The man whose life may have changed the most as the result of the rewriting of the Hawaii Constitution 40 years ago is reminding Hawaii voters that they have another crack at it this year.

But John D. Waihee III, the fourth governor of Hawaii (1986-1994) and the only person of Hawaiian ancestry to govern a state, has “mixed feelings” about whether Native Hawaiians should vote in November in favor of holding another constitutional convention.

Waihee was a young man fresh out of law school in the late 1970s. The “Con Con,” as it is called and where he served as a leading delegate, catapulted him to prominence and sent him into electoral politics.

But Waihee, now 71, is worried that a new constitutional convention might not have the same positive outcomes of the ’78 Con Con, such as the creation of an Office of Hawaiian Affairs.

Chad Blair/Civil Beat

Rather, he warned at a public talk Thursday in Honolulu, opponents of Hawaiian rights might use a new constitutional convention to overturn the laws that have sought to improve the lives of the islands’ indigenous people.

“I think one of the values of the con con is the ability to bring a lot of new people into the political system, and so it will give a lot of people participation,” Waihee said. “So, you know, you get all these civic lessons. But in terms of the substance, if I knew then what I know now, certain provisions would have been written slightly differently.”

A primary example of what Waihee would have tried to change was language applied to the transfer of ceded land revenues from the state to OHA. Ceded lands refers to 1.8 million acres transferred (some say stolen) to the United States at the time of the 1898 annexation. The lands were known as Crown Lands and Government Lands and were owned by the Kingdom of Hawaii.

“I don’t know, maybe this is a dangerous time to put anything back to a vote.” — John Waihee

By law, OHA is entitled to 20 percent of the money from ceded lands for the betterment of Hawaiians. But over the years the quasi-governmental agency has struggled to get what it believes is its fair share.

The ceded land revenue for OHA is currently about $15 million annually. The agency’s funding totals about $55 million. Waihee’s son, John Waihee IV, is an OHA trustee.

Waihee III explained that by inserting four words into the convention amendment regarding OHA’s funding — “as provided by law” — delegates inadvertently “opened the door to the redoing of most of the intentions of what the con con was about.”

In other words, the four words gave leverage to legislators and lawyers seeking to interpret state and federal law in the interest of other groups.

As transformative as the ’78 Con Con was, Waihee argued that Hawaiians have actually lost ground since then. In the Trump era, he said Hawaiians could risk losing more rights under a new constitutional convention.

“I don’t know, maybe this is a dangerous time to put anything back to a vote,” he said.

Talking About A Con Con

Waihee’s talk and the panel that followed, held at the William S. Richardson School of Law, launch a series of “critical dialogues” on the impact of the ’78 Con Con.

The first talk (titled “Hawaii ’78: Where We Went and Where We Go From Here”) was part of the Maoli Thursday series sponsored by the Ka Huli Ao Center for Excellence in Native Hawaiian Law. It was the first of four such talks planned in the coming months.

Waihee is a member of the first graduating class (in 1976) of the law school, named after the late Hawaii Supreme Court Justice. Richardson was known for his strong legal advocacy for Hawaiian culture and rights.

PF Bentley/Civil Beat

Waihee explained the context and backstory of what led to the ’78 Con Con. As moderator Jonathan Osorio, the interim dean of the Hawaiinuiakea School of Hawaiian Knowledge, pointed out, while Hawaiians had little influence in forming the convention, they greatly influenced its final form.

The results, according to Anne Feder Lee’s 1993 book, “The Hawaii State Constitution: A Reference Guide,” included not just OHA’s establishment but a host of other planks that were part of the Hawaiian affairs package.

The amendments “enhanced the Hawaiian Lands rehabilitation program, required the teaching of Hawaiian culture in the public schools, established Hawaii as an official language, protected traditional and customary rights, and limited the use of adverse possession for acquiring title to land,” Lee wrote.

Constitutional status was also granted to the state motto, written in Hawaiian, and the edict of King Kamehameha called the Law of the Splintered Paddle.

Waihee described the time as “wonderful,” even magical.

“This whole idea of Hawaiians seeking justice is permeating into the Hawaiian community now.” — Walter Ritte Jr.

“There was a kind of innocence in the general public,” he recalled. “They wanted to help, they wanted to do stuff, and there was a kind of reluctance to say anything bad about Hawaiians publicly.”

Waihee said there had been no specific provisions for Native Hawaiians prior to the constitutional convention. But two movements in the islands in the 1960s and 1970s — opposition to the Vietnam War and fights over land use — would influence the event.

A third movement, said Waihee, came out of President Lyndon Johnson’s War on Poverty and included the mantra that beneficiaries should run the programs designed to help them.

Labor and establishment interests were also involved in the convention, but it was the groups that were on the “outs” rather than those who were the “ins,” said Waihee, that were able to leverage the ultimate outcomes.

Waihee credited in particular the leadership of the late Frenchy DeSoto, known widely as Aunty Frenchy, and a coalition that came to be known as Palaka Power. DeSoto would later lead OHA.

Restructure, Clarify, Protect

Among the young Hawaiians recruited by DeSoto to work the convention was Walter Ritte Jr. of Molokai.

Now 72, Ritte, a prominent Native Hawaiian activist, sees many of the same forces in the 1970s at play today, forces that are sparking interest in supporting another convention and more.

A growing movement, he said, includes the occupation by Hawaiians of the closed Coco Palms resort on Kauai and the protest over a Maui judge ordering the arrest of a Hawaiian who chose to speak only his native language in court.

Anthony Quintano/Civil Beat

Ritte supports a new convention, and he told the law school classroom audience that Hawaiians need to be prepared in order to prevent other interests from having their way.

“This whole idea of Hawaiians seeking justice is permeating into the Hawaiian community now,” he said, adding that Hawaiians today are far more aware of their history than most Hawaiians were four decades ago.

Ritte then produced a list of things he would like to see happen at a constitutional convention:

Restructure OHA, restructure DHHL (that is, the Department of Hawaiian Homelands), protect KS and LT (Kamehameha Schools and the Queen Liliuokalani Trust), clarify ceded land revenue, clarify Hawaiian language, clarify water rights, clarify access rights, clarify ohana and land rights, protect iwi kupuna, support traditional fish ponds, support traditional loi (taro) cultivation, and protect Iolani Palace.

“We should go over there and charge this thing,” said Ritte. “And if we lose we can always go to international arena and go to the international court. I think we should play it out in this arena.”

That was much the position of the two other panelists, Malia Akutagawa and Kamanamaikalani Beamer, an assistant professor and an associate professor, respectively. Each holds a joint appointment at the UH law school and the Hawaiinuiakea School of Hawaiian Knowledge.

“I personally support total independence,” said Akutagawa, who nonetheless expressed cautious interest in a constitutional convention. “But for me it’s important because I am trained as an attorney to navigate the present system that governs us, whether it’s de facto or de jure, so that we can preserve resources and our ka pae aina (island chain) for future generations.”

Like Akutagawa, Beamer expressed ambivalent feelings about a convention. Like Waihee and Akutagawa, he is worried about eroding what Hawaiians have accomplished. And like Ritte, he said Hawaiians should be prepared in the event that a convention does receive voter approval.

“I think we should all be able to agree that we need to learn to govern.” — Kamanamaikalani Beamer

Beamer said many Hawaiians have only recently come to understand issues such as the U.S. occupation and what actually happened with Hawaii’s annexation. Many are still trying to figure out what it all means for Hawaiians and non-Hawaiians alike.

“At the same time, we do have to — just like Malia said and Uncle Walter said — we’ve got to charge it, we have to be activated and we have to learn to govern again,” said Beamer. “Regardless if you are on the independence or federal recognition side, I think we should all be able to agree that we need to learn to govern. And that means taking part in whatever institutions and forces are governing our resources here in Hawaii today.”

Cory Lum/Civil Beat

The first discussion on the constitutional convention question focused on the aina (land, water and other natural resources). Talks in March will address culture and language, in April health and in May sovereignty.

The constitutional convention vote will likely bring out many interests, including those who wish to convene one to enact into law things the state Legislature won’t — like citizen initiative, referendum and recall.

There will be groups who oppose the convention, warning that it could erode such things as labor rights.

Still, it seems something is in the air in Hawaii Nei. Waihee, Ritte and Osorio were among the featured speakers at the Onipaa Kakou held Jan. 17 to mark the 125th anniversary of Queen Liliuokalani’s fall.

There likely will be quite a few voters come November who will be humming the song “Hawaii 78” as they cast their votes: “Cry for the gods, cry for the people, Cry for the land that was taken away, And then yet you’ll find, Hawaii.”