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Appeals court blocks Native Hawaiian school policy
Wednesday, August 3, 2005

The campaign to protect Native Hawaiian rights suffered another blow on Tuesday when a federal appeals court rejected the admissions policy for a private school created to benefit indigenous people.

In a 2-1 decision, the 9th Circuit Court of Appeals ruled that the exclusive Kamehameha Schools cannot restrict enrollment to Native Hawaiians. Even though the school doesn't receive federal funds and is not part of the public system, its admission policy violates a federal civil rights law, the majority said.

Finding in favor of an unidentified non-Native student who was denied admission, Judge Jay S. Bybee said "the schools' admissions policy, which operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful race discrimination" in violation of the Civil Rights Act amendments of 1991.

But in reaching that conclusion, the majority left open a critical question that is being debated in Washington, D.C. The two judges, along with a third who wrote a dissent, acknowledged that Congress has passed legislation to address the special status of Native Hawaiians in a manner similar to American Indians and Alaska Natives.

"As it has for Native Americans, Congress has enacted numerous statutes providing separate benefit programs for native Hawaiians or including them in benefit programs that assist other Native people," wrote Bybee, a Bush administration appointee.

Until that happens, however, Bybee said the 9th Circuit is bound by the U.S. Supreme Court's decision in the Rice v. Cayetano case from 2000. By a 7-2 vote, the justices rejected arguments advanced by Supreme Court nominee John G. Roberts Jr. that the United States has a trust relationship with Native Hawaiians that could allow programs, benefits and other activities to be restricted to Native Hawaiians.

In her dissent, Judge Susan P. Graber, an appointee of former President Bill Clinton, said Congress has spoken directly on that point. She cited a federal law that included specific findings related to Native Hawaiian education.

"In 1988, just three years before its reenactment of [the Civil Rights Act] Congress recognized the United States government's unique relationship with Native Hawaiians, acknowledged the severe socioeconomic and educational disadvantages experienced by Native Hawaiians, and authorized federal money for private entities -— including the Kamehameha Schools -- to provide loans and scholarships exclusively to Native Hawaiians," she wrote.

Graber went further and said Congress has validly treated Native Hawaiians as a racial group "whose sovereignty and culture were upended and nearly destroyed, in part by the actions of the United States, and consequently enjoys a special trust relationship with the United States government that parallels (but is not identical to) that between the federal government and Native Americans."

That issue is at the heart of debate in the Senate over a bill that would recognize a Native Hawaiian governing entity. The measure was set for a floor vote late last month but was pulled amid objections by at least two senators.

Native Hawaiian advocates argue that the legislation is needed to address the Rice decision. They say their housing, education, cultural and other programs will be dismantled unless Congress clarifies the government's relationship with the indigenous people of Hawaii.

Opponents, including many conservatives and Republicans, say Rice settled the matter once and for all. They argue that Congress cannot "create" a race-based government.

Many American Indians and Alaska Natives, along with tribes and tribal organizations, support the Native Hawaiian sovereignty movement. Some fear that the views expressed by opponents could be applied to tribal governments.

S.147, the Native Hawaiian Government Reorganization Act of 2005, was introduced earlier this year by Sen. Daniel Akaka (D-Hawaii), who is part Native Hawaiian. It has nine co-sponsors in the Senate, including four Republicans. Gov. Linda Lingle, a Republican, also supports the bill.

The House has previously passed similar measures by wide margins. The current version, H.R.309, was introduced by Rep. Neil Abercrombie (D-Hawaii).

In response to yesterday's decision, Kamehameha Schools CEO Dee Jay Mailer said the school will "continue to fight for our rights in the courts to serve these students, on our campuses and in our island communities." "We can do no less because Bernice Pauahi Bishop willed it and our strategic plan mandates it," Mailer said.

The school will hold a rally at ‘Iolani Palace on Saturday morning at 8am. It will be followed by a march to Mauna ‘Ala, the Royal Mausoleum where members of the Native Hawaiian royal government that was overthrown by the U.S. are buried.

Princess Bernice Pauahi Bishop, the great-granddaughter and last royal descendant of of King Kamehameha, founded the Kamehameha Schools. The system educates Hawaiians from grades kindergarten through 12. Its current enrollment is about 5,000 students.

Get the Decision:
Doe v. Kamehameha Schools (August 2, 2005)

Rice v. Cayetano Decision:
Syllabus | Opinion | Concurrence Dissent (Stevens) | Dissent (Ginsburg)

Native Hawaiian Recognition Bill:
Native Hawaiian Government Reorganization Act of 2005 (S.147)

Relevant Links:
Kamehameha Schools - http://www.ksbe.edu
Native Hawaiian Sovereignty Site - http://www.hawaii-nation.org
Native Hawaiian Federal Recognition Site - http://www.nativehawaiians.com

Related Stories:
Editorial: Native Hawaiian bill is un-American (07/21)
Debate on Native Hawaiian bill delayed in Senate (7/20)
Bush names John G. Roberts to U.S. Supreme Court (07/20)
House, Senate hearings on housing, land dispute (7/18)
Native Hawaiian bill set for vote on Senate floor (7/18)
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Novak: Native Hawaiian bill creates new 'Indians' (7/5)
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Native Hawaiian recognition bill introduced again (01/27)
McCain won't block Hawaiian recognition bill (01/14)
McCain opposes Native Hawaiian recognition bill (1/6)
Appeals court leaves Hawaiian recognition to Congress (11/02)
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Norton continues to question Native Hawaiian bill (2/23)
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Indian Law and the Supreme Court (12/11)
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