Hawai'i's past must guide any ruling on Kamehameha policy

The lands in the charitable trust that supports the Kamehameha Schools are the lands of the main heirs of Kamehameha I.

The rights of these ali'i (high chiefs) to these lands were confirmed by Kamehameha III in the Mahele of 1848, when the kingdom moved to a Western-style system of private land ownership. But as ali'i, they did not view their "ownership" of these lands in a Western fee-simple sense, and instead understood that they held these lands in trust, with responsibilities toward the Hawaiian people.

During the generation that followed the Mahele, many of these ali'i suffered from the same diseases that befell the common Hawaiians, and many died without heirs of their own.

Those who had no children willed their lands to their siblings and cousins in turn, with the bulk passing to Princess Ruth Ke'elikolani, and then when she died in 1883, to Princess Bernice Pauahi Bishop. Princess Pauahi died tragically the following year of breast cancer.

Because she was the last of the main Kamehameha chiefs, she put these lands into a trust designed to benefit the Native Hawaiian people. This act flowed from her sense of responsibility as an ali'i toward her people, and was similar to acts of other high ali'i — such as William Charles Lunalilo and Queen Lili'uokalani — who also put their lands into trusts for the benefit of the Native Hawaiian people when they also died without children.

Just eight days before her death, Princess Pauahi told her close friend Juliette Cooke that although others assumed she must be very happy with all her property, happiness did not flow from her property, because "having so much she felt responsible and accountable."

Because of her station and the privilege of her high rank, Pauahi's vision to create a school for Hawaiian children was almost instinctual. Duty and responsibility prompted the last heroic act of a loving ali'i to use the bounty of land given to her to save her people from annihilation.

Although the wording in one part of the will of Princess Pauahi says only that a "preference" should be given to children of Hawaiian blood, contemporaneous and subsequent statements and documents confirm that the goal of Princess Pauahi was to create a school for Native Hawaiians, and that the word "preference" was included only because of concerns that insufficient numbers of children of Hawaiian ancestry might someday be available to attend the schools.

At the time, no one doubted the intent of Pauahi, or the reason why the schools were to be established for pure and part-Hawaiian children, many of whom had lost one or both parents to disease and many of whom were living in squalor.

At the opening ceremony for the school for boys, a light rain fell over the mountains, and the older Hawaiians were reported to have said: "It is an omen. As the water of Kane refreshes the land, so will this gift from our princess restore life to our people."

At the inaugural Founder's Day, on Dec. 19, 1887, Princess Pauahi's husband, Charles Reed Bishop, gave the keynote speech, explaining his wife's sorrow over the destruction of her people and her hope that through the Kamehameha Schools, her people would be ready and able to compete against the flood of foreigners that would inevitably come.

He made it clear that the school was designed for children of Hawaiian ancestry, explaining that "Hawaiians have the preference (in admission), and (that Pauahi) hoped (the students) would value and take the advantages of (the school) as fully as possible."

A decade later, in a letter written on Feb. 11, 1897, to Charles Hyde, a fellow trustee on the first board of the Bernice Pauahi Bishop Estate, Charles Reed Bishop wrote:

"There is nothing in the will of Mrs. Bishop excluding white boys or girls from the Schools, but it is understood by the trustees that only those having native blood are to be admitted at present, that they are to have the preference so long as they avail themselves of the privileges open to them to a reasonable extent."

Similarly, in a letter to trustee Samuel Damon dated Feb. 20, 1901, later included in the Minutes of Trustees, Charles Reed Bishop wrote: "According to the reading of clause 13 on page 8 of the will as published, the preference to Hawaiians having aboriginal blood applied only to the education of orphans and others in indigent circumstances; but it was intended and expected that the Hawaiians having aboriginal blood would have preference, provided that those of suitable age, health, character and intellect should apply in numbers sufficient to make up a good school ..."

In this letter, Bishop explains again why the will does not explicitly say that the schools should be exclusively for those of Hawaiian ancestry: "The schools were intended to be perpetual, as it was impossible to tell how many boys and girls of aboriginal blood would in the beginning or thereafter qualify and apply for admissions, those of other races were not barred or excluded."

Still later, in a letter written on Oct. 9, 1911, to trustee Damon, Bishop again confirmed that: "It is decidedly my wish that the Native Hawaiians of pure and part aboriginal blood shall ... take advantage of the preference given them by the will, with the understanding, of course, that they shall be obedient to the rules and conditions made by the trustees under the will; if they do not do so, they cannot expect that others not of their class shall be permanently excluded. So long as the number of applicants keeps up as it has done so far, it seems to me better that the young people of other nationalities should not be admitted."

Last Tuesday, a panel of the Ninth U.S. Circuit Court of Appeals ruled by a 2-1 vote that the current trustees of the Kamehameha Schools will be violating the 1866 Civil Rights Act if they continue to adhere to the policy established by Princess Pauahi, her husband, and the early trustees of the school. Judge Susan Graber, in her dissent, pointed out that this 1866 statute was enacted while "the Hawaiian Islands were still a sovereign kingdom," and that when Congress re-enacted this statute in 1991, it did so recognizing the existing legal structure, including the important role the Kamehameha Schools have played in protecting the Hawaiian culture.

She noted that Congress has "recognized the United State government's unique relationship with Native Hawaiians, acknowledged the severe socio-economic and educational disadvantages experienced by the Native Hawaiians, and authorized federal money for private entities — including the Kamehameha Schools — to provide loans and scholarships exclusively to Native Hawaiians."

As she explained, "the inescapable conclusion from the statutory context is that in 1991, Congress intended that a preference for Native Hawaiians, in Hawai'i, by a Native Hawaiian organization, located on the Hawaiian monarchy's ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians, which Congress had identified explicitly in 1988."

The opinion by Tuesday's narrow majority dismissed the importance of the many statutes Congress has passed recognizing the special trust relationship that exists between Native Hawaiians and the U.S. government, as well as the unique context from which the Kamehameha Schools emerged — that of an indigenous people under severe stress from its contact with the westerners who were arriving in the Islands, and of a high chief trying to preserve her property for these people.

But this ruling by two judges is not likely to be the final chapter on this saga, because the school will seek a rehearing by the full appeals court, and then, if that effort fails, will file a petition of certiorari to the U.S. Supreme Court.

In less than a decade after Princess Pauahi's death and the creation of the Kamehameha Schools, the kingdom of Hawai'i was overthrown by westerners acting with the support of diplomatic and military agents of the U.S. government.

In 1993, Congress apologized for the actions of its representatives, acknowledged that their actions violated international law, recognized that Native Hawaiians have an inherent right to self-determination as indigenous peoples, and called for a reconciliation between the United States and the Native Hawaiian people.

In 2000, the Justice and Interior departments issued an extensive report concluding that the Native Hawaiians have a right to reorganize an autonomous government and manage their lands and resources once again. If the Akaka bill is enacted, the framework it provides for the reorganization of a Native Hawaiian governing entity will be an important step in this road toward reconciliation.

Every other major native group in the United States has the right to control its own land, to establish its own schools, and to operate autonomously. When the United States entered into a commonwealth relationship with the Northern Mariana Islands in 1975, for instance, it allowed the indigenous peoples of those islands to retain the exclusive right to own lands.

The history of Native Hawaiians is somewhat different from the history of other native groups, but the essential elements are the same — the population was decimated, the lands were lost and a unique culture was systematically suppressed.

The Kamehameha Schools have played an important role during the past century to maintain the Native Hawaiian culture and the cohesiveness of the Hawaiian people. The School's ability to provide an educational environment where people of Native Hawaiian ancestry can learn together has been crucial in sustaining the Hawaiian spirit.

Tuesday's opinion, if it stands, will mark another event in the long process whereby Native Hawaiian lands have been taken from the Native Hawaiians. If, however, the other judges of the Ninth Circuit take a closer look at the historical context of this case, the many statutes Congress has passed recognizing the rights of Native Hawaiians to maintain separate and preferential programs, and the importance of allowing a property owner to pass on property to beneficiaries, they should reverse the conclusion of Tuesday's panel.

Jon Van Dyke has been teaching constitutional and international law at the William S. Richardson School of Law, University of Hawai'i-Manoa, since 1976. Portions of this commentary are from his forthcoming co-authored book, "The Crown Lands of Hawai'i." He wrote this commentary for The Advertiser.