Barred from Paradise – How the Law Bars Native Hawaiians from Asserting their Legal Rights

by Sharon Foster

The State of Hawaii has failed as a trustee of Native Hawaiians. The state legislature refuses to comply with its constitutional duty to allocate public trust land funds for Native Hawaiians.[1] Additionally, Native Hawaiians have had their legal rights quashed through judicial process. For example, the Supreme Court rejected the premise that Native Hawaiians are analogous to other indigenous groups.[2] Based on this reasoning, the court said that allowing only Native Hawaiians to join the board of trustees for a public land trust, created for the benefit of Native Hawaiians, discriminates against non-Hawaiians. This ruling further paved the way for non-Hawaiians to challenge benefit programs aimed at Native Hawaiians.[3] Due to a failure of the State of Hawaii in its trustee obligations and the United State Supreme Court’s failure to recognize Native Hawaiian’s as a protectable class,[4] Native Hawaiian’s must renew their efforts for self-determination. 

The United States has recognized a trust relationship towards Native Hawaiians since it annexed the Territory of Hawaii in 1898.[5] The State of Hawaii agreed to hold certain lands in trust for Native Hawaiians as a prerequisite to statehood.[6] Pursuant to this agreement, Native Hawaiians are to receive benefits from a 1.8-million-acre land trust transferred to the State of Hawaii from the federal government.[7] These lands, known as the ‘ceded lands,’ formerly belonged to the Hawaiian Kingdom[8] and the Hawaiian people never voluntarily relinquished their claims to these lands.[9] The State of Hawaii’s duty to Native Hawaiians is memorialized in its constitution.[10] The Hawaii Constitution, Article XII, “Hawaiian Affairs,” provides that “the legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm, and ranch lots. . . , (2) and . . . loans, (3) rehabilitation projects to include . . . educational, economic, political, social, and cultural processes by which the general welfare and condition of native Hawaiians are thereby improved.”[11] This article also created the Office of Hawaiian Affairs to administer these trust obligations.[12] Today, the ceded lands provide approximately 394 million dollars annually to the State of Hawaii.[13] Despite this vast sum, Native Hawaiians receive only 3.8 percent of these funds[14] and 12.6 percent of Native Hawaiian families live in poverty.[15] Native Hawaiians experience high rates of incarceration,[16] homelessness,[17] and poverty.[18] The United States and the State of Hawaii has completely defaulted on its obligations to the Hawaiian people.

The Office of Hawaiian affairs has been unsuccessful in providing benefits to Native Hawaiian members due to the failure of the Hawaii State Legislature.[19] The Hawaiian Homes Commission Act of 1920, adopted at statehood, sets aside a mere 200,000 acres of land for Native Hawaiian residential and agricultural use.[20] As of 2018, the Department of Hawaiian Homelands (formerly the Hawaiian Homes Commission) has opened 97,000 homesteads, while 27,000 eligible Hawaiian’s remain waitlisted.[21] Besides issues in administering acreage to qualifying Native Hawaiians, OHA has constantly battled the State Legislature for funding for Native Hawaiian programs.[22] Despite the States clear obligations to Native Hawaiians, OHA has had to fight over the meaning and legal obligations the Hawaii Constitution creates through the ceded land trust.[23] OHA and the state legislature decided the state Constitution obligates the State to provide twenty percent of the ceded lands revenue for Native Hawaiians.[24] Despite this agreement, the Legislature refused to provide the twenty percent of agreed revenue to OHA.[25] In 2006, the legislature agreed to allocate 15.1 million dollars to OHA for Native Hawaiian programs.[26] This a mere 3.8 percent of the total estimated revenue (394 million) generated from these stolen lands.[27] Essentially, Native Hawaiians are entitled to only twenty percent of revenues from lands the United States admittedly stole from them.[28] In refusing to allocate relief funding to Native Hawaiians, the Hawaii legislature has betrayed its constitutional duty.

Native Hawaiians have also received minimal support in the federal courts. In two landmark cases, federal courts restricted Native Hawaiian’s legal rights over their resources, refusing to recognize them as protectable class.[29] Additionally, at least two Supreme Court Justices have questioned whether Native Hawaiians programs meet constitutional standards.[30] The first case severely restricting Hawaiian’s rights came in Rice v. Cayetano, 528 U.S. 495 (2000).[31] Rice, a descendant of Hawaiian missionaries, sought a position on the Office of Hawaiian Affairs board of trustees. Because OHA required board members to have at least fifty percent Hawaiian blood, Rice’s application was denied.[32] He brought suit alleging discrimination under the Fifteenth Amendment.[33] Both the District Court and Ninth Circuit upheld the validity of the requirement, holding that Native Hawaiians should be treated similar to other indigenous groups and noting the special duty of loyalty of the trust board towards Native Hawaiians.[34] The Supreme Court held that Native Hawaiians are not a distinct political or indigenous group, and thus any requirement that members of OHA’s board of trustees be of Native Hawaiian ancestry violated the Fifteenth Amendment voting rights of non-Hawaiians.[35] Rice paved the way for additional equal protection challenges in Doe v. Kamehameha, 416 F.3d 1025 (2005). Kamehameha Schools is a private school created in 1887 to educate Native Hawaiian children.[36] The school’s preferential admissions policy remains in effect today.[37] The Ninth Circuit reversed a grant of summary judgment finding that the school’s admissions policy was constitutionally impermissible.[38] Fortunately, the case was later overturned en banc holding the admission policy is a valid affirmative action program.[39] Still, Native Hawaiians should take no comfort in this win. The late Justice Scalia has opined that Native Hawaiians do not constitute a special political class and reparative programs would violate the United States Constitution.[40] Additionally, Justice Brett Kavanaugh has also agreed that programs favoring or benefiting Native Hawaiians are unconstitutional.[41] Given an opportunity the Supreme Court might further decimate protections for Native Hawaiians.

            In his 1993 Apology Resolution, President Bill Clinton, acknowledged that Hawaiians have been denied the fundamental right of self-determination.[42] The Apology Resolution and an Obama era rule[43] have renewed paths for Native Hawaiian self-determination. Native Hawaiians must unite and renew focus on self-determination efforts, lest the State of Hawaii, backed by the United States Supreme Court, strip them of their cultural institutions and legal entitlements once again.


[1] See Haw. Const. Stat. art. XII §§ 1, 4 (Providing Hawaiian homelands for Native Hawaiian social programs including residences and agriculture, as well as requiring thirty percent of funds derived from “sugarcane lands and water licenses . . . to the native Hawaiian rehabilitation fund.” § 4 Creates a public land trust for the benefit of Native Hawaiians and the public good.)

[2] See Rice v. Cayetano, 528 U.S. 495, 518–19 (2000).

[3] Id. at 523.

[4] Id. at 499. (Justice Kennedy, ignoring the rich cultural identity of Native Hawaiians, writes for the Court that “Petitioner Rice, [is] a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term.”). See Hawaiian, Encyclopedia Britannica, https://www.britannica.com/topic/Hawaiian. (A person cannot be a “Hawaiian” simply by being born or living in the State of Hawaii, as a person can be an Arizonan. The well-accepted sense of the term “Hawaiian” refers to the distinct ethnicity of the aboriginal people of Hawaii.).

[5] John M. Van Dyke & Melody K. MacKenzie, An Introduction to the Rights of the Native Hawaiian People, Haw. B. J. July 10, 2006, at 63,63–64. See generally NISEI Veterans Legacy, Hawaiian Monarchy Overthrown; Territory of Hawaii, https://www.nvlchawaii.org/hawaiian-monarchy-overthrown-territory-hawaii. (For the history of the United States Foreign Minister to Hawaii, a group of white businessmen, and the United States Navy’s illegal overthrow of the sovereign Hawaiian Kingdom leading to its ultimate annexation and statehood.)

[6] Id. at 64.

[7] See id. See also R. HōKūlei Lindsey, Native Hawaiians and the Ceded Lands Trust: Applying Self Determination as an Alternative to the Equal Protection Analysis, 34 Am. Indian L. Rev. 223, 229 (2009). (Noting that between 1.4 and 1.5 million lands were transferred to the state to be held in public trust).  

[8] Lindsey, at 229.

[9] Lane Kaiwi Opulauoho, Trust Lands for the Native Hawaiian Nation: Lessons from Federal Indian Law, 43 Am. Indian L. Rev. 75, 111 (2018).

[10] See Haw. Const. Stat. art. XII § 1.

[11] Id.

[12] Haw. Const. Stat. art. XII § 5 (Held unconstitutional in Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir. 2002).).

[13] Office of Hawaiian Affairs, Fulfilling the State’s Public Land Trust Revenue Obligations, https://www.oha.org/plt. 3

[14] Id.

[15] Dep’t of Bus., Econ. Dev. & Tourism, State of Haw., Demographic, Soc., Econ., & Hous. Characteristics for Selected Race Groups in Hawaii, 1, 13 tbl.7 (2018). (Families and People Who Live in Poverty by Race Group).

[16] See Prison Pol’y Initiative, Haw. Profile, Hawaii Incarceration Rates by Race/Ethnicity, 2010, https://www.prisonpolicy.org/profiles/HI.html (1,615 Native Hawaiian and Pacific Islanders incarcerated compared to the next lowest group African-Americans at 1,032). See also Prison Pol’y Initiative, Haw. Profile, Racial and ethnic disparities in prisons and jails in Hawaii, https://www.prisonpolicy.org/profiles/HI.html (Thirty-nine percent of Native Hawaiians and Pacific Islanders representing ten percent of state population incarcerated).

[17] U.S. Dep’t of Hous. & Urb. Dev., Housing Needs of Native Hawaiians: A Rep. From the Assessment of Am. Indian, Alaska Native, And Native Hawaiian Housing Needs 1, 38 (2017), https://www.huduser.gov/portal/sites/default/files/pdf/HNNH.pdf (39 percent of homeless population identify as Native Hawaiian).

[18] See Dep’t of Bus., Econ. Dev. & Tourism, State of Haw. at 38.

[19] Office of Hawaiian Affairs, Fulfilling the State’s Public Land Trust Revenue Obligations, https://www.oha.org/plt.

[20] See id. (Discussing generally the legislative battle for trust land funds with the State and the Legislature.)

[21] Van Dyke & MacKenzie, at 64.

[22] Brenton Awa, 27 thousand people on the waitlist for Hawaiian Homelands, according to new study, (2018) https://www.kitv.com/story/38606509/27-thousand-people-on-the-waitlist-for-hawaiian-homelands.

[23] See Office of Hawaiian Affairs.

[24] See id.

[25] Id.

[26] Id.

[27] See id.

[28] Van Dyke & MacKenzie, at 64.

[29] See Rice v. Cayetano, 528 U.S. 495, 518-19 (2000).

[30] Troy J.H. Andrade, (Re)Righting History: Deconstructing the Court’s Narrative of Hawai’i’s Past, U. of Haw. L. Rev. 632, 633 (2017). See also Sophie Cocke, Hirono releases confidential Kavanaugh email expressing views on Native Hawaiians (2018), https://www.staradvertiser.com/2018/09/06/breaking-news/hirono-releases-confidential-kavanaugh-email-expressing-views-on-native-hawaiians/.

[31] Rice v. Cayetano, 528 U.S. 495 (2000).

[32] Lindsey, at 223-25.

[33] Rice, at 510.

[34] Id.

[35] Id. at 511.

[36] Doe v. Kamehameha, 416 F.3d 1025, 1027 (9th Cir. 2005).

[37] Admissions & Program Enrollment Kamehameha Schools, Preference Pol’y FAQ, https://apps.ksbe.edu/admissions/frequently-asked-questions/.

[38] Doe, 416 F.3d at 1027 (Holding that the race-based admission’s policy supports a claim for a 42 U.S.C. § 1981 claim alleging state action in violation of the constitution.).

[39] Doe v. Kamehameha, 470 F.3d 827, 829 (9th Cir. 2006)(en banc).

[40] Andrade, at 633.

[41] See Cocke.

[42] Van Dyke & MacKenzie, at 64.

[43] See Opulauoho, at 93.

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