Native Hawaiian programs face growing legal challenges, OHA chair tells senators

Native Hawaiian programs and institutions face growing legal challenges, the chair of the Office of Hawaiian Affairs Board of Trustees told state senators Wednesday during a briefing on the history behind programs meant to address generations of injustices, including the 1893 overthrow of the Kingdom of Hawaiʻi.

The Senate Committees on Judiciary and Hawaiian Affairs and the Native Hawaiian Affairs Caucus held the informational briefing at the State Capitol. Maui County residents can watch the recorded livestream on the Senate’s YouTube channel.

Recent legal challenges, such as the Students for Fair Admissions lawsuit against Kamehameha Schools, have increasingly argued that eligibility rules specific to Native Hawaiians amount to unconstitutional racial preferences. The challenges have targeted homestead land, health scholarships and school admissions.

The central legal dispute is whether “Native Hawaiian” is a racial classification subject to strict scrutiny under the equal protection clause, or a political classification based on Congress’ historical trust relationship with Native Hawaiians.

Kaialiʻi Kahele, chair of the Office of Hawaiian Affairs Board of Trustees, opened the briefing with an overview. He said the challenges are part of a broader national movement questioning programs meant to remedy historical injustice, but that Hawaiʻi’s history and legal foundations are different.

“Native Hawaiians are not simply another racial or ethnic group seeking redress,” Kahele said. “We are the indigenous peoples of these islands with a distinct political history, an enduring connection to our ancestral lands, and a unique trust relationship recognized under both state and federal law.”

Kahele cited the illegal 1893 overthrow of the Hawaiian government and the confiscation of kingdom lands. He also cited the annexation of Hawaiʻi without a treaty, which he said raises questions about its constitutionality under US law.

Hawaiʻi voters created the Office of Hawaiian Affairs in 1978 through a constitutional amendment as a step toward Native Hawaiian self-governance, Kahele said.

“OHA was never intended to be the final destination,” he said.

The agency’s trustees recently voted to restore Ea, or self-determination, as a guiding principle of its strategic plan, he said. The agency also plans community-led conversations about governance and reconciliation.

Sen. Jarrett Keohokalole, who represents Kāneʻohe and Kailua and chairs the Native Hawaiian Affairs Caucus, said: “These programs and institutions were established in response to generations of historical injustices and the unique circumstances facing Native Hawaiians. They represent efforts to address those injustices and create opportunities for Native Hawaiian families through education, health care and access to Hawaiian Home Lands. Understanding their history and purpose is essential to recognizing their value and ensuring they continue serving future generations.”

Other presenters examined the historical and legal foundations of Native Hawaiian-focused education, health and housing programs.

Derek Kauanoe, an assistant professor at the University of Hawaiʻi at Mānoa William S. Richardson School of Law, described the factors that shaped programs such as Kamehameha Schools and the Native Hawaiian Health Scholarship Program.

Tyler Iokepa Gomes, chief administrator of the Kilohana Collective at the Hawaiian Council, discussed the history of the Hawaiian Homes Commission Act. Hawaiian Home Lands give Native Hawaiian families a place to live and a way to stay connected to ancestral lands, he said.

Sen. Karl Rhoads, who represents parts of urban Honolulu and chairs the Senate Judiciary Committee, said state lawmakers have a responsibility to understand the historical circumstances that led to the establishment of Native Hawaiian beneficiary programs, “and recognize the lasting significance of these institutions”

“This briefing provided an opportunity to deepen that understanding and help inform our work moving forward,” he said.