In Hawaii, a Lesson in Racial Disharmony
By Kim Murphy, Times Staff Writer
August 18, 2002
KAHULUI, Hawaii — When 13-year-old Joseph Dickson applied to the Kamehameha Schools, a prestigious network of private schools for children of Hawaiian ancestry, he was sure he’d aced it. He had good grades, he played football and wrestled, the interview went well.
Then Dickson, who is half-native Hawaiian, got the news: Kalani Rosell, a boy with straight A’s but no Hawaiian ancestry, got the slot. School trustees said they admitted the first non-Hawaiian student in 36 years because there were no other “qualified” native Hawaiian applicants.
The decision startled Hawaiians and contributed to an already rancorous debate statewide about race, preferences and sovereignty. Native parents circulated petitions demanding new admissions standards, newspapers carried strident letters on both sides of the debate, and school trustees were besieged with residents demanding an explanation.
“When they made this announcement, it was like spears went through my heart,” said Maile Jachowski, a Maui physician and former valedictorian of the Kamehameha Schools. “It’s really, really sad when you say Hawaiian children aren’t smart enough to get into their own school.”
But others applauded the decision, saying programs such as the Kamehameha Schools should be available to all Hawaiians. “You can’t give a preference and say it’s not race discrimination,” said attorney John Goemans, who has urged the Bush administration to withdraw the schools’ federal tax exemption.
For decades, this state has been looked to as a model of racial harmony. The nation’s first Filipino American governor, Ben Cayetano, hails from here–he succeeded a native Hawaiian and beat out an Italian American and a Japanese American. Hawaiians are so mixed that 21% claim to belong to two or more races, 10 times the national average. Nearly half of all marriages these days are mixed race.
The uproar over the school admission on Maui made a lot of people wonder how much harmony there is here. It occurs at a difficult moment in Hawaiian racial politics. Increasingly, nonnatives are arguing with natives that their entitlements for health care, homesteads and special schools amount to illegal racial preferences. Native Hawaiians, seeking federal recognition as indigenous people, are arguing among themselves about what they want. A few go so far as to call for secession from the United States and formation of an independent government; others want to restore a quasi-sovereign Hawaiian government whose interests would be protected by the U.S.
Much Is at Stake
Hundreds of millions of dollars in entitlement programs for native Hawaiians and control of about half the state–1.8 million acres of land once belonging to the Hawaiian monarchy–are at stake. Many Hawaiians have professed amazement at the rancor of the discussion.
“In a multiracial society, it’s not good to start dividing people by race,” said Patrick Hanafin, a Honolulu attorney who filed a lawsuit challenging the entitlement programs. “This is potentially going to tear Hawaii apart along racial lines, and we think the Constitution should protect us from that.”
Native Hawaiians are building a defense in Congress, seeking recognition as indigenous people in an attempt to reverse four decades of federal policy that until now has considered American Indians and native Alaskans the only indigenous people of the U.S.
The bill, sponsored by Sen. Daniel K. Akaka (D-Hawaii), is stalled in Congress, in part because of widely varying views among native Hawaiians about what federal recognition and “sovereignty” might mean. Some native Hawaiians oppose the Akaka bill because it would not give them one of the biggest potential prizes of sovereignty: control over the 1.8 million acres ceded by the Hawaiian monarchy when the U.S. military helped oust it from power in 1893–including Pearl Harbor, the University of Hawaii campus and parts of Honolulu International Airport.
A 1999 survey showed that more than 43% of Hawaiians–evenly split among natives and nonnatives–either favored or partly favored the idea of sovereignty in principle. Perhaps more surprisingly, 41.8% of nonnative residents (compared with 35.4% of native Hawaiians) thought that natives should manage the ceded lands.
Hawaii’s natives occupy a unique position in the American political landscape. Unlike American Indians, they don’t belong to tribes that were forcibly resettled and recognized as semi-sovereign “nations within a nation” through treaties. Unlike Alaska’s natives, they weren’t allotted millions of acres and the chance to control the land through their own boards of directors and village councils.
Hawaiians, by contrast, were subjects of a constitutional monarchy that was overthrown in 1893. The archipelago was admitted as a territory several years later under an administration dominated by white sugar barons who used natives as low-paid labor.
“We suffered a unilateral redefinition of our homeland and our people, a displacement and a dispossession in our own country,” said Haunani-Kay Trask, a writer, professor and leader in the native Hawaiian sovereignty movement.
Today, native Hawaiians are a little more than 20% of the state’s 1.2 million residents, with a disproportionate share of problems. A third of all victims of child abuse or neglect are natives, and the functional illiteracy rate is about 30% among native Hawaiian adults.
President Clinton in 1993 signed an official apology acknowledging the U.S. role in the overthrow of the Hawaiian kingdom and pledging to establish a foundation for reconciliation with the Hawaiian people.
What form that takes is a question: With so much intermarriage over the years, which Hawaiians should be recognized as natives? Should the Hawaiians have an elected governing body of their own? Should reparations be paid? What tax money should be available to fund health care, education and housing programs for Hawaiian natives? With ceded lands making up nearly half the state, who gets to control them and what form should that control take?
In addition to the 1.8 million acres, native Hawaiians hold claim to 200,000 acres set aside by Congress in 1921 for homesteads, allowing native Hawaiians to take out long-term leases on land at about $1 a year, with programs often available to help build affordable homes on the land.
Only about 43,000 acres have been given out over the last 79 years, while the waiting list for homesteads has grown to 19,600 applicants. Many have waited for decades.
“I might be dead by the time I get anything,” said Louie Pelekai, a plumber from Honolulu, who first applied for a homestead in 1976. He lives with his wife and son in a one-bedroom apartment so small they are forced to use the bedroom for storage. Pelekai and his son sleep on the living room floor. “My wife puts three chairs together and sleeps on them,” he said.
Hard-line sovereignty advocates such as Trask have squared off against the Akaka bill, declaring that they will accept no less than full self-determination and control of revenues from all ceded lands. Even some moderates, such as Ikaika Hussey, head of the Democratic Party’s Native Hawaiian Caucus, wonder whether Hawaiians should agree to become like American Indians rather than hold out for full independence.
“Our history is that of an independent country in which people came to us; they wanted to live with us as citizens of an independent Hawaiian nation,” he said. “A lot of indicators point toward independence as the viable and really the preferred alternative to the status quo.”
Others say it’s time to seize on federal recognition as a starting point. “Federal recognition provides an opportunity for native Hawaiians to fully embrace and control their future by being able to control their assets, to be able to establish their own processes, policies and programs,” said Robin Danner of the Council for Native Hawaiian Advancement.
A Landmark Case
Almost everyone realizes that federal recognition is an attempt to defend against court challenges filed by nonnatives, many of whom were born and raised in the state, who question why natives deserve land and benefit programs not available to everyone else.
The U.S. Supreme Court, in a landmark case in 2000, Rice vs. Cayetano, rejected the idea that only native Hawaiians or those who traced their ancestry back to the state’s original residents could vote for trustees of the Office of Hawaiian Affairs, the state agency that oversees entitlement programs. The court said such distinctions amount to an illegal racial distinction.
That opened the floodgates, raising questions about whether the $300-million trust fund that the office administers should be spent only on programs such as scholarships, housing and business loans for native Hawaiians.
Also now open to scrutiny are the homestead lands and even the Kamehameha Schools–although they are operated under a private trust–because they have a federal tax exemption.
Earl Arakaki, a retired Honolulu police officer, filed a lawsuit with about a dozen other nonnative residents earlier this year that seeks to have many of these assets made available for everyone’s benefit. To do otherwise, he believes, constitutes racial discrimination with tax dollars.
“I believe everyone should be treated equally, and I don’t see why there are racial preferences, and monies to be disbursed, based on what happened a hundred years ago,” Arakaki said. “Last time I checked, the American flag was still flying out in the state Capitol. If you want money, work hard and earn it for yourself. I’ve done it, and I’m no genius.”
The decision to admit a non-Hawaiian to Kamehameha’s Maui campus is where many Hawaiian natives have decided to draw a line. The school, which serves 3,800 students on three lush campuses, provides students with an excellent education, in addition to a grounding in Hawaiian culture and Christian values. Tuition, by private-school standards, is modest: $1,441 a year for middle school.
Many top professionals and others in leadership positions are graduates of the Kamehameha Schools, which Pohai Ryan, a 1980 graduate, called “the vehicle Hawaiian people have to rise socially, politically and economically.”
“If they say the Kamehameha School is illegal, watch out. Watch out,” said the Rev. Charles Kauluwehi Maxwell, a prominent native elder. “The Hawaiians are all loving people, but take away the last bastion of what they have, which is this school, and watch them react.”
Hamilton McCubbin, chief executive of the schools, acknowledged that the trustees are concerned about legal challenges but said they were following their established policies when they admitted the non-Hawaiian boy. The situation was an unusual one that came about because an expansion at the Maui campus from 272 students to 592 left the school with more slots than qualified Hawaiian applicants.
Admissions decisions are based on standardized tests, grade point averages, personal interviews, teacher recommendations and writing samples, and all applicants are normally required to have at least one native Hawaiian ancestor. This year, McCubbin said, the school exhausted all Hawaiian students on the eighth-grade wait list before giving the one remaining slot to Rosell.
A total of 64 eighth-graders applied for 44 spots on the Maui campus. Eight Hawaiians were immediately screened out of the admission process and four others did not score the minimum number of points on a number of evaluation factors to qualify. The Dicksons said Joseph’s interview went well, and they were perplexed when they got the letter saying he had not been accepted. “I thought he’d be a preferred candidate,” said his mother, Liane.
Last week, trustees announced “interim admissions changes” for the 2003-04 school year only that will eliminate preliminary screening and the minimum score. The interim policy will also waive the $25 admission fee, all in the hope of attracting more native Hawaiian applicants.
The trustees have reaffirmed their commitment to native Hawaiian education, laid out in the will of a former princess when she established the $6-billion trust for the schools, and they have pledged to consider admitting not only top academic achievers but also Hawaiian natives who might be good achievers if given a chance.
“There’s a hurt and an anger and a frustration we’re seeing now, which we have absolutely no trouble understanding and empathizing with,” McCubbin said. “The whole organization is unwavering in its commitment to serving native Hawaiians, but we need to do it in a manner that’s consistent with the law and with policies that have been approved.”
For Joseph Dickson, that is scant comfort. He’s been rejected three times by Kamehameha and will go to public school. For Kalani Rosell, it’s probably a mixed blessing, at best. Jachowski shrugged. “That boy has the spot of the 20 kids that didn’t make it.”
Inouye: Native Hawaiian Bill Won’t Pass
August 8, 2002
A bill to recognize a Native Hawaiian government probably won’t pass the Senate this year, Sen Dan Inouye (D-Hawaii) said.
Inouye, who is chairman of the Senate Indian Affairs Committee, told The Honolulu Advertiser that there are other pressing priorities, including the budget bills. He also said there is opposition in the Senate.
There is also some debate within the Native Hawaiian community, he added. In response, The Advertiser in an editorial says there should be “consensus from the Hawaiian community on how it wishes to proceed both with its own self-determination.”
Get the Story:
Inouye sees Hawaiian bill delay (The Honolulu Advertise 8/7)
Editorial: Time for regrouping on federal ‘Akaka Bill’ (The Honolulu Advertise 8/8)
Native Hawaiian Recognition Bill, S.746 and H.R. 617, is Dangerous Racial Apartheid
By Kenneth R. Conklin, Ph.D.
May 24, 2002
A dangerous, controversial, and unconstitutional bill is poised for passage in the U.S. Congress. The Native Hawaiian Recognition bill, H.R.617 and S.746, would overturn the Supreme Court 7-2 decision in Rice v. Cayetano. The bill seeks to protect racial entitlement programs which clearly violate the U.S. Constitution and are being challenged in court. Protection would come by creating a phony Indian tribe consisting of anyone with even one drop of native blood. More than 400,000 people would be eligible to join this “tribe,” making it the largest Indian tribe in America. That includes about 240,000 people comprising about 20% of Hawai’i’s population, plus 160,000 more “Native Hawaiians” living in other states. That is despite the fact that so-called “Native Hawaiians” have mostly non-native geneologies and are thoroughly integrated into the most intermarried, multiracial society in America.
In Hawai’i, so-called “Native Hawaiians” live, work, and pray side by side with everyone else. The people of Hawai’i are the most racially diverse and intermarried of all the states. People of all ethnic groups cherish and participate in Hawaiian culture. Most ethnic Hawaiians do not want to be treated as a separate nation, or railroaded into an apartheid system. Ethnic Hawaiians are leaders in every walk of life and in every community. Some are wealthy. But some large, powerful organizations want to perpetuate a system of racial entitlements which they administer, to ensure a permanent flow of federal dollars to Hawai’i through their entrenched bureaucracies. These organizations are willing to rip apart Hawai’i along racial lines in pursuit of money, wealth, and power.
If Congress passes a law to separate out the so-called “indigenous” people of Hawai’i to create an Indian tribe where none ever existed, it would set a precedent for the balkanization of other states. Why not protect entitlement programs for African-Americans by making them into a “tribe”? Why not create a sovereign political entity for all citizens of America who have an Aztec ancestor who lived in those former parts of Mexico that now are U.S. states?
Please oppose H.R.617 and S.746. The Native Hawaiian Recognition bill is bad for Hawai’i and bad for America.
Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St. Apt. 1205
Kane’ohe, HI 96744
tel/fax (808) 247-7942
Group Challenges State Programs to Benefit Native Hawaiians
March 5, 2002
HONOLULU – A group of Hawaii citizens filed suit in federal court, asking that two state programs to benefit native Hawaiians be declared unconstitutional because they are based on race.
The suit challenges the Hawaiian Homes program, which allows native Hawaiians to lease public land for homes, and the Office of Hawaiian Affairs, which operates publicly-funded programs for native Hawaiians.
The suit also seeks OHA’s $337 million trust fund and the 200,000-acre Hawaiian Homes land trust be returned to general state control. Native Hawaiians now leasing trust lands for homes would be allowed to buy their lots.
“These two programs make the state of Hawaii the only state in the entire nation that grants homesteads on its public lands exclusively to one race and in the case of OHA it grants what amounts to all the income from the public lands of Hawaii to one race,” H. William Burgess, one of two attorneys representing the 16 plaintiffs, told reporters after filing the lawsuit Monday.
“I call these two programs the motherships of racial discrimination by the governor of Hawaii, and the goal of this suit is to sink those two ships and rescue the passengers,” he said.
The suit cites a U.S. Supreme Court decision two years ago that struck down the Hawaiians-only requirement to vote in an OHA election. The high court ruled that definitions of Hawaiian and native Hawaiian are racial classifications and therefore conflict with constitutional prohibitions of racial discrimination in voting.
Burgess said that same standard should be applied to Hawaiian programs.
It also cites a 1995 Supreme Court decision holding that racial classifications “are constitutional only if they are narrowly tailored measures that further compelling government interests.”
“Neither the state of Hawaii nor the United States has a compelling interest in dividing its citizens into two classes based on race and discriminating against those citizens in one case and favoring those in the other,” Burgess said.
OHA attorney Sherry Broder said she plans to challenge the standing of the plaintiffs to file the suit. Two recent challenges of OHA were dismissed when a judge said plaintiffs lacked standing because they failed to show how they were harmed.
Burgess said his clients have standing because they pay taxes, but are denied benefits because they are not native Hawaiians. He said if tax and land trust revenues were not diverted to the Hawaiians-only programs, the plaintiffs would either pay less in taxes or have the benefit of more state programs.
District Judge Susan Mollway scheduled a hearing for next Monday on the group’s motion for a temporary restraining order.
OHA Shot Itself in the Foot
By David Shapiro
September 20, 2001
The state Supreme Court’s ruling against the Office of Hawaiian Affairs in the ceded-lands case is a crushing blow to OHA that leaves Hawaiians feeling betrayed again by powerful interests hostile to native rights.
But unlike previous hurts suffered by Hawaiians since the overthrow of their monarchy in 1893, this wound was mostly self-inflicted.
OHA trustees could have negotiated a fair deal with the state on ceded lands two years ago, but they grossly overplayed their hand and walked away from talks — foolishly leaving their fate to a court that had warned them to settle.
Now they must go back to the Legislature and start anew the process of setting OHA’s share of revenues from ceded lands — former government and crown lands now held in trust by the state.
OHA likely will find lawmakers unsympathetic in an election-year economy that will be reeling from the fallout of last week’s terrorist attacks.
Support for OHA is waning not only among legislators, but also among voters who have watched endlessly squabbling trustees do little to benefit Hawaiians with the abundant resources they already control from earlier deals with the state. That’s another self-inflicted wound.
Most in Hawai’i acknowledge an obligation to our native people, many of whom have not adapted easily to the Western culture that was forced on them. The constitutional amendment creating OHA in 1978 had broad public support, as have Hawaiian drives for sovereignty and cash reparations.
But the public is frustrated that we’re really no closer than we were 20 years ago to defining a workable sovereignty or a level of financial support that would be reasonable. Hawaiians fiercely disagree among themselves.
OHA was created in a robust economy that was still booming when the state in 1993 paid the first $130 million in ceded-land claims to the agency. But by 1996, when OHA won a lower-court victory for additional claims that could have totaled $1.2 billion, Hawai’i’s economy was in serious decline.
Such a payout would have left the state bankrupt.
In 1999, the state offered OHA $250 million and ownership of revenue-producing lands to settle the claims, but bickering trustees turned it down — ignoring the strong advice of Chief Justice Ronald Moon to settle out of court and the ominous act of Congress to forbid use of airport money to pay OHA claims.
The state Supreme Court’s reversal last week of the 1996 ruling was the latest in a string of setbacks for OHA. The U.S. Supreme Court last year opened OHA elections to non-Hawaiians, which could ultimately cost Hawaiians control of OHA and its assets, and other lawsuits challenge the constitutionality of OHA’s existence.
Trustees squandered the upper hand they once held and now must get their expectations in line with reality. Gov. Ben Cayetano and the Legislature won’t run the state broke to fund a bungling OHA.
Trustees should take the initiative and try to forge a reasonable ceded-lands settlement with Cayetano and lawmakers that can win support in next year’s session.
To succeed, OHA will have to demonstrate quickly that things have changed — that the agency has a new administrator, a new chairman and new trustees who can get past the infighting and work together to put OHA resources to the benefit of Hawaiians.
If trustees can’t step up, it’s time to ask whether we should declare OHA a well-intended failure and consider other options to fulfill Hawai’i’s obligation to our host culture.
OHA simply can’t afford any more self-inflicted wounds if we’re to avoid a tragic ending to this story.
Apartheid for Native Hawaiians
By Michelle Malkin
August 1, 2001
SOME people will do anything to get their hands on federal wampum. Across the country, scam artists claiming to be oppressed “indigenous peoples” have used dubious family histories, altered documents, or shady land claims to win government recognition as Indian tribes.
Now, there’s a new group that wants in on all the special rights, free benefits, and racial preferences that accompany sovereign tribal status:
This week, the Democrat-controlled Senate Indian Affairs Committee approved a bill to give Native Hawaiians the right to create their own “governing entity” that would negotiate lucrative land deals with the U.S. – just as many cash-hungry, casino-owning Indian tribes do.
The bill, sponsored by Sen. Daniel Akaka (D-Hawaii), would set up a Native Hawaiian fiefdom in Washington similar to the Bureau of Indian Affairs. A “United States Office for Native Hawaiian Relations” would direct federal policy. To enforce this racial separatism bureaucracy, a “Native Hawaiian Interagency Coordinating Group” would oversee a plethora of public health, welfare, and education programs for Native Hawaiians only.
What is a “Native Hawaiian” anyway? It’s not a Filipino-American whose family has lived in Maui for three generations. Or a Japanese-American whose family migrated to Honolulu before World War II. Or a white American from Kealakekua Bay whose ancestors include 18th-century explorer James Cook. Natives of Hawaii are defined not by state citizenship and residency, but by blood relation to the islands’ original Polynesian inhabitants.
Local government forms ask residents of the Aloha State to calculate and document the amount of Native Hawaiian blood they and their children possess. Those with the proper “blood quantum” receive special housing privileges, employment consideration, retail discounts, and exclusive schooling. The “right” kind of Hawaiians proudly carry racial passports that recall apartheid South Africa, Nazi Germany, and the antebellum South. Under Sen. Akaka’s bill, members of the bogus Native Hawaiian “tribe” would be allowed to create a race-based voting registry of citizens and to investigate individuals’ backgrounds to verify their blood purity.
Giving Native Hawaiians Indian tribal-like status and immunity from federal civil rights laws is historically absurd and legally treacherous. At no time in their history have Native Hawaiians organized, acted, or existed as a tribe. When the U.S. annexed Hawaii, all of its citizens – native and non-native — became Americans. Unlike legitimate Indian tribes that retained quasi-sovereign powers after ceding their lands to the U.S., no
group of Native Hawaiians ever established a treaty right to self-governance and exemption from our federal Constitution.
Only last year did a legal challenge to one of Hawaii’s patently unconstitutional race-based programs finally reach the U.S. Supreme Court.
In Rice v. Cayetano, the high court struck down the state’s Hawaiian-only restriction for voting in elections for a state agency that administers
hundreds of millions of dollars earmarked exclusively for natives. The court ruled that the racial restriction clearly violated the Fifteenth Amendment and noted that “it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” But the restless natives in Hawaii are not about to let the U.S. Constitution get in the way of their racial spoils racket.
Sen. Akaka’s bill is on its way to the Senate floor. And though it would perpetuate the same illegal race-based voting scheme just nullified by the Supreme Court, the legislation’s prospects of passing are considerably greater than a snowball’s chance in a flaming luau pit. Hawaii Republicans (an endangered species) refuse to oppose the bill publicly; timid Republican leaders in Washington (an overabundant species) don’t have the stomach to challenge these zealous minority Balkanizers.
Moreover, the full Senate has already approved $35 million for Native Hawaiian-only education programs, including money for construction of Native Hawaiian-only public schools, and there is unquestioning bipartisan support for reauthorizing several Native Hawaiian-only health programs. If the Akaka bill becomes law, you can bet that every other aggrieved racial and ethnic group will be running to claim tribal-like “sovereignty” and cash in on their manufactured status as separate foreign governments. United States of America? Aloha.
Note: Congressman James Moran of Virginia recently introduced a bill to legislatively create five new Indian tribes: H.R. 2345. And just today, Congresswoman Hilda Solis of California introduced an as yet unnumbered bill to grant federal recognition to another new tribe, this time in Los Angeles County. So the Native Hawaiians are by no means alone in their efforts to get Congress to anoint them!
Suit Challenges Hawaiian Programs
July 2, 2001
HONOLULU (AP) – Government programs that give preference to Native Hawaiians – including one that allows them to lease home sites for 99 years for $1 – were challenged in federal court Monday as racially discriminatory.
U.S. District Judge David Ezra opened a hearing on a lawsuit filed by a non-Native Hawaiian who wants the programs opened up to all residents. The state Office of Hawaiian Affairs asked that the judge dismiss the case.
The lawsuit by Patrick Barrett, 30, cites a U.S. Supreme Court ruling last year that struck down a law barring non-Hawaiians from voting in elections for the Office of Hawaiian Affairs. Barrett’s attorneys said that ruling showed the court’s strong distaste for racial preferences.
Barrett is challenging state-administered programs that benefit only Native Hawaiians. Among them: a program set up by Congress in 1921 that allows people with at least 50 percent Native Hawaiian blood to receive 99-year leases on house lots and farmland for $1.
Barrett’s attorney, Patrick Hanifin, said such provisions violate the equal protection clause of the U.S. Constitution.
“A racial restriction is almost always unconstitutional,” Hanifin said. “The government has to show a compelling state interest, and it has to be narrowly tailored, and we think that these programs ultimately flunk that test.”
Supporters of the programs have argued that such preferences are allowed because the federal government has accepted a trust obligation to Native Hawaiians that is similar to its relationship with the Indians.
They also argued that the lawsuit would have devastating consequences for a group with high rates of poverty, disease and a lack of access to good housing and education.
The state has 200,000 residents who are at least part-Hawaiian – about 20 percent of Hawaii’s population.
Natives Brace for a Paradise Loss
Property: Lawsuit seeks to remove all special privileges for indigenous Hawaiians, including cheap leased land.
By Julie Cart, Times Staff Writer
May 23, 2001
WAIANAE, Hawaii–Kamaki Kanahele’s lush beachfront property here is just the slice of paradise many conjure up when dreaming of Hawaii. What few could envision is the land’s price tag: Thanks to a state homesteading program offered to native Hawaiians, Kanahele pays only $1 a year to lease it.
But that may soon change.
The right of Kanahele and others to occupy steeply discounted prime real estate is one of the key issues in an increasingly contentious lawsuit that poses the question: Do native Hawaiians deserve special privileges not available to other residents?
It’s a thorny question in Hawaii, where the implications of dismantling all of the state’s programs for native residents could have a serious social and economic effect. If, for example, the Office of Hawaiian Home Lands is dismantled, Kanahele would be obliged to pay the state $400,000 for each half acre. That’s the assessed value that non-native Hawaiians would have to pay.
That would be only fair, according to members of a growing movement among non-native Hawaiians. These opponents are irked by the numerous government agencies and programs that serve only Hawaiians who can trace their ancestry to the time before Capt. James Cook landed here in 1778.
On the other side are the “50 percenters”: Hawaiians who claim at least half native blood. They contend that historic discrimination has left native Hawaiians at the bottom of the state’s social and economic heap and that the special medical and economic programs are part of necessary societal redress.
The social harmony of this ethnically diverse state is being sorely tested by the home-grown affirmative action debate. Spurred by intense litigation, the debate has even revived the state’s sovereignty movement. Legislators here and in Washington are considering whether native Hawaiians should be considered indigenous people and afforded the same rights as Native Americans.
The battle moves to federal court June 12, when U.S. District Judge David Ezra considers motions in the lawsuit challenging Article XII of the Hawaii Constitution. The lawsuit, filed by California transplant Patrick Barrett, charges that the article, enacted in 1978, created racially discriminatory programs to serve only native Hawaiians and that those programs violate the equal protection clause of the U.S. Constitution.
Should the case prevail, as many legal experts here predict, it could spell the end for such venerable agencies as the Office of Hawaiian Affairs and the Hawaiians Homes Commission and could wipe out hundreds of millions of dollars in government funding to programs exclusive to native Hawaiians.
“Hawaiians have never been discriminated against in Hawaii,” said attorney John Goemans, who is representing Barrett. “It’s a myth that has been promulgated so that Hawaiians can fit into the affirmative action mold. They can’t prove historic bias.”
Barrett was moved to sue, his lawyer said, after growing frustrated with his inability to obtain a low-interest business loan while such loans were made available to native Hawaiians. Goemans said the lawsuit’s goal is to dismantle all set-asides offered to native Hawaiians.
“We are putting together an effective war chest to end official race discrimination in Hawaii,” he said. “In Hawaii, if you are the right race, you can attend school for free, and if you are the right race, you can get free medical care. Is that fair?”
Kenneth Conklin, a plaintiff in one of a half-dozen similar suits that also claim discrimination, said the state is being torn apart by racial policies. “There is evil in the sovereignty movement,” Conklin said. He calls those within the movement “Hawaiian supremacists.”
The debate is played out in a society that owes much to the traditions of the Polynesians who first inhabited the islands. Hawaiians speak proudly of their “Aloha spirit,” which borrows heavily from Pacific Islanders’ tradition of welcoming strangers into their homes and living in harmony.
Cultural identity is not all that is at risk. So too are programs that many Hawaiians say they rely on to survive. Foremost among the threatened programs are health care services.
The Waianae Coast Comprehensive Medical Center on the west coast of Oahu serves the island’s largest native Hawaiian community and operates in an underserved rural area. Part of the medical center’s budget comes from grants, many provided by the Office of Hawaiian Affairs.
Mary Frances Oneha runs the center’s perinatal care program. The program, in an area with one of the state’s highest teen pregnancy rates, is funded for only half of the 450 women they serve.
“The mission of our health center is to never turn anyone away, and we don’t,” Oneha said. “But if we don’t get the funding, that means the medical center has to look elsewhere. There is no money elsewhere.”
Teresa Gonsalves, a perinatal social worker, said that the loss of OHA funding would be devastating to the community but that the psychic damage to native Hawaiians would be the harder blow. “The message they are being given, again, is, ‘You have no worth,’ ” she said.
Since the federal government supported the overthrow of the Hawaiian monarchy in 1893, native Hawaiians forfeited lands ceded to the state and have lost much of their language and culture. According to the 1990 census, native Hawaiians earn about 12% less than non-native Hawaiians, and because they more often live in rural areas, they have less access to education and health care than non-natives.
Much of the opposition to the entitlement programs focuses on the Office of Hawaiian Home Lands, which provides native Hawaiians $1-a-year leases on land statewide. The homesteading program began in 1921 and is hugely popular–it can take 25 years to reach the top of the waiting list. Once residents are granted a homestead, they are required to buy or build a home on the land.
Many homesteaders expect that if the Office of Hawaiian Home Lands is abolished, the state would require them to buy out the leased property, including the house. Given Oahu’s stratospheric real estate prices, few could afford to do so.
Kanahele, president of the largest homestead community on the Waianae coast, said he thinks most homesteaders will become homeless.
“They are going to knock on my door and say, ‘Your lease is ended, but you will have first offer. Can you afford $400,000?’ ” he said. “No. Then what? You are going to be on the beach.”
Helen O’Connor grew up on a homestead on Molokai, where her family still leases 40 acres. She worries about what will happen if her elderly mother is forced off the land.
Clayton Hee, an OHA trustee and former state senator, said that violent reaction to any change in the programs is inevitable and Hawaiians should be prepared.
“Who can deny that OHA is a race-based organization?” asked Hee, who is a native Hawaiian. “Who could deny that Hawaiian Home Lands is race-based? That’s what we are set up to do. Start from there. You are dealing with marginalized people. Some of these people, they have to reach up to touch bottom.”
He said that, if nothing else, the case will invigorate the state’s long-simmering sovereignty movement. “Barrett is a deafening call to Hawaiians to wake up and get out of the box,” he said. “I believe human beings are resourceful, and Hawaiians in particular. How can it get any worse for them? The issue is beyond partisan politics. The issue is about people. It’s about the first nation on these islands. This is an opportunity to be stronger, not sit back and whine.”
Native Hawaiians Status at Issue
By Jean Christensen Associated Press Writer
August 24, 2000
HONOLULU (AP) – It’s a crucial time for 47-year-old Leona Kalima; her home, her job and her culture are on the line.
Kalima and some 200,000 indigenous Hawaiians are those potentially affected by a federal plan released Wednesday recommending that indigenous islanders be given the same sovereign status as most American Indians.
“We’re at a very pivotal turn in the road,” said Kalima, who works for the state Office of Hawaiian Affairs, which oversees programs for indigenous people. She is also on a long waiting list for a $1-a-year lease for a Hawaiian homestead.
Either the U.S. government recognizes Hawaiians as a native people “or we’ll all be in one pot with everybody else and lose our cultural identity,” Kalima said.
The federal plan, similar to legislation proposed by Sen. Daniel Akaka, D-Hawaii, aims to give Native Hawaiians greater control over their lands and cultural resources and to protect more than 180 U.S. government-funded programs – including housing and health care – primarily benefiting them.
The draft report reflects the thoughts offered by the Native Hawaiian community, Akaka said.
“Of equal importance is the federal government’s clear reaffirmation of the United States’ special responsibility for the welfare of Native Hawaiians as a native people in the United States,” he said.
The federal government recognizes 556 tribal entities.
Clarification of Hawaiians’ political status is needed to preserve state and federal funding of programs that benefit Native Hawaiians, who have some of the highest rates of poverty, illness and lack of access to education in the state, Akaka and others have said.
Many Hawaiian leaders say the programs were threatened by a U.S. Supreme Court ruling in February that some believe cast doubt on the notion that Native Hawaiians are entitled to special privileges because of their ethnicity. In that ruling, the nation’s highest court threw out a Hawaii law barring non-Hawaiians from voting for OHA trustees.
“For justice to be served, the federal government should honor the unique relationship that exists with Native Hawaiians and respond to their desire for more local control,” said Jacqueline Agtuca, acting director of the Justice Department’s Office of Tribal Justice.
Wednesday’s report is a product of hearings held throughout the state in December by Interior and Justice department officials. Those talks were called for in a 1993 congressional resolution, signed by President Clinton, apologizing for America’s role in the 1893 overthrow of Queen Lili`uokalani. Five years after the overthrow, the United States annexed Hawaii.
The 100th anniversaries of those events added momentum to the fragmented Hawaiian sovereignty movement, whose goals range from restoring the monarchy and declaring independence from the United States to creating a state-within-a-state government for Hawaii’s indigenous residents.
“The fact that this represents the position of the United States of America is significant beyond words,” OHA board Chairman Clayton Hee said. “We’re really on the cutting edge of a new form of gaining federal recognition for native peoples.”
But not every Hawaii resident is supportive of the plan. H. William Burgess said Hawaiians never have been a distinct tribe and the Hawaiian kingdom treated all its citizens equally.
“It was a multiethnic nation in which non-Hawaiians had all the same rights and privileges and immunities as anyone with Hawaiian ancestry,” Burgess said.
The Interior and Justice departments will receive public comment on the report in the next 30 days before it becomes final.
Group Wants Clinton to Recognize Hawaiians
By Pat Omandam, Star-Bulletin
June 2, 2000
Hawaii’s congressional delegation has asked for a meeting with President Clinton on a possible executive order that recognizes the political status of Hawaiians, says the chief counsel for the U.S. Senate Committee on Indian Affairs.
Patricia Zell, the committee’s counsel and minority staff director, told the Office of Hawaiian Affairs board yesterday the delegation last week asked to meet with Clinton on the viability and possibility of an executive order. The request was made after the group met with the secretary of the Interior, she said.
“We’re hoping that the White House and the president, specifically, would be favorably inclined,” Zell said.
“The delegation has made the case that it is, in their view, important that not only the legislative branch of the government but the executive branch of the government address and respond to the issue of the legal status of native Hawaiians under federal law,” she said.
Zell and attorney Noe Kalipi, senior aide to U.S. Sen. Daniel K. Akaka, continue to gather input this week on behalf of the delegation on the draft bill circulated by Akaka last month.
The goal is to return to Washington, D.C. with these suggestions and introduce a bill sometime this month that clarifies the political status of native Hawaiians.
Basically, Akaka’s draft proposal includes the creation of a federal Office of Native Hawaiian Affairs as well as a native Hawaiian interagency council to coordinate federal policies that affect Hawaiians.
Yesterday was OHA’s turn to give its position on the bill, and the board did so by approving its own draft crafted with the help of former Gov. John Waihee, who serves as OHA’s counsel on this matter. The OHA draft is similar to what Akaka has proposed.
The OHA draft also requires a representative from the U.S. Department of Justice to enforce and protect the rights of Hawaiians and their trust relationship with the United States.
Delegation Preparing Hawaiian Issues Bill
Federal officials are eager to set up a Hawaiian-U.S. relationship, Akaka says
By Pat Omandam, Star-Bulletin
June 1, 2000
Federal officials in the White House and elsewhere are eager to help native Hawaiians set up a government-to-government relationship similar to those of American Indians and Alaska Natives, U.S. Sen. Daniel Akaka said.
That said, members of Hawaii’s congressional delegation say they must remain committed to introducing a bill this month that recognizes Hawaiians as a native people, despite concern that the broader Hawaiian community hasn’t been given a chance to provide input on the draft bill.
“The Clinton administration supports native Hawaiians as an indigenous, aboriginal peoples,” Akaka said yesterday. “The time to move to clarify the political relationship is now. We must not let this window of opportunity close.”
Akaka and U.S. Reps. Neal Abercrombie and Patsy Mink met with a working group of Hawaiian leaders at the Center for Hawaiian Studies at the University of Hawaii-Manoa to gather input on the draft federal legislation. The delegation will meet tomorrow on the matter with state leaders at the Capitol.
Akaka emphasized that the bill’s introduction doesn’t mean it is finalized and that the Hawaiian community can’t have further input. Rather, there is ample opportunity throughout the legislative process to amend the bill, which itself simply sets the stage for federal recognition. The proposal does not discuss lands, reparations or blood quantum, which are issues that will be resolved in future steps, he said.
“We can only reach step two, however, if the native Hawaiian community is ready to move forward,” Akaka said.
Abercrombie said the bill sets up the foundation from which to build the trust relationship between the United States and native Hawaiians. While there is no hostility toward such legislation in Congress, it might help if the bill was attached to another measure because it may be easier to pass than a free-standing bill on federal recognition of Hawaiians, he said.
Working group members support solidifying the trust relationship but don’t want it to turn into federal wardship of Hawaiians.
Also, some want the proposed federal Office of Native Hawaiian Affairs to be housed within the U.S. Department of Justice and not the Department of Interior, given that the U.S. Solicitor General in legal briefs in the Rice vs. Cayetano appeal has stated that the U.S. has a trust obligation to Hawaiians.
Others in attendance yesterday criticized the working group and the delegation for infringing upon their sovereign right toward self-determination. Akaka, however, said he doesn’t believe his efforts impede those who seek sovereignty at another level, such as under international law.
The delegation would like to get the bill passed during this session of Congress, which ends in October. They say they fear a new administration next year may not be as receptive to the bill as the Clinton administration.
Court Stops Hawaii Vote Restriction
By Richard Carelli, Associated Press Writer
WASHINGTON (AP) – The Supreme Court today struck down Hawaii’s practice of letting only people with Hawaiian blood vote for leaders of a program that benefits descendants of the island’s original residents.
The voting restriction allows unlawful racial discrimination, the justices ruled by a 7-2 vote.
“A state may not deny or abridge the right to vote on account of race, and this law does so,” Justice Anthony M. Kennedy wrote for the court as it invalidated a provision of Hawaii’s constitution.
A white Hawaii rancher had challenged the state’s limits on who can vote for trustees of the Office of Hawaiian Affairs, which administers state funds and proceeds of public land to aid people descended from original Hawaiians.
The office, created in 1978, administers a $300 million trust that provides economic, social, health and education aid for about 200,000 residents of Hawaiian blood.
The state constitution limits voting for the trustees to people descended from the original Hawaiians on the islands in 1778, date of the first known arrival by Europeans.
Hawaii was a kingdom until 1893, when the last queen was overthrown with U.S. help. In 1993, the Clinton administration acknowledged the action was illegal and apologized to Hawaiians for the U.S. involvement.
Hawaii was a U.S. territory until 1959, when it became the 50th state.
Harold Rice, the Big Island rancher who challenged the voting limit, has no Hawaiian blood but his family has lived on the islands since the mid-1800s.
Rice’s lawyers argued that the voting restriction was racially discriminatory. He did not challenge the state’s right to create a trust to benefit people with Hawaiian blood.
State officials, supported by the federal government, argued that the voting law was valid because Congress and the state have an obligation to native Hawaiians who lost their land, similar to the government’s obligation to American Indians.
“When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations and their dismay may be shared by many members of the larger community,” Kennedy said. But he added that Hawaii’s attempt “to address these realities” must keep in mind that the federal Constitution “has become the heritage of all citizens of Hawaii.”
The court refused to treat Hawaii’s practice as one similar to federal programs to aid Indian tribes.
Justices John Paul Stevens and Ruth Bader Ginsburg dissented. Writing for the two, Stevens said the decision “rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the state of Hawaii.”
The decision is a rare one for modern times because it rests on the Constitution’s 15th Amendment, a Civil War-era measure aimed at protecting the rights of former slaves.
The case is Rice vs. Cayetano, 98-818.