MESSAGE FROM THE DIRECTOR OF EDUCATIONAL DEVELOPMENT:
NEW STAFF PUBLICATIONS ON NATIVE HAWAIIAN “RESTORATIVE JUSTICE”

by Susan K. Serrano Director of Educational Development

The Center for Excellence in Native Hawaiian Law is pleased to announce two publications by Center staff, broadly addressing issues of restorative justice for Native Hawaiians.

The first article, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, was recently published by Melody Kapilialoha MacKenzie, the Center’s Director; Susan Serrano, the Center’s Director of Educational Development; and recent UH law graduate Koalani Kaulukukui, in the American Bar Association Section of Environment, Energy, and Resources publication, NATURAL RESOURCES & ENVIRONMENT, Vol. 21, No. 3, Winter 2007.

Environmental Justice for Indigenous Hawaiians examines three recent Native Hawaiian land reclamations that represent some the first returns of large tracts of land to Native Hawaiian ownership and control in over a century. Using these reclamations as examples, the article posits a new type of Native Hawaiian “restorative environmental justice” that takes into account the unique experiences of indigenous Hawaiians.

The 25,856-acre Wao Kele o Puna rainforest on the Big Island of Hawai‘i was successfully returned to Native Hawaiian hands after more than 20 years of legal and political battles sparked by a private entity’s attempts to raze the native forest to drill for geothermal energy. Waimea Valley, a culturally-rich tract of land on O‘ahu’s north shore—originally managed by high-ranking Hawaiian priests, later sold to private interests for an adventure park and recently threatened with subdivision into luxury home lots—has also returned to Native Hawaiian ownership. Finally, and perhaps most well-known, is the return of Kaho‘olawe island to the protection and stewardship of the Native Hawaiian people after the ravages of deforestation, massive erosion, and nearly 50 years of U.S. military live-fire bombing. In all three instances, Hawaiian organizations and individuals are participating in the protection of both natural and cultural resources as well as ensuring that Native Hawaiian traditional and customary activities will be practiced on those lands into the future.

By analyzing these land controversies and their ultimate return to Hawaiian management, the article explores the current “environmental justice” model and suggests a new type of “restorative environmental justice” for Native Hawaiians. Traditional environmental justice models typically focus on the siting of hazardous facilities near communities of color and the poor. Environmental justice in this sense refers to rectifying the racism in the discriminatory siting of toxic facilities. This traditional model often furthers environmental justice by providing communities of color and indigenous communities the tools they need to advocate effectively for the siting and health outcomes they seek.

While effective, this framework often fails to comprehend complex issues of indigenous peoples’ spiritual, social, and cultural connections to the natural environment. It also sometimes disregards the history of Western colonization, and indigenous groups’ ongoing attempts to achieve cultural and economic self-determination. For example, “while some might describe the siting of a waste disposal plan near an indigenous American community as environmental racism, that community might say that the wrong is not racial discrimination or unequal treatment; it is the denial of group sovereignty—the control over land and resources for the cultural and spiritual well-being of a people.” Id. at 37-38 (citing Eric K. Yamamoto & Jen-L W. Lyman, Racializing Environmental Justice, 72 U. COLO. L. REV. 312, 320 (2001)). For many indigenous peoples, environmental justice is thus largely about cultural and economic self-determination as well as belief systems that connect their history, spirituality, and livelihood to the natural environment. Id. at 38 (citing Robert A. Williams, Jr., Large Binocular Telescopes, Red Squirrel Piñatas, and Apache Sacred Mountains: Decolonizing Environmental Law in a Multicultural World, 96 W. VA. L. REV. 1133 (1994); Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 VT. L. REV. 225 (1996)).

These land and environmental controversies are partly about the imposition of disproportionate environmental burdens on Hawaiian communities—the bombing of Kaho‘olawe, drilling in the Wao Kele o Puna forest, and commercial development in Waimea Valley—but they are also about something much more. For Hawaiians, restorative environmental justice is in large part about achieving justice through reclamation and restoration of land and culture. A new environmental justice framework thus expands the focus beyond discrimination and ill health to integrate community history, political identity, and socio-economic and cultural needs in defining environmental problems and fashioning remedies.

These Hawaiian land reclamations therefore represent a new type of restorative justice—not only are they attempts to preserve the fragile ecosystems of Hawai‘i, they are efforts to restore to Native Hawaiians a measure of “sovereignty, economic self-sufficiency, and cultural restoration—an expansive, group-resonant type of environmental justice.” Id. at 38 (citing Yamamoto & Lyman, supra, at 355).

The second article, Restorative Justice for Hawai‘i’s First People: Selected Amicus Curiae Briefs in Doe v. Kamehameha Schools will be published by Director Melody Kapilialoha MacKenzie; Director of Educational Development Susan Serrano; UH Law Professor Eric Yamamoto; and attorney David Forman in an upcoming 2007 issue of the UC Berkeley Boalt Hall School of Law ASIAN AMERICAN LAW JOURNAL.

Restorative Justice for Hawai‘i’s First People features four amicus curiae (“friend of the court”) briefs filed in Doe v. Kamehameha Schools by a diverse array of local and national organizations in support of Kamehameha Schools’ petition for Ninth Circuit Court en banc review. The article demonstrates that Kamehameha Schools’ program is not about violating civil rights by treating one group as superior. Rather, Kamehameha Schools’ program is an effort at restorative justice, to repair the harm to Hawai‘i’s first people for the benefit of all.

In 2003, John Doe filed suit in federal court against Kamehameha Schools, claiming that its 117-year-old admissions policy favoring indigenous Hawaiian children “discriminates” against non-Hawaiians in violation of federal civil rights law. John Doe’s attorneys called the policy “categorical racial exclusion” and “segregation.” Native Hawaiians, on the other hand, decried the distortion of “civil rights” to deny indigenous Hawaiians’ claims to self-education and governance.

The Federal District Court ruled in Kamehameha Schools’ favor, but a three-judge panel of the United States Court of Appeals for the Ninth Circuit later reversed the lower court’s decision. Kamehameha Schools petitioned for an en banc (15 judge) Ninth Circuit review, supported by a number of amicus briefs. The four briefs reproduced in the article are on behalf of ‘Īlio‘ulaokalani Coalition; Japanese American Citizens League-Honolulu Chapter, Centro Legal de la Raza and the Equal Justice Society; Native Hawaiian Legal Corporation, Native Hawaiian Bar Association, and Na ‘A‘ahuhiwa; and Hawai‘i Civil Rights Commission.

In the first brief, ‘Īlio‘ulaokalani Coalition sets forth a persuasive historical argument in support of Kamehameha Schools’ admission policy. It describes the ali‘i, or chiefs’ special responsibility under Hawaiian custom and tradition to care for others, and argues that Kamehameha Schools fulfills those same responsibilities to the Hawaiian people. Looking also to the history of the Civil Rights Act of 1866, the brief asserts that 42 U.S.C. § 1981 does not apply because Kamehameha Schools’ policy was created, as an act of self-determination, while Hawai‘i was a sovereign nation and outside the ambit of the United States Constitution.

In the second brief, the Japanese American Citizens League-Honolulu Chapter, Centro Legal de la Raza and the Equal Justice Society, speak from the collective voice of groups who have experienced racial discrimination. The multiracial organizations argue that Kamehameha Schools’ policy does not violate civil rights, but, instead, restores to Native Hawaiians the education, culture and self-governance that Western colonialism nearly destroyed. The court’s Weber-Johnson mode of analysis and specifically its inquiry into “legitimate nondiscriminatory reasons” must therefore take into account the historical context of colonialism and the resulting devastation of the native people.

In the third brief, the Native Hawaiian Legal Corporation, Native Hawaiian Bar Association, and Na ‘A‘ahuhiwa argue that Kamehameha Schools’ policy is a “political” classification rather than a “racial” one because the United States has a special trust obligation to Native Hawaiians as an indigenous people. It contends that Congress also expressly recognized this special relationship when it created a number of programs for the benefit of Native Hawaiians, and was fully aware of this special relationship when it reenacted § 1981 in 1991.

Finally, the Hawai‘i Civil Rights Commission brief argues that the § 1981 analytical framework developed to remedy civil rights violations is inappropriate to examine the unique history of Native Hawaiians and their distinct claims. It contends, first, that restorative programs, like Kamehameha’s, are based on the political rather than the racial status of Native Hawaiians. Second, the brief argues that the Weber-Johnson standards were erroneously applied because Kamehameha Schools’ policy is not a race-based affirmative action program. Affirmative action programs seek equality and integration, while Kamehameha Schools’ policy seeks to restore the self-determination of a formerly sovereign indigenous people.

In December 2006, the Ninth Circuit, sitting en banc, decided Doe v. Kamehameha Schools, 470 F.3d 827 (9th Cir. 2006) (en banc). An eight-judge majority upheld the private schools’ admissions policy and rejected the contention that the Schools discriminate in violation of 42 U.S.C. § 1981, a post-Civil War civil rights statute aimed at uplifting freed Black slaves from two hundred years of systemic subordination. For a more detailed summary of the Ninth Circuit decision, please see NATIVE HAWAIIAN LAW SUMMARIES: RECENT CASES in this issue of Ka He‘e.

The full Doe v. Kamehameha Schools briefs are available at: http://www.ksbe.edu/lawsuit/summary.php.