NATIVE HAWAIIAN LAW SUMMARIES: SELECTED RECENT LAW REVIEW ARTICLES
by Susan Serrano, Director of Educational Development
Tia Blankenfeld
Derek KauanoeThe Center for Excellence in Native Hawaiian Law is committed to exploring and critically examining the many significant and pressing issues facing Native Hawaiians. This includes examining new theories and practical arguments being developed by legal and Indigenous scholars in law reviews and journals. In order to provide lawyers, community members, students, advocates and legal scholars with helpful tools and critical analyses of Native Hawaiian law, the Center is providing below brief summaries of selected recent law review articles on legal issues facing Hawai‘i’s indigenous peoples. This issue of Ka He‘e summarizes law review articles on Doe v. Kamehameha Schools, voting and citizenship in the Kingdom of Hawai‘i, as well as conceptual frameworks to understand Hawaiian sovereignty. This is the first in a regular series of columns summarizing scholarship on Native Hawaiian law.
1. Jon M. Van Dyke, Population, Voting, and Citizenship in the Kingdom of Hawai‘i, 28 U. HAW. L. REV. 81 (2005).
In this article, Professor Jon Van Dyke responds to several assertions made by Professor Stuart Minor Benjamin, the late attorney Patrick Hanifin, and Retired Circuit Court Judge Paul de Silva. He responds to these commentators because of their “conten[tion] that Native Hawaiians . . . suffered no injury as a result of the [1893] overthrow” of the Hawaiian Kingdom government.
Professor Benjamin asserted that Native Hawaiians, by 1890, composed less than half of all the inhabitants of Hawai‘i and that many of the non-Native Hawaiian residents were citizens of the Hawaiian Kingdom. Attorney Patrick Hanifin claimed that Native Hawaiians lost control of the Kingdom before the overthrow and as a result suffered no injury from the overthrow itself. Retired Judge Paul de Silva “contend[ed] that ‘. . . Hawaiians welcomed foreigners . . . [and] approximately three-fourths of the population protected . . . were not Native Hawaiians.’” Recognizing this, de Silva asked, “if the Crown and Government Lands ‘were wrongly obtained by the United States . . . why is it that they should be returned only to people with Hawaiian blood?’”
Professor Van Dyke sheds some light on the “structure of the [Hawaiian] Kingdom’s Constitution” and exposes what he considers to be “assertions [that] are factually incorrect or seriously misleading.” He does this by dividing his article into three sections, as provided in his article’s title: population, citizenship, and voting, followed by two other parts, the 1887 Constitution and his conclusion. In doing so, he does what Benjamin and Hanifin appear to have failed to do, distinguish between issues of mere residency and citizenship.
Population
Van Dyke discusses a number of issues related to the population of the Hawaiian islands: the decline of the Native Hawaiian population, the need for immigration, the increase in the general population between 1852 and 1900, and the lack of participation of immigrant workers in the political system. Van Dyke recognizes that the general population of the Hawaiian islands might have made Native Hawaiians a numerical minority (45% of the population in 1890, 36% of the population in 1896), however, he asserts that, “these numbers misrepresent the reality of governance in the islands, because the foreign contract laborers were considered to be temporary visitors and those of Asian ancestry were systematically excluded from participation in the Kingdom’s political decision making.” (emphasis added).
Citizenship
In this section, Van Dyke recognizes that the term “citizen” was not generally used, but, instead, the term “subject” was used to describe someone who was a citizen of the Kingdom. Van Dyke briefly describes the first Kingdom citizenship law, adopted in 1840, that “required foreigners who married Hawaiians to ‘take the oath of allegiance to this government’” and then briefly explains the naturalization laws of 1846. He discusses, in particular, a Kingdom Supreme Court case, Naone v. Thurston, 1 Haw. 220 (1856), that interpreted a law requiring persons of foreign parentage to pay a $5 school tax. Thurston contended that while “he was ‘born of foreign parentage’ . . . because he was born [on] Kingdom [soil] he was ‘a Hawaiian subject by birth.’” Although not disputing that Thurston was a Hawaiian subject, the Court upheld the law as not “repugnant to either the letter, or spirit, of the [1852] Constitution.” According to Van Dyke, this case illustrates the Supreme Court’s recognition of “the distinction between natives and foreigners.” In this section, Van Dyke also addresses the development of naturalization laws and citizenship requirements for government jobs.
Voting
This section begins with the recognition that being a subject or citizen of the Kingdom did not necessarily confer voting rights, stating that “women were [not] allowed to vote and many men were excluded as well.” Van Dyke briefly chronicles the evolution of voting from the 1840 Constitution through the 1887 Constitution. He describes the changes in the legislative body consisting of the House of Nobles and the House of Representatives, voting requirements under the 1852 Constitution, the change of annual elections to every two years, attempts to amend the 1852 Constitution voting requirements, the changes to voting requirements in the 1864 Constitution (requiring ownership or leasehold in property of certain value or an “annual income of $75 year,” with the additional requirement of literacy), the elimination of the “property/income requirements” in 1874, and the impacts these changes had on voting.
The 1887 Constitution
Van Dyke asserts that, although the 1887 Constitution, forced upon King Kalākaua through a coup d’état, allowed non-natives to vote, Native Hawaiians maintained a dominant role in Hawai‘i politics. One of the most significant features of the 1887 Constitution was that it limited voting by non-natives to people of European or American ancestry “if they could read a newspaper in any European language, a provision designed explicitly to allow those of Portuguese ancestry to vote.” Those of Asian ancestry could not participate in political decisionmaking. According to the Kingdom’s Chief Justice Albert F. Judd, the purpose of the 1887 Constitution voting provision allowing Portuguese to vote “was to balance the native vote.”
Van Dyke counters Hanifin’s assertion that Native Hawaiians lost political power before the 1893 overthrow by recognizing that, despite the efforts of Lorrin Thurston and his supporters during and after 1887, and “[e]ven with the restrictive property and income restrictions governing the voting for the Nobles, Native Hawaiians continued to play the dominant role in decision making[.]” This conclusion is supported by the large numbers of Native Hawaiian voters in the February 1890 election, the success of the National Reform Party to force the resignation of the Thurston-led Cabinet, and the fact that in 1892, Native Hawaiians held 25 of the 48 seats in the House of Representatives.
In his conclusion, Van Dyke reiterates that Native Hawaiians maintained political control prior to the overthrow, and, in fact, “[i]n the 1890 election, Native Hawaiians had effectively wrested control of the Kingdom from those who had foisted the Bayonet Constitution on the Kingdom, and efforts were underway during the years that followed to reassert a stronger role for the Monarchy.”
2. Rebecca Tsosie, Engaging the Spirit of Racial Healing Within Critical Race Theory: An Exercise in Transformative Thought, 11 MICH. J. RACE & L. 21 (2005).
In this article, Professor Tsosie discusses Critical Race Theory (CRT), a school of thought embraced by progressive legal scholars, and applies her discussion to the contemporary debate surrounding the status of Native Hawaiians. According to the author, a central theme within CRT “is the need for ‘justice’ and how the law relates to justice.” She uses this CRT theme to examine the debate about the status of Native Hawaiians “to show how ‘race’ is being used to construct the civil and political rights of Native Hawaiian people.” In exploring “what it means to ‘heal’ injustice[,]” she examines “the historical context within which Native Hawaiian rights are situated, and compares the analysis in the federal court cases that are constructing contemporary Native Hawaiian rights as well as the rights of non-Natives.”
In particular, the article examines then-pending legislation sponsored by Senator Akaka, the “Native Hawaiian Government Reorganization Act,” that would have “formally acknowledge[d] a political relationship between the United States and the Native Hawaiians and lead to the creation of a governing body for Native Hawaiians similar to the tribal councils possessed by many Native American Nations.” According to Tsosie, because the Akaka Bill “contemplates ‘political change’ and purports to be a mechanism to achieve ‘justice’ for Native Hawaiian people[,]. . . it is a prime site to apply the theoretical discourse within political theory and critical race theory about ‘idealist’ and ‘realist’ approaches to justice.” She also uses CRT as a lens to analyze Native Hawaiian history and contemporary issues, and to examine questions such as: “Are Native Hawaiians members of a ‘nation,’ a ‘domestic dependent nation,’ or a group of ‘multicultural’ and ‘multiracial’ U.S. citizens? And why does it matter? What legal frameworks govern these issues? What is the social context of the dispute?”
Tsosie also explores Rice v. Cayetano and Doe v. Kamehameha Schools and notes that both cases “award rights to White people using constitutional and civil rights doctrines that were intended to help minority groups achieve parity with the dominant society and redress their historic exclusion.” They are also cases in which “the White plaintiff is seeking to share some benefit that has been awarded to Native people to redress a history of injustice.”
She then asks whether the Akaka bill will solve the issues Hawaiians face. She explores the varying approaches to and opinions of the Akaka Bill, and also notes that “it is not clear that Congress has the same authority to enact such legislation for Native Hawaiians under the Commerce Clause of the U.S. Constitution as it does for Indian tribes.” The Kingdom of Hawai‘i, she notes, “enjoyed international recognition, which makes Native Hawaiians unique among all indigenous groups now in the United States.”
Citing the work of Professor Eric Yamamoto, the article contends that “the idealist and materialist frameworks [of CRT] are essential to the type of restructuring that will be necessary to accomplish ‘racial healing.’” For Tsosie, “CRT offers a conceptual framework to gain knowledge about injustice, to create concepts of racial ‘equality’ that address the historical or contemporary forms of injustice,” and to create new possibilities that may currently be outside of our “reality.”
She concludes the article by “suggesting how that process of envisioning [new possibilities] might work in Hawai[‘]i.” Hawaiians today are being told that they have a choice: “First, they can ‘assimilate’ into the ‘multicultural’ citizenry of Hawai[‘]i as a state within the U.S.[,]” as suggested by the majority in the Rice decision. In this sense, “justice is accomplished through ‘equality’ as citizens . . . [and] Non-natives and Natives are treated ‘alike.’” According to this view, Hawaiian history is irrelevant. Hawaiians must instead “move ahead to be part of ‘America[.]’” The second choice is to have a “separate political status as a form of ‘domestic dependent nation’” as under the Akaka Bill. This approach, found in Federal Indian law, “centers around the ‘political’ rather than ‘racial’ status of federally-recognized Native American and Alaska Native peoples” and is used to defend federal programs that benefit federally-recognized Native American groups. She emphasizes that if Hawaiians pursue this route, the “United States cannot claim that the Native Hawaiians did not have a separate political status, nor can it claim that the United States has not recognized a special relationship and obligation through federal enactments[.]”
Tsosie thus asks, “is the Akaka bill a satisfactory way to achieve ‘justice’ for Native Hawaiians? Will it lead toward ‘reconciliation’ (which presumably entails racial healing)? And, perhaps most important of all, are these two ‘solutions’ truly the only possibilities?” In order to begin to answer these questions, the author draws on some of her previous work on “Cultural Sovereignty,” which she defines as “the effort of Indian nations and Indian people to exercise their own norms and values in structuring their collective futures.” In other words, Native people must “define, assert, protect, and insist upon respect for the right to be what they have always been: distinctive governments and societies, autonomous and free. But we first have to resist the colonial enterprise, which uses external power to define the ‘other’ as subordinate to the colonial nation.”
She argues that Native Hawaiians do not need the federal government to grant them sovereignty: “If they have maintained their political identity, they have maintained their sovereignty. What the Native Hawaiian people need is for the United States to recognize that sovereignty on terms that are acceptable.” She reviews possible outcomes and concludes that the concept of “equal citizen” is unacceptable because it negates Hawaiians’ political identity; the status of “domestic dependent nation” is acceptable to some Hawaiians and not to others; the status of “nation” is acceptable to independence proponents, but is probably unacceptable to the United States. She explores other possibilities, such as the idea of “free association” through a contract between the Nation of Hawai‘i and the U.S., much like the relationship between the U.S. and the Republic of Palau. She suggests also looking to the new Inuit territory of Nunavut in Canada as an example of “how contemporary governments can craft new and creative models to fit the cultural and political character of Native peoples within their borders.”
3. Civil Rights – Section 1981 – Ninth Circuit Holds that Private School’s Remedial Admissions Policy Violates 1981 – Doe v. Kamehameha Schools, 416 F.3d 1025 (9th Cir. 2005), 119 HARV. L. REV. 661 (2005).
This article analyzes and critiques the Ninth Circuit Court of Appeals’ decision in Doe v. Kamehameha Schools. The article first briefly describes the federal district court’s decision upholding the Schools’ admissions policy using Title VII’s legal framework. In particular, it points out that the district court recognized that the framework was designed for an employment context and therefore “applied the test generously to accommodate Kamehameha Schools’s unique history and mission and to align with congressional efforts to remedy past wrongs against Native Hawaiians.”
The article then explores the Ninth Circuit Court of Appeals decision. Although the Ninth Circuit also invoked Title VII’s more deferential framework, it “closely adhered to the Title VII employment case of United Steelworkers of America v. Weber” in order to strike down the Schools’ admissions policy. Under Weber, courts consider, among other things, whether a private employer’s affirmative action policy “unnecessarily trammel[s]” the rights of the non-preferred group or “create[s] an absolute bar” to the non-preferred group members’ advancement. The Ninth Circuit court determined that the Schools’ policy violated this second Weber factor because it “operates as an absolute bar to admission for non-Hawaiians” and “categorically ‘trammels’ the rights of non-Hawaiians.”
The article contends instead that the Ninth Circuit “inadequately analyzed the second Weber factor by failing to specify any relevant interests that were ‘trammeled’ and by assuming that advancement is coextensive with admission in the educational context.” Also, by applying Weber in a strict and superficial way, the court effectively held that “no exclusive remedial policy could pass muster.” Instead, as the article argues, analysis of the Schools’ policy required the careful “consideration of the role of educational institutions in an unequal society, of the appropriateness of private voluntary efforts in furthering congressional intent, of whose ‘fairness’ takes priority, and of which form of racial stigmatization society can most tolerate.”
The article also contends that the Ninth Circuit “confused the distinct stages of the McDonnell Douglas Corp. v. Green Title VII burden-shifting framework.” Under the second stage of that framework, the “relevant question was whether . . . the policy’s remedial purpose provided a legitimate nondiscriminatory rationale for the disparate treatment, with Weber providing a framework for evaluating the policy’s legitimacy.” Moreover, the court erroneously relied on the case of Runyon v. McCrary to illustrate that Doe’s interests were trammeled; Runyon did not involve a remedial policy (like Kamehameha’s), but a clear case of discrimination. As the article states, “The right to nondiscrimination protected in Runyon helps establish only the first stage of McDonnell Douglas (that facial discrimination occurred); to allow Runyon alone to render Kamehameha’s policy illegitimate is to call into question all remedial policies, which must facially distinguish between members of different groups.”
The article suggests an alternative approach that would “allow private institutions to implement exclusive remedial policies but would constrain their use.” Instead of the Weber test, a new framework might require: “first, clear congressional recognition of a historic wrong that severely disadvantaged a discrete group; second, factual findings that the group remains significantly disadvantaged; and third, a specific, legitimate need requiring an exclusionary policy. In Doe v. Kamehameha Schools, the article contends, all three factors could be met.
4. Kara M.L. Young, Kamehameha’s Hawaiians-Only Admissions Policy Under 42 U.S.C. §1981: A Permissible Pursuit of Practical Freedom, 26 U. HAW. L. REV. 309 (2003).
This article describes the two federal court challenges to Kamehameha Schools’ admissions policy, Mohica-Cummings v. Kamehameha Schools and Doe v. Kamehameha Schools, and analyzes the Schools’ admissions policy under the civil rights statute, 42 U.S.C. §1981. According to the article, in reviewing cases such as those involving Kamehameha Schools, the court must balance often conflicting goals: “preserving and advancing the heritage of a native people who were unlawfully overthrown, versus pursuing the longtime goal of breaking down racial barriers and eliminating invidious discrimination.” The author argues that, although these ideals appear to conflict, “‘practical freedom’ provides a guide for defining race under §1981 and allows the ideals to be reconciled.” For this author, practical freedom is the “antithesis of formal ‘paper guarantees’ that do nothing to actually enforce rights in reality. It is a power, implemented by the Civil Rights Act of 1866, that translates the Thirteenth Amendment’s prohibition against badges and incidents of slavery into an affirmative right to have the same opportunity as any other race to live, work, and become a productive member of society.”
The author grounds her analysis in the history of the U.S. relationship with Hawaiians as well as the history and purposes of civil rights jurisprudence under §1981. She argues that, “[b]ecause practical freedom is an aim common to both Kamehameha’s [policy] and western civil rights equality jurisprudence, understanding the motivation behind the Thirteenth Amendment helps reconcile these seemingly conflicting interests.”
The author also contends that the concept of practical freedom supports a “flexible interpretation of ‘race’ under §1981.” She applies this flexible interpretation to the Kamehameha Schools cases and concludes that “although Kamehameha’s admissions policy may be race-conscious, it does not violate the meaning of ‘race’ under §1981.” She concludes that Kamehameha Schools’ admissions policy is a critical tool in the Native Hawaiian pursuit of equality, and that the policy furthers the same goal of “practical freedom” that §1981 seeks to achieve. She thus urges courts to adopt this flexible concept of race because it would allow them to “consider the factual circumstances of each particular case, which is a necessary step to making a fair decision.”