million acres, until individual chiefs of the
Konohiki class divided out their interests and acquired fee simple title in the
domain. The Konohiki class included Kamehameha III in his private capacity,
which has come to be known as Crown Lands.” (Perkins, 2006) These crown
lands are what eventually became the ‘ceded’ lands at the time of the annexation
of Hawai’i by the United States. As Perkins and other scholars have pointed out,
“Because no treaty was ever ratified between the US and the Hawaiian
government (neither the Hawaiian Kingdom nor the illegal Republic of Hawai`i),
the argument could be made that there are no ‘ceded’ lands.” (Perkins, 2006)
The lands that were transferred to the United States government in 1959 when
Hawai’i became a state remain contested. There has been a consistent and
concerted effort to conceal this history. Dr. Noenoe Silva’s work aims to overturn
the normalized histories of the Hawaiian overthrow and the misunderstanding
surrounding Native Hawaiian forms of resistance to occupation. She explains,
“One of the most persistent myths of Hawaiian history is that the Kanaka Maoli
(Native Hawaiians) passively accepted the erosion of their culture and the loss of
their nation.” (Silva, 2004, 1) In fact there was an extensive Native Hawaiian
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resistance to the overthrow, but since much of it was in Hawaiian and through
means such as mo’olelo (song) and dance it has been consistently overlooked by
settler colonial historians and those interested in the expansion of empire. As
Silva argues, “Hawai’i is not a postcolonial but a (neo?) colonial state, and
historiography is one of the most powerful discourses that justifies the continued
occupation of Hawai’i by the United States today.” (Silva, 2004, 9) So, if the
nation of Hawai’i was never officially ceded, as argued by Perkins and others,
and the historiography of Hawai’i conceals a strong native resistance to the
overthrow of the Hawaiian Kingdom, then in fact it can be strongly argued, as
many scholars have done, that the ‘ceded’ lands were never really ‘ceded’ in the
first place.
OHA v. Hawaiian Affairs
The 2008 case Hawaii vs. Office of Hawaiian Affairs, which reached the
Hawai’i Supreme Court further complicates and undermines the legitimacy of the
PLDC. When the state of Hawaii attempted to build a residential development on
the former crown lands on the island of Maui, the Leiali’i parcel, OHA demanded
a disclaimer that preserved any native Hawaiian claims to the land in perpetuity
in exchange for the State’s right to develop it. The state refused and attempted to
proceed without honoring OHA’s demands. OHA sued the State and when the
case reached the Supreme Court of Hawai’i, the justices looked to the Apology
Resolution of 1993 as grounds for their decision to reject the State’s attempt to
remove lands from trust for the purpose of commercial development. In 1993, the
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United States Congress under then President Bill Clinton ‘apologized’ for the
country’s role in overthrowing the Hawaiian monarchy. The Hawai’i Supreme
Court’s ruling established a significant precedent that Kanaka Maoli have an un-
relinquished claim to the crown lands in Hawai’i. (Hawaii v. Office of Hawaiian
Affairs, 2008) As Dr. Jon Goldberg-Hiller argues, the Apology has been itself
contested among Native Hawaiian scholars and activists, “For many who have
turned away from reconciliation efforts through the Apology and the Akaka Bill,
rejection has been aimed at the timing of recognition, the legal fiction of an Indian
nation through which recognition must constitutionally take place, the harms
which are to be apologized for, the English language in which recognition is to be
made and the forums in which justice is to be sought.” (Goldberg-Hiller, 2011,
170) In this case, however, the Apology served to establish a critical legal
precedent, which I argue, thoroughly undermines the legitimacy of the PLDC as
an apparatus of the state.
The PLDC and 21st Century Imperialism
In light of these scholarly arguments and legal histories, I argue that the
attempt to privatize and develop Hawai’i’s crown lands for profit should be seen
as a present day manifestation of imperialism based in neoliberal ideologies and
discourses in line with what David Harvey would call “the cutting edge of
accumulation by dispossession.” (Harvey, 2003, 147) This is a dispossession
couched in the terms of state sovereignty and public good, which in fact aims to
finalize the settler colonial project, started long ago. Proponents of the PLDC
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allege that the organization was created with good intentions and that the
organization’s target would be decrepit and unutilized public spaces for
development. As PLDC primary author and legislator Donavon Dela Cruz
explained, “I think change is a scary thing. But sticking to the status quo is more
frightening. We need to create more opportunities for housing, for economic
development and create a committed revenue stream for DLNR." (Cocke,
civilbeat.com, 2012)
In the 2012 legislative session, as public outrage over the PLDC was
building to a fever pitch, several bills were introduced to limit the powers of the
PLDC. With Dela Cruz on the Senate Committee on Water, Land and Housing,
there was little hope of any of them passing. In fact, in an article for
CivilBeat.com, Sophie Cocke revealed that Dela Cruz had authored five bills that
would enhance and expand the powers of the PLDC, despite his public
assurances to the media that he would not be introducing any legislation related
to the organization. (Cocke, civilbeat.com, 2012) In Fall of 2012, eleven Oahu
Democrats filed a complaint and request for censure against Dela Cruz for his
continued support of various legislation that they said was harmful to the
environment and thus in direct opposition to the Democratic party platform. The
bill that ultimately pushed these legislators to press for censure was SB2927,
which would have given developers a fast-track for both commercial and
residential developments, exempted projects from environmental review and
zoning among a host of other exceptional allowances. (James, civilbeat.com,
2012) With little respect for democratic process and with the speed of modernity
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at his back, Dela Cruz continues to push for an advance of settler colonial
violences and an erosion of the potential for sovereignty, all in the name of
development. As author Choon James, himself a real estate broker for over 20
years, lamented, “With anti-open government legislators like him, who needs
emirs, ayatollahs, sultans, kings, and emperors?” (James, civilbeat.com, 2012)
Saskia Sassen writes of the ‘financialization of non-financial domains’:
“One way of putting it is that capitalism is undergoing a deepening of advanced
capitalism predicated on the destruction of more traditional forms of capitalism.
The financializing of non-financial domains is one such form of deepening.”
(Sassen, 2012, 76) In the PLDC charter, the logics of neoliberal development are
laid bare. With regards to “Public lands optimization projects” the corporation was
tasked to “develop and implement public lands optimization projects where
appropriate public lands may be developed or managed to create appropriate
leisure or recreational areas to create revenue-generating centers or where,
through detailed analysis, opportunities exist to exploit potential local, national,
and international markets.” (SB1555.pdf, 2011) As Gary Hooser of the Kauai
County Council pointed out, Act55 was passed without the required readings in
each House and the public was only given two hours public notice before the bill
was passed into law, clearly violating due process. And while some 80%, of the
lands in question are not on Oahu, there was no neighbor island representation
on the PLDC board. (http://garyhooser.wordpress.com/2013/02/08)
Riddled with ambiguity and rhetoric, Act55 and the PLDC were met with
fierce opposition, most notably from the neighbor islands. Around the state
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multiple protest marches commenced, petitions were signed, and groups like the
Sierra Club set up websites, www.grandtheftaina.com, and Facebook pages to
educate and inform the public about the PLDC. Every neighbor island council
voted to repeal Act 55 in entirety. In the face of intense push-back and the repeal
votes from neighbor islands, Governor Abercrombie continued to support the
legislation, stating in an October 2 article in the Star Advertiser, Hawai’i’s only
major newspaper, that the PLDC “is one of our best opportunities to work
cooperatively and align public and private interests toward the enhancement,
protection, conservation and management of public lands for Hawai‘i’s people.”
(Borrecca, staradvertiser.com, 2012)
As Patrick Wolfe famously wrote, “the road to oppression has consistently
been paved with good intentions.” (Wolfe, 1999, 213) And as he further
postulated, “Settler colonies were (are) premised on the elimination of native
societies…The colonizers come to stay – invasion is a structure, not an event.”
(Wolfe, 1999, 2) The 21st century land grab that was pursued under the guise of
the PLDC is a recent political move in a long and complex history of imperialist
structures including enclosure, colonialism and empire. James Scott writes about
the “illegibility of communal tenure” explaining that in the case of pre-industrial
Europe, “It was claimed, although the evidence is not convincing, that common
property was less productive than freehold property.” (Scott, 1998, 38-39) And
Michel Foucault has attempted to address “the interest of all as opposed to
private interest.” (Foucault, 2007, 355) These and numerous other scholars have
analyzed the tension that exists between public good and the push for
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privatization as a means of advancing empire. In the throes of late late
capitalism, as the need for expanding territory to feed the engine of empire
grows, the reach of capital pushes ever deeper into the public domain. This trend
is worrisome for the future of Hawai’i and the future of the Native Hawaiian
people.
Indigenous Cosmologies
For Kanaka Maoli, the relationship to land runs infinitely deeper than that
of a resource from which to take and profit. Dr. Noenoe Silva explains the
Kanaka Maoli relationship to land as reciprocal, the land takes care of the people
and in return the people take care of the land, or ‘aina. “Land tenure…was based
on obligations as well as bonds of affection.” (Silva, 2004, 40) Silva explains:
Where nationalism and patriotism tend to exalt the virtues of a people or
race, aloha ‘aina exalts the land. It refers to the appreciation of the beauty
of the land, about which both ali’i and maka’ainana have composed
hundreds, perhaps thousands, of songs…but aloha ‘aina goes beyond
love of beauty as well. The Kanaka Maoli have a genealogical, familial
relationship to the land. The islands are said to have been conceived and
born like human beings. (Silva, 2004, 11)
This genealogical relationship with and responsibility to land is absent in the
settler colonial, neoliberal apparatus of the State of Hawaii. Modern discourses of
sustainability and respect for resources remain enmeshed in the networks of a
deep and abiding nature-culture divide that sees the natural world the world of
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man as permanently and wholly separate. The PLDC was a naked attempt to
advance what Umi Perkins has called the project of ‘erasure’, rendering Kanaka
Maoli claims to land and heritage illegible through dissemination and
development.
Building on a foundation of settler colonialism and employing the
neoliberal rhetoric of development as justification for a wholesale land grab, the
authors and proponents of the PLDC participated in the lineage of colonial
violence towards both the Native Hawaiian people and the islands of Hawai’i.
Whether the intentions of the bill were good or not, by situating this piece of
legislation within the global lineages of colonialism, enclosure and privatization, it
is grossly apparent that democracy was suspended in service of expanding the
terrain of empire. Thankfully, the moment of crisis was averted as Act55 was
repealed in April of 2013. But the residues of the politics that envisioned such a
future for Hawai’i remain. As the 2012 and 2013 legislative sessions have shown,
there are still pressures within the state apparatus to privatize and colonize public
spaces. Until there is a paradigm shift in governance and a privileging of the
Kanaka Maoli ontology -aloha ‘aina – love and respect for the land – there will be
continued attempts at dispossession of land, erasure of genealogy and
privatization of the public sphere.
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