Tropical Battle of Race, Rights Divides Islanders

Lawsuits Challenge Health Care, Housing and Educational Services Limited to Native Hawaiians

The Washington Post
Sunday, September 14, 2003; Page A03

By Rita Beamish
Special to The Washington Post

HONOLULU -- A river of crimson T-shirts stretched more than a mile down Waikiki's main thoroughfare. With Hawaiian chants and the blowing of conch shells, the throng of demonstrators moved slowly past befuddled tourists along the oceanfront.

"Ku i ka pono. Ku 'e i ka hewa! "they chanted, in a display of solidarity that included the governor and lieutenant governor, education officials, students, families and elders. Their chant translated: "Stand up for justice. Resist injustice!"

The sight of several thousand marchers drew attention last Sunday in the tourist mecca of Waikiki, but the impetus for the demonstration came from a federal courthouse three miles away. There, three anti-discrimination lawsuits may undo a catalogue of services available only to those of aboriginal Hawaiian ancestry -- health care, housing and even a prestigious private school.

"What they've done by these suits has clearly galvanized the Hawaiian community -- but galvanized many of us who feel close to the Hawaiian community" as well, said Gov. Linda Lingle (R). About 20 percent of Hawaii's 1.2 million residents are at least part native Hawaiian, according to state data.

The three lawsuits reject long-held notions that Hawaiians deserve special treatment in the islands their ancestors ruled as a kingdom, in large part because they suffered after the monarchy was overthrown in an 1893 conspiracy aided by representatives of the U.S. government. All were spurred by the Supreme Court's 2000 decision in Rice v. Cayento , which held that voting for trustees of the state Office of Hawaiian Affairs could not be limited by race, with only native Hawaiians voting.

Two separate civil rights suits take on one of the state's most revered institutions, Kamehameha Schools, which was founded by the will of a Hawaiian princess to educate her people. The third suit challenges the constitutionality of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands, both of which were set up to serve native Hawaiians.

In that case, known as Arakaki v. Lingle, 16 taxpayers are arguing that their tax dollars should not subsidize programs that discriminate by race. Ultimately, according to lawyers on both sides, the outcome could redirect OHA's annual $15 million in grants and other services plus its net assets of more than $300 million. It also could jeopardize $70 million to $80 million in development and loan guarantees provided by DHHL, which oversees about 200,000 acres of land, including 7,000 Hawaiian homesteads.

An additional $70 million worth of federal programs is not directly targeted by Arakaki but would likely fall if the judge rules for the plaintiffs, lawyers say.

"Things are being brought to a head in the courtrooms," said Nainoa Thompson, a prominent Hawaiian leader and a Kamehameha Schools trustee. "These are threats to the core of every single right that we aspire to. We're in a very critical time in Hawaiian history."

The state's attorneys defend Hawaiian assistance programs on the ground that Congress has long treated Hawaiians not purely as a race, but as an indigenous political group having a special trust relationship with the United States. Hawaii's congressional delegation has used the same argument in pushing, without success so far, legislation that would formalize a political status for indigenous Hawaiians akin to that of American Indian tribes.

"Of course there is a racial element to being a native person," said Jon Van Dyke, an attorney representing the state agencies. "But the distinction is that the rest of us and our ancestors came to the United States understanding we would be in a multicultural, pluralistic community. But the native people were just here when the rest of us came." Latecomers have a mother culture elsewhere, but native Hawaiians have only the islands as a cultural base, he said.

The plaintiffs, however, say the special programs are divisive. "Our tax money should go to help everyone," Patricia Carroll said. "Strides are being taken to help the native Hawaiian community. By the same token, the Lord helps those who help themselves. You take what's given you and you go forward. You don't complain about what's happened in the past. I'm not saying don't help those people. Open up those programs for everyone who needs them."

Separately, the two cases against Kamehameha Schools seek admission for non-Hawaiians. One of them roused especially high passions this fall, after a court ordered the admission of a non-Hawaiian boy to the sprawling Honolulu hilltop campus while his lawsuit is pending. U.S. District Judge David Ezra said his order does not prejudge the merits of the case, which alleges a violation of the 1866 Civil Rights Act.

Lingle said Kamehameha Schools "is perhaps the single most important institution for preserving Hawaiian culture for next generations." It is known for its strong academics and cultural pride. Its choir gained fame in the recent Disney animated film "Lilo and Stitch."

In the late 1960s, when elsewhere "it wasn't considered good to be Hawaiian," said teacher Joanne Quindica, Kamehameha opened a new world to her. At school, she said, "I could feel the heart of the Hawaiians." Kealohilani Ohuna, a 1993 graduate, said, "Kamehameha Schools is one of the last things Hawaiians have, and we have to hold on to that."

Kamehameha openly states that it will not admit non-Hawaiians while it has qualified applicants -- children take an entrance exam -- with a drop of Hawaiian blood. With a trust of $5.4 billion and three campuses, its stated mission is "to improve the capability and well-being of people of Hawaiian ancestry." The trust voluntarily gave up federal funding but retains its nonprofit tax standing.

The 1883 will of Princess Bernice Pauahi Bishop, last of the direct royal line, directed construction of Kamehameha Schools and said spaces should be reserved for indigents and orphans, with "preference to Hawaiians of pure or part aboriginal blood." Historically, the trustees have extended the preference to the entire student body.

"She believed at least through education she might be able to better prepare her people to survive in this new world, so that they could compete in the Western world and under the new rules, but also be able to know who they were, where they came from, the roots of their culture," said Constance Lau, chairman of the schools' board of trustees. The Hawaiian population had been decimated by Western-imported diseases. Over time, expressions of Hawaiian language and culture were forbidden or discouraged.

Trust officials also cite state and federal data showing that Hawaiians today lag in school readiness and in public school performance, are disproportionately represented in prisons and homeless shelters, and have a poverty rate twice that of non-Hawaiians. Rather than any "invidious discriminatory purpose," the schools' admissions policy "is in furtherance of the Congressionally recognized compelling public interest in remedying the effects of past discrimination against native Hawaiians," Kamehameha's court briefs say.

However, John Goemans, the attorney who brought the Rice case and now represents both plaintiffs suing Kamehameha Schools, sees no nuance in the civil rights law. "All you've got to do is show there's a racial admission policy. It doesn't matter what the intent was," he said. He also contended that data on the Hawaiians' plight are skewed because the statistics include multiethnic people with only a little Hawaiian blood.

Even historical interpretation is at issue. Thurston Twigg-Smith, a former newspaper publisher and plaintiff in the Arakaki case, upholds the role of his grandfather in the 1893 overthrow of Hawaii's last queen, Liliuokalani. He disputes notions that Hawaiians suffered as a result, even though Congress in 1993 apologized for the role of U.S. representatives in the coup. The coup leaders, Twigg-Smith said, kept Hawaii from falling into foreign hands at a time of political intrigue and instability. "They were thinking of the welfare of Hawaii when they did that," he said.

The next court date in the Arakaki case is Nov. 17, and motions in the two Kamehameha Schools cases will be heard Nov. 17 and 18.

© 2003 The Washington Post Company

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