Activists fear
ripple effect for
Hawaiian issues

The federal court ruling that Kamehameha Schools' "Hawaiians-only" admission policy is "unlawful race discrimination" may lead to the dismantling of other programs that benefit native Hawaiians, some activists said.

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"What a depressing disaster," said Haunani-Kay Trask, a professor at the Center for Hawaiian Studies at the University of Hawaii-Manoa. "This is a sign of the times that we have a very conservative, right-wing president and that means any kind of ameliorative programs for native Hawaiians, or whatever group, will fall."

"The right wing will go after all kinds of efforts to lift people up from oppression because of racism," she added.

But legal experts remain at odds over the decision's ultimate effect on other Hawaiian programs.

"I'm very sorry for Kamehameha Schools, but I don't think the decision rocks the boat for other (native Hawaiian) programs," said former Hawaii Supreme Court Justice Robert Klein, who is in private practice and advises the state's Office of Hawaiian Affairs.

Klein said he believes the legal issues decided in Doe v. Kamehameha Schools are narrow and don't apply to other cases.

But John Goemans, a Big Island attorney for the plaintiff, was delighted with the decision by the 9th Circuit Court of Appeals. Goemans was also an attorney in the Rice v. Cayetano case in which the U.S. Supreme Court ruled in favor of Big Island rancher Harold "Freddy" Rice, who challenged OHA's Hawaiians-only voting policy as unconstitutional.

Goemans said yesterday's decision "is a reaffirmation of everything found in Rice, that all these programs are all race-based. This case sets precedents for other cases (challenging native Hawaiians-only programs) and dramatically raises the national visibility of what exists in Hawaii and has grown since the 1970s: This pernicious racism."

William Burgess, an attorney who has been involved in suits challenging native Hawaiian programs and recently testified against the native Hawaiian recognition bill in Congress, said Doe "just highlights another race-based program in Hawaii."

Trask and other native Hawaiians said yesterday's decision is another defeat in the wake of the Rice ruling in 2000.

After Rice prevailed, groups that included some of the same people involved in Rice v. Cayetano lawsuit filed several other suits challenging the constitutionality of various programs aimed at improving the condition of native Hawaiians.

Klein and state Attorney General Mark Bennett agreed that the legal underpinnings of the Doe decision are so narrow they do not affect other cases. That includes Arakaki v. Lingle, which is before the same federal court, the 9th Circuit Court of Appeals. In Arakaki, 16 plaintiffs argue that the OHA and the Hawaiian Homes Commission Act are race-based and therefore unconstitutional.

However, native Hawaiian activist Kahu Charlie Kauluwehi Maxwell said, "If this case (Doe) sets a precedent, then Hawaiian Homelands will be the next to go. Hawaiians can't be complacent anymore, we can't just be Mr. Aloha."

Under federal law, the legal issues boil down to whether being native Hawaiian is based on race or on being an indigenous people, such as American Indians.

Trask and others argue that race is "an invention of the West and its imperial empire."

"Native Hawaiians are an indigenous people, not a race," she said. "They are trying to disappear us with a legal definition."

OHA Chairwoman Haunani Apoliona also was distressed that the courts were seizing upon the phrase "race-based."

"Congress' decision to create a trust relationship with American Indians, Alaska Natives and native Hawaiians is not based on race, but on the unique political relationship each group had with the U.S. prior to being taken over by U.S. forces," she said.

Burgess said the court in Doe "rejected the idea that indigenous people can be singled out for special treatment."

But according to Klein's interpretation of the Doe ruling, the court did not have to decide if native Hawaiians are indigenous people or whether there is "a special trust relationship" between the U.S. government and native Hawaiians as exists with American Indian tribes.

These crucial issues are raised in the Arakaki case and the debate over the native Hawaiian recognition bill, also known as the Akaka Bill, now before the U.S. Senate.

Klein and Bennett said that the Doe court did not have to decide these issues because Kamehameha tried to justify its policy under specific laws governing affirmative action. In making its argument, Kamehameha admitted its policy was race-based, which made further determinations by the court over trust relationships and indigenous peoples moot.

The majority opinion in the 2-to-1 decision says: "It remains unclear whether the United States government enjoys a trust relationship with native Hawaiians similar to that enjoyed with organized tribes. But under the statues and case law as they exist now, we, like the court in Rice, find it advisable to 'stay far off that difficult terrain.'"

Kamehameha "does not contest, and candidly admits that its admission process is based upon an express racial classification," the majority opinion states.

The justices said that in the name of affirmative action goals, Kamehameha argued: "it is necessary for the Schools to 'trammel' the interests of non-aboriginal applicants." The majority said that contradicted existing case law.

"Kamehameha's unconditional refusal to admit non-Hawaiians so long as there are native Hawaiian applicants categorically 'trammels' the rights of non-Hawaiians," the justices wrote.

The opinion concluded: "We emphasize that our ruling today is a narrow one. We conclude only that ... (Doe) has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race."