Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians

Introduction and Background

Social Cohesion and Conflict

Hawai‘i has been called a “laboratory of race relations” based on its carefully cultivated image as a place where people of different cultures have historically lived together and “fused.”[1] This image has a certain amount of validity when Hawaii’s racial “fusion” is contrasted to that found in most of the continental United States. For Native Hawaiians,[2] the fusion has been forced at times and cultural domination is a reality etched in daily existence. In 1933, one scholar observed:

Hawai‘i offers opportunity to the people of all races on terms that approach uncommonly close to equality. Responding to opportunity, the peoples are entering upon a larger social inheritance, and one may look forward to an enrichment of this heritage through the achievement of men and women of all races.[3]

This observation is in sharp contrast to the conclusion reached nearly 70 years later after a series of public dialogues on race and culture in Hawai‘i:

In our community there is more pain than we admit and more than we tend to show the outside world. Hawaiians mourn the loss of their culture and their land. New immigrants—Filipinos, Samoans, Southeast Asians, African-Americans—suffer daily indignities. The Japanese remember the bitterness of their plantation days and their internment on the West Coast. Haoles speak of being held accountable and demonized for events not of their making such as the 1893 overthrow.[4]

Neither observation negates the fact that Hawaii’s first people welcomed with considerable aloha those who were once outsiders. It is both ironic and tragic that most Native Hawaiians have become increasingly marginalized and culturally dominated in their own land. The domination and suppression, most Native Hawaiians believe, have had a devastating effect on their culture. Although the root cultures of Hawaii’s immigrants continue in their lands of origin, this is the only homeland for the indigenous people of these islands.

Hawai‘i is now in a state of social conflict between preserving the status quo, returning to historical roots, and pushing the civil rights of indigenous people forward to a new level. As the movement for change in Hawai‘i has gained momentum, several factions have emerged representing the broad spectrum of interests. They include those who desire nation-within-a-nation recognition, a status similar to that of American Indians and Alaska Natives; those who desire secession from the United States and independent nationhood status; and those who desire the abolishment of any Native Hawaiian entitlement programs. The basic divisive force at work is disagreement about what the relationship between the United States and Native Hawaiians is and should be.

The history of the United States’ wrongdoing and subsequent failure to assist Native Hawaiians is well documented and widely acknowledged. For more than a century, the U.S. relationship with Hawai‘i has been the subject of inquiry by historians, legal scholars, and civil rights advocates. Because of the unique history of the state’s annexation, the legal issues are complex. Ever since the overthrow and annexation of their nation, Native Hawaiians have been engaged in the struggle to regain their culture and lands and, for some, to restore their sovereign nation status.[5]

Attempts to remedy the effects of past government actions have been the subject of ongoing political and judicial scrutiny, leading to the issuance of the 1993 Apology Resolution[6] and, more recently, the U.S. Supreme Court decision in Rice v. Cayetano.[7] While the former appeared to be a positive step in the reconciliation process in its acknowledgment of the United States’ wrongdoing, the latter has once again fueled the debate about race, ideology, and Hawaiian nationalism. In a split decision, the Supreme Court decided that a voting procedure whereby only Native Hawaiians could vote for members of the Office of Hawaiian Affairs violated the 15th Amendment of the Constitution, which prohibits race-based exclusion from voting.[8] The Rice decision has occurred against the backdrop of a burgeoning movement for self-determination, fueling the feelings of anger and frustration within the Native Hawaiian community. The Court’s decision has brought to the forefront the legal distinctions between equal protection and race-based favoritism and has called into question the status of Native Hawaiians. Indeed, the very definition of who is Hawaiian has become more intangible.

The plight of Native Hawaiians raises important and difficult questions about the concepts of civil rights and self-determination in the United States. Despite the legal and political discussions, a very human element lies at the core of the debate as Native Hawaiians struggle for the preservation of identity and culture.

Cultural Identity

Native Hawaiian identity is derived from the Kumulipo, or Creation Chant, which teaches that Native Hawaiians are genealogically related to the Hawaiian islands.[9] Dr. Lilikala Kame‘eleihiwa,[10] director of the Center for Hawaiian Studies, University of Hawai‘i at Manoa, provided the following succinct history of the Native Hawaiian people:

From time immemorial, Native Hawaiians have had a special genealogical relationship to the Hawaiian islands. Born from the mating of Earth Mother Papa and Sky Father Wakea, we’re the Hawaiian islands and the Hawaiian people. That’s the definition of native. We are from the land 100 generations ago. As such we have an ancient duty to love, cherish, and cultivate our beloved grandmother, the land. The study of stewardship is called malama ‘aina, where land is not for buying and selling, but for the privilege of living upon. And in the reciprocal relationship, when we Native Hawaiians care for and cultivate the land, she feeds and protects us. . . .

Even after the Native Hawaiians were converted to Christianity and countless notions of capitalism, which required pride of ownership of land, the King insisted upon the right of native tenants. The rights of native tenants include the right to enter into and live upon any unoccupied land. Since land was an important source of food, denial to land was tantamount to starvation and death.

And, as you know, crown lands and government lands, once taken over by America, became lands that America controlled and denied Native Hawaiians the right to live upon. . . .

[M]any Hawaiians have tried to move onto those lands to provide housing for their people, for their children, . . . those people have been arrested, evicted, their houses and possessions bulldozed. You’re going to hear from people today who will say those things who have been there and through that.

A majority of the homeless in Hawaii are Hawaiians, Native Hawaiians. We have thousands of children every day who are Native Hawaiian going to school from situations of homelessness, from tents, from cars, from caves. This is a terrible thing that has been done to our people. It is a great wrong by America.[11]

According to the Kumulipo, the main staple of the Native Hawaiian diet is kalo (or taro), their elder brother.[12] The genealogical sequence also includes creatures of the sea and land.[13] Commoners and chiefs alike were “descended from the same ancestors, Wakea and Papa.”[14] Native Hawaiians are also linked to Polynesians who sailed their double-hulled canoes to the Hawaiian archipelago, navigating by ocean currents, winds, and the stars.[15] Before Wakea and Papa, there existed approximately 800 generations of Polynesians.[16]

For centuries, the primary social unit for Native Hawaiians was the ‘ohana, or extended family. A system of reciprocal obligation and support later developed between the chiefs and the people in response to the needs encountered by an expanding population. At the time of European contact, the Native Hawaiian people “lived in a highly organized, self-sufficient, subsistent society based on a system of communal land tenure with a highly sophisticated language, religion, and culture.”[17]

The Past that Haunts: A History of Hawaiian Annexation

Hawaii is ours. As I look back upon the first steps in this miserable business, and as I contemplate the means used to complete the outrage, I am ashamed of the whole affair.[18]

— President Grover Cleveland

To fully understand the implications of the reconciliation process, the Supreme Court’s decision in Rice v. Cayetano, and the subsequent legal, political, and social fallout, it is necessary to appreciate the historical context in which Native Hawaiians are situated. The history of Hawaii’s overthrow, annexation, and eventual statehood, in some ways, parallels how other native inhabitants of now-American lands have been treated. However, while the U.S. government has a history of dissolving and displacing many indigenous peoples, such as American Indians and other Native Americans, the case in Hawai‘i is somewhat unique. The details of Hawaii’s history are often disputed.

There are some who continue to believe that Hawai‘i was not “stolen,” but rather that the people made a conscientious decision to become a part of the United States and to adopt the religious and cultural beliefs of Western settlers. William Burgess, retired attorney, stated during the 2000 forum:

[T]he fact is, historically, there is simply no justification for the argument that the lands of Hawai‘i were stolen by the United States. The lands of Hawai‘i under the kingdom were held for the benefit of all the subjects of the kingdom, not just for those of Hawaiian ancestry.[19]

However, by the U.S. government’s own admission, the accepted account of Hawaii’s journey to statehood reveals the unlawful violation of a trust between nations and the forced cultural domination of Hawaiians.

Political and Cultural Transformation

In 1778–1779, there were between 400,000 and 1 million Native Hawaiians living in the islands.[20] At that time, control over the islands was divided among four high chiefs.[21] Later, in 1810, a unified monarchy of the Hawaiian islands was established under the rule of Kamehameha I, the first king of Hawai‘i. During the 1800s, the Kingdom of Hawaii was recognized as a sovereign and independent nation. The Hawaiian nation entered into treaties with more than 15 other nations, including the United States.[22] From 1826 to 1893, the United States extended full diplomatic recognition to the kingdom and entered into various treaties and conventions involving commerce and navigation. Despite this recognition, or perhaps because of it, there were proactive attempts to colonize the people of Hawai‘i, if not through government actions, through social and religious intervention. Between 1820 and 1850, more than 100 missionaries from the Congregational Church were sent to the Kingdom of Hawaii.[23]

During that same period, the Kingdom of Hawaii underwent many changes to its culture, population, economy, religion, health practices, and land tenure system that would alter Hawaiian culture permanently. Eventually, pressures from Americans and Europeans influenced the privatization of the land and the dissolution of complete monarchy. In 1848, the land was divided among the main chiefs (1.5 million acres), King Kamehameha III (1 million acres), and the government (1.5 million acres). All lands were granted subject to the rights of tenants, as was the case in the traditional land tenure system.[24] Despite this, many Hawaiians were never given the land to which they were entitled, and many were cut off from their means of livelihood as their lands were sold to foreigners. This trend in land loss was heightened by the passage of an act in 1850 that allowed all residents, regardless of national citizenship, to own land.[25] In the period following the division of the land, only 28,600 acres—out of more than 4 million total acres—were given to approximately 8,000 farmers; yet 2,000 Westerners who resided on the islands were able to obtain large plots of land, and by the end of the 19th century Westerners had taken over most of Hawaii’s privately held land.[26] The Native Hawaiian population dwindled to approximately 40,000 inhabitants.[27] In response to the demand of the sugar industry for arduous labor in the cane fields, more than 400,000 immigrants from China, Portugal, Japan, and the Philippines were drawn to Hawai‘i.[28]

International Domination and Overthrow

During the 1880s, as Hawai‘i witnessed significant changes internally, it also faced changing demands and threats to its independence from the international arena. The United States clearly viewed Hawai‘i as important to its needs, including economic development and military defense, and as a result sought to establish political dominance. According to the Tyler Doctrine of 1842:

Considering, therefore, that the United States possesses so very large a share of the intercourse with those islands, it is deemed not unfit to make the declaration that their Government seeks nevertheless no peculiar advantages, no exclusive control over the Hawaiian Government, but is content with its independent existence, and anxiously wishes for its security and prosperity. Its forbearance in this respect, under the circumstances of the very large intercourse of their citizens with the islands, would justify the Government, should events hereafter arise, to require it, in making a decided remonstrance against the adoption of an opposite policy by any other power.[29]

In addition to Friendship Treaties negotiated in 1826 and 1849, the United States entered into a Reciprocity Treaty in 1875 providing for sale of duty-free goods in both directions and lifting the tariff on Hawaiian sugar.[30] Congress later sought exclusive use of Pearl Harbor in exchange for renewing the treaty, but King Kalakaua—who had been duly elected to that position after King Lunalilo failed to name an heir—refused.[31] Supported by an all-Caucasian 500-man militia, American and European sugar planters and business interests responded by forcing Kalakaua to accept major changes in the governmental structure of the kingdom.[32] The resulting “Bayonet Constitution” gave practical control over the executive and legislative branches of government to Western business interests and property owners.

Under the new regime: (1) voting rights were extended to American and European males, regardless of citizenship; (2) new property requirements effectively excluded Native Hawaiians from voting for the newly formed House of Nobles;[33] and (3) exclusive use of Pearl Harbor was ceded to the United States under the 1887 Reciprocity Treaty in exchange for lifting the tariff on Hawaiian sugar.[34] Within two years, King Kalakaua died and his sister, Queen Lili‘uokalani, succeeded to the throne pursuant to the kingdom’s constitution.[35] American and European residents soon formed a “Committee of Public Safety”—whose goal was to gain full control of the government—in response to two developments: (1) the Queen’s efforts to develop a new constitution (as requested in petitions by her Native Hawaiian subjects); and (2) passage of the McKinley Tariff Act of 1891 by the U.S. Congress.[36] Annexation-friendly President Benjamin Harrison reported through channels to the conspirators that “if conditions in Hawaii compel you people to act as you have indicated, and you come to Washington with an annexation proposition, you will find an exceedingly sympathetic administration here.”[37]

In 1893, the U.S. Minister to Hawai‘i, John Stevens, conspired with a small group of non-Hawaiian residents of the islands to overthrow the indigenous government of Hawai‘i. U.S. naval forces invaded the sovereign Hawaiian nation on January 16, 1893, with the intent to intimidate the government and Queen Lili‘uokalani. The following day, representatives of American and European settlers deposed the Queen and proclaimed the establishment of a provisional government without the consent of the Hawaiian people or the Hawaiian government that had been in place at the time. Many contend that these acts were in violation of the treaties that were in place and in violation of international law. Queen Lili‘uokalani, in an attempt to avoid the bloodshed of resistance, yielded her authority to the U.S. government rather than the provisional government.[38] She made the following statement:

I Lili‘uokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this kingdom.

That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the Provisional Government.

Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.[39]

On February 1, 1893, the U.S. Minister raised the American flag and proclaimed Hawai‘i to be a protectorate of the United States.[40]

Following the events that occurred in Hawai‘i, President Grover Cleveland assigned former Congressman James Blount to investigate the insurrection and overthrow of the Hawaiian government. His investigation concluded that U.S. diplomatic and military representatives had abused their authority and conspired to provoke the change in government.[41] On December 18, 1893, President Cleveland, in a message to Congress, called the overthrow an unconstitutional “act of war” and called for restoration of the Hawaiian monarchy.[42] Although early annexation efforts were unsuccessful, President Cleveland’s plea went unheard, and on July 4, 1894, the Provisional Government declared itself to be the Republic of Hawai‘i. Six months later, while imprisoned at Iolani Palace, Queen Lili‘uokalani was forced to officially abdicate her throne. She would later reflect on the incidents that occurred and write:

It had not entered our hearts to believe that these friends and allies from the United States . . . would ever . . . seize our nation by the throat, and pass it over to an alien power. Perhaps there is a kind of right . . . known as the “Right of Conquest” under which robbers and marauders may establish themselves in possession of whatsoever they are strong enough to ravish from their fellows. If we have nourished in our bosom those who have sought our ruin, it has been because they were of the people whom we believed to be our dearest friends and allies. . . . [T]he people of the Islands have no voice in determining their future, but are virtually relegated to the condition of the aborigines of [the] American Continent.[43]

In 1896, President Cleveland left office and, under his successor President William McKinley, the United States annexed Hawai‘i as a territory (over the express objections of Native Hawaiians[44]) with the signing of the Newlands Joint Resolution. The self-declared Republic of Hawai‘i ceded sovereignty over the islands to the United States and further ceded 1.8 million acres (nearly half of the total lands) of Hawaiian lands, without the consent of, or compensation to, the Native Hawaiian people or their government.[45] This is an important point that would serve as a catalyst for later resentment and opposition to the U.S. annexation of Hawai‘i. The indigenous people of Hawai‘i never directly relinquished their claims to their sovereignty as a people or over their lands. In fact, petitions were signed by more than 21,000 people, more than half of the Native Hawaiian population, objecting to the annexation.[46]

On April 30, 1900, President McKinley signed the Organic Act for the Territory of Hawaii, which provided a government whose leaders were appointed by the United States, and otherwise defined the political structure and powers of the newly established government, as well as its relationship to the United States.[47] It was not until 20 years later that Congress would address an issue critical to Hawaiian subsistence: land ownership and trust responsibilities. In 1921, the Hawaiian Homes Commission Act (HHCA) was signed into law in an attempt to preserve the declining economic and social conditions of Native Hawaiians. It set aside 200,000 acres of land in the federal territory that was later to become the state of Hawai‘i, in an attempt to establish a homeland for the native people of Hawai‘i.[48] People of 50 percent or more Hawaiian blood were to be the beneficiaries of the act (although the original proposal would have included persons with any Hawaiian blood). Congress designed the program to authorize the leasing of lands for residences, farms, and ranches to Native Hawaiians for 99 years at $1 per year.

On August 21, 1959, Hawai‘i became the 50th state of the Union, but not without both active and passive opposition from Native Hawaiians. Any American citizen who had resided in Hawai‘i for one year was eligible to vote to determine whether Hawai‘i would become a state,[49] thus overshadowing the wishes of many Native Hawaiians. After statehood, public lands were transferred to the state to manage, with the exception of those held by the federal government.[50] One of the conditions for land management was the betterment of conditions for Native Hawaiians. In addition, the new state had to agree to administer the HHCA as a trustee for the benefit of Native Hawaiian beneficiaries and incorporate the HHCA into the state’s constitution.[51] To this day, however, many argue that the state and federal governments have not met the established trust obligations, and many people who were scheduled to receive lands have not been given their rightful lot.[52]

Hawai‘i Today: Diversity and Disparity

The fantasy of happy, healthy natives living a life of ease and security, in a bountiful and lush paradise contrasts sharply with the realities of existence for many Hawaiian-Americans: they have been alienated from their land, their numbers diminished by disease, they have lost political power, they are economically insecure, and are troubled by health, education, and social problems out of proportion to their numbers in the population.[53]

The islands of Hawai‘i are an amalgam of immigrants of diverse backgrounds, including Japanese, Chinese, Filipino, Portuguese, and mainland-born Americans. Some argue that this diverse population has not hindered the ability of individual cultures to coexist. In testimony before the Hawaii Advisory Committee, Dr. Kenneth Conklin, a retired high school mathematics teacher and former university professor from Massachusetts, argued that despite the influx of immigrants to Hawai‘i and the westernization of the islands, Native Hawaiians have been successful at preserving their culture. He stated:

[O]ver the last 20 years or so, there has been a powerful resurgence of Hawaiian culture and that has taken place under the auspices of the existing governmental system where all people have equal rights under the law.

There are many, many different cultures in Hawai‘i. All of us are in the minority here. The various cultures of immigrants have done quite well in maintaining and preserving their culture, and the Hawaiian renaissance of the last 20 years has been extraordinarily powerful.[54]

Others argue, however, that the result of the influx of immigrants has been the alienation of Native Hawaiians who have become outsiders in their own land, losing economic and political power to the more affluent immigrant inhabitants. The U.S. government acknowledged in the Apology Resolution of 1993 that the long-range economic and social changes in Hawai‘i during the 19th and early 20th centuries have been devastating to the population, health, and well-being of the Hawaiian people. The question of how to remedy the situation, however, remains a difficult one to answer.

Who Is Hawaiian?

The history of Hawaiian annexation and the subsequent cultural domination of the island’s people have resulted in a painful search for identity and self-realization for many in the Native Hawaiian community. By many accounts, the colonization deprived Native Hawaiians of their fundamental human right to identify as an independent indigenous group through cultural practices. According to Dr. Lilikala Kame‘eleihiwa:

When we look at all of the people who were citizens in the Kingdom of Hawaii, who was most deprived of rights and who was most targeted with racism after the overthrow and with the taking of Hawai‘i as an American territory? And I submit to you that was Native Hawaiians.

First of all, Native Hawaiians refused to . . . swear an oath of allegiance to the Republic of Hawai‘i, refused to speak English even though Hawaiian language was banned, and in the territorial legislatures, spoke Hawaiian. They refused. They were breaking the law. They refused to agree that America had a right to be in the country. These are important facts to look at because what happens then, of course, is that they don’t get jobs, they don’t get opportunities for economic advancement. . . .

So who suffered? Whose identity suffered? Who had to give up their Hawaiian names, the names of their ancestors who shaped our own character? It was [Native] Hawaiians. That kind of anti-Hawaiian behavior that we saw with America saying everybody should be American and no one in Hawai‘i, in the territory, no one was supposed to have a Hawaiian name, that impacted us the most.[55]

It is not surprising, then, that there is much disagreement about how to define who is Native Hawaiian, adding to the tensions between factions. Interestingly, foreigners in Hawai‘i a century ago were classified according to cultural groups (such as American, British, and Chinese) and not by racial terms. It is speculated that the concept of race was not introduced until the annexation of the islands.[56] The term “Hawaiian” is itself non-Hawaiian. Early Hawaiians referred to themselves as Kanaka Maoli, which translates to mean true or real person.[57]

Annexation of Hawai‘i by the United States brought with it an awareness of the racial practices of the mainland, which were then emulated, as in the population census. After Hawai‘i became a state, census classifications of race that were used in the continental United States were arbitrarily applied to Hawaiians. The unfamiliar connection between race and color was formally introduced in Hawai‘i with the 1960 census.[58] Because of unfamiliarity with the imposed definitions and the lack of specificity in earlier census counts, it would seem impossible to know with any degree of certainty, based on census data alone, the true number of Hawaiians and part-Hawaiians inhabiting the islands at that time.

 Today, there is a more specific, and in many ways more divisive, method for categorizing Hawaiian people. As defined by the state’s Office of Hawaiian Affairs, and consistent with modern federal definitions, “Native Hawaiian” (with a capital “N”) refers to all persons of Hawaiian ancestry, regardless of blood quantum; “native Hawaiian” (with a lower case “n”) refers to those with 50 percent or more Hawaiian blood.[59] However, who qualifies as a beneficiary of programs for Native Hawaiians depends on the guidelines of the agency or enabling statute responsible for the program. For example, the Department of Hawaiian Home Lands must follow the definition provided by the 1921 Hawaiian Homes Commission Act: “The term ‘native Hawaiian’ means any descendant of not less than one-half of the blood of the races inhabiting the Hawaiian Islands previous to 1778.”[60] Some state programs use either “Hawaiian” or “Part Hawaiian” for classification purposes. Still others use lower blood requirements for categorization. For example, the State of Hawai‘i Department of Health’s Health Surveillance Program includes in its counts individuals with any measure of Hawaiian blood, making its estimate of the number of Hawaiians inhabiting the islands significantly higher than even the self-identified count of the census.[61]

 In 1960, the year after Hawaii’s statehood, the U.S. Census Bureau listed Hawaiians under the category of “Others.”[62] In subsequent years, Native Hawaiians fell within the census category of “Asian or Pacific Islander.” Many Hawaiians felt that including them in this category resulted in inadequate data for monitoring their social and economic conditions because they were overwhelmed by the aggregate data of much larger Asian groups. Thus, in the 2000 census “Native Hawaiian or Other Pacific Islander” was made a separate category for the first time.[63] Based on Office of Management and Budget (OMB) directives, this category includes persons “having origins in any of the original people of Hawai‘i, Guam, Samoa, or other Pacific Islands.” The directives clearly state that the term “Native Hawaiian” does not include individuals who are native to the state of Hawai‘i by virtue of being born there.[64] No established criteria or qualifications (such as blood quantum levels) are used to determine an individual’s race or ethnic classification for census purposes.[65] (These will be important points for the following discussions surrounding programs benefiting Native Hawaiians and the implications of the Rice decision.)

The classification of who is N(n)ative Hawaiian for programmatic, policy, and census purposes lies in conflict with how many of Hawaii’s people self-identify. Many who consider themselves direct descendents of Hawaii’s indigenous people feel strongly about self-identification, which is seen as an important validation of their heritage. Those Native Hawaiians who spoke before the Hawaii Advisory Committee were passionate in their expressions of identity, as expressed by A‘o Pohaku Rodenhurst, a Native Hawaiian kupuna:

[W]e are proud to be Hawaiians. We have always been proud to be Hawaiians. There is no place we can go to be Hawaiians but here. We take pride in the sacredness of this land that was built by our forefathers and the gods of our land that have taught people healing called ho‘oponopono. . . .

[W]e live in peace. But nobody of the American government has made peace for us . . . , but [they] want to force us to be Americans, force us to share everything, even our ethnicity. They tried to steal our identity by claiming they are Hawaiians. They are not Hawaiians. We will never give this up.

People who do not have culture cannot understand this. People who are raised just colonized cannot begin to understand the pain and the suffering of what our ancestors went through, losing their lands, their identity, and being kicked to the curb by colonization and foreign laws and rules.[66]

The testimony of Dr. Richard Kekuni Akana Blaisdell, a physician and professor of medicine at the University of Hawai‘i, further illustrated the importance of self-identification and the frustration of being labeled by outsiders:

We are Kanaka Maoli. In a very important sense, we are not Hawaiian. We are not Native Hawaiian with a lowercase nor an uppercase capital “N.” We are not Americans. We are not Native Americans. We are Kanaka Maoli. That is a name by which our ancestors identified themselves. That is the way and the manner in which we identify ourselves. So every time one of us, one of you, uses any of these other terms, these colonial and colonized terms for us, you are, in a sense, demeaning us.[67]

Even among Hawaiians, however, there is disagreement over who is truly Native Hawaiian. Some take a more inclusive approach. For example, in her statement before the Hawaii Advisory Committee at the 2000 forum, Dr. Lilikala Kame‘eleihiwa, director of the Center for Hawaiian Studies, University of Hawai‘i at Manoa, cited to the United Nation’s Draft Declaration on the Rights of Indigenous People, which states that “indigenous peoples have [the] collective and individual right to maintain and develop distinct ethnic and cultural characteristics and identities, including the right to self-identification.”[68] According to Dr. Kame‘eleihiwa, this right has been abrogated by the American government’s requirement that Native Hawaiians be 50 percent blood quantum. She stated that her people believe Native Hawaiians are any blood quantum.[69]

On the other end of the spectrum, however, are those who believe that individuals with only “one drop” of Hawaiian blood are not Native Hawaiians, as expressed by Emmett Lee Loy, a Native Hawaiian attorney who spoke at the 2000 forum. He believes that attempts to lower the blood requirement are strategically designed to support the interests of those who want recognition legislation passed. “What they’re trying to do is broaden the class so much that the State of Hawai‘i is allowed to shirk its obligations to the 50-percent-plus blood quantum.”[70] He contends that the requirements established by the Hawaiian Homes Commission Act are the ones that should remain in effect.

Others spoke out in the 2000 forum saying that the practice of defining who is Hawaiian by blood quantum pits Hawaiians against each other, in effect causing them to compete for both recognition and the limited available resources. William Lawson, a Hawai‘i resident, spoke to this issue by stating that the existence of a blood quantum level:

is a blatant discriminatory mandate whereby those of Hawaiian ancestry with 50 percent or higher blood quantum have been pitted against those of less than 49 percent quantum or less of the qualifying mandate. What blood quantum makes a Caucasian a Caucasian or what quantum makes a Filipino a Filipino or an Afro-American an Afro-American, and so on and so forth?[71]

Demographics

As has been discussed, the once-robust Hawaiian population faced a severe reduction in the years following European contact. In fact, after the first official census of the islands in 1853, it was estimated that the population of Native Hawaiians was approximately 71,000 people.[72] One century after European contact, the population of Native Hawaiians had declined nearly 80 percent. In the period between 1853 and 1896, the percentage of inhabitants who were Native Hawaiian decreased from 95.8 percent to 28.5 percent of the total population. During that same period, the percentage of inhabitants who were part Hawaiian increased from 1.3 percent to 7.8 percent.[73] Much of the population decrease was the result of diseases brought by European settlers and was accelerated by low fertility rates, high infant mortality, poor housing, inadequate medical care, inferior sanitation, hunger and malnutrition, and alcohol and tobacco use. Many of these unfortunate realities still exist today, more than two centuries since European contact.[74]

FIGURE 1

Racial Composition of Hawai‘i, 1990

Source: State of Hawai‘i, Office of Hawaiian Affairs, Native Hawaiian Data Book–1998, p. 8 (Census Bureau, self-identification).

During the last century, while there has been an overall increase in Hawaii’s population by sevenfold, most of the increase can be attributed to an influx of foreign laborers who were brought to the islands to compensate for the limited availability of local labor.[75] By 1990, the total population of Hawai‘i was approximately 1.1 million, with 12.5 percent (138,742) being Native Hawaiian and 87.5 percent being non-Hawaiian.[76] (By 1999 it was estimated that the total population of Hawai‘i was close to 1.2 million.[77]) Also in 1990, the most recent year from which census data are available, 33.4 percent of Hawaii’s population was Caucasian, 22.3 percent was Japanese, 15.2 percent was Filipino, 6.2 percent was Chinese, and 10.4 percent was of other races or ethnicities.[78]

Today, most Native Hawaiians are of mixed ancestry, and it is estimated that fewer than 6,000 full-blooded Hawaiians remain.[79] In 1984, the Office of Hawaiian Affairs conducted the only modern-day study of Native Hawaiian blood quantum. It found that one in three Native Hawaiians had between 50 and 100 percent blood quantum while only one in 25 Native Hawaiians had 100 percent blood quantum. More than 60 percent of Native Hawaiians had less than 50 percent blood quantum.[80] Individuals 18 years of age and younger make up the majority of the Native Hawaiian population, and while the median age of Hawai‘i residents is 32.6 years, the median age of Native Hawaiians is 25.8 years.[81]

Socioeconomic Profile of Hawaiians Today

An understanding of the socioeconomic status of Native Hawaiians is necessary to conceptualize the potential implications of the Rice decision and any future decisions that question the right of Native Hawaiians to maintain a special relationship with the State of Hawai‘i and the federal government. The socioeconomic statistics depicting Native Hawaiians are startling, lending credence to the need for initiatives aimed at empowerment and the betterment of the Hawaiian condition. For example, in comparison to other residents of Hawai‘i, Native Hawaiians have disproportionately low levels of employment, homeownership, income security, and education. Conversely, they have disproportionately high levels of substance and physical abuse, medical problems, impaired mental health, and homelessness.[82]

Income

Reviewing the economic standing of Native Hawaiians provides evidence of the disparities that exist between racial and ethnic groups in Hawai‘i. While the median family income has generally increased in Hawai‘i over the years, Native Hawaiians remain at the bottom of the economic ladder with one of the lowest family income averages of any racial group. According to the 1990 census, the average family income for Native Hawaiians is $9,000 less than the average family income for the state.[83] Native Hawaiians are also the largest racial group with families below the poverty level, with families on public assistance, and with individuals 200 percent below the poverty level.[84] While 89 percent of the Native Hawaiian population was employed in 1997, this is the lowest employment rate of any racial or ethnic group in Hawai‘i.[85] It is estimated that 6.4 percent of the total civilian labor force in Hawai‘i is unemployed. Comparatively, 10.8 percent of the Native Hawaiian civilian labor force is unemployed.[86] (It should be noted that it is also unclear how many of these workers are only employed part time.)

In addition to having lower employment rates overall, Native Hawaiians are also disproportionately represented in a few industries. While they make up 10.8 percent of employed persons over age 16, they are overrepresented in the entertainment and recreation (15.3 percent), transportation, communications, and public utilities (15.1 percent), and construction (14.5 percent) industries.[87] By far, and not surprising given the tourism industry’s prevalence in Hawai‘i, the largest numbers of Native Hawaiians are employed in retail trade (9,823). There are also occupational areas in which Native Hawaiians are over- or underrepresented.[88] Most notably, Native Hawaiians are missing from the ranks of managers and other professionals. Only 7.4 percent of employed Native Hawaiians are in managerial or professional specialty occupations. On the other hand, approximately 17 percent are operators, fabricators, and laborers; and 12.8 percent are in service occupations, clustered most notably in police and firefighting jobs.[89]

Native Hawaiians are also less likely than other racial or ethnic groups to own their own businesses. In 1987 (the most recent year for which these data are available) only 8.1 percent of all minority-owned business firms in Hawai‘i were owned by Native Hawaiians, as compared with 50.2 percent owned by persons of Japanese descent, 15.8 percent owned by those of Chinese descent, and 12.4 percent by those of Filipino descent.[90]

As a result of lower earnings and job stratification, Native Hawaiian households receive public financial assistance at more than twice the rate (14.5 percent) of the rest of the state (6.8 percent).[91] In two areas of the state, Wahiawa and Waipahu, as many as one-third of the Native Hawaiian households receive public assistance.[92] Native Hawaiians are also the largest single ethnic group in Hawai‘i receiving Aid to Families with Dependent Children (AFDC) and food stamps. It is speculated that this is due to the large number of single-parent families and the generally low family income levels of Native Hawaiians.[93] While Native Hawaiians make up 9 percent of the married couple families in Hawai‘i, they make up close to 18 percent of the female head of household families.[94] If one looks at individuals receiving assistance rather than households, the number increases dramatically, with 27.4 percent of the individuals receiving assistance being Native Hawaiian (in 1997).[95]

Education

Educational attainment is directly related to income and standard of living. Based on the socioeconomic disadvantages discussed thus far, it should come as no surprise that once again Native Hawaiians fare worse than other residents of Hawai‘i. The majority of students in Hawai‘i are enrolled in public schools (83 percent) at a rate slightly less than the national public school enrollment of 89 percent. In the 1997–1998 academic year, 47,435 (or more than 25 percent) of Hawaii’s public school students were Native Hawaiians.[96]

Despite their visible presence in the public school system, Native Hawaiian students do not appear to derive the same benefits from the educational experience as their non-Hawaiian classmates. Beginning at an early age, educational disparities are evident. According to standardized test scores, based on the Peabody Picture Vocabulary Test-Revised (PPVT-R), and given the kinds of schools that exist, Native Hawaiian and Filipino children are less ready for kindergarten success than other children.[97] (However, successful experiences with the Hawaiian Language Immersion Program, discussed below, may affect this conclusion. For example, enrollments in Hawaiian language courses at the University of Hawai‘i have grown significantly in recent years.)

The lack of educational achievement of older Native Hawaiian students also reflects a disturbing pattern. Only slightly more than 50 percent of Native Hawaiians between the ages of 18 and 24 have earned a high school diploma or equivalent. According to the 1990 census, approximately 23 percent of Native Hawaiians over the age of 25 have not graduated from high school or earned a high school equivalent.[98]

As would be expected given these educational outcomes, relatively few Native Hawaiians attend college. In fall 1997 approximately 6,200 Native Hawaiian students were enrolled in the University of Hawai‘i system, making up 13.6 percent of the university’s student body.[99] (According to the 1990 census there were another 7,840 Native Hawaiians attending college on the U.S. mainland, although it is unclear whether they are Hawaiians who left the islands to pursue an education or whether they are Hawaiians raised on the mainland.[100]) The University of Hawai‘i system includes three four-year campuses and seven community colleges. Approximately one-third of Native Hawaiians in the system attend one of the three university campuses; the remaining two-thirds attend one of the community colleges.[101]

FIGURE 2

Educational Attainment of Native Hawaiians in Hawai‘i, 1990

Source: State of Hawai‘i, Office of Hawaiian Affairs, Native Hawaiian Data Book–1998, p. 234.

Enrollment numbers are not an indication of graduation rates. Only 27.5 percent of Native Hawaiians between the ages of 18 and 24 have some college or an associate degree, and only 2.1 percent of that age group have a bachelor’s degree or higher.[102] Native Hawaiians or Part Hawaiians earned only 10.2 percent (777) of all degrees awarded in academic year 1996–1997.[103] Of the 777 degrees earned by Native Hawaiians in the 1996–1997 school year, the most common degrees earned were bachelor’s (277), associate in science (189), and associate in arts (131). Only 17 Native Hawaiians received professional degrees such as law or medicine, and only one received a doctoral degree.[104]

According to Dr. Lilikala Kame‘eleihiwa, director of the Center for Hawaiian Studies, University of Hawai‘i at Manoa, Native Hawaiians are not encouraged to attend the university. This problem begins in the public school system, where large numbers of Native Hawaiians do not complete high school. In addition, there is a lack of emphasis on Hawaiian studies, which compounds Native Hawaiians’ lack of participation in educational programs. For example, according to Dr. Kame‘eleihiwa, the curriculum she teaches is seriously underfunded at the University of Hawai‘i, and there are only five professors, who teach 1,500 students each year. She stated that the university is an unfriendly place for Native Hawaiians because of the prevalence of anti-Hawaiian bias there. Seventy-five percent of the professors at the University of Hawai‘i are white, and only 2 percent of the tenured faculty are Native Hawaiian.[105]

Despite these barriers, this academic year the number of Native Hawaiian undergraduate students has increased to 10 percent, a figure that is larger than past years. It is predicted that by the 2005–2006 academic year, 8,466 Native Hawaiian students will be enrolled in the University of Hawai‘i system. Dr. Kame‘eleihiwa attributes this attendance rate to the money allocated for tuition waivers and financial aid from the federal government, without which many Native Hawaiian students would not be in school.[106]

Also important to increasing the numbers of Native Hawaiians in college is the creation of an environment that fosters self-identity and cultural pride. Nancy Stone, former teacher and a non-Hawaiian candidate for the Office of Hawaiian Affairs’ board of trustees, testified before the Hawaii Advisory Committee about her experiences teaching in Hawai‘i:

I’ve seen, as a teacher in this state, firsthand what happens to the children here and it breaks my heart and I can’t teach here anymore. They fail to recognize who these people are and what they love, their traditional Hawaiian values that they learn at home, and yet they go into school and they’re taught a whole new system and they’re taught not to feel good about themselves and not to cherish those things, and there’s a conflict.[107]

There have been attempts to include the Hawaiian culture within the school system, for example through the Hawaiian Language Immersion Program. In the program, students are taught the content of the regular education program in the Hawaiian language. In the 1997–1998 academic year, there were 1,351 students enrolled in the immersion program.[108] It is projected that this number will increase to 3,397 by the 2005–2006 academic year.[109]

Dr. Kame‘eleihiwa is also in the process of establishing a research institute that would create new curriculum for the 48,000 Hawaiian children not served by the Hawaiian immersion schools. She testified at the forum that:

The curriculum currently in English that our children are faced with every day and, of course, all the non-native children read as well, is really racist. It’s very anti-Hawaiian. We need to change it. We need to do better than we have done in the past. This terrible curriculum has contributed greatly to the poor self-image of our children. It feeds into higher rates of drop out from high school, also the high rates of suicide and crime and eventual prison that our people face.[110]

Dr. Peter Hanohano, director of the Native Hawaiian Education Council, agreed stating that native and indigenous people around the world have “all suffered from colonization and the impact and the clash of cultures.” He contends that the education Native Hawaiians need is “education for self-determination,” whereby education is used as a vehicle for personal and cultural growth.[111]

Land

The relationship with and respect for the land is an important aspect of Hawaiian culture. According to testimony given by Dr. Kame‘eleihiwa:

From time immemorial, Native Hawaiians have had a special genealogical relationship to the Hawaiian islands. . . . As such, we have an ancient duty to love, cherish, and cultivate our beloved grandmother, the land. The study of stewardship is called malama ‘aina where land is not for buying and selling, but for the privilege of living upon. And in the reciprocal relationship, when we Native Hawaiians care for and cultivate the land, she feeds and protects us.[112]

FIGURE 3

Land Distribution in Hawai‘i

Source: State of Hawai‘i, Office of Hawaiian Affairs, Native Hawaiian Data Book–1998, p. 199.

The land is viewed as the main mode of subsistence for Native Hawaiians. Dr. Blaisdell stated:

By “land” we mean our sacred environment. Without it, we are not a people, we have no culture. Our existence is oneness with our sacred environment. . . . [I]t’s the land that feeds us. That’s what the term ‘aina means, land which feeds us. We don’t eat unless we have land. What we eat has to be junk food, processed food, and that’s why we have the highest rates for obesity and hypertension and diabetes and heart disease. So the only answer to our survival is to return all of our lands.[113]

Since Westerners first began to occupy the land that once belonged to Native Hawaiians, a recurring issue for Native Hawaiians has been land ownership and land entitlement. In an attempt to remedy the effects of the overthrow of Hawai‘i on Native Hawaiians, the Hawaiian Homes Commission Act was passed in 1921. The purpose was to set aside 200,000 acres of land for homesteading by Native Hawaiians. However, the lands available to Native Hawaiians through the Hawaiian Homes Commission Act traditionally have not been suited for living and development. The highly productive agricultural and forest lands were already disposed of to private interests and so, according to Ray Soon, chairman of the Hawaiian Homes Commission, the Hawaiian Homes Program was left with river beds, mountain cliffs, and other unusable lands, as well as lands in distant islands with fewer job opportunities.[114]

Land use and land ownership have also dramatically changed during the period since Western occupation, with an increase in nonagricultural uses of the land. Today, the state and federal governments and six private landholders administer most of the land.[115] In all, government (federal, state, and county combined) owns about 38 percent of Hawaii’s land. The six private landholders own another 36 percent, leaving 26 percent of the lands for other private use.

In 1996, approximately 95 percent of all lands in Hawai‘i were designated as conservation and agricultural districts, while urban land made up 4 percent. Increasing competition for use of available land and increasing demand for housing are forcing the reclassification of lands currently designated for conservation and agricultural uses.[116] Approximately 73.6 percent of Hawaii’s population live in a metropolitan area.[117] Further, nearly two-thirds of the Native Hawaiian population still living in Hawai‘i reside in the urbanized areas of the city and county of Honolulu.[118] In light of these developments, the ceded lands and Hawaiian homelands proved a key source of potential land to ease overcrowding. Native Hawaiians are outraged by this prospect.

As of January 1995, about 14 percent of the state’s public lands were allocated to the Department of Hawaiian Home Lands.[119] Only 21 percent of the Hawaiian homelands are currently being used for homesteads.[120] Nearly 19,000 Native Hawaiian applicants are still waiting for their share of the remaining lands.[121] Thousands of others who were on the waiting list for homelands have died without receiving their allotment.

Provoked by a history of mismanagement of ceded lands, Native Hawaiian groups want to regain control over their fair share of the one million plus acres held under the Ceded Lands Trust and the Hawaiian Home Lands Trust, currently administered by the State of Hawai‘i. Native Hawaiians, although beneficiaries of the trust, thus far have not benefited much from the state’s administration of the lands.

Housing

As has been discussed, the immigration of Western settlers and the occupation of once-Hawaiian soil limited the land available for use by Native Hawaiians. In the modern era, the housing shortage experienced by Native Hawaiians is the result of several factors, including overpopulation, limited available land for development, and high costs.[122] Although housing conditions have improved in recent years, few Native Hawaiians are homeowners. Most Native Hawaiians either share homes with their parents or other relatives or live in crowded rental units.[123] Between 1980 and 1995, the number of housing units in Hawai‘i increased by nearly 30 percent.[124] However, the 1990 census estimated that only 10 percent of the housing units in Hawai‘i were occupied by Native Hawaiians, as compared with nearly 40 percent occupied by Caucasians.[125] Further, the number of persons per household is larger for Native Hawaiians at close to 4.0 than for any other racial or ethnic group, except for Filipinos.[126]

The characteristics of Native Hawaiians who own housing units do not differ significantly from the state’s overall patterns of owner-occupied units. However, half of Native Hawaiians rent housing with three or fewer rooms per unit.[127] In addition, nearly 50 percent of Native Hawaiians live in rental units with four or more individuals while more than 50 percent of the state’s overall residents live in rental households of two or fewer occupants.[128]

Lower income results in less available funds for living expenses, and thus often less desirable living conditions. The mean value of housing units owned by Native Hawaiians is the lowest of all the major racial/ethnic groups in Hawai‘i, and is 22 percent less than the average value of those owned by the overall state population.[129] The average rent paid by Native Hawaiians is also among the lowest in the state, and is only 71 percent of the rental fee paid by Caucasians.[130]

Homelessness also appears to be a prevalent problem in Hawai‘i. In 1992, one in 230 state residents was homeless, one in 13 was among the “hidden homeless,” i.e., they were sharing accommodations with friends or relatives, and one in four was at risk of becoming homeless.[131] Caucasians are the majority in each of these groups, but Native Hawaiians are the second largest group of the truly homeless.[132]

In short, according to testimony given by Ray Soon, chairman of the Hawaiian Homes Commission, Native Hawaiians suffer the worst housing conditions of any group in Hawai‘i. Studies have shown that half of the Hawaiian Home Commission’s applicants suffer overcrowding, and one-third pay more than 30 percent of their income for shelter. Overall, 49 percent of Native Hawaiian households experience housing problems, compared with 29 percent of the U.S. population.[133]

Health

Although health is not generally considered a socioeconomic indicator, it does have an effect on one’s socioeconomic status and, conversely, socioeconomic status can be linked to health. For example, individuals with lower incomes tend to have higher health risks, including less access to preventive care. Given the low income and education levels of Native Hawaiians, it should not be surprising that many also experience poor health.

Dr. Richard Kekuni Akana Blaisdell, a physician and professor of medicine at the University of Hawai‘i,[134] testified that Native Hawaiians have the worst health indicators of all ethnic peoples in Hawai‘i. He stated that it has been predicted that by the year 2044 there will be no remaining pure-blooded Kanaka Maoli, as they will be an extinct people. Native Hawaiians have the highest mortality rates for the major causes of death, including heart disease, cancer, stroke, injuries, infections, and diabetes. They also suffer the highest rates for chronic diseases.

The Office of Hawaiian Affairs’ Native Hawaiian Data Book outlines some specific health conditions. For example, Native Hawaiians are second only to Caucasians in incidences of cancer.[135] Heart disease incidence among Native Hawaiians in the 36–65 age group is 1.3 times that of other racial groups.[136] Also of great concern for both older and younger Native Hawaiians is hypertension.[137] Together, heart disease and cancer account for more than half of the deaths among Native Hawaiians in Hawai‘i. Native Hawaiians also account for 73 percent of the deaths of individuals under 18 years old.[138] Diabetes is one of the most common chronic conditions among Native Hawaiians. Hawaiians aged 35 years and older make up 44 percent of all cases of diabetes recorded in the state.[139]

There are health risks and lifestyle factors that also disproportionately affect the Native Hawaiian community. Native Hawaiians are the racial group with the highest proportion of risk factors leading to illness, disability, and premature death.[140] According to the Hawai‘i Department of Health’s Behavioral Risk Factor Surveillance System, Native Hawaiians have the highest rate of obesity, twice the rate of the state; Native Hawaiians have higher rates of smoking and alcohol consumption compared with other racial groups; and Native Hawaiians have the highest rate of drinking-and-driving.[141]

The health conditions faced by Native Hawaiians are compounded by the difficulties many face gaining access to available health programs. Statistics show that large segments of the Native Hawaiian population rely on public health care services, an indication that low income is a barrier to full access to health care systems.[142] Another barrier is the ability to obtain culturally relevant care. According to Dr. Blaisdell’s testimony:

Many of our people are very reluctant to enter into the health system because it’s a Western system, and so one of the efforts of the Native Hawaiian health care program is to have culturally relevant, culturally competent health care workers, and to have in our system traditional healers as well. So it comes back to revitalizing our culture and incorporating our culture into the modern Western health system.[143]

The Path To Reconciliation and Reparation

Until we have a deeper factual understanding of how we came to our current plight it will be difficult for us to receive redress due us. Most importantly, only when these wrongs are corrected will our keiki [children] have the opportunity to acquire self-esteem necessary to enjoy the lives they deserve.[144]

The current socioeconomic and health conditions of Native Hawaiians beg intervention and redress. It can be argued that relief will only be achieved through a collaborative effort: a deep commitment to reconciliation on the part of the U.S. government and a strong initiative to develop programs addressing the needs of the Native Hawaiian community on the part of the State of Hawai‘i. Remedial attempts have been made in recent years, including the passage of both state and federal legislation; however, the impact of these efforts remains to be seen.

Legislative Attempts

More than 150 federal laws, including the Hawaiian Homes Commission Act and the Admission Act, explicitly acknowledge and describe the unique political relationship between the United States and the Native Hawaiian people.[145] Congress’ adoption of the 1993 Apology Resolution reinforced and reaffirmed the federal government’s trust obligations to Native Hawaiians. Congress signed this joint resolution “[t]o acknowledge the 100th anniversary of the January 17, 1893, overthrow of the Kingdom of Hawai‘i, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai‘i.”[146] The act further characterized the overthrow as a violation of international law and acknowledged that the lands were obtained without the consent of or compensation to the people of Hawai‘i, resulting in the denial of self-determination. Through the Apology Resolution, Congress and the President committed themselves to reconcile with the native people of Hawai‘i.[147]

The notion that the Apology Resolution represents proof that Congress intended to provide redress for the wrongs committed against Native Hawaiians following the overthrow and annexation of their kingdom was echoed at both the 1998 and 2000 Advisory Committee forums. For example, Sherry Broder, attorney for the Office of Hawaiian Affairs, stated that in the Apology Resolution, Congress admitted that the taking of the crown and government lands was without the consent or compensation of the people. It also acknowledged that the overthrow resulted in the suppression of the right to self-determination.[148] Carl Christensen, attorney for the Native Hawaiian Legal Corporation, acknowledged that the Apology Resolution did not create any new federal rights, but asserted that it does serve an important evidentiary purpose as an admission that establishes the background facts upon which litigation may be based.[149]

However symbolic, the Apology Resolution does not remedy the effects annexation has had on the people of Hawai‘i. Some would argue that the commitment to reconcile with Native Hawaiians must be reinforced through real actions on the part of the federal government. The following discussion highlights the promises and shortcomings of the Apology Resolution as expressed in the Advisory Committee’s 1998 community forum.

Analyzing the Apology Resolution

Concern about the apparent failure to implement concrete reconciliation efforts in the five years after adoption of the Apology Resolution led the Hawaii Advisory Committee to conduct its August 22, 1998, community forum.[150] The session gathered information on actions taken since the Apology Resolution was signed into law on November 23, 1993, to provide a foundation for and to support reconciliation efforts between the United States and Native Hawaiians.

The Advisory Committee began its 1998 community forum with an opening chant, or ‘oli, consistent with traditional Native Hawaiian protocol. The ‘oli provided important historical background, welcomed the participants, and encouraged thoughtful exchange and sharing of information.

The first panel of speakers addressed the purpose and meanings of the Apology Resolution. Esther Kia‘aina, representing the act’s primary sponsor, U.S. Senator Daniel K. Akaka, explained that apology resolutions were introduced in different forms four times during the 101st, 102nd, and 103rd Congresses.[151] Although some suggest this “was essentially a cynical action by an uninterested Congress,”[152] the facts suggest otherwise. Concerns in the Senate about the implications of the proposed resolution forced a roll call vote, which was decided in favor of passage by a 65 to 34 margin.[153]

In the final analysis, the Apology Resolution is a “necessary step” in “an evolving and continuing process whereby the federal government can make amends for some of its past wrongs.”[154] Two of the measure’s underlying goals are to (1) educate the American public and the Congress on the history of U.S. involvement in the overthrow and its aftermath; and (2) set the record straight regarding the 1983 Native Hawaiians Study Commission’s (NHSC) majority report, which concluded that the U.S. government was not liable for the loss of sovereignty of lands of the Hawaiian people in the 1893 overthrow.[155] Attorney James Mee, who expressed concerns about specific findings and further reservations regarding implementation of the Apology Resolution, nevertheless acknowledged that the resolution’s opponents in the U.S. Senate did not challenge its intended result of correcting inaccuracies contained in the NHSC’s majority report.[156]

The NHSC was created by Congress less than a month before President Ronald Reagan entered office.[157] Kina‘u Boyd Kamali‘i, chairperson of the NHSC and author of its minority report (joined by the two other commissioners from Hawai‘i), testified as a kupuna on September 28, 2000, that the commission was “dead before we started.”[158] The minority report explains that an official in the administration of newly installed President Reagan labeled the study a “boondoggle.”[159] President Jimmy Carter’s initial appointees were dismissed, and it appeared that the study would not take place. However, Kamali‘i (then the minority leader of the State House of Representatives and former chairperson of the Reagan campaign in Hawai‘i) was able to persuade the administration to implement the NHSC’s mandate. According to the minority report, however, the six “Mainland Commissioners” who authored the majority report “lack[ed] . . . serious intent” as demonstrated by a flawed methodology that failed to consider available primary sources.[160]

Lingering Effects of the Overthrow, Rooted in Historical Federal Ambivalence

The Native Hawaiians Study Commission’s experience is not an isolated example of the historically shifting political winds that have characterized the relationship between Native Hawaiians and the United States.[161] One of the recurring themes at the Hawaii Advisory Committee’s 1998 community forum was the adverse impact of these shifting attitudes upon Native Hawaiians.

The awkward transition between the Carter and Reagan administrations described in the preceding section is rooted in the ambivalence that characterized the Harrison-Cleveland-McKinley transitions discussed earlier in this report. Several speakers referred to the shifting federal policy toward Native Hawaiians at the end of the 20th century. Mililani Trask, a Native Hawaiian attorney and at that time Kia‘aina (governor) of Ka Lahui Hawai‘i, suggested that the administrative confusion is best illustrated through the history of opinions issued by the Department of the Interior.[162]

The first such opinion, drafted under the Carter administration on August 27, 1979, in response to an inquiry by the Hawaii Advisory Committee, acknowledged the existence of a trust relationship between the federal government and Native Hawaiians.[163] Ten years later, the department stated that its earlier opinion was not correct and, the following year, expressly “disclaimed any trusteeship role” in a letter to U.S. Commission on Civil Rights Chairman Arthur Fletcher.[164] On January 19, 1993, during the final days of President George H.W. Bush’s administration, the department issued the so-called “Sansonetti opinion” (which is based in large part upon the now-discredited NHSC majority report), concluding that the federal government had no trust responsibility to Native Hawaiians either before statehood or thereafter.[165] On November 15, 1993, the administration of President William Jefferson Clinton issued the so-called “Leshy opinion” withdrawing the Sansonetti opinion, but declining to bring legal action to enforce provisions of federal statutes providing entitlements for Native Hawaiians.[166]

Community leaders appearing before the Advisory Committee painted a grim picture of the educational, health, and social status of Native Hawaiians, asserting that these problems are a major consequence of the “illegal overthrow” of their monarchy and the loss of sovereignty. Dr. Richard Kekuni Blaisdell opined that it is the impact of colonization by foreign settlers on indigenous people that explains why social, health, and economic statistics are worse for Kanaka Maoli than for all other ethnic peoples in Hawai‘i.[167] Therefore, the distinction between non-Native Hawaiians and Kanaka Maoli under the Apology Resolution is not only justified, but is “essential.”[168] The chairperson of the Office of Hawaiian Affairs, A. Frenchy DeSoto, agreed, emphasizing that “this isn’t a racial issue. . . . They have taken my dignity. They have stripped me of my nationhood, my language, everything.”[169]

Kina‘u Kamali‘i reiterated that the NHSC’s findings regarding the economic, educational, and health needs of Native Hawaiians were unanimous.[170] Mililani Trask referred to the Urban Institute report of 1996, which shows that Native Hawaiians have the poorest housing conditions in the United States.[171] DeSoto later urged the Advisory Committee to compare the NHSC’s findings with the 1998 Native Hawaiian Data Book, which reveals “virtually no improvement in the statistics on Hawaiians. . . .”[172] When asked how Native Hawaiians could be made healthy again, Dr. Blaisdell referred to the opening chant (conducted by Keali‘i Gora, Lilikala Kame‘eleihiwa, and Kanalu Young)—which invoked lessons derived from the Kumulipo[173]—and explained: “We come from the land. Our land has been taken from us. Without our land we are not a people. Return our land, and we will be a whole people again.”[174]

Defining the Parameters of Reconciliation

Participants in both Advisory Committee forums alleged that the question of political status for Native Hawaiians has proven to be a stumbling block for redress of community concerns. Other presenters suggested that the picture is further clouded by constitutional and legal constraints that have been applied to prevent Native Hawaiians from seeking judicial remedies. John Goemans, the attorney who represented the plaintiff in Rice v. Cayetano, opined that “it seems clear to me that if you are talking about an Apology Resolution, and the issue of reconciliation is the end product of that resolution, you are talking about an Apology Resolution that is extended to only a certain small segment—relatively small segment of the population of the Kingdom of Hawaii.”[175] Native Hawaiian attorney Poka Laenui made a similar point, though in a more complex fashion and with an apparently different intent:  

One of the major failings of the United States is its twisting the issue of Hawaiian sovereignty from a national to a racial question. The Congress has taken the act of overthrowing the government of an independent nation-state, and suggests reconciliation only to the Native Hawaiian people. . . . One of the reasons for this problem in American distinction is a strong indigenous movement occurring here, and in America, and in the rest of the world. . . . Many people, including Native Hawaiians, have not understood the distinction, and speak of indigenous rights and Hawaiian sovereignty as if they are one and the same. They are not the same. But they are not a matter of either/or as well. It is not a question of choosing in favor of Native Hawaiian rights or Hawaiian sovereignty. Both rights should be available.[176]

Professor Kanalu Young also acknowledged the multiracial aspects of the Hawaiian Kingdom, offering that the issue “needs to be reconsidered and worked into the mix . . . [b]ut it is something that will be done in the future. . .”[177] According to Professor Young, the reconciliation process should not be “at the exclusion of other people living in these islands,” but Native Hawaiians need to take the lead.[178]

In a written statement provided to the Advisory Committee at the 2000 forum, Senator Daniel Akaka stated:

The process of reconciliation is a process of healing, which should not be viewed as one particular issue or a narrowly defined process. It should be viewed as a multitude of positive steps between Native Hawaiians and the federal government to improve the understanding between each party, to improve the social and economic conditions of Native Hawaiians, and to resolve long standing matters of political status and land claims.[179]

Senator Akaka’s representative explained further that the process of reconciliation, or ho‘oponopono,[180] should not be defined by the federal government unilaterally, but instead developed mutually with Native Hawaiians.[181] Several other presenters stressed the need for reconciliation to take place in the communities of Hawai‘i.[182] Mililani Trask added that the U.S. attorney general should hold a “listening conference” in Hawaii analogous to those held with Native Americans.[183]

Reverend Kaleo Patterson provided an example of a largely successful process of apology and redress. He commended the efforts of Asian American churches in Hawai‘i, for example, who provided leadership in pushing for an apology by local churches for their complicity in the overthrow and also provided Native Hawaiians with a $3 million redress package.[184] Rev. Patterson noted that two-thirds of Native Hawaiians left their churches after the overthrow.[185] Attorney James Mee provided some support for this observation when he stated that his family belonged to the church Queen Lili‘uokalani joined upon leaving her former place of worship in the aftermath of the overthrow.[186]

Rev. Patterson described the process within the church as a “decolonization of the soul.”[187] However, he lamented the enormous task of educating American churches that “don’t even understand what is going on in Indian country, much less jump to Hawai‘i now, and deal with Don Ho and Magnum PI and all that. . . .”[188]

Attorney Mee, who described himself as “part Hawaiian” with “a lot of haole in me,” pointed out that “during the overthrow and after, there was a lot of division among people in Hawai‘i.”[189] He observed that the Liberal Party, which was composed primarily of Native Hawaiians, actually called for the establishment of a republic rather than a monarchy.[190] Nevertheless, as Mee acknowledged, (1) the Liberal Party’s concern related in part to its unhappiness with the Reform/Missionary Party that was in control of the government at that time, and (2) some members of the Liberal Party changed their positions after the overthrow.[191] Danny Aranza, deputy director of the Office of Insular Affairs at the Department of the Interior, effectively placed these divisions in their proper context (although his comments were actually directed toward current factions within the Native Hawaiian community):

I know that there are as many formulations of these concepts [i.e., self-government, self-determination, decolonization, and sovereignty] as there are fish in the sea. And while people may see that as a weakness, I think that whatever our conception is of Native Hawaiian political status, I think one of the strengths of these movements right now is, paradoxically, the diversity of opinion and perspective. What I mean is this: That from so many opinions and perspectives regarding political status, all are united in the common objective, that something must be done—something must be done to address the political, social, economic, and historical situation of the Kanaka Maoli.[192]

Professor Jon Van Dyke underscored the urgency of reconciliation by warning that the Native Hawaiian culture will be lost if Native Hawaiians are not allowed to have a separate and distinct status.[193]

Programs Serving Native Hawaiians, One Component of Reconciliation

During the Advisory Committee’s 2000 forum, panelists confirmed that, despite facing socioeconomic disadvantage, Native Hawaiians have maintained a distinct community,[194] partly through the availability of federal and state programs designed to better the conditions of Native Hawaiians. These governmental services include health care, educational programs, employment and training programs, children’s services, conservation programs, fish and wildlife protection, agricultural programs, and native language immersion programs.[195]

Recognizing the unique political, cultural, and socioeconomic position of Native Hawaiians, the State of Hawai‘i has developed several programs for their benefit.[196] In particular, the Office of Hawaiian Affairs has been the main avenue for the State of Hawai‘i to meet the needs of the Native Hawaiian community.

The Office of Hawaiian Affairs (OHA) was created by an amendment to the Hawai‘i State Constitution in 1978 to address the issues and concerns of Native Hawaiians—a people who were, and by many accounts still are, suffering from discriminatory practices and undesirable living conditions. The stated mission of OHA is to “strengthen and maintain the Hawaiian people and their culture as powerful and vital components in society.”[197] Based on the intent to empower Native Hawaiians in their desire to develop self-sufficiency and control their own destiny, OHA was designed to be a native-controlled entity. This meant that its beneficiaries and trustees would be Native Hawaiians, and its nine trustees would be elected by Native Hawaiians.[198] Today, OHA controls more than half a billion dollars in assets from the Ceded Lands Trust and spends millions of dollars annually on programs addressing the social, economic, and cultural needs of Native Hawaiians.[199]

Another important state agency addressing the needs of Native Hawaiians is the Hawaiian Homes Commission (HHC), which was established by Congress in 1921 pursuant to the Hawaiian Homes Commission Act.[200] The legislation established a land trust of approximately 203,000 acres for homesteading by Native Hawaiians and created the HHC to govern these lands.[201] The purpose of the act, and the mission of HHC, is to place Hawaiians on the land, thereby fostering the self-sufficiency and native culture of Hawaiians. However, a 1991 Hawaii Advisory Committee report found that the HHC had essentially failed to fulfill its mandate, with both state and federal governments responsible for the agency’s inadequacy.[202] In recent years, though, the HHC has made progress in recovering lands and making them available for homesteading.[203]

Ray Soon, chairman of the Hawaiian Homes Commission, believes that despite the grim housing statistics facing Native Hawaiians, which have persisted for many decades, the tide is changing. He noted at the 2000 forum:

I can only speak for the Hawaiian Homes Program, but I can feel the shift in other programs throughout the community. . . . I think you will find some of the same optimism for the impact of our programs in the community.[204]

According to Mr. Soon, in the past 10 years HHC has produced more homesteads than in the first 70 years of the program. Just fewer than 1,000 homesteads are currently in production and another 1,000 are in the design phase. HHC is experimenting with several types of homes, including farms, ranches, multifamily dwellings, and turn-key homes. It is also expanding into underserved markets, recently breaking ground on its first elderly project and its first rent-to-own project.

The potential benefits of these and other programs serving Native Hawaiians outweigh the costs of their operational support, according to many of the panelist