Amid the political fracas that has engulfed the Supreme Court confirmation hearings of Brett Kavanaugh, protections for Native Hawaiians have been thrust into the spotlight.
On Thursday, U.S. Sen. Mazie Hirono released a confidential email that Kavanaugh wrote during his time serving in President George W. Bush’s administration questioning protections for federal programs serving Native Hawaiians.
Any “program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution,” Kavanaugh wrote in the 2002 email advising the Treasury Department on upcoming testimony related to capital investment in “Indian country.”
The email was deemed confidential by Republicans on the Senate Judiciary Committee. Hirono questioned Kavanaugh about the email Wednesday and publicly released the document the next morning in violation of Senate rules.
“These are the docs R(epublicans) don’t want you to see — because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable,” Hirono tweeted with the document attached. “I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form.”
Hirono and her Democratic colleagues on the Senate Judiciary Committee have been hammering Republicans over the concealment of tens of thousands of documents relating to Kavanaugh from public view. Sen. Cory Booker (D-N.J.) has also been releasing confidential documents, and Republican members of the committee appear to be scrambling to clear them for release to deflate the controversy.
Releasing confidential documents, and possibly discussing them during hearings, runs afoul of Senate rules, and Hirono and Booker could potentially face expulsion from the Senate or the Judiciary Committee. However, it’s rare that such action is taken, and it would require an unlikely two-thirds vote from the full Senate.
An hour before Hirono released the email from Kavanaugh, she tweeted, “If you’re coming after @SenBooker for releasing these documents, count me in.”
‘Hawaii’s naked racial-spoils system’
The Kavanaugh email is part of a larger body of writings by Trump’s Supreme Court nominee on the subject of Native Hawaiians that Hirono seized on in her questioning of Kavanaugh and that have alarmed local Native Hawaiian leaders.
As an attorney in private practice, Kavanaugh joined with conservative attorney Robert Bork in filing a 1999 brief with the Supreme Court arguing in the case Rice v. Cayetano that it’s unconstitutional to bar non- Native Hawaiians from voting for trustees for the Office of Hawaiian Affairs. Kavanaugh expanded on his views on OHA in a 1999 op-ed published by the Wall Street Journal.
“The Aloha state has two classes of citizens: there are Hawaiians and then there are real Hawaiians,” wrote Kavanaugh. “At least that is the message of the state Office of Hawaiian Affairs, which doles out money to certain citizens solely because of their race — in this case, only to Hawaiians of Polynesian origin (‘native Hawaiians,’ for short).”
Kavanaugh went on to refer to OHA as a “naked racial-spoils system” that “makes remedial set-asides and hiring and admissions preferences look almost trivial by comparison.”
He also opined on whether Native Hawaiians represent an indigenous group afforded certain federal protections, or a racial group.
Kavanaugh wrote that Native Hawaiians “couldn’t possibly qualify” for federal indigenous status. “They don’t have their own government. They don’t have their own system of laws. They don’t have their own elected leaders. They don’t live on reservations or in territorial enclaves,” he wrote. “They don’t even live together in Hawaii. Native Hawaiians are dispersed throughout the state of Hawaii and the United States.”
Hirono, who read the quote during hearings, told Kavanaugh, “It’s hard to know what to say to this assertion. It sounds like you are saying native groups in the United States derive their rights from having been herded into reservations and cheated out of their land, or that they surrender their rights when they move outside of these artificial boundaries. It is not only factually wrong, but also very offensive.”
Kavanaugh went on to write, “After all, Hawaiians originally came from Polynesia, yet the (Justice Department) calls them ‘indigenous,’ so why not the same for groups from Africa or Europe? It essentially means that any racial group with creative reasoning can qualify as an Indian tribe.”
Hirono noted that Hawaii is part of Polynesia.
The Supreme Court ultimately ruled that non-Native Hawaiians couldn’t be barred from voting in a state election for OHA trustees, based on the 15th Amendment. But the court punted on whether the equal protection clause of the 14th Amendment applied, which Kavanaugh had argued it did. If the Supreme Court were to rule that the 14th Amendment applied in a similar case, it could set precedent for unraveling programs that serve Native Hawaiians and other ethnic groups.
Native Hawaiians could be vulnerable because they lack their own federally recognized government.
“Should Kavanaugh be confirmed, all Native Hawaiians should be worried that should a case on the 14th Amendment reach the U.S. Supreme Court under the current makeup that we risk the existence of our federal and state programs benefiting Native Hawaiians,” said Esther Kiaaina, a former assistant secretary for insular areas for the U.S. Department of the Interior under the Obama administration and a candidate for OHA.
She said OHA; the Department of Hawaiian Home Lands; the Native Hawaiian Healthcare Act; the Native Hawaiian Education Act, which provides more than $30 million; and many more programs serving Native Hawaiians could potentially be at risk.
Moses Haia, executive director of the Native Hawaiian Legal Corp., agreed with Kiaaina’s take on the legal risks for Native Hawaiian programs. He added that views like Kavanaugh’s reflect a lack of understanding about this country’s history.
“A true understanding of history should bring one to the understanding of why there are efforts to bring some sort of restorative justice back for Native Hawaiians,” said Haia.
