On November 23, 1993, President Clinton signed Senate Joint Resolution into law1 to "acknowledged the 100th anniversary of the January 17,1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii." Prior to the Bill's passage, the Hawaii Legislature determined that 1993 should serve Hawaii as a year of special reflection on the rights and dignities of Native Hawaiian in both the Hawaiian and American societies, in order to promote racial harmony and cultural understanding.2
The Apology Bill (as it became known), was intended to serve many purposes. First, in language contained in the joint resolution preceding the Bill, Congress acknowledged that:
the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land;
the long-range economic and social changes in Hawaii during the nineteenth and early twentieth centuries have been devastating to population and the health and well-being of the Hawaiian people; and
the Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory', and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions.
The basis of the Apology Bill is to acknowledge and apologize for the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, which resulted in the suppression of the inherent sovereignty of the Hawaiian people, and the deprivation of the rights of Native Hawaiians to self-determination.3 The heart of the bill, however, lies in its expression of its commitment to acknowledge the ramifications of Hawaii's illegal overthrow, in order to provide a proper foundation for, and to support reconciliation efforts between the United States and Native Hawaiian people.4
It has been five years since the Apology Bill was signed into law. It is still not clear, what has been done to provide a proper foundation for, and to support reconciliation efforts, if any between the United States and Native Hawaiian people. In fact, it is not even clear what the intent behind the language 'reconciliation efforts' really is.
What is clear is that in the four years since the Apology Bill was signed into law, more questions have been raised than resolved. Significant legal challenges have arisen involving Native Hawaiians and non-Native Hawaiians alike, challenging rights turning on Hawaiian ancestry. This issue has triggered civil rights challenges from both sides, in areas ranging from education, property rights,5 and voting rights.6
Much of the debate centers on economic self-determination, with many Hawaiian leaders insisting that ceded lands, which make up 95 percent of the state's public land trust, were stolen from Hawaiians during the overthrow, and they say the land must be returned to Hawaiians. Others insist they were public lands of the kingdom, where more than half of the citizens were non-Hawaiian, and remain public lands for the benefit of all Hawaii's citizens, not just Hawaiians. The statehood act, however, designates one of five public purposes for use of revenues from ceded lands to be "the betterment of conditions for Native Hawaiians."7
Despite this statutory language conferring seeming benefits for Native Hawaiians, it has had little effect on conditions for Native Hawaiians. A higher proportion of Native Hawaiians live below the poverty level than of any other ethnic group. They have the shortest life expectancy, and the highest infant mortality rate in the state. (As a whole, Hawaii has the highest prenatal and post-natal death rate in the U.S.). Fifty-five percent of Native Hawaiians do not complete high school, and only seven percent have college degrees. Although Native Hawaiians make up only 19 percent of the state's population, they compose 40 percent of its prison population. They have 44 percent higher rates of death from heart disease and cancer than the rest of the U.S. population. Native Hawaiian women have the highest rate of breast cancer in the world.
Native Hawaiian groups want to regain actual control of the nearly 2 million acres (half the total acreage of the islands) that is held under the Ceded Lands Trust, created after U.S. annexation of the islands in 1898, and the Hawaiian Homes Trust, or Homelands, established by the Hawaiian Homestead Act of 1 921. Both trusts are now administered by the State, which has been developing and taxing the land for nearly thirty years, and is the main source of its revenues.
Native Hawaiians, although beneficiaries of the trust, have not benefited much from the state's administration of the lands. Of the 194,000 acres of Hawaiian Homelands, more than 150,000 acres are held by government agencies or leased by businesses.8 More than 30,000 Native Hawaiians who were on the waiting list have died without receiving their allotment. Sixteen thousand families are still on the waiting list. And while 5,800 families have been awarded land, only 3,700 are actually on the land -- the rest are waiting for basic infrastructure.
In the minds of many Native Hawaiians, the Apology Bill has accomplished little, except serve a painful reminder of the legislative limitations that have been placed on their own futures.
The Apology Bill, with its language acknowledging the illegal overthrow of the Kingdom of Hawaii, has generated a big question mark in the minds of some on whether other previous acts were legally consummated, including the annexation treaty and the statehood act.9 Moreover, the Bill calls into question some of the most basic civil rights issues for Native Hawaiians in the areas of housing, employment, education, religion, and voting rights. The most important questions presented, include:
One of the major statutory obligations of the U.S. Commission on Civil Rights is to "study and collect information relating to discrimination or denials of equal protection of the laws under the Constitution of the United States because of race, color, religion, sex, age, or national origin, or in the administration of justice." The Commission on Civil Rights is also authorized to "appraise Federal laws and policies with respect to discrimination or denials of equal protection of the laws under the Constitution because of race, color, religion, sex, handicap, or national origin, or in the administration of justice."
The Commission has established at least one advisory committee in each State and in the District of Columbia to assist in its factfinding function. Commission regulations call for each Advisory Committee to "advise the Commission concerning legal developments constituting discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, national origin, age, or disability, or in the administration of justice; and as to the effect of the laws and policies of the Federal Government with respect to equal protection of the laws.
The Commission has often assessed the efficacy of the Federal and State civil rights legislation, through examinations conducted by headquarters and state advisory committees. The Hawaii Advisory Committee believes that the proposed examination will enhance the Commission's body of knowledge in this area, and will assist in formulating additional recommendations to improve implementation of the reconciliation efforts described in the Apology Bill.
The Hawaii Advisory Committee to the U.S. Commission on Civil Rights plans to conduct a one-day public forum to obtain information and recommendations from knowledgeable experts, including federal, state, and local officials, legislators, community leaders, and others, regarding the effects and potential of the Apology Bill on Native Hawaiian civil rights.
The Committee will gather initial information through statutory research and review of previous reports and correspondence prepared by, and received by the Hawaii Advisory Committee and the U.S. Commission on Civil Rights. Thereafter, working through the subcommittee assigned the task of dealing with Native Hawaiian rights, staff will conduct brief interviews with those involved in state and federal administration of the apology bill, and others whose role or knowledge impacts upon this issue. The entire Advisory Committee will then hold a one-day public forum on the issue to obtain information, recommendations, and commitments on enforcement. Follow-up requests for documents or other information will be made on an "as needed' basis.
A transcript of proceedings will be taken for submission to the Commission. The Advisory Committee plans to prepare a report of its forum to increase awareness and public education on this issue. Additional staff follow-up will depend on information collected by regional staff and the Hawaii Advisory Committee.
1 103 P.L. 150, 107 Stat. 1510 (1993).
3 Ibid., Section 1 (1-3).
4 Ibid., Section 1 (4) & (5).
5 In December 1997, David Keanu Sai sued President Clinton in the U.S. Supreme court, asking the justices to compel Clinton to honor the 1850 treaty between the Hawaiian Kingdom and the United States. Sai is a co-founder and employee of Perfect Title, a company which searches property records based on 19th century kingdom law and invariably determines existing land titles in Hawaii are invalid. Sai did not file the lawsuit in his capacity as an employee of Perfect Title, but as a regent of the kingdom, a designation authorized by several dozen native Hawaiians who have pledged allegiance to the kingdom. Because the lawsuit against Clinton involves a foreign ambassador the Supreme court has original jurisdiction.
In the lawsuit, Sai argued that the 1893 overthrow was illegal and that the treaty between the two nations never terminated and still is in effect. Many of his fads are taken from the Apology Bill.
6 Earlier this month, the U.S, court of Appeals for the Ninth circuit rejected a challenge to the legality of the requirement that only those of Hawaiian ancestry can vote in elections for the Trustees of the Office of Hawaiian Affairs (OHA). In Rice V. Cayetano, (cite unknown), the court held that Hawaii can allow only ethnic Hawaiians to vote for OHA trustees, which administers a trust fund for the benefit of Native Hawaiians. OHA's classification of voters by race is constitutional because the trust benefits only those who fall into the same racial category, according to the court of appeals. Assuming that the trust fund itself is valid, "the state may rationally conclude that Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty, should be the group to decide whom the trustees ought to be," said Judge Pamela Rymer in the 3-0 ruling. while race cannot be used as a general qualification for voting," this isn't a general election for government officials," but instead an election for a trust to benefit a specifically defined community, Rymer said. She was joined by Judges James Browning and Melvin Brunetti.
OHA was created by a 1 978 state constitutional amendment to manage programs that benefit people of Hawaiian descent. By law, the trustees and those who vote for them also must be of Hawaiian descent. It is funded by state appropriations and by a share of revenues from ceded lands, which are former crown lands under the monarchy and make up 95 percent of the state's public land trust. Revenues from ceded lands, however, can only be used for people of 50 percent or more Hawaiian blood.
The restriction was challenged in 1996 by Harold F. Rice, a Big Island rancher of non-Hawaiian descent. He said it violated the U.S. constitution's ban on racial discrimination in voting. Rice's attorney, John Goemans, said "It's always been our position that ultimately this matter should be decided by the Supreme court and should be decided as quickly as possible. In that regard, we're pleased that we are moving ahead in that direction."
7 Others are public schools, farm and home ownership, and public improvements.
8 Hawaii, with super-developed Honolulu and visions of high-tech industry, continues to have the land structure of a Third world country. Seventy-four of the state's largest landowners control 95 percent of Hawaiian territory, including: federal and state governments, which hods the ceded lands of the monarchy; the Trusts, including Bishop Estate, heirs to royal inheritances, run for the benefit of Native Hawaiians; and the Big Five sugar and pineapple interests, such as AMFAC and castle and Cook/Dole.
9 The passage of the Apology Bill has even triggered questions regarding the validity of the statehood act. In 1946, Hawaii was on the United Nations list of non-self-governing territories, along with Alaska, American Samoa, Guam, the Panama Canal Zone, Puerto Rico, and the Virgin Islands. Some Hawaiian leaders have asked that Hawaii be returned to the list, claiming that the 1959 plebiscite through which Hawaii became a state was invalid because independence was not an option on the ballot.