Still Stealing From The Hawaiians

September 07, 2005
By Mel Matsuda

The following is an open letter written by an attorney and professor of law at Hawaii Pacific University, to his daughter, a Class of 2001 Kamehameha graduate.

Dear Kaiewa, I was part of the throng of 15,000 in the recent rally at Iolani Palace and the march to Mauna Ala, the Royal Mausoleum, protesting the U.S. Ninth Circuit Court of Appeals’ 2-to-1 panel decision striking down the Hawaiians preference admissions policy at Kamehameha. As you know, I’ve been a long-time activist on behalf of Native Hawaiian causes: In 1977, I wrote the album liner notes on the late George Helm’s first posthumous album after helping him as one of the first pro bono attorneys for the Protect Kaho’olawe Ohana. It’s always struck me as being totally unfair that the independent Nation of Hawaii was overthrown with the help of U.S. Marines in 1893 - a coup d’etat acknowledged by the U.S. Congress to be illegal in 1993. Yet the Nation of Hawaii and Hawaiian rights from those days of Hawaiian independence have not yet been restored.

If anything,  the latest Ninth Circuit Court decision shows that the U.S. is going backwards in terms of its relationship to Native Hawaiians, whose rights the U.S.  took away -  by its own acknowledgment.


So, I can understand the outrage and the lack of aloha which many Hawaiians expressed at the decision,  and I can understand your overwhelming sense of sadness in hearing of the decision.  But there’s still an outside chance that the Hawaiians-first preference policy willbe upheld on the next appeal to an 11-member panel of the Ninth Circuit - called in our attorneys’ language, an “en banc” hearing.  I would shout with joy if, indeed, the “en banc” panel reverses the 2-to-1 decision and rules in favor of Kamehameha. However, if that fails, a petition for certiorari (a certificate of permission) with the U.S. Supreme Court would have to be filed, asking permission that that top court in the U.S. review the negative Ninth Circuit decision.

What can be done if the Ninth Circuit “en banc”  hearing upholds the 2-to-1 decision against Hawaiians-first preference and if the U.S.  Supreme Court declines to hear the case?  Believe it or not, I think that, should such bad news occur, there are still methods which are legal under the U.S. Constitution for all three campuses of Kamehameha Schools - Kapalama, Maui, and the Big Island - to remain predominantly Hawaiian even without the Hawaiians-first preference.

First, should the Akaka bill pass and be allowed to become law or be signed by the president, then the distinct possibility arises that Kamehameha Schools could be designated as an official school system associated with the Nation of Hawaii “tribe”  and that,  similar to “Indian” schools, could be restricted in applicants and admissions to only Native children.

A second, more likely and realistic option is that the 2-to-1 Ninth Circuit Court decision is based on an interpretation of an 1866 law passed by the U.S. Congress to prevent racial discrimination by any private institution, which of course includes a private non-profit such as Kamehameha Schools.

What has happened to previously all-black private colleges in the past 40 years is a good - and, I think, hopeful - example to keep in mind. Based on both the 1866 law and on the U.S.  Civil Rights Act of 1964, all-black colleges were all told by the federal government that they could no longer discriminate against whites and other non-blacks who wanted to apply to those colleges and to be accepted, if they met the admission standards. The historically black colleges, over the past generation, have redefined their admission standards in terms of seeking applicants who, among others, have demonstrated an appreciation for black culture, traditions and values.  Everyone - whites, blacks, Asians and others - is allowed to, and in fact encouraged to apply. What’s happened is interesting: The historically black colleges have still remained predominantly black, without creating what the Ninth Circuit called “an illegal racial bar” against applying or being admitted.

Following that approach, if worse comes to worst and the 2-to-1 decision of the Ninth Circuit is not reversed, then Kamehameha Schools should - without discriminating against non-Hawaiians - reiterate and re-emphasize its mission, under the 1887 will of Princess Pauahi, to perpetuate the culture, traditions, and values of Native Hawaiians in the education of what she calls “the aboriginal children of Hawaii.” In some ways, ironically, a re-definition of the Schools’ mission to focus on non-discriminatory education in, and study of, Native Hawaiian culture, traditions and values will allow non-Hawaiians who apply to demonstrate that - regardless of the circumstance of non-Hawaiian birth - they, too, know and understand Native Hawaiian culture, traditions and values. If a non-Hawaiian applicant can demonstrate, in competition with Hawaiian applicants for admission, that he or she ranks higher than others in such matters, then he or she should be accepted, along with Hawaiian applicants who can do the same.

All of us who have had children at Kamehameha -  even non-Hawaiians like me whose children’s Hawaiian ancestry comes from our spouses - are aware of capable non-Hawaiian students of good will who can demonstrate knowledge, understanding and valuing of Native Hawaiian culture and traditions, in such areas as Hawaiian language capability, hula, Hawaiian music, and canoe paddling, among others. Indeed, two of the best speakers of the Native Hawaiian language today are a man who happens to be haole with the last name of Nogelmeier and a Japanese American woman who was “hanaied” into a Hawaiian family. It is sad that, in the past, with the Hawaiians-first and Hawaiians-only preference, if either of those individuals were applying to Kamehameha as a youth, their applications would have been rejected right away because they would not have been able to provide proof of two past generations of Hawaiian ancestry.

Assuming that the Ninth Circuit is not reversed, then Kamehameha Schools should begin new admissions standards asking all applicants, regardless of ethnicity, to demonstrate their knowledge, understanding and valuing of native culture so that Hawaiian culture will be perpetuated.

Imua, Kamehameha!

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