The idea of special preferences for those of Hawaiian ancestry isn’t new; it started with the best of intentions with the Hawaiian Homes Commission Act in 1921 (“HHCA”) which gave long term leases of homestead lots (at one dollar per year) to “native Hawaiians”, defined as “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” At the time HHCA was enacted, native Hawaiians, because of their rapidly declining population, were thought to be a “dying race” and the HHCA was seen as a way to enable them to get back on the land and revitalize themselves.
We refer to this as special entitlements for the “few” because there are now probably fewer than 50,000 people (that is, less than 5% of Hawaii’s population) with half or more Hawaiian blood.
Official racial discrimination in Hawaii took a giant escalation in 1978, when the state constitution was changed to create the Office of Hawaiian Affairs (“OHA”) and, by implication, to permit special preferences not only for “native Hawaiians,” but also for “Hawaiians” of any degree of Hawaiian ancestry. Subsequently these preferences have been extended not just for the Hawaiian Home Lands program, but for a whole spectrum of state benefits and programs.
These programs, including the Hawaiian Homes Commission Act and the Office of Hawaiian Affairs and the legislation implementing those acts, are probably invalid under the U.S. constitution because they violate the principle that all citizens, regardless of race or ancestry, are entitled to the equal protection of the laws. Equal Protection and the Special Relationship: The Case of Native Hawaiians, Benjamin, Stuart Minor. For the full text of the article by Mr. Benjamin, see Vol 106 Yale Law Journal, No. 3 Dec 1996 page 537.
These programs likewise are in conflict with both the Hawaii Bill of Rights (which provides that no person shall be denied the equal protection of the laws because of race or ancestry) and the idea of Aloha.
The effect of the 1978 creation of OHA and its potentially disastrous economic consequences for the State of Hawaii are just now being realized. They are graphically illustrated by the “ceded lands” case.