by Andrew Walden

In the midst of today’s mind-boggling display of forgetful hypocrisy by those who for 15 years have claimed the Apology Resolution has legal effect, it should be of no surprise that a key benefit of the Supreme Court’s Ceded Lands ruling goes unnoted. The high court’s reading of legal precedent gives special protection to a state’s Admission Act. And in the case of Hawaii this means special protection for Hawaiian Homelands and the designation of ceded lands revenues for five specific purposes. The high court thus undermines two of the three key public arguments for the Akaka Bill.

The Akaka Bill is, of course, merely a grab for land and power by OHA trustees, and the Trustee Class generally. But the bill’s proponents have made three public arguments which mask this reality. They claim the Akaka Bill is needed in order to protect the following against lawsuits claiming racial discrimination:

1. Kamehameha Schools Hawaiians-only admission policy
2. Hawaiian Homelands 50%-blood-quantum-Hawaiians-only lease assignments
3. Allocation of ceded lands revenues “for the betterment of the conditions of native Hawaiians”

The text of the 1959 Hawaii Admission Act transferred the Hawaiian Homelands program from Federal to State jurisdiction. And the allocation of ceded lands revenues “for the betterment of the conditions of native Hawaiians” is one of the five purposes for ceded lands revenue contained within the text of the Admission Act. The court decision is based in part on a reading of law which clearly elevates the Admission Acts of the various states above other laws.

The elements of the Supreme Court ruling which give special weight to a state’s Admission Act are woven throughout the decision but are stated most clearly on page 11. Writing for the unanimous court, Justice Alito explains:

“…the Apology Resolution would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that 'Congress cannot, after statehood, reserve or convey … lands that have already been bestowed on a State.'…('[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event…to suggest that subsequent events somehow can diminish what has already been bestowed'). …"

The High Court’s holding any suggestion “that subsequent events somehow can diminish what has already been bestowed” would ignore “the uniquely sovereign character of” a state’s admission--places a very high burden on any who would claim that DHHL, the ceded lands revenues stream, or any other aspect of the Hawaii Admission Act can be challenged on the basis of racial discrimination.

Interestingly this parallels judicial history in regard to Indian tribes. No court has ever overturned Congressional recognition of a tribe—although the courts have asserted the right to review such recognitions. Likewise the High Court is not absolutely forswearing review of a State’s admission act but is placing a very high bar against any after-the-fact rewrite.

Most of the Bill of Rights does not apply under tribal law. Any effort to take DHHL or the ceded lands out of the State and place them under a non-state tribal entity would weaken—not strengthen—their various legal protections by removing the entities and the tribal citizens from the protection of the US Constitution and removing them from the oversight of the State Attorney General.

Hawaiian sovereignty activists, OHA Trustees, and on March 26 Abigail Kawananakoa, have argued or implied the US Constitution is a hindrance to native Hawaiians. This is a false claim. The US Constitution is only a hindrance to the designs of money-and-power-grubbing Trustees.

The court decision leaves one remaining public justification for the Akaka Bill--protection of Kamehameha Schools’ racially discriminatory admission policy. This policy is not contained within the Admission Act. Because of this distinction there is no protection for this policy and it will surely be overturned when a case gets out of Hawaii’s craven federal district courts and before the US 9^th Circuit.

Is creating a Hawaiian Indian tribe the only alternative to Kamehameha accepting “the lawsuits”? No. There is a third choice—a school voucher program.

A state-wide school voucher program would enable Kamehameha—for the first time in its history--to serve every single native Hawaiian child who wishes to attend. Without excluding a single Hawaiian, Kamehameha would then be able to admit non-Hawaiians as well. It would all be funded by the vouchers. This would end the cause for action of the anti-discrimination lawsuits. Hawaii would become an international magnet for education innovators. In the midst of economic recession Hawaii would become an education-based one state economic boom.

And so the choice for Hawaii is clear. Shall Hawaii become an international education powerhouse by using vouchers to create education choice and opportunity for all? --or-- Shall Hawaii relegate native Hawaiians to second-class tribal citizenship and allow corrupt trustees to loot the Hawaiian patrimony, shielded by tribal law?

LINKS: Supreme Court Ruling , Hawaii Admission Act , Akaka Bill Reading List