THE UNITED STATES CONSTITUTION AND NATIVE HAWAIIAN RIGHTS

Remarks by Kelli Keahiahi Lee, Community Outreach Fellow, Sept. 18, 2006, Leeward Community College Constitution Day

Good afternoon. I’m very happy to be here with you today and am honored to be discussing an important and controversial topic of how the United States Constitution has impacted Native Hawaiian rights. Before we start, I’d just like to thank all of you here at Leeward Community College for allowing the me to join you today, and I’d especially like to thank Professor Melody MacKenzie, Director of the Center for Excellence in Native Hawaiian Law, for giving me this opportunity to speak in front of you. My goal, in presenting this speech, is not simply to conduct a lecture, but to engage you in discussion where we consider Constitutional law and Hawaiian rights from a different perspective—a perspective that not only looks at the laws themselves, but looks at the effects of these laws on Native Hawaiians as they are interpreted and implemented. I will be covering the basics today—the basics of Constitutional law and basics of Hawaiian history. We will end our discussion at the intersection of these two topics by critically analyzing the concept of “equality.”

During the time of the Revolutionary War, the Thirteen Colonies formed their first government with a document known as the Articles of Confederation. The Articles of Confederation created a Congress that served as a loose, central government for what then became the states. Congress, though it was the only branch of government, could not tax, or override the laws and tariffs of the states themselves. Because the government created by the Articles of Confederation was so weak and riddled with problems, plans were set in motion to revise it. Twelve States accepted an invitation to revise the Articles of Confederation, and sent delegates to Philadelphia to begin this undertaking. Instead of revising the document, however, delegates at the Philadelphia Convention decided to secretly draft a new government document. On September 17, 1787, the United States Constitution was completed, and was ready for ratification by the states. And the rest, as they say, was history.

The delegates who authored the Constitution were charged with the task of creating a document that laid the foundation for a strong central government, while maintaining the rights of the states. A document that protected citizens from the tyranny of a single Monarch, and protected citizens from the tyranny of the masses. A document that was elegant enough to expand and contract to suit the needs of its citizens. And what they accomplished was simply unprecedented. The United States Constitution is perhaps one of the most unique and influential political documents ever written. George Washington described it as “little short of a miracle.” Benjamin Franklin, who was 81 years old and in failing health when he signed the Constitution, did so with tears streaming down his face.

What was so unique about this document that it made one man hail it as a miracle, and another man cry? In a word, EVERYTHING.

The Constitution, as it was written, was radical! And I think it’s important to make this point, to show the Constitution in this light, because today, you don’t hear about the Constitution being radical unless you are hanging out in the history department. But again, it was absolutely alarming: the co-existence and cooperation of state and federal governments—an executive branch, legislative branch, and judicial branch—checks and balances—the electoral college—representation by population and by virtue of statehood—the ability to make amendments—these were all new and untested governmental designs.

As time passed, however, and as the United States grew into its new skin, the Constitution lost its strangeness and simply became ordinary. Constitutional governments, in the minds of many U.S. citizens, are the status quo. We expect developed, First World countries to have governments organized by Constitutions.

And yet, despite our unwillingness today to think of the U.S. Constitution as radical, it still is. The United States Constitution is still a unique governing document. Although it is the oldest written Constitution, it is to this day, the shortest of any other government in the world. It is also unique in that it has assisted the United States in becoming the most powerful and prosperous country in a little over 200 years. So what is it that continues to make the Constitution special?

The Constitution is a special document because it is “living and breathing.” It is a document that is ever-growing and ever-changing, as new amendments are ratified, and as new problems confront the court, problems that were not foreseen 200 years ago—like stem cell research, MySpace, cell phones, and even MacDonald’s scalding-hot coffee and artery-clogging French fries. When you think about it, the delegates who attended Philadelphia’s Constitutional Convention did not even know the country would grow to include 50 states, spanning from the Atlantic to the Pacific, and including citizens from every corner of the globe.

Let’s talk about freedom. We hear about freedom a lot these days. But the freedom afforded to U.S. citizens through the Constitution was added later as amendments to the document. The Bill of Rights, as they are now called, are an important part of the constitution. But they are, by no means, the only part. The authors of the Bill of Rights knew that the freedom afforded to the individual must be tempered by the needs of the community. No one is free to do as they wish because the actions of one person can affect many. And this is the beauty of the Constitution. It recognizes the existence of specific types of freedom: freedom of religion, speech, press, peaceable assembly.

Ok, ok . . . so the political scientist in me thinks highly of the Constitution. It’s wonderful and extraordinary. But is it wonderful and extraordinary as it relates to Native Hawaiians?

To begin our investigation into the Constitution and Native Hawaiians, let’s do an exercise. I’d like everyone to think silently to themselves about how the Constitution has helped Native Hawaiians. Now I’d like you to think about how the Constitution has hurt Native Hawaiians. Which list is longer?

Now that we’ve completed our exercise, I must admit that it was kind of tricky. Why? Well, because the U.S. Constitution did not apply to Native Hawaiians or any inhabitants of Hawai‘i until Hawai‘i became a territory on July 7, 1898. And, of course, Hawai‘i was not made a state of the Union until August 21, 1959. When considering the History of the Kanaka Maoli, which goes back over 1500 years in these islands, the Constitution has only been the Supreme Law of the land for a mere 100 years. Now, why is this fact important? It is important because in United States history, the Constitution fits into the beginning of the story. In Hawaiian history, the U.S. Constitution comes in somewhere in the middle. And yet, as Hawaiians, we are often asked to forget all the things that happened before the Constitution, before statehood. To ignore it. To pretend that our start date occurred at the same time and under the same circumstances as the thirteen colonies.

And this attitude continues. For example, when students attend grade school, do they learn about 1500 years of Hawaiian history? Or do they learn 200 years of United States History? When you were in school here in Hawai‘i, where did your history books begin? Did Hawaiian history encompass the whole book, culminating with statehood, or was Hawaiian history one chapter, breezed over in a single lesson?

So the question becomes, why does the Constitution feel like it came into the picture here in Hawai‘i much further back than 1898? The simple answer is that the theories, ideologies, and culture that supported the creation of the United States Constitution were, in many ways, here long before the Constitution. The ideology behind the Constitution was here to support the dismantling of the Hawaiian Kingdom, and the end of Hawaiian self-governance.

When the Western population first began migrating in significant numbers to Hawai‘i, they brought with them a culture and a set of ideas that reflected the same normative standards found in the Constitution. Westerners wanted to own land. A concept that was ridiculous to Native Hawaiians. After all, when the islands are members of your family, children of the gods Papa and Wākea, how can anyone claim them? The Westerners wanted to participate in government, when they were clearly not ali‘i. And when you lack a genealogical tie to the gods and to the islands, how can you assert a right to rule? Clearly, there was a clash of cultures - a clash that continues to this day.

For Hawaiians, any time race or cultural practices are at issue in the courts, we find ourselves in a losing battle. It seems the courts are unable to use the context of our history to render Constitutional decisions in our favor. Instead, the courts choose to ignore the reality of our situation. We did not come to this country. This country came to us.

Words like “affirmative action” and “race-based programs,” are favorites used to describe Hawaiian initiatives to maintain our culture and way of life. And yet, they are words that inaccurately describe our efforts. With each passing year, more programs are struck down in court as unconstitutional, as discriminatory against those who are not ‘ōiwi, those who are not Native Hawaiian. The trend has been more lawsuits, and more limitations on what are legitimate Native claims. The Office of Hawaiian Affairs, the Department of Hawaiian Homelands, Kamehameha Schools, Queen Lili‘uokalani Children’s Center, have all been on the defensive, and have had to step into a Court of Law and explain why their programs are necessary and not discriminatory. At the same time, when Hawaiians go on the offensive, and question the State’s management of ceded lands, or question the management of Hawaiian Homelands, or ask about lease-to-fee conversion, or try to assert freedom of religion, or try to extend our rights as cultural practitioners, we still lose. Right now, whether we like it or not, we are on a team with one heck of a losing streak.

So what is going on here? Is it possible that the losing streak of Hawaiians in court is just an interesting and unusual statistical anomaly? Or is something else at play?

I believe there is something else in the mix. And what is affecting our success in court is the ignorance and racism that allows the laws to be interpreted as they are.

There are many myths about Native Hawaiian people. The first myth was the myth that the first people of these islands were savage, second-class heathens. It was a myth that allowed Westerners to justify their occupation of this land. And now that that myth has been whittled away by Native scholars, the new myth is, in my opinion, even more damaging and vicious. The new myth is that Hawaiian history, as explained by Native scholars is a lie…that Hawaiians are better off as United States citizens, and that our legal claims are strained and tenuous. This myth allows the Supreme Court to ignore the plight of Hawaiians, and to embrace the agenda of those who attack our initiatives.

Once upon a time in the United States, being a racist was perfectly acceptable. And it is foolish to think this time has passed. After all, the Constitution supports a plurality of ideas, and being a racist is certainly not unconstitutional. On the contrary, racism has long been a part of United States history. This is not news to anyone. Many of the founding fathers of the United States were slave owners like George Washington and Thomas Jefferson. Throughout history, prestigious positions of government have been held by racists. At the Supreme Court level, former Chief Justice Edward Douglass White and Justice Hugo Black were both reported members of the Ku Klux Klan. In Congress, West Virginia’s ex-Senator Robert Byrd was a recruiter for the Ku Klux Klan, and continued to defend the Klan until 1958. United States President Harry Truman admitted to once paying Klan membership dues.

Today, there are no Congressmen who claim ties with the Ku Klux Klan. With that being said, however, I ask you: Do you think the vestiges of white supremacy have completely disappeared from government? Is racism dead?

During the Civil Rights era of the 1960s, Martin Luther King, Jr. moved thousands of Americans to confront racism . . . to see racism as the ugly, oppressive, power structure that it was and to speak out against it. Through peaceful protests, demonstrations, sit-ins, and freedom rides, Dr. King shared his dream of equality with the world. But the road was anything but easy. And ultimately, Martin Luther King, Jr. paid for political change with his life.

If Dr. King were with us today, what would he say about the Civil Rights movement? If he saw race relations in the United States, would he be proud of us? Would he think the fight for equality was over?

And what is “equality”, anyway? Before the Civil Rights movement, African Americans lived their lives as U.S. citizens in segregation. Through the law, they were kept out of white schools, white neighborhoods, white juries, white jobs. In the landmark case, Brown v. Board of Education, the Supreme Court finally recognized that this segregation was harmful and unconstitutional. In this famous decision, the Court admitted that even if Blacks had access to the best segregated schools, the best segregated neighborhoods, the inequality was in the separation itself.

Today, many of the people arguing in court that they have been discriminated against are white people. As used against Native Hawaiian programs, the argument goes like this: Hawaiians are starting race-based programs to discriminate against non-Hawaiians.

Does this make sense to you?

Think if you will, for a moment, about your family. If your parents were like mine, they repeatedly said that they loved each one of their children equally. And I sure hope this is true. But what they also said is that they treated each one of us equally. Now this was absolutely FALSE. The house rules were the same for all three of us…but it was the application of those rules that created some glaring differences. From the time my younger brother entered this world, I was pretty sure that the rules applied to him in a different way. When we were in elementary school, and I told my mother that I was done with my homework and wanted to play outside, I was allowed out, without the interrogation or funny looks she always gave my brother. And when we were in high school, my brother, who was two years my junior, had the same curfew as me, but stayed out two hours later without any repercussions. And don’t get me started on my baby sister… since she was the youngest, no matter what rules she broke, she never seemed to be in any trouble.

Of course, I would complain to my parents that it wasn’t fair. Which would lead them to give me their famous “Life Isn’t Fair Speech.” So was I right, or were they? Should they have treated us exactly the same?

This brings us to interesting legal question: Do a set of rules or laws applied equally across the board create fair results? Is Justice really that simple? If my parents had treated us exactly the same without any deviation, would life have been better for us all?

My answers to these questions are NO. No, laws applied equally across the board do not create fair results. No, justice is not simple. No, life would not have been better in my house if my siblings and I were treated exactly the same.

Rules applied without a deeper consideration of history, context, and details, do not create fair results, and do not support justice. Instead, an application of law in a manner that is strict and harsh, in a manner that does not allow for subtle differences, breeds resentment and distrust of the system. It is true…the devil is always in the details. In ignoring the details, you can miss the whole point. And when you miss the point, you will find yourself making illogical and unjust conclusions of law.

My parents were brilliant. They knew that, in order to make our family work, there had to be a standard set of rules. But they also knew that the application of the rules had to depend on the situation because all three of their children needed slightly different things. My mom didn’t have to check my homework, because it was done. My brother could stay out a little later because it did not threaten his safety in the same way it threatened mine. And my sister…well, she was just spoiled.

My point is this: the Constitution, when interpreted properly, is like a good set of family rules. It is there for everyone, but is applied in a way that appreciates the little details, the subtle differences. At its very best, the Constitution embraces our differences, and does not force us to be the same, act the same, think the same, and need the same. Hawaiians, even as current United States citizens, have the Constitutional right to be different, and have the right to run programs that assist our people. Why? Because our programs were not started to oppress anyone, to keep anyone out. Our programs were started to rectify the wrongs done to us by this government, to repair what is there within. And that difference makes all the difference in the world. We should not have to apologize in a Court of Law for trying to strengthen ourselves in the face of cultural extinction.

Where people once wore sheets to hide themselves in an effort to terrorize those of color, the modern racist now cloaks himself in something totally unexpected, in the rhetoric of equality, in the rhetoric of us all being the same, in the rhetoric of being color-blind. But ask yourself what this means. What does being the same mean? Does it mean the people on the attack are all of a sudden going to be like you, or does it mean you will be forced to be like them? The strategy is so brilliant, so well executed, that some of the best of us have become confused and misled by it. Don’t you be fooled.

Aloha.