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Kamehameha ruling
misused to support
the Akaka Bill

We are alarmed that both the media and others are misreporting the recent 9th Circuit Court of Appeals ruling in Doe vs. Kamehameha to scare people into supporting the Native Hawaiian Government Reorganization Act of 2005, commonly called the Akaka Bill.

THE AUTHORS J. Kehaulani Kauanui is assistant professor of American studies and assistant professor of anthropology at Wesleyan University, Middletown, Conn. Noenoe K. Silva is a professor of political science at the University of Hawaii-Manoa. Jodi Byrd is a citizen of the Chickasaw Nation of Oklahoma and is professor of political science at the University of Hawaii-Manoa. Jon Kamakawiwo'ole Osorio is director of the Kamakuokalani Center for Hawaiian Studies at the University of Hawaii-Manoa.

Many news outlets, Office of Hawaiian Affairs trustees and paid proponents of the bill falsely describe the court's opinion as a decision that Kamehameha Schools' admission policy was "race-based and therefore unconstitutional." These interpretations and misrepresentations continue to obscure the land and sovereignty rights issues at the heart of Hawaiian resistance and at the heart of this era of racist lawsuits and reactionary legislation. We must be clear: The judges did not rule that race-based admissions are unconstitutional.

Instead, the court specifically ruled that the racial preferences for Hawaiians that serve as an "absolute bar" against non-Hawaiians violates the Civil Rights Act of 1991. In other words, if Kamehameha Schools had shown that they give preference to Hawaiians but still allowed some non-Hawaiians admission, then Doe would have lost the case.

The fact is that since its inception in 1887, Kamehameha Schools has always allowed non-Hawaiians to attend. The "absolute bar" to non-Hawaiian admissions is not only non-absolute, the trend to make it more exclusively Hawaiian is a relatively recent phenomenon. What does this mean? It means that although Kamehameha Schools lost the lawsuit, very little needs to change. The administrators need to retool their admission policy to allow non-Hawaiian students, but they can and should still give preference to Hawaiian children, especially those who are indigent and orphaned.

We must remember that when Bernice Pauahi Bishop gave her last will and testament, she was living in the kingdom of Hawaii and certainly did not intend to provide for children of another nation. Therefore, the only non-Hawaiian orphans and indigent children that should be admitted should be descendants of citizens of the kingdom of Hawaii.

The lands that Kamehameha Schools are based on are the national lands of those who descend from citizens of the kingdom. Following the Great Mahele, the alii nui did not bequeath lands downward to their children or other heirs. They bequeathed upward to higher-ranking alii in a semblance of the traditional practice that the highest-ranking alii would redistribute the land. This left vast amounts of land in the control of Princess Ruth Ke'elikolani, who bequeathed them to Bernice Pauahi Bishop. When Pauahi died, the Bishop Estate and Kamehameha Schools were created and received the lands.

Originally the alii had kuleana to take care not only of themselves through private property, but kuleana and obligation to care for the maka'ainana (commoners, citizens). Thus, most Hawaiians are protesting this ruling because these resources are part of our collective inheritance. Let us not co-opt their righteous rage for the wrongful legislation.

Proponents of the Akaka Bill are attempting to use their interpretation of the ruling as a way to redirect the activist opposition to the bill to focus on Kamehameha Schools. The sovereignty struggle is a larger and more critical movement than the effort to preserve the admission policies. Besides, the school has a number of other strategies it can employ to maintain the preference, while the Akaka Bill threatens to strangle the independence drive of the Hawaiian movement.

Passage of the bill would not protect Kamehameha Schools from the racist attacks on Hawaiians, which are firmly grounded in U.S. law and principles of "racial equality" without justice. The U.S. federal courts do not understand Hawaiian traditional culture, nor do they understand or adequately use as precedent Hawaiian kingdom law outside of Hawaii.

Furthermore, the bill threatens our crown and government lands by setting up a process for settlement to extinguish our claims once it attempts to legalize the history of the overthrow by reorganizing the Hawaiian people into a dependent entity under U.S. plenary power.

If the Akaka Bill were passed, it would set a precedent that would erode the concept of sovereignty precisely because the bill fundamentally alters and subverts the principles of self-governance, particularly when the federal government and the state of Hawaii are empowered to make decisions without Hawaiian consent on matters concerning economic development, land claims and citizenship requirements.

While the bill's supporters argue that something needs to be done to protect Hawaiians from racist litigation, the fact is that the bill serves as a wedge through which U.S. federal law would be able to curtail and commit further juricide against Hawaiian and American Indian nations.

Finally, proponents of the bill rely on the commerce clause of the U.S. Constitution to argue that the bill does not violate the 14th Amendment's equal protection clause. The clause merely states that Congress has the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." But the U.S. Supreme Court has interpreted that clause time and time again to grant the U.S. Congress plenary power (complete power) to pass any law it may so desire. Plenary power is what gives the U.S. Congress the ability to federally recognize tribes without violating the U.S. Constitution. But what supporters of the bill neglect to mention, as they argue that the bill will "save us," is that it is the same plenary power that empowers the U.S. Congress and the executive branch (through the Department of the Interior) to limit the federally recognized indigenous nations' full self-determination under international law.

Lest we forget, the commerce clause also mentions foreign nations, which includes the kingdom of Hawaii. Hence, if the Akaka Bill doesn't violate the 14th Amendment, it certainly violates the treaties between the kingdom and the United States, which must be honored!

As Joseph Kahooluhi Nawahiokalaniopuu said on his deathbed, "E ho'omau i ke aloha i ka 'aina!" Persevere in love for the land and country!