Why the Law Treats Native Hawaiian Preferences Differently Than Tribal Preferences

One of the most common questions about the Kamehameha Schools case: "If Native American tribes can run schools for their own people, why can't Kamehameha do the same?"

The Question That Resonates

If you've followed this case at all, you've probably heard some version of this argument:

"Native American tribes run schools that give preference to tribal members. Nobody sues them. Native Hawaiians are indigenous people who suffered colonization and near-genocide, just like Native Americans. Why are the rules different? This feels like a double standard designed to attack Native Hawaiian institutions."

This isn't a bad-faith argument. It reflects a genuine sense of injustice that many people feel, particularly in Hawaii, where the historical context of colonization, the overthrow of the Kingdom, and ongoing struggles for Native Hawaiian self-determination are very real and very present.

The legal answer involves two Supreme Court cases and a technical distinction that, frankly, feels like splitting hairs when you first encounter it. But understanding this distinction is essential to understanding the legal landscape Kamehameha Schools now faces.

Two Supreme Court Cases That Define the Rules

Morton v. Mancari (1974): The Native American Case

What happened:
The Bureau of Indian Affairs (BIA), the federal agency that manages the government's relationship with tribes, had a hiring policy that gave preference to Native Americans. Non-Native employees sued, claiming this was illegal racial discrimination.

The Supreme Court upheld the preference.

Why it was legal:
The Court said this wasn't racial discrimination at all. It was a political preference, not based on race, but based on membership in federally recognized tribes.

"The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians.' In this sense, the preference is political rather than racial in nature."

What does "political rather than racial" mean?

Native American tribes aren't just groups of people with shared ancestry. They are quasi-sovereign nations with:

Formal recognition by the federal government
Treaties with the United States
Their own governments, courts, and laws
Authority to govern themselves and their territories
A government-to-government relationship with the U.S.

When the BIA hires tribal members, it's not showing favoritism based on race. It's honoring the sovereignty of political entities that have a special constitutional relationship with the federal government.

Think of it this way: France can give preference to French citizens for French government jobs. That's not racism. It's how governments work. Tribes have a similar (though not identical) status: they're political communities with governmental authority, and preferences for tribal members reflect that political relationship.

Rice v. Cayetano (2000): The Native Hawaiian Case

What happened:
Hawaii created the Office of Hawaiian Affairs (OHA) to manage programs benefiting Native Hawaiians. State law said only people with Native Hawaiian ancestry could vote for OHA trustees.

Harold Rice, a rancher who had lived in Hawaii for decades, sued when he was told he couldn't vote because he lacked Native Hawaiian ancestry.

The Supreme Court ruled this was unconstitutional racial discrimination.

Why it was different from Mancari:

The Court examined whether the voting restriction was "political" (like tribal membership) or "racial" (based on ancestry).

Here's what the Court found:

Native Hawaiians have no federally recognized tribal government
There's no formal political structure or enrollment process
The only qualification is having any Native Hawaiian ancestor, no matter how distant
This is ancestry-based, which makes it racial

"Ancestry can be a proxy for race. It is that proxy here."

What does this mean?
Unlike tribal membership, which requires enrollment in a political community with governmental authority, the Native Hawaiian classification is purely about bloodline. You don't join anything. You don't participate in self-governance. You just prove you have Native Hawaiian ancestry.

The Court said you can't escape the Constitution's prohibition on racial discrimination by calling it something else.

The Critical Difference: Political vs. Racial

Let me illustrate the distinction with a side-by-side comparison:

Native American Tribal Preference (Mancari - Legal)

How it works:

Prove you descend from tribal ancestors
Apply to the tribe for enrollment
The tribe decides whether to accept you based on tribal law
If accepted, you become a member of a political community
You have rights and responsibilities within that community
Preferences flow from political membership, not just ancestry

What makes it political:

✓ Federally recognized sovereign entity
✓ Formal government-to-government relationship with U.S.
✓ Based on treaties and Constitution's Indian Commerce Clause
✓ Tribe has sovereignty: courts, laws, police, taxation
✓ Membership is a political status, not just genetic
✓ About self-governance

Example:

The Cherokee Nation has specific enrollment requirements. You must prove descent from someone on the Dawes Rolls (historical census) and apply for enrollment and be accepted by the tribe. Many people with Cherokee ancestry don't qualify because they can't meet these political requirements. The tribe decides who belongs to its political community.

Native Hawaiian Preference (Rice - Racial Classification)

How Kamehameha's policy works:

Prove you descend from aboriginal people in Hawaii before 1778
That's it. You qualify for the preference

What's missing:

✗ No federally recognized tribe or government
✗ No treaties with U.S. government
✗ No enrollment or membership process
✗ No tribal sovereignty or self-governance
✗ No political community to join
✗ No governmental authority

Example:

Kamehameha requires proving you have at least one Native Hawaiian ancestor. There's no enrollment process, no Native Hawaiian government making membership decisions, no political community you're joining. It's purely genealogical, which courts classify as racial.

"But Wait. Don't Tribes Also Use Blood Quantum?"

The Obvious Objection:

"Wait. Native Americans also define membership by blood quantum. The Cherokee Nation requires proof of ancestry. How is that different?"

The answer: It's about what comes AFTER proving ancestry.

For tribes:

Prove ancestry
Apply to tribe
Tribe decides if you're enrolled
You become member of political community
You get benefits as member of that government

For Kamehameha:

Prove ancestry
You qualify for preference

(No step 3, 4, or 5)

"But Congress Gives Native Hawaiians Special Benefits. Doesn't That Make Them Like Tribes?"

Another Fair Point:

Congress has indeed passed over 150 laws providing benefits, programs, and protections for Native Hawaiians. These laws acknowledge historical injustices and support Native Hawaiian culture, education, and health.

But here's what those laws don't do:

They don't formally recognize Native Hawaiians as a tribe
They don't create a Native Hawaiian government
They don't establish sovereignty or self-governance authority
They don't create a government-to-government relationship

Congress can give benefits to many groups for many reasons: veterans, farmers, low-income families, historically disadvantaged communities. Receiving federal benefits doesn't automatically create tribal status.

What would be needed: Formal recognition through the process Congress established for tribes (25 U.S.C. § 461 et seq.), which includes creating governmental authority and a political structure.

The Apology That Changed Nothing

A perfect example of this is the 1993 Apology Resolution. Congress officially apologized to Native Hawaiians for the U.S. role in overthrowing the Hawaiian Kingdom. The resolution acknowledged historical wrongs and expressed commitment to reconciliation.

But that's all it was. An apology.

The resolution didn't:

Create any legal rights or remedies
Establish tribal recognition
Create a Native Hawaiian government
Grant sovereignty or self-governance authority
Change Native Hawaiians' legal status in any way

This is what makes the situation so frustrating for many people. Congress acknowledged the injustice. Congress expressed support through numerous benefit programs. But Congress never took the step that would actually change Native Hawaiians' legal status: formal recognition as a political entity with governmental authority.

So when you see lists of 150+ federal laws benefiting Native Hawaiians, it's important to understand: these are benefit programs, not recognition of political sovereignty. They're closer to social welfare legislation than to the treaties and recognition that define the tribal relationship.

The Failed Effort: The Akaka Bill

From 2000 to 2012, Congress repeatedly considered legislation to change this. The Native Hawaiian Government Reorganization Act, commonly called the Akaka Bill.

What it would have done:

Formally recognize Native Hawaiians as indigenous people with political status
Create a process for forming a Native Hawaiian government
Establish a government-to-government relationship like tribes have
Potentially provide legal protection for preferences like Kamehameha's

It never passed.

Despite multiple attempts, various versions, and significant support in Hawaii, Congress never enacted it.

Why this matters: Congress had many opportunities to change Native Hawaiians' legal status and chose not to (or couldn't get the votes). The current legal framework remains: under Rice v. Cayetano, Native Hawaiian ancestry is a racial classification, not a political one.

Why Kamehameha Can't Use the Mancari Defense

Even if we set aside everything above and pretended Native Hawaiians had formal tribal status, Kamehameha Schools still couldn't use the Mancari defense. Here's why:

1. Mancari Only Protects Government and Tribal Entities

The Mancari case was about the Bureau of Indian Affairs, a federal agency managing the government's trust obligations to tribes. The hiring preference was upheld because it served governmental functions related to tribal self-governance.

Kamehameha is:

A private charitable trust
Not a government agency
Not a tribal entity or Native Hawaiian government (none exists)
Not exercising sovereign authority

2. Even Tribes Can't Extend Preferences Through Private Entities

In Dawavendewa v. Salt River Project (9th Cir. 1998), a private Arizona company tried to implement Navajo tribal hiring preferences. The court said no. Mancari's exception for tribal self-governance doesn't extend to private employers.

The principle: Even if Native Hawaiians were a federally recognized tribe, and even if they had a tribal government, Kamehameha would still be a private school. Private entities can't claim tribal sovereignty protections.

3. There's No Native Hawaiian Government

Mancari is fundamentally about self-governance. Tribes governing their own people and territories.

Native Hawaiians don't have:

A governing council or political structure
Tribal courts or law enforcement
Jurisdiction over territory
Authority to make and enforce laws
Power to determine membership

Without a government, there's no "self-governance" to protect.

Understanding the Frustration

If you're feeling frustrated by these distinctions, you're not alone. Many people, particularly in Hawaii, see this as a technical loophole being used to attack an institution that serves an indigenous people who have suffered enormously.

"Kamehameha Schools exists to help Native Hawaiian children succeed after more than a century of colonization, dispossession, and cultural suppression. This is clearly different from the kind of racism that civil rights laws were designed to stop. Why is the law being weaponized against an institution trying to help a marginalized community?"

That frustration is valid. The historical context matters. Intent matters. Kamehameha Schools' mission to preserve culture and provide educational opportunities is noble and important.

But here's the legal problem:

Once you allow racial preferences for "good" reasons, how do courts distinguish them from racial preferences for "bad" reasons? Every institution that wants to discriminate will claim it has good intentions and compelling justifications.

The law's answer has been to set an extremely high bar for any racial classification (strict scrutiny) while creating a narrow exception for tribal sovereignty, which has specific constitutional foundations in treaties, the Indian Commerce Clause, and centuries of government-to-government relations.

Native Hawaiians don't fit that exception because:

They've never been federally recognized as a tribe
They don't have the political structures that make tribal preferences "political rather than racial"
Congress tried to change this but couldn't or wouldn't

The Path Forward (Or Why This Matters)

If you think this distinction is wrong, the solution lies with Congress.

Congress could:

Formally recognize Native Hawaiians as an indigenous people with political status
Create a framework for Native Hawaiian self-governance
Establish a government-to-government relationship

But there are significant obstacles:

Constitutional questions: The Supreme Court in Rice specifically noted "it is a matter of some dispute... whether Congress may treat the native Hawaiians as it does the Indian tribes." The constitutional basis for Congress's authority over tribes (treaties, Indian Commerce Clause) may not extend to Native Hawaiians.
Political challenges: The Akaka Bill's repeated failure shows how difficult this path is politically.
Even then, it might not help Kamehameha: Because Kamehameha is a private trust, not a governmental or tribal entity, it still might not qualify for Mancari protection even if Native Hawaiians achieved formal recognition.

The Bottom Line

The question: "Why can tribal schools give preferences but Kamehameha can't?"

The legal answer: Because tribal preferences are based on membership in sovereign political entities with formal governmental authority, while Kamehameha's preference is based on ancestry, which courts classify as racial, not political.

The emotional reality: This feels like a technicality being used to attack indigenous self-determination, and that frustration is understandable given Hawaii's history.

The current law: Under Rice v. Cayetano, Native Hawaiian ancestry is a racial classification. Unless Congress changes this (which it tried and failed to do for over a decade), preferences based on Native Hawaiian ancestry must satisfy strict scrutiny, the highest level of constitutional review.

This doesn't mean the law is right or just. It means this is what courts must apply unless and until Congress or the Supreme Court changes it.

Whether you think Kamehameha Schools should be allowed to continue its admissions preference is ultimately a question about how we balance competing values: indigenous self-determination vs. colorblind civil rights protections, historical context vs. formal legal categories, group remedies vs. individual rights. Courts don't get to make that value judgment. They apply the law as it exists. And under current law, Native Hawaiian preferences look more like Rice than like Mancari.