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WASHINGTON — To Sen. Mazie Hirono, U.S. Supreme Court nominee Brett Kavanaugh is just the latest threat to Native Hawaiians.
Federal programs benefiting Native Hawaiians have been under assault from conservatives in Washington for many years, including, most recently, from President Donald Trump.
Millions of dollars are at stake. Over the past two years, Trump has zeroed out funding for Native Hawaiian housing and education programs in his presidential budgets, only to have Congress reinsert the money.
In fiscal year 2018, lawmakers approved nearly $36 million for Native Hawaiian education programs after the president proposed cutting it from his budget.
If Kavanaugh joins the court, Hirono worries that his views could encourage new legal challenges that would undermine the legislative backstop and possibly threaten efforts for Native Hawaiians to form a government-to-government relationship with the U.S., a process that was laid out during the Obama administration.
“There are efforts to shove Native Hawaiian programs under the bus,” Hirono said. “All of these programs have been on the cutting board for a long, long time.”
Kavanaugh’s views on Native Hawaiians and other indigenous groups, including Alaska Natives, came into focus during his confirmation hearing last week.
Hirono released confidential emails he wrote in 2002 while working as a White House lawyer for President George W. Bush.
A staffer in the Treasury Department wanted Kavanaugh’s input on testimony the agency planned to submit for a hearing dubbed “Capital Investments in Indian Country.”
The purpose of the hearing was to find new ways to pump more money into Native American and Native Hawaiian communities so that they could be on the same economic footing as the rest of the country.
Kavanaugh warned, however, that Native Hawaiians are an ethnic group that should not be viewed in the same light as American Indian tribes, which are considered sovereign political entities.
“I think the testimony needs to make clear that any program targeting Native Hawaiians as a group is subject to strict scrutiny and of questionable validity under the Constitution,” Kavanaugh wrote.
Kavanaugh’s argument was similar to the one he used before the U.S. Supreme Court in Rice v. Cayetano, a 2000 case in which the justices ruled 7-2 it was unconstitutional for the Office of Hawaiian Affairs to restrict its elections to only Native Hawaiians.
At the time, Kavanaugh was working on behalf of the Center for Equal Opportunity, a conservative think tank with anti-affirmative action views that was involved in the case as an outside party. Kavanaugh wrote a Wall Street Journal op-ed that questioned whether Native Hawaiians were indigenous and called OHA’s elections a “naked racial spoils system.”
“If Hawaii can enact special legislation for native Hawaiians by analogizing them to Indian tribes, why can’t a state do the same for African-Americans? Or for Croatian-Americans? Or for Irish-Americans?” Kavanaugh wrote.
Hirono isn’t alone in her views on Kavanaugh.
On Monday, Sen. Tom Udall of New Mexico issued a statement on why he would vote against Kavanaugh’s confirmation.
Udall, a Democrat who is vice chairman of the Senate Indian Affairs Committee, said Kavanaugh is “no friend to Indian Country” and that it’s clear from his writings and public statements that he “fails to appreciate the rights of indigenous people.”
“He openly characterized federal protections for Native Hawaiians as unconstitutional, and argued that ‘any racial group with creative reasoning can qualify as an Indian tribe,’” Udall said.
“He even questioned the constitutionality of programs dedicated specifically to Native Americans, a view that could upend decades of progress for Indian Country on everything from housing to government contracting.”
He added that Kavanaugh’s confirmation would lend credibility to “unfounded attacks” on federal programs that serve Native Hawaiian communities.
Udall ended his statement with a call to action to his colleagues, and particularly those in the Republican majority, to consider Kavanaugh’s record.
One possible swing vote is Alaska Sen. Lisa Murkowski, a Republican, who’s being pressured by Alaska Natives to vote against Kavanaugh.
“I believe Judge Kavanaugh poses a serious threat to the rights of native communities across this nation,” Udall said.
Conservative attacks on Native Hawaiian and Alaska Native programs are nothing new.
Just last year, Senate Republicans tried to omit Native Hawaiian housing programs from a bill that would reauthorize federal assistance for American Indian tribes.
Hirono and U.S. Sen. Brian Schatz pushed back. Hirono testified before the Indian Affairs Committee that such an effort “strikes a blow” to the 37,000 Native Hawaiians who relied on the housing programs as well as all other Native Hawaiians.
“This is about much more than just stripping out Native Hawaiian Housing programs for a bill,” Hirono told the committee. “At a time when we see ‘us against them’ perspectives rising in our country, we cannot allow divide and conquer tactics to undermine collaborative efforts to bring people together.”
She said there were efforts to pit native communities against each other by suggesting to American Indian tribes that supporting Native Hawaiian programs might jeopardize funding for their own programs.
Hirono called such divisive tactics “unconscionable.”
Schatz told Civil Beat on Monday that it’s important for the Hawaii delegation to be vigilant.
He said the attacks on Natives Hawaiians and their “special legal and political relationship” with the U.S. are coming through the courts more so than through the legislative branch.
The Trump administration’s attempts to cut funding have backfired, especially now that Schatz is on the Senate Appropriations Committee, he said.
Schatz pointed out that Trump’s budget sought to eliminate funding for $33.4 million for Native Hawaiian education and $14.4 million for health care, but instead slightly higher amounts were approved by the committee — $36.4 million and $17.5 million, respectively.
“As it relates to protecting Native Hawaiian rights and funding, our posture is vigilance and paranoia, and so far we’ve been successful,” Schatz said. “We need to understand that they really are coming after these programs and if we show any weakness they will exploit it.”
Schatz also sees the influence of outside players.
“These conservative think tanks have made it a priority for going on two decades now,” Schatz said. “I can’t speak for their motivations other than to say that they’ve put significant legal, financial and political muscle behind trying to undermine these programs.”
The Heritage Foundation, a right-wing think tank with financial ties to the billionaire Koch brothers, has published a number of pieces critical of Native Hawaiian attempts to form their own government.
The foundation was also instrumental in helping vet Trump’s judicial nominees, including Kavanaugh, along with the Federalist Society.
The arguments from the Heritage Foundation are similar to those heard from Kavanaugh and others who consider Native Hawaiians to be a racial or ethnic class rather than a group that is analogous to an American Indian tribe.
Part of the reasoning is derived from an originalist reading of the U.S. Constitution, which includes specific references to American Indian tribes and was written without any consideration to Native Hawaiians or Alaska Natives.
The headline on a Heritage Foundation article online read: “The ‘Native Hawaiian’ Bill: An Unconstitutional Approach in Furtherance of a Terrible Idea.” It called for rejecting the Native Hawaiian Government Reorganization Act of 2005, also known as the Akaka bill. It was named for the late U.S. Sen. Dan Akaka, the only Native Hawaiian to serve in Congress.
The authors argued, among other things, that a Native Hawaiian government, unlike those of American Indians, would be racially exclusive.
“If sharing one drop of aboriginal Hawaiian blood makes a tribe, then Chicanos, Latinos, African Americans, Mexicans, and indeed members of any ethnicity could become a tribe if Congress so decrees,” the authors said.
They added that the creation of a Native Hawaiian government would “help destroy the wonderful and admirable blended society that does exist in Hawaii, where intermarriage and the cultural mixing of Asians, Americans, Europeans, and others is a model for the rest of the United States.”
“A government based on ‘aboriginal’ bloodlines would surely damage Hawaii’s melting pot culture,” they said.
The Akaka bill passed the U.S. House but stalled in the Senate. Akaka retired in 2013 and died earlier this year.
The Heritage Foundation did not respond to a Civil Beat request for an interview.
Randy Akee is an assistant professor of public policy and American Indian studies at the University of California, Los Angeles, and current economic studies fellow at The Brookings Institute in Washington, D.C.
Akee used to work for the Office of Hawaiian Affairs and is part-Hawaiian.
He said Kavanaugh’s views, as well as those of other conservatives, come from a strict reading of the U.S. Constitution, which only identifies American Indian tribes as sovereign entities.
That should be concerning to other indigenous groups in the U.S. and its territories, he said, from Native Hawaiians and Alaska Natives to Chamorros in Guam and Tainos in Puerto Rico, because it can undermine their claims to certain rights and resources.
“It divorces these indigenous people from their land and their history,” Akee said.
Treating indigenous people as just another ingredient in America’s melting pot rather than as a political entity can reduce the burden of what is “owed” to a subjugated people, whether it’s access to land or other natural resources, such as through fishing or gathering rights, he said.
Reducing these claims, Akee said, fits into the conservative ideology of “shrinking government.”
“If you recognize indigenous people as residing in a nation state like the United States,” he said, “it can have profound implications for your responsibilities as a governing entity.”
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