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Hawaii State Legislature Hearings on How to Circumvent Court Decisions Unfavorable to OHA and Kamehameha Schools, October 2005

Two State of Hawai'i legislative committees primarily focused on ethnic Hawaiians held a series of eight public hearings on five islands during a nine day period at the end of October, 2005. The purpose of the hearings was to get public input regarding two decisions of the 9th Circuit Court of Appeals. In Doe v. Kamehameha, the Court ruled that Kamehameha Schools' racially exclusionary admissions policy (ethnic Hawaiians only) is illegal. In Arakaki v. Lingle, the Court ruled that state taxpayer plaintiffs have standing to sue the Office of Hawaiian Affairs to stop the spending of tax dollars for a racially exclusionary group of beneficiaries (ethnic Hawaiians only).

This article describes the Legislature's hearings; including Ken Conklin's testimony, and discussion of legal issues by attorneys and Legislators, at the hearing in Kahalu'u O'ahu on October 28.

Complete coverage of the Arakaki lawsuit, including all legal briefs by plaintiffs and all 5 defendants, can be found at:

For a large webpage about Kamehameha Schools racially exclusionary admissions policy, see:

The intention of the hearings in October was to help the Legislature figure out what state laws might be passed to overcome or circumvent the federal Court decisions. The schedule of hearings (intentionally set in communities with high percentages of ethnic Hawaiians), and comments by the committee chairs encouraging ethnic Hawaiians to attend (what about everyone else?), were published by the Honolulu Advertiser ahead of time (in effect, a free advertisement encouraging identity politics). That article is copied in full later.

Only about 50 people attended the hearing at Nanakuli High School on Monday night October 24, despite the advance publicity and large numbers of ethnic Hawaiians living in that area. The Advertiser reported that "Kamehameha Schools and the state Office of Hawaiian Affairs were bashed for failing to address the needs of the Wai'anae Coast communities" and "Six of the first nine public speakers were critical of Kamehameha." What was probably expected to be a stage-managed propaganda exhibition turned out to be quite the opposite. That Advertiser article is copied in full, later.

On Saturday morning October 29 only nine members of the public showed up at the hearing at Konawaena High School, in the Kona area of the "big island." Deputy Attorney General Charlene Aina presented testimony on behalf of the State of Hawai'i Attorney General's office, while Kamehameha Schools was represented through the testimony delivered in person by its Chief Executive Officer Dee Jay Mailer. A lengthy news report from the newspaper West Hawaii Today is copied in full, later.

The hearing on Friday night October 28 at the Key Project on Waihe'e Road in Kahalu'u had chairs set up to accommodate about 100 people. But only sixteen people showed up, including four Legislators, official representatives of two government agencies and Kamehameha Schools, and the author of this article. The Senate Committee on Judiciary and Hawaiian Affairs was represented by Chair Colleen Hanabusa, Vice-Chair Clayton Hee (who is also the former long-term chairman of OHA), and member Kalani English (Maui). The House Committee on Hawaiian Affairs was represented by Chair Scott Saiki.

Testimony was presented first by Deputy Attorney General Girard Lau; followed by OHA attorney Ernie Kimoto; and then two spokespeople for Kamehameha Schools, Kekoa Paulsen and Crystal Rose. Then three members of the public testified: Ken Conklin, and two kupuna (elders) from Waimanalo Hawaiian Homestead. Former Senator Bob Nakata (an active supporter of Hawaiian race-based programs) showed face but remained silent. A representative of the Department of Hawaiian Homelands was expected to testify but did not appear.

Here's the testimony presented by Ken Conklin, followed by a summary of some technical legal issues discussed by committee members and the attorneys for the State and OHA. Judging by the banter among the committee members and attorneys, it appears the same opening testimony has been presented by the Attorney General's office, OHA, and Kamehameha Schools at all of the 8 hearings, with some of the Legislators also attending most or all of the meetings. Apparently repetitious testimony is intended for propaganda purposes, to curry favor from voters and stakeholders. Apparently the fact that hearings are held is expected to bring public acclaim, even though very few people actually seem interested in attending. The idea seems to be to impress the public that "OHA, Kamehameha Schools, the Attorney General, and the Legislature are working tirelessly to protect Native Hawaiian rights." There is absolutely no concern to protect the rights of all Hawai'i's people against illegal programs and policies that balkanize our society and splinter our multiracial rainbow.


Testimony by Kenneth R. Conklin, Ph.D. (some written remarks were read and some extemporaneous remarks have been approximately reconstructed 24 hours later)

Aloha kakou!

E kala mai ia'u e na kupuna, i ko'u ho'ike ana i ko'u kua ia 'oulua (kupuna, please forgive me for turning my back to you).

The question posed by the Senate and House committees is: What legislation, if any, should be introduced to deal with the decisions by the 9th Circuit Court of Appeals in the Arakaki and Kamehameha lawsuits?

My answer is: The Legislature should not in any way attempt to override or circumvent those court decisions. The Legislature has an obligation to respect court decisions, just as the Legislature expects the courts to respect legislative decisions on political questions.

District Court Judge Mollway gave extraordinary deference to Congress (the national Legislature) when she finally dismissed the Arakaki lawsuit on grounds that it focuses on a political question -- merely because the Akaka bill has been introduced in Congress (not passed). That's silly, of course, because that theory would allow any illegal government policy or program to be insulated from Court scrutiny merely by introducing a bill! But Judge Mollway's rationale illustrates the great deference shown by the courts to the legislative process. So now it's time for the Legislature to show the same respect to the Court.

Instead of trying to undercut the Court, the Legislature should place two questions on the ballot for the 2006 general election so that the people of Hawai'i can exercise their democratic right to make important decisions.

1. Should the Native Hawaiian Government Reorganization bill, S.147, commonly known as the Akaka bill, be enacted by Congress?

2. Should the Office of Hawaiian Affairs be abolished?

The second question, if answered "yes", would require a Constitutional amendment.

Which reminds me. Fortunately, the ten-year period is rapidly coming to maturity, when the Legislature will be forced to place on the ballot a question whether there should be a Constitutional Convention. Such a con-con would provide Hawai'i's people a wonderful opportunity to finally correct the errors of the 1878 con-con -- to put an end to OHA; to convert Hawaiian Homestead leases to fee-simple and abolish the no-longer-needed DHHL; to make clear that the ceded lands are the property of all Hawai'i's people without racial restriction or encumbrance; and that shoreline access, water allocation and gathering rights are not based on race and must respect the rights of property owners.

It would be an abomination for the Legislature to try to defend racial separatism in government programs under the auspices of OHA or the Akaka bill, or to defend racial segregation at Kamehameha Schools.

I recently saw a televised panel discussion, including Senator Hanabusa, discussing how the Legislature can help ensure the independence of the Judiciary, to guarantee that judges can make correct legal decisions without being intimidated by political pressure. Yet here is Senator Hanabusa, as chair of the Judiciary committee, leading a political process to figure out how the Legislature can interfere with Court decisions in the Arakaki and Kamehameha lawsuits. The Legislature needs to back off.

In February 2000 the U.S. Supreme Court handed down its decision in Rice v. Cayetano. Immediately there was an uproar in the Legislature, as everyone scrambled to figure out how to undercut that decision. How about letting OHA pay for its own elections? How about privatizing OHA? Etc. Exactly the way politicians in the Southern states behaved 50 years ago after the Brown v. Board of Education school desegregation decision.

It's time to move into the 21st Century, and stop looking like Alabama, Mississippi, and Arkansas of 1950s.


Summary of some legal issues raised in the testimony of Girard Lau (Assistant Attorney General) and Ernie Kimoto (OHA) and discussed during public Q&A by committee members.

One topic of general interest discussed briefly is whether the new Supreme Court Chief Justice Roberts would feel a need to recuse himself from cases such as Arakaki and Kamehameha due to the fact that Roberts represented the State of Hawai'i before the Supreme Court in the Rice case. The consensus was that Roberts' views as a Supreme Court Justice cannot be predicted based on his work as a hired attorney in the Rice case; and that while Roberts might (or might not) recuse himself from Arakaki, he probably would not recuse himself from other cases such as Kamehameha or such as the new lawsuit against OHA by homesteaders complaining that OHA is spending ceded land revenue on low-blood-quantum Hawaiians.

There was no discussion of the testimony by Kamehameha representatives, by Ken Conklin, or by the two Waimanalo kupuna. All the attention focused on testimony by Mr. Lau and Mr. Kimoto, to figure out how the Legislature might be able to continue sending money to OHA and to various public and private Hawaiians-only programs, in case the Arakaki lawsuit is successful.

Lau and Kimoto continue to believe that the Mancari decision will protect OHA's existence and the right of OHA to spend tax dollars on racially exclusionary programs. (The Mancari decision by the U.S. Supreme Court ruled that the Bureau of Indian Affairs can maintain a policy of hiring as employees only Indians who are members of the federally recognized tribes receiving benefits through BIA). The claim that Mancari is relevant to OHA was rejected by the Supreme Court in Rice v. Cayetano; but the same repudiated arguments continue to be pushed by OHA and State attorneys on the theory that Rice pertains only to 15th Amendment voting rights (but then Mancari pertains only to the BIA, only to federally recognized tribes, and only to race-based hiring!).

Mr. Lau said the AG office is still considering whether to appeal the 9th Circuit Arakaki OHA ruling. He expressed concern a victory by Arakaki, limited to tax dollars only, could be cited in the future as a precedent to apply the 14th Amendment equal protection clause to ceded land revenues in a possible future lawsuit brought by (new or previous) plaintiffs who somehow get standing to challenge federal laws such as section 5(f) of the Admissions Act.

The attorneys speculated that further action on Kamehameha, Arakaki, and other such civil rights Hawaiian cases might be put off by the 9th Circuit Court until a pending Supreme Court case is decided, probably in Spring 2006, dealing with Daimler-Chrysler (there was no discussion about the nature of that case or how it would be relevant to the Hawaiian cases).

The one topic receiving extended discussion by the lawyers and committee members was the complex issue whether Arakaki would prevent the Legislature from using ceded land revenues as matching funds for state appropriations to OHA of tax dollars from the general fund. Such mixing of tax dollars with ceded land revenues is under attack from both Arakaki (can't use tax dollars for race-based programs) and from the new lawsuit filed by the homesteaders (can't use ceded land revenues earmarked for 50%+ blood quantum native Hawaiians to provide benefits to low-quantum Native Hawaiians). One way to look at it is that money spent to benefit all ethnic Hawaiians also thereby includes high-quantum native Hawaiians as beneficiaries, thus fulfilling the Legislative mandate to use ceded land revenue for the 50%ers. The opposite way to look at it is that mixing the source of funding unavoidably spends ceded land revenues for low-quantum Hawaiians who are not entitled to that money.

That issue is also impacted by state procurement laws that require service-provider contracts to be put out for competitive bidding. It was stated that at present there are three programs funded by OHA with a mix of tax dollars and ceded land matching funds that might be subject to the procurement laws. Native Hawaiian Legal Corporation (NHLC) is a private law firm that uses OHA money to sue the State of Hawai'i, landowners, and others exclusively on behalf of ethnic Hawaiians. Alu Like is a private organization receiving appropriations from Congress and from OHA to provide social services and vocational training exclusively for ethnic Hawaiians. Na Pua No'eau is an educational enrichment program for gifted and talented children, exclusively for ethnic Hawaiians. It was pointed out that Na Pua No'eau is housed at the University of Hawai'i at Hilo, and therefore its funding might conceivably be redirected away from OHA and provided through general appropriations for UH, thus getting around an anticipated court victory by Arakaki. But NHLC and Alu Like as freestanding organizations appear to be at risk unless some clever concept can be envisioned to rescue them from Arakaki.

The hearing adjourned after about 90 minutes. And a good time was had by all!

Note: On March 31, 2005 the same two committees of the Legislature held a well-attended joint meeting at the state Capitol to receive information about the Akaka bill from both of Hawai'i's U.S. Senators and both U.S. Representatives. That hearing showed the same eager racial favoritism, lack of due diligence, and failure to protect the interests of all Hawai'i's people (it also featured Christian prayer in Hawaiian language, asking God to bring everyone together to support the Akaka bill). See:

Honolulu Advertiser, Friday, October 21, 2005

Input sought on Hawaiian cases

The Hawaiian Affairs committees of the House and Senate will hold a series of public hearings across the state beginning tomorrow to get people's opinions on two court cases involving Native Hawaiian programs.

One of the cases is John Doe v. Kamehameha Schools, which challenges Kamehameha's Hawaiians-first admissions policy. The other case is Arakaki v. Lingle, which challenges the authority of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands to provide programs that are designed primarily to help Native Hawaiians.

Petitions for appeals in both cases are before the 9th U.S. Circuit Court of Appeals.

The hearings will be held:

# Tomorrow, 10 a.m. to noon, Kulana Oiwi, on Moloka'i.

# Monday, 7 to 9 p.m., Nanakuli High School cafeteria.

# Tuesday, 5:30 to 7:30 p.m., Kaua'i Community College Performing Arts Center.

# Wednesday, 6 to 8 p.m., Hawai'i State Capitol auditorium.

# Thursday, 5:30 to 7:30 p.m., Baldwin High School cafeteria, on Maui.

# Oct. 28, 7 to 9 p.m., Key Project, on O'ahu.

# Oct. 29, 10 a.m. to noon, Konawaena High School cafeteria.

# Oct. 30, 3 to 5 p.m., Hilo High School cafeteria.

"We especially encourage the Native Hawaiian community to attend the hearings and provide input to help us develop legislation, if appropriate," said Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee.

"As a result of the 9th Circuit decisions, Hawaiians face some of the most significant challenges in recent history," said Rep. Scott Saiki, D-22nd (McCully, Pawa'a).

Honolulu Advertiser, Tuesday, October 25, 2005

Wai'anae says kids' needs not being met

By Gordon Y.K. Pang

NANAKULI What was supposed to have been a public hearing on how best to fend off legal challenges to programs aimed at helping Native Hawaiians instead turned into a session where two of the largest of those institutions the Kamehameha Schools and the state Office of Hawaiian Affairs were bashed for failing to address the needs of the Wai'anae Coast communities.

Kimo Kelii, a seventh-grade math teacher at Nanakuli High and Middle School, said he thought long and hard about whether he should join other Native Hawaiians in supporting Kamehameha when the 9th U.S. Circuit Court of Appeals issued a ruling during the summer that said the school's Hawaiians-first admissions policy violates civil rights laws.

But then Kelii decided: "They go fight their own battle."

About 50 people attended the joint hearing of the state House and Senate Hawaiian affairs committees last night at the Nanakuli High School cafeteria. Six of the first nine public speakers were critical of Kamehameha.

Kelii said the school, founded by Princess Bernice Pauahi Bishop in the late 1800s, has "done a pathetic job in the education of all Native Hawaiian kids."

Kamehameha's trustees, he said, should consider shutting down the flagship Kapalama campus and instead funnel its vast resources into public schools where there are large numbers of Native Hawaiians such as Wai'anae, he said. Kelii also criticized OHA for not doing enough to help Native Hawaiian children get a better education.

Kapiolani "Dolly" Naiwi, a Wai'anae resident who is an educational assistant at Nanakuli High, said Kamehameha used to provide some resources for Wai'anae public schools but has not done so lately. "Have another extension campus out here," she said. "We've got seven homesteads. I truly believe they're not trying hard enough."

The Kamehameha critics got empathy from state Rep. Michael Kahikina, D-44th (Honokai Hale, Nanakuli) who asked, "When is Kamehameha going to take over Nanakuli (High School)?"

Not everyone criticized Kamehameha. Alice U. Greenwood of Wai'anae urged lawmakers and state leaders to continue fighting the legal challenges against Hawaiian preference programs. She called Kamehameha "an invaluable part of the Hawaiian culture."

Ann Botticelli, a spokeswoman for Kamehameha, said before the public testimony that "it is difficult to serve all the Hawaiians that need to be served" but that trustees recognize the situation and have shifted its priority to reaching those communities that are least served as part of its 2000 strategic plan.

Kamehameha has set up a community learning center in Nanakuli which serves Hawaiians of all ages living in the area, Botticelli said. The plan is "to reach out into the communities and provide educational opportunities outside of the campus programs," Botticelli said, noting that more concrete plans were approved by the trustees in June. "It is philosophically a plan that seeks to strengthen children from the very young stages, pre-natal to eighth (grade) and carry it all the way through to college through scholarships and so forth."

Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee, said that after a recent conversation with Kamehameha chief executive officer Dee Jay Mailer that the school intends to boost its presence in public schools with large numbers of Native Hawaiians such as Nanakuli.

West Hawaii Today (Kona), Sunday, October 30, 2005

Public meet draws fewer residents than hoped
Kamehameha schools ruling a topic

by Carolyn Lucas

State lawmakers opened the cafeteria doors at Konawaena High School Saturday morning and awaited the arrival of concerned West Hawaii residents.

They were there to clear up misconceptions and answer questions regarding two Ninth Circuit Court of Appeals decisions -- John Doe v. Kamehameha Schools and Arakaki v. Lingle.

By 10 a.m., the scheduled meeting time, nine people had showed up and four people had signed up to testify. There were also representatives from the Deputy Attorney General's Office, Kamehameha Schools, the House Committee on Hawaiian Affairs and the Senate Committee on Judiciary and Hawaiian Affairs. Officials from the state Department of Hawaiian Home Lands (DHHL), the Hawaiian Homes Commission or the Office of Hawaiian Affairs (OHA) were not present.

The small turnout left the lawmakers with lingering questions about how residents feel about these controversial issues.

Sen. Colleen Hanabusa, chairwoman of the Senate Committee of Judiciary and Hawaiian Affairs, had hoped to hear concerns from the Native Hawaiian community. That input, she said, helps lawmakers develop legislation for the next session.

John Doe v. Kamehameha Schools involves a challenge to the admissions policy of Kamehameha Schools.

In a 2-1 decision, the 9th U.S. Court of Appeals ruled Kamehameha School's "Hawaiians-first" policy of admitting only students with Hawaiian blood before considering others violates federal civil rights laws.

The majority 37-page decision does not overturn the 1884 will of Princess Bernice Pauahi Bishop that established Kamehameha Schools. Appeals Court judges Robert Breezer and Jay Bybee, the majority, said the will did not establish race as requirement for admission. The policy was established by the original trustees who thought it was Bishop's intent to prefer Native Hawaiian students.

According to Dee Jay Mailer, Kamehameha Schools chief executive officer, the policy is an affirmative action plan to address disadvantages among Native Hawaiians. Unfortunately and statistically, Mailer said Native Hawaiians have low levels of educational achievement, are over-represented among the poor and are under-represented in professional jobs.

"Kamehameha Schools serves 22,000 Native Hawaiians and thousands more through its public outreach programs," she said. "Lots of students have graduated from our private school, which uses private resources, and they have gone on to become stellar leaders."

Rep. Scott Saiki, House Committee on Hawaiian Affairs chairman, asked Mailer what happened to a federal grant program, piloted in 1994, which gave money to Kamehameha Schools for student scholarships. Mailer said she did not know.

Kamehameha Schools submitted a petition for a rehearing two months ago. Mailer said the court is "seriously reconsidering the petition."

Arakaki v. Lingle involves a 2002 lawsuit filed by a group of Hawaii taxpayers challenging the constitutionality of the funding for the DHHL, the Hawaiian Homes Commission and OHA, all of which provide benefits and programs to Native Hawaiians.

In a unanimous decision, the U.S. Court of Appeals reinstated a portion of a lawsuit challenging taxpayer money going to the OHA, about $2.8 million a year.

The judges also affirmed the dismissal of other parts of the lawsuit challenging money to the DHHL and the Hawaiian Homes Commission as well as challenging non-taxpayer money going to the OHA. That money includes revenue from ceded lands that once belonged to the Hawaiian monarchy and currently provides the bulk of OHA's funding.

OHA is asking for a rehearing or an appeal to the U.S. Supreme Court, according to Charleen Aina of the Deputy Attorney General's Office.

Other states, such as Ohio, may also have concerns about taxpayer challenges to state programs, Aina said.

Ka Leo Lindsey, a "non-U.S. beneficiary" and representative of the People of the Hawaiian Society, mentioned section 5 of the Admission Act of 1959. This document refers to the crown and government lands of the Hawaiian Kingdom, which had been designated ceded to the Republic of Hawaii and then to the United States. One of these, he said, was the betterment of conditions for Native Hawaiians.

Lindsey then presented several documents to the lawmakers in hopes of proving that OHA is supposed to be a separate entity, which assess the progress of state and federal agencies.

"Hawaiian is not a race. It's nationalism. It's a political, social choice. We are not Indians," he said. "The cultural and national rights of Hawaii are to the descendants and the citizens, not to the board of trustees of OHA. It is the board that jeopardizes us and does not defend the proper issues."


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