Preface

The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians

In 1979, the Hawaii Advisory Committee to the U.S. Commission on Civil Rights received complaints from concerned citizens and trust beneficiaries regarding administration, management, and enforcement of the homelands trust established under the Hawaiian Homes Commission Act (HHCA).[1] The Hawaii Advisory Committee convened a public forum and subsequently released a report in 1980 titled Breach of Trust? Native Hawaiian Homelands. In 1988, the Hawaii Advisory Committee convened a fact-finding meeting to solicit information on intervening developments with respect to the implementation, management, and enforcement of the HHCA. The Hawaii Advisory Committee then convened a second fact-finding meeting in 1990, followed by release of its report in 1991 titled A Broken Trust, The Hawaiian Homelands Program: Seventy Years of Failure of the Federal and State Governments to Protect the Civil Rights of Native Hawaiians.

The Hawaii Advisory Committee recognizes that the failure to faithfully administer the HHCA constitutes systematic and pervasive discrimination against Native Hawaiians by both the federal and state governments, despite explicit and implicit trust duties owed to Native Hawaiian beneficiaries. This recognition implicates complex issues that distinguish the Hawaiian self-determination issue from virtually all other civil rights inquiries. The Commission's State Advisory Committees do not typically focus on allegations of discrimination that involve the right of self-determination. However, given the political status accorded to more than 550 tribes, confederations, and bands currently recognized by the U.S. government, the lack of federal recognition for Native Hawaiians appears to constitute a clear case of discrimination among the native peoples found within the borders of this nation. It is from that perspective that the Hawaii Advisory Committee conducted its inquiries on reconciliation efforts and the Rice v. Cayetano decision. The Hawaii Advisory Committee fully recognizes that this issue overlaps considerably with issues related to the implementation of its recommendations in the 1991 Broken Trust report. For example, recommendation 2 of the committee's 1991 report called upon Congress to enact appropriate legislation to recognize a trust relationship between the United States and Native Hawaiians.[2]

In 1993, Congress passed a joint resolution and President Clinton subsequently signed Public Law 103-150, which acknowledged the 100th year commemoration of the overthrow of the Kingdom of Hawaii. Public Law 103-150 also apologized to Native Hawaiians for the improper role the United States Navy played in support of the overthrow. The measure committed the United States to acknowledging the ramifications of the illegal overthrow in 1893, in order to support a foundation for and to support reconciliation between the United States and the Native Hawaiian people. Finally, Public Law 103-150 called upon the President to engage in a policy of reconciliation with Hawaiians.

Five years passed without any apparent action to implement the federal policy of reconciliation with the Native Hawaiian people. Based upon concerns voiced in the community that ongoing delays in reconciliation efforts posed a serious risk to the well-being of Native Hawaiians and to the enforcement of their civil rights, the Hawaii Advisory Committee held a daylong community forum on August 22, 1998. The forum consisted of five panels of experts, including scholars, attorneys, government officials, service providers, and local activists. Each panel focused on one of five topics related to the Apology Resolution: (1) its purpose and meanings; (2) civil rights implications; (3) equal protection for Native Hawaiians; (4) state reconciliation efforts and future initiatives; and (5) federal oversight, reconciliation efforts, and future initiatives.[3] The Hawaii Advisory Committee strove to invite a cross-section of participants to obtain a balanced view of the issues, analysis, and information relevant to its inquiries. Thus, opposing viewpoints were shared with the Hawaii Advisory Committee in a session open to the public and media. Because of time and budget constraints, however, the Hawaii Advisory Committee simply could not accommodate everyone who wished to participate on scheduled panels. Others, including members of the State Senate and House of Representatives, chose not to accept invitations extended by the Hawaii Advisory Committee.

The Hawaii Advisory Committee tried to hold hearings on each of the seven populated islands of Hawai i. However, the Advisory Committee was forced by time and budget constraints to limit its inquiry to one meeting on O ahu, the population center of these islands, where 80 percent of Hawaii's citizens currently reside. Beyond the invited guests, the Advisory Committee allowed an extra two hours for any member of the public to appear and speak. Nineteen members of the public provided testimony at the conclusion of the scheduled panels.[4] All those who participated in the community forum, and members of the general public, were invited to submit additional written testimony through the Western Regional Office of the U.S. Commission on Civil Rights.

Several themes emerged from the testimony presented to the Hawaii Advisory Committee, some of which will be discussed in greater detail later in this report. The themes include:

Shortly after the Hawaii Advisory Committee's August 1998 forum, the U.S. Department of the Interior and Department of Justice announced plans to conduct statewide hearings on reconciliation. In late 1999, representatives from the Departments of the Interior and Justice arrived in Hawai i and conducted a series of public hearings, culminating December 11, 1999, on the island of O ahu. Persons who attended these hearings were informed that a report would be produced within a few months. However, the report was delayed in order to take into consideration legal developments that are more fully described later in this report. The Departments of the Interior and Justice ultimately issued their Reconciliation Report on October 23, 2000.

A little more than a year before the Departments of the Interior and Justice released their Reconciliation Report, the U.S. Supreme Court heard oral arguments in Rice v. Cayetano. The case presented the issue of whether the State of Hawai i could limit the election of trustees to the Office of Hawaiian Affairs (OHA) to Native Hawaiians, who were the intended beneficiaries of OHA. Both the District Court for the District of Hawai i and the United States Court of Appeals for the Ninth Circuit held that the OHA elections did not violate either the 14th or 15th Amendments of the United States Constitution.[5] However, on February 23, 2000, the U.S. Supreme Court vacated the lower court decisions, concluding instead that the OHA elections violated the 15th Amendment.[6]

These circumstances prompted the Hawaii Advisory Committee to request, at its March 30, 2000, meeting, that the U.S. Commission on Civil Rights come to Hawai i and join an open meeting on the potential impact of the decision. The Commission determined that the project should remain an Advisory Committee activity and that a number of Commissioners would join in collecting the information.[7] The Advisory Committee held another community forum on September 29, 2000, in Honolulu, Hawai i. Commission Vice Chairperson Cruz Reynoso and Commissioners Yvonne Y. Lee and Elsie Meeks sat as members of the hearing panel. The intent of the forum was to give voice to the concerns of Hawaiians and non-Hawaiians relating to the potential immediate and long-term implications of the Rice decision on federal and state programs for Native Hawaiians and possible future remedies, as suggested by proposed legislation.[8] The forum consisted of five panels of experts, including scholars, attorneys, government officials, service providers, and local activists. Each panel focused on one of five topics related to the Supreme Court's decision in Rice v. Cayetano: (1) the impact on programs in health, education, and housing; (2) legal implications; (3) government programs; (4) legislative response; and (5) other perspectives.[9]

The session concluded with a forum open to the public, at which approximately 19 individuals representing a range of perspectives testified.[10] Hawaiian elders, or kupuna, spoke the evening prior to the forum, following a meeting of the Hawaii Advisory Committee. Approximately 14 kupuna gave testimony.[11] Again, all those who participated in the community forum, and members of the general public, were invited to submit additional written testimony through the Western Regional Office of the U.S. Commission on Civil Rights. Several themes emerged from the testimony presented to the Hawaii Advisory Committee, some of which will be discussed in greater detail below. The themes included:

The intent of this report is to highlight major themes of the 1998 and 2000 proceedings, document the debate surrounding the reconciliation process and entitlement programs, and provide recommendations designed to ensure the preservation of civil rights for Native Hawaiians.

[1] Hawaiian Homes Commission Act, Pub. L. No. 67-34, 42 Stat. 108 (1921) (sometimes referred to as the Hawaiian Homes Commission Act of 1920, because the underlying bill was introduced the year prior to its passage), reprinted in 1 Haw. Rev. Stat. 191 233 (1993); 1 Haw. Rev. Stat. 51, 57 66 (Supp. 2000). See also 48 U.S.C. 691 note (1987).

[2] Hawaii Advisory Committee, A Broken Trust, The Hawaiian Homelands Program: Seventy Years of Failure of the Federal and State Governments to Protect the Civil Rights of Native Hawaiians, 1991, p. 44.

[3] Panelists on August 22 included: Esther Kia aina, legislative assistant, U.S. Senator Daniel K. Akaka; Rev. Kaleo Patterson, associate pastor, Kaumakapili Church, and executive director, Hawaii Ecumenical Coalition; James Mee, attorney; Carl Christensen, attorney, Native Hawaiian Legal Corporation; Poka Laenui, Institute for the Advancement of Hawaiian Affairs; John Goemans, attorney (by telephone); Kanalu Young, professor, Center for Hawaiian Studies, University of Hawai i at Manoa; Jon M. Van Dyke, professor, William S. Richardson School of Law, University of Hawai i at Manoa; Stuart Minor Benjamin, professor, University of San Diego Law School (by telephone); Mililani Trask, Kia aina (governor), Ka Lahui Hawai i; A. Frenchy DeSoto, chairperson, Office of Hawaiian Affairs; Kali Watson, chairperson, Hawaiian Homes Commission, and director, Department of Hawaiian Home Lands; Peter Apo, special assistant for Hawaiian affairs, Office of the Governor of Hawai i; Ferdinand Danny Aranza, deputy director, Office of Insular Affairs, U.S. Department of the Interior; Mark Van Norman, deputy director, Office of Tribal Justice, U.S. Department of Justice; and Grover Joseph Rees, staff director and chief counsel, Subcommittee on International Operations and Human Rights, Committee on International Relations, U.S. House of Representatives.

[4] Open session participants were: Kina u Boyd Kamali i; Mililani Trask; Stephanie Bengene Lindsey; Richard Schrantz; Richard Thompson; Charles Rose; Lilikala Kame eleihiwa; Richard Morse; Lela Hubbard; Luis Hangca Jr.; Louis Agard; William Ko omealani Amona; Jimmy Wong; Pomai Kai Lokelani Kinney (Henry Richard Kinney Jr.); Lehua Kinilau; Bernard Freitas; Maui Loa; Coochie Kayan-Coons; and Owana Salazar.

[5] Rice v. Cayetano, 963 F. Supp. 1547 (D. Haw. 1997), aff d, 146 F.3d 1075 (9th Cir. 1998), rev d, 120 S. Ct. 1044 (2000). On remand from the Supreme Court, the court of appeals vacated its earlier decision, reversed the district court, and remanded the case for further proceedings. Rice v. Cayetano, 208 F.3d 1102 (9th Cir. 2000). The district court subsequently entered judgment, consistent with a stipulation by the parties, declaring that the plaintiff's 15th Amendment rights were violated. See Rice v. Cayetano, Civ. No. 96-00390-DAE (D. Haw. Apr. 11, 2000) (Order Approving Stipulation of Plaintiff and Defendant, Entering Final Judgment and Dismissing Office of Hawaiian Affairs, Rowena Akana, Haunani Apoliona, Donald Cataluna, A. Frenchy DeSoto, Louis Hao, Clayton Hee, Collette Machado, Hannah Springer, and Mililani Trask, in their Capacity as Trustees of the Office of Hawaiian Affairs Motion to Intervene as Moot).

[6] Rice v. Cayetano, 120 S. Ct. 1044 (2000).

[7] The Western Regional Office of the U.S. Commission on Civil Rights interviewed potential panelists suggested by the Advisory Committee and members of the Commission, selected the site of the meeting, and handled publicity efforts. Although the Advisory Committee proposed multiple sessions to accommodate those who live on the neighbor islands or, in the alternative, utilization of the Hawaii Interactive Telecommunications System, these requests reportedly could not be accommodated.

[8] Recognition Legislation, S. 2899, 106th Cong., 2d Sess. (2000). See also Recognition Legislation, S. 81, 107th Cong., 1st Sess. (2001); Recognition Legislation, S. 746, 107th Cong., 1st Sess. (2001).

[9] Panelists on September 29 included: Dr. Richard Kekuni Akana Blaisdell, professor of medicine, University of Hawai i at Manoa; Dr. Peter Hanohano, executive director, Native Hawaiian Education Council; Dr. Lilikala Kame eleihiwa, director, Center for Hawaiian Studies, University of Hawai i at Manoa; Tara Lulani Mckenzie, president and chief executive officer, Alu Like, Inc.; Dr. Kenneth Conklin, retired university professor and former high school mathematics teacher; Mahealani Kamau u, executive director, Native Hawaiian Legal Corporation; Bill Hoshijo, executive director, Hawai i Civil Rights Commission; Robert Klein, attorney and former state supreme court justice; H. William Burgess, retired attorney; Edward King, professor of law, University of Hawai i at Manoa and former chief justice for the Federated States of Micronesia; Clayton Hee, chairman, board of trustees, Office of Hawaiian Affairs; Sherri Broder, legal counsel, Office of Hawaiian Affairs; Ray Soon, chairman, Hawaiian Homes Commission and director, state Department of Hawaiian Home Lands; Mike Kitamura, Office of U.S. Senator Daniel Akaka; Sol Kaho ohalahala, representative, Hawai i State Legislature; Jon M. Van Dyke, professor of law, University of Hawai i at Manoa; Sondra Field-Grace, secretary and treasurer, Ili Noho Kai O Anahola; David K. Helela, U.S. Army, retired; Kanoelani Medeiros, self-proclaimed Hawai i Nationalist; and Patrick Hanifin, attorney.

[10] Open session participants were: Emmett Lee Loy, native Hawaiian attorney; William Kalawaianui; Steve Tataii; Richard Bertini, executive director, Wai anae Comprehensive Health Center; James K. Manaku Sr.; Rodney Shim; Max Medeiros, Hawaiian subject; Michael Grace; Mohala Haunani, Kimokeo Keawe Ohana; William Lawson; Mililani Trask, Native Hawaiian attorney; Christopher Haig, Heritage Research Productions; Lucy Akau; Jill Nunokawa, civil rights counsel, University of Hawai i at Manoa; Alice Greenwood; Nancy Stone, non-Hawaiian candidate for OHA; Williamson Chang, professor, William S. Richardson School of Law, University of Hawai i at Manoa; and A o Pohaku Rodenhurst, Spiritual Nation of Ku and Council of Sovereigns.

The Hawaii Advisory Committee requested inclusion of the transcripts from the 1998 and 2000 community forums, in addition to all written submissions, as appendices to this report. Consistent with Commission practices, these documents, although not appended, are on file with the Western Regional Office to the U.S. Commission on Civil Rights.

[11] Self-identified kupuna who appeared before the Hawaii Advisory Committee were: Eloise Ululani Tungpalan, retired state senator, State of Hawai i; Virginia Kepau; Virginia Halemano Kalua; Violet Hughes; Moanikeala Akaka, former OHA trustee; Sondra Field Grace; Ishmail Stagner; Dorothy Lam; Dawn Wasson; Soli Niheu; Anna Marie Kahunahana; Kina u Boyd Kamali i; Lela Hubbard; and Harold H. Meheula Sr., president, the Hawai i(an) Nation-Fishermen s Association of the Hawaiian Archipelago. An audiotape of the Sept. 28, 2000, proceeding is available through the Western Regional Office of the U.S. Commission on Civil Rights. It was not transcribed in time for inclusion as an appendix to this report.