Authored by Rachel Chiu via the Foundation for Economic Education (FEE)
Hawaiian residents are challenging ancestry-based housing restrictions in federal court. A pair of lawsuits filed in June and July takes aim at the Department of Hawaiian Home Lands, a state agency that reserves long-term homestead leases to individuals who meet the state’s “blood quantum” requirement.
To be eligible for a homestead lease—long-term, affordable leases for residential, agricultural, and pastoral purposes—an applicant must prove that he or she has 50 percent Native Hawaiian ancestry. In any other context, this type of requirement would be instantly illegal. No ordinary government agency or housing authority can deny your application or evict you because of your ancestry. Yet, these controversial rules are very common for determining benefits for indigenous populations, and continue to give the state inordinate power to withhold opportunities and take property from citizens according to overtly discriminatory justifications.
The lead plaintiff in the first lawsuit is Eric Ryan, a lifelong Hawaiian resident whose application for a homestead lease was immediately denied because he was not, as the pre-qualification form required, “at least 50 percent Native Hawaiian.” The legal definition of a Native Hawaiian is a “descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.” With this narrow construction, the state is empowered to reject thousands of applicants. Meanwhile, many others are left on hold. According to the complaint, the waiting list for new leases exceeds 30,000 applicants, and some have been waiting for more than 40 years.
The Department has sought to expand its efforts to meet the high demand. Last year, it purchased an 82-unit private housing complex in Kauai for a state-run rent-to-own program. But, yet again, the program was reserved for residents who were at least 50 percent Native Hawaiian. This meant that applicants like Ryan would be ineligible and, even worse, existing homeowners would be evicted because of their ancestry. In July, two residents initiated a second lawsuit against the Department. Linda Twitchell, who is not Native Hawaiian, will soon be forced to leave the apartment she has lived in for seven years. Another resident, David Kalahiki, who is 25 percent Native Hawaiian, will not be able to continue living in his home since it will go to someone on the waitlist who meets the strict ancestry cutoff. These evicted residents were forced back into a tumultuous housing market where renters struggle to find affordable homes, and a majority must spend more than 30 percent of their monthly income on rent.
The dispossession of residents through these discriminatory rules unnecessarily exacerbates the housing insecurity within the state. This situation stems from an antiquated and controversial policy: the Department is empowered by the Hawaiian Homes Commission Act of 1920, a federal law that mandates the blood quantum requirement. It was enacted during Hawaii’s territorial period between annexation and statehood. According to a 1920 House report, lawmakers were concerned about too much social assimilation and native population decline. However, some scholars and commentators have called the requirement a tool of dispossession that was designed to reduce individual autonomy under the guise of protection.
Still, state officials claim that the Act is beneficial rather than harmful. In a statement, Hawaii Governor Josh Green vowed to defend the statute rigorously, and Hawaii Attorney General Anne Lopez claimed that the program has “provided opportunities, stability, and hope to generations of Native Hawaiian beneficiaries.” But the plaintiffs contend that the ancestral requirement is constitutionally impermissible and violates the guarantee of equal protection under the law.
The Kauai evictions are particularly suspect because they involve the displacement of residents, while Governor Green paradoxically claims that the Act is designed to remedy dispossession. As the complaint alleges: “The Hawaiian Homes Commission Act does not expressly authorize [the Department] to purchase private real property and convert that property into Hawaiian home lands. Rather, the purpose of the Act was to specifically preserve the Hawaiian home lands—real property previously held by the Hawaiian monarchy—for homesteading purposes.” Even if the law has conceptual merit, it is uncertain whether it still accomplishes its intended goals or works against them.
Ultimately, the courts will need to clarify whether these ancestry-based requirements can persist and, separately, whether they justify the ousting of residents from their homes. But as it stands, Hawaii can tell residents that they are insufficiently Native Hawaiian and evict them based on its rigid, government-imposed standard.