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August 31, 2005

Appeals court rehearing urged on Kamehameha Schools Issue (Updated)

Topics: National News

The four Hawaii Congressional delegates filed "friend-of-the-court" briefs for the US 9th Circuit Court of Appeals to rehear the case on the Kamehameha Schools' admission policy.

"The delegation issued a statement saying it is arguing that Congress recognizes that Kamehameha fulfills a role in remedying 'educational imbalances faced by Native Hawaiian children.'"

These delegates should know full well that Kamehameha Schools provides no such service. The "orphaned and poor" beneficiaries of the US $6.2 Billion Bernice Pauahi Bishop Trust are abandoned by the Kamehameha Schools' admission policy. This fact is omitted by the article.

Personally, I would be embarrassed to submit such briefs to the High Court. Actually, I would expect to be disbarred for professional misconduct in wasting the High Court's time with such nonsense.

Update: The evening news tonight cleared up an item on today's decision of the US 9th Circuit Court of Appeals. The Department of Hawaiian Home Lands (DHHL) was considered protected by the statehood act. I alluded to this in an earlier email in which I contend that the Hawaiian Homesteaders were protected by the Hawaiian Homestead act of 1921 that was reinforced with statehood.

These are my notes from the televised discussion of the Akaka Bill, aired by the Office of Hawaiian Affairs on Tuesday 30 August 2005.

Former Governor John Waihee facilitated the Office of Hawaiian Affairs (OHA) discussion of the Akaka Bill. The panel included constitutional attorney John van Dyke of the University of Hawaii at Manoa. Ms. Apoliona represented OHA, Tony Song represented the Hawaiian Homesteaders and Beadie Dawson, an attorney and alumnus of Kamehameha Schools. All participants, except Professor John van Dyke, were Native Hawaiians.

Clearly, the entire discussion was pro-Akaka Bill. Even the ads that ran along with the discussion were pro-Akaka Bill in nature.

Perhaps the single most integral issue to the discussion was the issue of race. Interestingly, though race has credence in the United States Constitution, it does not carry similar weight in the Native Hawaiian issues. John van Dyke identifies the race issue as a pitfall for all the Native Hawaiian aspirations within the Constitution. Accordingly, the Native Hawaiians avoid characterizing their efforts as raced-based. Instead, they employ the word "native" or "ancestry" to identify themselves as indigenous people.

Some history is in order here. Prior to the inception of the United States in the 18th Century, the Kingdom of Hawaii existed. In the late 19th Century, the United States overthrew the Kingdom of Hawaii, and congress annexed the territory. This overthrow was not much different from the manner in which native peoples were overrun by the United States. The people of Hawaii essentially were assimilated into the US population. No entity was created to enable these "overthrown peoples" to negotiate with the United States Government. Some Native American tribes have these entities.

In 1921, the Hawaiian Homestead act was created in order to provide these "overthrown peoples" land upon which to live. Some 204,000 acres of their prior 4-million-acre kingdom were partitioned out for them. Unfortunately, the Hawaiians did not all decide to live on these lands. As a result, some 170,000 acres were given, eventually, to non-Hawaiian entities, like Pearl Harbor Naval Complex. Only some 30,000 acres are being used, today, for Hawaiian Homesteads.

In 1959, at the time of statehood, the state charter recognized the Hawaiian Homestead Act of 1921; however, no lands were returned. Of the 400,000 Native Hawaiians, declared in the Akaka Bill, only some 30,000 families reside on Hawaiian Homestead lands. Maybe 100,000 Native Hawaiians reside on the homesteads. The remaining 300,000 Native Hawaiians are strewn all over the United States of America.

Currently, some $70 million is dispersed amongst some 160 federally-funded programs in order to support the Native Hawaiians. This $70 Million is addition to the moneys provided by the $6.2 Billion Bishop Estate Trust.

Clearly, there is a need for the Native Hawaiians living on the Hawaiian Homestead lands to have some form of protection against eviction. Allowing these people to remain on the homesteads would be akin to allowing the Native Americans to live on reservations. Hearing Tony Sang explain the plight of these homesteaders would persuade anyone that these people need some form of protection. Of the members on the discussion panel, Sang was the most sincere. However, I believe that the Hawaiian Homestead act of 1921, and its subsequent recognition in the state charter, protects these people. It would seem that other Native Hawaiian groups are planting the seeds of suspicion into the homesteaders.

Attorney Beadie Dawson suggested a sinister agenda against the Akaka Bill, hinting that non-Hawaiian opposition was motivated by greed and just wanted to take Hawaiian Homestead lands. To her, land was money. She referenced prior land rearrangements. Interestingly, her reference was concocted by the Kingdom of Hawaii, at the time.

Ms. Apoliona of OHA added comments here and there. At the close of the discussion, she read in Native Hawaiian and provided no English translation.

In summation, the word "race" was replaced with "native" and/or "ancestral" in order to avoid the empowerment and enforcement of the Constitution. The notion of greed was promoted in order to pressure the Hawaiian Homesteaders into support for the Akaka Bill.

Comment: Professor van Dyke has unearthed the root problem as the issue of race with respect to the Constitution. Clearly, no Native Hawaiian pleading will be able to overcome the race issue in the federal court system. The resolution is a matter of language. In order for the Native Hawaiians to prevail, we need to refer to them as "natives." To me, in order for the reference "native" to advance into an identity, the Native Hawaiians would need to reside within the Hawaiian Homestead lands, like the Native Americans on the Mainland USA.

The discussion did not entertain the management of their 160 federally-funded programs or the Bishop Estate Trust-funded Kamehameha Schools.
So, Tony Sang and his fellow homesteaders will not need the enactment of the Akaka Bill in order to protect them, as many pro-Akaka Bill entities contend.

In related news we have "Another Blow to Hawaiians" - A federal appeals court ruled today that Hawai'i taxpayers may sue to stop state funding of the Office of Hawaiian Affairs for allegedly discriminating against non-Hawaiians.

Today, the US 9th Circuit Court of Appeals overturned a lower court decision and affirmed the standing of a multi-ethic group of taxpayers to challenge the Hawaiian-only programs. Taxpayers may sue to stop the federal government from funding the Office of Hawaiian Affairs on the grounds that they are discriminatory. The finding upholds a suit arguing that revenue from ceded lands should benefit the entire Hawaiian population and not just Native Hawaiians.

US District Judge Susan Mollway removed taxpayers from the case, because they lacked standing to challenge federal laws. Later, Mollway dismissed case, because Senator Daniel Akaka was sponsoring a bill that would grant federal recognition to Native Hawaiians.

H. William Burgess appealed the case to the 9th US Circuit Court of Appeals.

It would appear that the federal government is sending a clear message to the Native Hawaiian community concerning their racist stance.

However, in this article, Law Professor Yamamoto cites that: "The Indian preference does not constitute 'racial discrimination' or even 'racial preference.'"

Once again, we witness law professors misconstruing Native Americans, as classified under the US Constitution, with Native Hawaiians. Likewise, Professor Yamamoto avoids specifically identifying the "true" recipients of the Kamehameha Schools' admission policy.

State of Hawaii Attorney General Mark Bennett petitions that the 9th US Circuit Court of Appeals decision was fundamentally flawed. Regrettably, the article fails to mention what about the 9th US Circuit Court of Appeals' decision was "fundamentally flawed" ... other than the reasoning in this article.

Posted for HarryTho (received via email from Hawaii)

Posted by Richard at August 31, 2005 11:51 PM



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