Kamehameha, OHA cases insult ideal of justice

By Shirley Garcia, Le'a Kanehe and R. Hokulei Lindsey

The U.S. District Court of Hawai'i recently heard three landmark cases that could change the status of Native Hawaiian people in their once-sovereign homeland.

In two cases challenging the Kamehameha Schools admissions policy and in a case challenging the validity of the state Office of Hawaiian Affairs and Department of Hawaiian Homelands, plaintiffs asked the court to make a definitive statement that Native Hawaiians constitute a purely racial classification. Such a ruling, however, would be devoid of historical and legal context.

In the Mohica Cummings v. Kamehameha Schools case, for example, the plaintiffs develop their basic argument challenging the schools' admissions policy as follows: (1) Kamehameha Schools' Native Hawaiian preference in admissions is race-based; (2) the Civil Rights Act of 1866 prohibits discrimination based on race in the making of private contracts; (3) in 1976, the U.S. Supreme Court held in Runyon v. McCrary that the Civil Rights Act of 1866 prohibits private, commercial, nonsectarian schools from excluding qualified children solely because of their race; and (4) therefore, the Kamehameha admissions policy violates the Civil Rights Act of 1866 and should be struck down.

Regardless of any settlement, the argument raised by the plaintiffs is fundamentally flawed.

First, the Kamehameha admissions policy is based on genealogy, not race. In establishing the schools, Princess Bernice Pauahi Bishop did something innate to the Native Hawaiian world but rarely practiced by American leaders. She identified a problem facing her native people and selflessly sought to remedy the situation. Such behavior by ali'i was not only expected, it was mandated. Culturally, everything in the Native Hawaiian world, seen and unseen, descends from one ancestral genealogy and is connected in a familial and reciprocal relationship. Inherent in this worldview is the role of the ali'i in caring for and ensuring the welfare of the Native Hawaiian people. The ali'i acted in a capacity very similar to that of a trustee: They held the land, even what was considered their personal lands, for the benefit of all the Native Hawaiian people. Thus, the notion of a charitable trust was one of the few aspects of Western law that actually meshed with the Native Hawaiian cultural precept of the ali'i acting as trustees over the land.

When the princess wrote her will in 1883, Native Hawaiians were, as now, disproportionately undereducated and suffering from poor social and health conditions. Knowing the value of education, the princess left the bulk of her estate for the establishment and maintenance of the Kamehameha Schools. In so doing, it was the intent and will of Princess Pauahi to fulfill her cultural responsibility by providing the gift of education to her cultural descendants. Plaintiffs ignore these facts in their attempt to apply the prohibitions of the Civil Rights Act of 1866.

Plaintiffs also ignore the historical context under which Pauahi's will was established under the laws of the kingdom of Hawai'i. In his Nov. 17 ruling, in Doe v. Kamehameha Schools, federal Judge Alan Kay recognized that the case "involves exceptionally unique circumstances" and acknowledged that "from a historic perspective it should be remembered that the Kamehameha Schools was established ... before Hawai'i became a part of the United States."

Second, assuming, for the sake of argument, that "race" is a valid term as applied to Kamehameha's admissions policy, one must note that context matters in the making and application of laws. After examining the context in which the Civil Rights Act of 1866 was enacted, then considering the context in which the plaintiffs now seek to apply this statute, one finds no logic in the plaintiffs' argument.

The Civil Rights Act of 1866 was enacted to ensure freed slaves were able to participate fully in a society that viewed them, under the U.S. Constitution and laws of the land, as chattels or property. Section 1 of the Civil Rights Act of 1866 provides that "all persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." This first civil-rights statute was borne of Section 2 of the 13th Amendment to the U.S. Constitution, which abolished slavery and gave Congress the power to enact legislation to rid the nation of the "badges and incidents of slavery."

The Civil Rights Act of 1866, therefore, is not a "colorblind" law. In fact, it was expressly enacted with race in mind. Its clear legislative intent was to assist members of American society to enter key aspects of American life from which they had been denied. Therefore, the plaintiffs' argument not only fails fundamentally but also attempts to use the statute for the exact opposite of the statute's original intent. In other words, the plaintiffs seek to use a civil-rights statute to further injure and subjugate Native Hawaiians who already suffer all the injuries of colonialism: lower life expectancy, high infant mortality, diaspora, landlessness and low educational attainment.

Indeed, the purpose of Kamehameha's admissions policy and the intent behind the princess's will is to achieve the same lofty goals embodied in the Civil Rights Act of 1866. It is a well-documented reality that Native Hawaiians presently are a subordinated native people in their native land. Kamehameha's admissions policy seeks to remedy this longstanding injustice through the education of Native Hawaiians. Any attempt to apply the Civil Rights Act of 1866 to Kamehameha's admissions policy is a perversion of the act's clear legislative intent and an insult to Princess Pauahi's will and the goals of social justice.

This article was written by attorneys Shirley Garcia, Le'a Kanehe and R. Hokulei Lindsey with the support of the 'Ilio'ulaokalani Coalition and the O'ahu Council of the Association of Hawaiian Civic Clubs.