(c) Copyright February 22, 2010
Kenneth R. Conklin, Ph.D.
All rights reserved
===============
MEDIA RELEASE
FOR PUBLICATION Tuesday, February 23, 2010
TENTH ANNIVERSARY OF SUPREME COURT'S RICE V. CAYETANO DECISION
SUMMARY
Rice v. Cayetano was the most important civil rights lawsuit in the history of the State of Hawaii. The February 23, 2000 U.S. Supreme Court decision spurred a decade of additional civil rights lawsuits seeking to abolish or desegregate Hawaii's empire of government and private race-based programs. Racial separatists immediately sought protection for those programs through the Hawaiian Government Reorganization bill (Akaka bill) still being pushed in Congress ten years later.
NEWS RELEASE
HONOLULU, HAWAII - A legal and political struggle continues ten years after the landmark U.S. Supreme Court decision in Rice v. Cayetano (handed down on February 23, 2000).
The Rice decision abolished racial segregation in Hawaii elections. The state Constitution had said only ethnic Hawaiians could vote for trustees of the state government agency "Office of Hawaiian Affairs." Thanks to the Rice decision all registered voters now have equal voting rights regardless of race.
A followup federal lawsuit, Arakaki#1, further desegregated OHA by removing the racial restriction on candidacy for OHA trustees. Thanks to Arakaki#1 all registered voters now have equal rights to run as candidates for all state government offices regardless of race.
In Summer 2000 Governor Ben Cayetano won a legal battle and ousted all nine OHA trustees, because they had been illegally elected. In November there were 96 candidates for the nine seats. At least a dozen OHA candidates had no Hawaiian native blood, and one of them won a seat on the board.
There were numerous proposals for ways to dodge the Supreme Court decision by various methods, including bills in the Legislature that would have transfered the assets of OHA and DHHL to a private racially exclusionary trust fund.
The battle for civil rights in Hawaii gained huge momentum from the Rice decision, and continues today against entrenched opposition.
Strong language in the Rice decision (see quotes below) emboldened civil rights activists to file several lawsuits during the following ten years, seeking to dismantle or desegregate Hawaii's empire of powerful, wealthy race-based government and private institutions.
But the lawsuits attacking government programs were dismissed for technical reasons focusing on "standing" and the "political question" doctrine. The lawsuits attacking the racially exclusionary admissions policy at Kamehameha Schools were settled by large payouts to plaintiffs before any precedent-setting decision could be handed down. Since none of these government or Kamehameha lawsuits was decided on the merits, all issues remain open to future litigation.
In the meantime Hawaii's empire of race-based institutions has sought protection through the Akaka bill, which would authorize creation of a racially-exclusionary government resembling an Indian tribe that could enfold the race-based institutions under its jurisdiction. The bill has passed the U.S. House on two occasions, but failed on a cloture vote in the Senate due to opposition from the U.S. Commission on Civil Rights and a public veto threat from President Bush. On the tenth anniversary of the Rice decision it's still not clear whether the Akaka bill will be enacted into law, and whether it could survive eventual Supreme Court scrutiny.
For a detailed description and analysis of the Rice decision, and the legal and political battles it spawned throughout the past decade (including Arakaki#1, Barrett, Carroll, Arakaki#2, Kamehameha Schools, Kuroiwa, DHHL property tax, and Akaka bill) see a new webpage created to commemorate the tenth anniversary:
http://tinyurl.com/y8jaahg
For an explanation of the "big picture" in which the Rice decision and the Akaka bill are important brush strokes, see a 302-page book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" at
http://tinyurl.com/2a9fqa
For some powerful quotes from the Rice decision, see below.
MEDIA CONTACT
Attribute quotes from media release, webpage, or book to:
Kenneth R. Conklin, Ph.D.
46-255 Kahuhipa St. Apt. 1205
Kane'ohe, HI 96744
tel/fax (808) 247-7942
e-mail Ken_Conklin@yahoo.com
SOME IMPORTANT QUOTES FROM THE 7-2 RICE V. CAYETANO DECISION WHICH EMBOLDENED CIVIL RIGHTS ACTIVISTS TO ATTACK HAWAII'S RACE-BASED INSTITUTIONS AND WHICH RAISE MAJOR DOUBTS ABOUT THE CONSTITUTIONALITY (AND MORALITY) OF THE AKAKA BILL
The decision was 7-2. The main decision by 5 Justices was written by Justice Kennedy (and was also endorsed by two other Justices who wrote a separate but concurring opinion reaching further issues).
"Ancestry can be a proxy for race. It is that proxy here. ... The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose."
"The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in
its concern for persons and citizens."
"... the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.'"
"If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. ... These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes."
"When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii."
Justice Breyer wrote a concurring Opinion in which Justice Souter joined him. These two Justices not only agreed with the main Opinion by five other Justices, they went much further and indicated a willingness to rule that Congress lacks the authority to recognize ethnic Hawaiians as an Indian tribe. Here are excerpts from the Breyer/Souter concurring Opinion:
"... the statute defines the electorate in a way that is not analogous to membership in an Indian tribe ... including individuals who are less than one five-hundredth original Hawaiian .... which now comprises about 60% of the OHA electorate. I have been unable to find any Native American tribal definition that is so broad ... There must, however, be some limit on what is reasonable ... And to define that membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members ... goes well beyond any reasonable limit. It ... is not like any actual membership classification created by any actual tribe. These circumstances are sufficient, in my view, to destroy the analogy on which Hawaii's justification must depend ... For that reason I agree with the majority's ultimate conclusion."
# END
===============
INTRODUCTION
The U.S. Supreme Court handed down its landmark decision in Rice v. Cayetano on February 23, 2000. But ten years later it's not clear who, if anyone, is celebrating the anniversary. It's also not clear whether the Akaka bill, which was primarily a response to the Rice decision, will finally become law after ten years of civil rights opposition; and whether it will survive court challenge if it passes. Will Hawaii's multitude of racially exclusionary programs eventually be dismantled through the civil rights activism inspired by the Rice decision? Or will Hawaii be permanently ripped apart through creation of a racially exclusionary Akaka tribal government followed by a partitioning of land and jurisdictional authority between the tribe and a greatly diminished State of Hawaii?
The Rice v. Cayetano lawsuit was extremely important because it was the first time anyone had dared to challenge Hawaii's massive power elite of government-sponsored racial entitlement programs. Anticipating the likely ruling, defenders of those programs launched major political actions as soon as the case was appealed to the Supreme Court in 1998, even before the Court agreed in 1999 to hear the case, and more than a year before the decision was handed down.
Throughout the ten years since the Rice decision a David vs. Goliath battle has ensued. Civil rights activists with the relatively small resources of their own personal money have filed several lawsuits, citing language from the Rice decision, seeking to abolish Hawaii's racial entitlements either by destroying them or by desegregating them. Powerful race-based institutions with billions of dollars in assets, supported by a pro-segregation state legislature and the Attorney General's legal staff (paid with tax dollars), have spent megabucks defending the racial entitlements in court and through advertising and political lobbying. To understand how the Rice decision and Akaka bill fit into the "big picture" struggle for unity and equality in Hawaii, see the 302 page book "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State."
https://www.angelfire.com/planet/bigfiles40/BookPromo.html
The Akaka bill was first introduced shortly after the Rice decision, as a direct response to it. The bill seeks to convert a racial group into a political entity by creating a federally recognized Indian tribe out of thin air. Its purpose is to defend Hawaii's racial entitlement programs against legal challenges by taking them out of the state government and enfolding them into an Indian tribe, because tribes are allowed to engage in racial discrimination. What started out as benevolent affirmative action programs have turned into hardcore racial entitlements which now seek protection through a federal grant of political sovereignty to a racially exclusionary fake Indian tribe.
No other state has 20% of its people who are racially Indians, let alone 20% who would be eligible to join a single tribe, and claiming half the state's land as its own. Thus the Akaka bill would foster a real apartheid regime, unlike anything seen in the other 49 states. The bill would also begin an avalanche of jurisdictional disputes and lawsuits, because the lands likely to be claimed by the Akaka tribe are scattered throughout most neighborhoods on all the islands. It was the federal government that apologized to ethnic Hawaiians in 1993 for the 1893 overthrow of the monarchy, and it is the federal government whose Congress might pass the Akaka bill. But it is the people of Hawaii who will pay the restitution called for in the Akaka bill by turning over state lands to the Akaka tribe. In effect the federal government is saying to the State of Hawaii: We (the feds) did the crime (in 1893); now you (the State of Hawaii) must do the time (pay the damages).
In the weeks after the Rice decision Hawaii politicians seriously proposed numerous ways to nullify or circumvent it. Perhaps the most far-reaching concept was legislation proposing a "global settlement" through creation of a private trust to be owned by all ethnic Hawaiians collectively, with the state turning over land, money, and jurisdictional authority to the trust in the same way the state sometimes grants land or money to legitimate charitable or benevolent groups. The concept of a global settlement by creating a racially exclusionary private trust was initially unsuccessful; however, in June 2006 OHA officially adopted "Plan B" to accomplish the same goal in case the Akaka bill fails. Under Plan B the State of Hawaii would create a state-recognized tribe and turn over huge amounts of government land and money to it. The same concept of a racially exclusionary private trust has once again been revived in the 2010 session of the Legislature by Senator Fred Hemmings, who originally proposed it nearly ten years previously. Whether it is the Hemmings trust or OHA's Plan B, the concept is similar to proposals in 1954 by various Southern states and municipalities to privatize the public schools by turning them over to white or black race-based community groups as a way to avoid the desegregation ordered in the Supreme Court's Brown v. Board of Education decision.
This essay reviews in detail the major political events and lawsuits flowing from the Rice v. Cayetano case, during the period from 1998 (even before the Supreme Court agreed to hear the case) to February 2010, and ponders the question: Where do we go from here? Numerous links are provided to webpages containing legal briefs and news reports related to the lawsuits and the Akaka bill.
The sections of this essay have the following headings, in order of appearance.
1. WHAT IS RICE V. CAYETANO? (How OHA was founded as a racially exclusionary agency of the state government; how the voting system worked for choosing OHA trustees; how Mr. Rice filed his lawsuit; and what the decision said)
2. WHAT POLITICAL ACTIONS WERE TAKEN IN ANTICIPATION OF THE SUPREME COURT'S RULING, BY DEFENDERS OF HAWAII'S RACE-BASED PROGRAMS? (Rice's request for a Supreme Court hearing drew an immediate response and propaganda forum in 1998 from a politically stacked Hawaii Advisory Committee to the U.S. Commission on Civil Rights; when Supreme Court oral arguments indicated the Court would probably rule in favor of Rice President Clinton immediately sent high officials of the Department of Justice and Department of Interior to Hawaii for a week of "Reconciliation Hearings" in December 1999 to push public opinion to favor creation of an Indian tribe for ethnic Hawaiians)
3. WHAT POLITICAL TURMOIL HAPPENED DURING THE REMAINDER OF 2000 IN RESPONSE TO THE RICE DECISION, AS RELATED TO THE AKAKA BILL? (Supporters of racial entitlements rushed to write the Akaka bill whose first official version was introduced in Congress in July 2000; in August 2000 "From Mauka to Makai" was published containing the propaganda from the "civil rights" forum of 1998 and the "reconciliation" hearings of 1999; at the end of August 2000 a "joint Congressional committee" hearing was held in Honolulu to listen to public testimony on the Akaka bill which the Hawaii delegation reported was favorable to the bill but independent news reports said was 9-1 in opposition; the Akaka bill passed the House on a stealth maneuver on September 26; a public forum was held in Honolulu September 28-29 by the Hawaii Advisory Committee to the U.S. Commission on Civil Rights to consider the impact of the Rice decision on the civil rights of ethnic Hawaiians and to support the Akaka bill; the bill briefly passed the Senate on a stealth maneuver on December 13 which nobody knew about except Senators Inouye and Akaka but then died when its stealth passage was uncovered and vitiated by special legislation on the last day of the 106th Congress on December 15, 2000)
4. WHAT POLITICAL TURMOIL HAPPENED LOCALLY IN HAWAII IMMEDIATELY AFTER THE RICE DECISION, IN AN EFFORT TO EVADE OR CIRCUMVENT IT, ASIDE FROM THE AKAKA BILL? (Politicians proposed that if OHA paid for its own elections, or if OHA trustees were appointed by the Governor, the Rice decision could be ignored; legislation was proposed to transfer $400 Million of OHA assets to DHHL to put them out of reach of a desegregated OHA, and legislation was proposed to privatize both OHA and DHHL by setting up a racially exclusionary trust fund to hold all their assets; a prominent legislator suggested complying with Rice by letting all voters register for OHA ballots but giving OHA ballots only to those who actually took the time to register specifically for OHA; there were suggestions to continue printing OHA ballots separately and to color-code them so non-ethnic-Hawaiians would be embarrassed to request them; Governor Cayetano succeeded in ousting all 9 OHA trustees and appointing temporary replacements for them pending the November elections; the Arakaki#1 lawsuit made it possible for people with no native blood to run for OHA trustee, and there were 96 candidates on the November ballot for the 9 seats on the OHA board including at least a dozen who had no native blood, including one who got elected)
5. WHAT HAS HAPPENED FROM 2001 THROUGH FEBRUARY 2010 REGARDING THE RICE DECISION AS RELATED TO THE AKAKA BILL? (Akaka bill started over again in January 2001; propaganda booklet published June 2001 entitled "Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians" supported both the Akaka bill and the "right" of ethnic Hawaiians to force the entire State of Hawaii to secede from the United States; in May 2006 the U.S. Commission on Civil Rights publicly opposed the Akaka bill, and in June the bill was killed in the Senate after President Bush said he would veto it; the USCCR again publicly opposed the bill in August 2009; links are provided to compilations of hundreds of pages of news reports and commentaries about the Akaka bill, and full text of all versions of the bill, from throughout the decade of 2000 - 2010)
6. HAWAII-BASED LAWSUITS EXTENDING THE RICE V. CAYETANO DECISION, AND LEGAL COMMENTARIES. (The progeny of Rice v. Cayetano include a detailed analysis of the successful Arakaki#1 to desegregate candidacy for OHA trustee; plus descriptions of the unsuccessful Carroll and Barrett cases; plus links to news reports and commentaries and all legal briefs from the five year long unsuccessful Arakaki#2; a propaganda forum was held at the University of Hawaii law school in July 2002 to deplore the progeny lawsuits but resulted in publication of an edition of the Asian-Pacific Law and Policy Journal which included two well-documented major analyses by attorneys Patrick W. Hanifin and Paul M. Sullivan; several lawsuits against the racially exclusionary admissions policy of Kamehameha Schools were neutralized through settlements; Attorney H. William Burgess filed a short-lived federal lawsuit "Kuroiwa v. Lingle" which was dismissed on grounds that Arakaki#2 had already decided the issues; additional lawsuits have been filed in state courts to challenge each county's policy of granting waivers of property tax to ethnic Hawaiian owners of houses on property leased from the Department of Hawaiian Homelands)
7. WHAT MIGHT HAPPEN TO RACIAL ENTITLEMENTS AND HAWAIIAN SOVEREIGNTY IN THE FUTURE? (Why do many citizens and nearly all Hawaii politicians support race-based entitlements and sovereignty? What are sovereignty zealots doing to recruit the majority of Hawaii's people, who are ethnically Asian? How are civil rights activists fighting back against racial separatism and ethnic nationalism? What will the Supreme Court probably do with the Akaka bill if it passes?)
-------------
1. WHAT IS RICE V. CAYETANO? (How OHA was founded as a racially exclusionary agency of the state government, how the voting system worked for choosing OHA trustees, how Mr. Rice filed his lawsuit, and what the decision said)
In 1978 a Constitutional Convention in the State of Hawaii proposed more than 100 Constitutional amendments which were grouped into 34 packages. All of them were approved by voters in a special election. The proposal to create the Office of Hawaiian Affairs passed by the smallest majority among all the amendments on the ballot. There were actually more "no" votes than "yes" votes to create OHA; however, at that time blank votes were counted as "yes" votes (today it's the opposite) and thus the proposal was deemed to have passed. In a followup lawsuit (Kahalekai v. Doi) the state Supreme Court ruled the package of amendments creating OHA had not been validly passed in the election because the voters had not been adequately informed about the racial definition of "Native Hawaiian." Nevertheless the Legislature salvaged OHA by passing a law to establish that racial definition.
OHA was founded on three pillars of racial segregation: only ethnic Hawaiians were allowed to vote for OHA trustees, only ethnic Hawaiians were allowed to run for and serve as OHA trustees, and only ethnic Hawaiians were to receive benefits from OHA. Rice v. Cayetano focused on the first pillar -- the racial exclusion from the right to vote.
For 20 years after the 1978 Constitutional Convention, here's what happened in voter registration and the process of voting. The voter registration form for all Hawaii citizens included a special affidavit to be signed only by ethnic Hawaiians. The affidavit affirmed under oath with penalties of perjury that the signer is a citizen of Hawaii, wants to vote for OHA trustees, and is a "Native Hawaiian" defined as having at least one ancestor who lived in Hawaii prior to 1778. When the poll books were printed, there was a column headed "OHA" and in that column was an "X" next to the name of every person who had signed the racial identity affidavit. On election day, as people stepped up to the pollbook and ballot issuing station to show their photo ID and sign the pollbook, election officials handed out the general election ballot for all contests except OHA to each registered voter. And then the election officials would look to see whether that voter had an "X" next to his name; and if so the officials, following their training instructions, asked "Are you Native Hawaiian and do you want to have an OHA ballot?" If the voter answered "Yes" then he was given an additional ballot to vote for OHA trustees. Voters without the racial identity "X" were not asked the race question and were not given the OHA ballot. Thus, in exercising the most fundamental right of citizenship -- to register and vote -- people were subjected to blatant racial discrimination. They were asked the race question when they registered to vote; their race was publicly visible in the government voter registration records and pollbook; those of the favored race were asked to confirm it when receiving ballots; people of different races received different ballots; and voters of the "wrong" races were denied the right to vote for candidates for an agency of the state government.
Harold "Freddy" Rice was a rancher on Hawaii Island, of entirely Caucasian ancestry. He had no Hawaiian native blood. But he had a very long family history in Hawaii, including ancestors who were subjects of the Kingdom of Hawaii and had owned land, voted, and served in the Kingdom government. Rice Street, the main street in Lihue, the capital city of Kauai Island, is named after one of his Kingdom ancestors. In the mid 1990s Mr. Rice became disgusted with the racial restriction that prohibited him from voting for OHA trustees. He filled out a new voter registration form in March 1996. He drew a line through the portion of the affidavit that would have affirmed Native Hawaiian ancestry, but he kept intact the portions that said he was a citizen of Hawaii and wanted to vote for OHA trustees; signed the form, and submitted it. The state Office of Elections then denied him the right to have an "X" next to his name in the poll book and to receive the OHA ballot and to vote for OHA trustees in the 1996 election, solely because he had not sworn to having Hawaiian native ancestry.
Mr. Rice filed a lawsuit in the U.S. District Court in Honolulu in 1996 demanding the right to vote without racial restriction, but Judge Ezra ruled against him in 1997 on grounds that ethnic Hawaiians are comparable to American Indians, the federal government has a trust relationship with ethnic Hawaiians, and OHA is comparable to a tribal government. Mr. Rice appealed to a three-judge panel of the U.S. 9th Circuit Court of Appeals in 1997, and lost in 1998. He then appealed to the U.S. Supreme Court in 1998. On January 29, 1999 the Supreme Court granted certiorari (agreed to hear his case), but held it over until Fall. Oral arguments took place October 6, 1999 (the first week the Court was in session). On February 23, 2000 the Court handed down its decision, giving Mr. Rice a victory by a vote of 7-2.
The syllabus (an official summary), along with the full text of the main opinion by five Justices, the even more far-reaching concurring opinion by two Justices, and dissents by two Justices, can all be found at
http://www4.law.cornell.edu/supct/html/98-818.ZS.html
A somewhat different presentation with additional links to cases cited in footnotes is available at
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=98-818
The decision includes a review of the apology resolution of 1993 and various aspects of Indian law and election law that the defendants had raised in an effort to uphold the racial restriction on voting. But in the end the Court ruled that the 15th Amendment to the U.S. Constitution clearly and unambiguously states that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
Following are some excerpts from the decision. Although the Rice decision directly addresses only the 15th Amendment prohibition against racial restrictions on the right to vote in OHA elections, the Court uses strong language identifying "Native Hawaiian" as a racial classification and deploring the demeaning consequences of a state government using racial classifications in its official actions. Thus the decision shows the Court's likely inclination in the future to rule against Hawaii's racial entitlement programs and to rule against the creation of a phony Indian tribe in an attempt to somehow legalize those programs.
The decision was 7-2. The main decision by 5 Justices was written by Justice Kennedy (and was also endorsed by two other Justices who wrote a separate but concurring opinion reaching further issues).
From the main Opinion by five Justices:
"Ancestry can be a proxy for race. It is that proxy here. ... The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose."
"The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in
its concern for persons and citizens."
"... the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. 'Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.'"
"If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. ... These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes."
"When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii."
Justice Breyer wrote a concurring Opinion in which Justice Souter joined him. These two Justices not only agreed with the main Opinion by five other Justices, they went much further and indicated a willingness to rule that Congress lacks the authority to recognize ethnic Hawaiians as an Indian tribe. Here are excerpts from the Breyer/Souter concurring Opinion:
"... the statute defines the electorate in a way that is not analogous to membership in an Indian tribe ... including individuals who are less than one five-hundredth original Hawaiian .... which now comprises about 60% of the OHA electorate. I have been unable to find any Native American tribal definition that is so broad ... There must, however, be some limit on what is reasonable ... And to define that membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members ... goes well beyond any reasonable limit. It ... is not like any actual membership classification created by any actual tribe. These circumstances are sufficient, in my view, to destroy the analogy on which Hawaii's justification must depend ... For that reason I agree with the majority's ultimate conclusion."
----------------
2. WHAT POLITICAL ACTIONS WERE TAKEN IN ANTICIPATION OF THE SUPREME COURT'S RULING, BY DEFENDERS OF HAWAII'S RACE-BASED PROGRAMS? (Rice's request for a Supreme Court hearing drew an immediate response and propaganda forum in 1998 from a politically stacked Hawaii Advisory Committee to the U.S. Commission on Civil Rights; when Supreme Court oral arguments indicated the Court would probably rule in favor of Rice President Clinton immediately sent high officials of the Department of Justice and Department of Interior to Hawaii for a week of "Reconciliation Hearings" in December 1999 to push public opinion to favor creation of an Indian tribe for ethnic Hawaiians)
In 1998 plaintiff Harold (Freddy) Rice filed with the U.S. Supreme Court a request for certiorari, asking the Court to hear his appeal of the 9th Circuit Court of Appeals ruling against him in Rice v. Cayetano. The mere fact that he filed the request caused great worry among the leaders of Hawaii's powerful race-based institutions.
Everyone knows that the U.S. Supreme Court agrees to hear only about one hundred of the thousands of cases appealed to it every year. But it was widely expected that in the unlikely event the Supreme Court decided to hear the case, it would would overturn the 9th Circuit Court's decision. Therefore the Hawaii Advisory Committee (HAC) to the U.S. Commission on Civil Rights (USCCR) immediately pleaded to its parent Commission to hold a forum on the ramifications of the 1993 apology resolution. That forum was held in Honolulu on August 22, 1998 -- just six weeks before the Supreme Court's Fall 1998 term (which began, as always, on the first Monday in October). The chairman of HAC, "Uncle" Charlie Maxwell, presided over the forum. He was a long-time Hawaiian sovereignty activist and "cultural practitioner" earning large "consulting fees" from local businesses needing political support, government approvals, and Hawaiian religious blessings for their construction projects and retail establishments. All members of HAC were left-leaning liberals aligned with Maxwell in supporting "social justice", affirmative action, minority rights, and racial entitlement programs. The clear intent of holding the forum so close to the first Monday in October was to influence the Supreme Court not to grant certiorari, and also to sway public sentiment in Hawaii.
On January 29, 1999 the U.S. Supreme Court nevertheless granted certiorari to hear the Rice v. Cayetano lawsuit. HAC and the Hawaii Congressional delegation knew the Court would probably rule against the racially exclusionary voting scheme. They began working behind the scenes to get the Clinton administration to take action in support of "Hawaiian rights."
When oral arguments on Rice v. Cayetano were held before the Supreme Court on October 6, 1999 (the first week the Court was in session), questions asked by the Justices seemed quite hostile toward the defendants' position. Supporters of racial entitlement programs then became even more aggressive in rousing public opinion to support them.
A carrot-and-stick strategy developed. The carrot was the offer of handouts from Washington if ethnic Hawaiians would organize themselves into a tribe. The stick was the threat that the expected decision in Rice v. Cayetano would lead to the dismantling of racial entitlements unless the tribe was created. That same carrot-and-stick approach has continued for ten more years, as OHA and other race-based programs point to the lawsuits against them as evidence that ethnic Hawaiians need to support passage of the Akaka bill.
President Clinton, who had signed the apology resolution in 1993, was happy to help implement the reconciliation called for in that resolution. Hawaiian race-based institutions realized that a Republican was likely to be elected President in November 2000, and wanted to take advantage of the remaining year of a Democrat administration to try to get federal recognition of a Hawaiian Indian tribe. What an achievement it would be if the apology resolution in 1993 and federal recognition of a Hawaiian Indian tribe in 2000 could be the two Hawaiian bookends of the Clinton administration!
At the request of the Hawaiian institutions, President Clinton sent to Hawaii John Berry, assistant secretary for policy, management and budget for the U.S. Department of the Interior, and Mark Van Norman, director of the Office of Tribal Justice for the U.S. Department of Justice. They held a series of "reconciliation hearings" on several Hawaiian islands during December, 1999. Charlie Maxwell, who had presided over the civil rights forum in August 1998, now also presided over the reconciliation hearings in December 1999. On the surface it appeared Berry and Van Norman were on a "listening tour" to ask ethnic Hawaiians what goodies they would like to get from the federal government to help "heal the wounds" from the 1893 overthrow of the monarchy. Some Hawaiians did indeed give testimony describing what goodies they wanted. But in fact Berry and Van Norman were trying to sell the concept that ethnic Hawaiians should become an Indian tribe -- a concept which met with vocal resistance from numerous Hawaiian secessionists who loudly demanded a restoration of Hawaiian independent nationhood.
Only two months after the "reconciliation hearings" of December 1999, the Rice decision was handed down on February 23, 2000. The decision produced a political uproar in Hawaii, stimulating supporters of race-based programs to redouble their efforts to support them, and opponents to launch further attacks against them.
---------------------
3. WHAT POLITICAL TURMOIL HAPPENED DURING THE REMAINDER OF 2000 IN RESPONSE TO THE RICE DECISION, AS RELATED TO THE AKAKA BILL? (Supporters of racial entitlements rushed to write the Akaka bill whose first official version was introduced in Congress in July 2000; in August 2000 "From Mauka to Makai" was published containing the propaganda from the "civil rights" forum of 1998 and the "reconciliation" hearings of 1999; at the end of August 2000 a "joint Congressional committee" hearing was held in Honolulu to listen to public testimony on the Akaka bill which the Hawaii delegation reported was favorable to the bill but independent news reports said was 9-1 in opposition; the Akaka bill passed the House on a stealth maneuver on September 26; a public forum was held in Honolulu September 28-29 by the Hawaii Advisory Committee to the U.S. Commission on Civil Rights to consider the impact of the Rice decision on the civil rights of ethnic Hawaiians and to support the Akaka bill; the bill briefly passed the Senate on a stealth maneuver on December 13 which nobody knew about except Senators Inouye and Akaka but then died when its stealth passage was uncovered and vitiated by special legislation on the last day of the 106th Congress on December 15, 2000)
On February 23, 2000 the Rice v. Cayetano decision was handed down, nullifying the portion of the Hawaii Constitution that restricted the right to vote for OHA trustees to ethnic Hawaiians. The Rice decision made clear that "Native Hawaiian" names a racial category and not a political group. That clarification of status opened the door to legal challenges of racially exclusionary government and private programs for Native Hawaiians. Billions of dollars and enormous political power were at stake.
Immediately the defenders of racial entitlement programs began holding closed-door emergency meetings to write Congressional legislation that would give political recognition to Native Hawaiians as an Indian tribe. These meetings were limited to small groups of hand-picked legal experts and leaders of the large racially exclusionary Hawaiian institutions. On May 13, 2000, about ten weeks after the Rice decision, the first draft of a Native Hawaiian Recognition bill was published in the Honolulu Advertiser, containing only 539 words. A second draft published July 8, 2000 contained 2914 words. The newspaper published extensive community reaction to both drafts. On July 20 a "final" version of the Akaka bill was officially introduced into Congress in both the Senate and the House. In the Senate, it was given bill number S2899 and introduced by Senator Dan Akaka. In the House, it was given bill number HR 4904 and introduced by Representative Neil Abercrombie.
With perfect timing to support the newly introduced Akaka bill, a major publication was rushed into print on August 23, 2000 entitled "From Mauka to Makai: The River of Justice Must Flow Freely (Draft Report on the Reconciliation process between the federal government and Native Hawaiians prepared by the Department of Interior and the Department of Justice)" See
http://www.iiirm.org/hawaiian_consultation/workshop%20materials/river_justice.pdf
Less than a week later, during the August Congressional recess, there were five days of hearings on the Akaka bill at the Blaisdell Auditorium in Honolulu from Monday August 28 through Friday September 1. The event was advertised as a "joint Congressional hearing" of the U.S. Senate Committee on Indian Affairs and the U.S. House Committee on Natural Resources." However, the only Senators on the joint panel were Hawaii's two Senators Dan Akaka and Dan Inouye. The only Representatives on the joint panel were Hawaii's two Representatives Neil Abercrombie and Patsy Mink, plus the Territorial Delegate from American Samoa, Eni Faleomavaega (who was, and is, beholden to the Hawaii delegation for everything he gets from Congress for Samoa). Members of the public were allowed to testify for a few minutes each, and to submit longer written statements. Testimony was overwhelmingly opposed to the bill, but the Hawaii Senators and Representatives told their colleagues in Washington that the testimony was mostly favorable. Independent reporter Bob Rees attended all five days of the hearing, and published two articles in the Honolulu Weekly saying testimony had been 9-1 against the bill and had been accompanied by raucous outbursts of opposition from the audience. The Rees article of September 5, 2000 can be seen at
https://www.angelfire.com/hi2/hawaiiansovereignty/ReesAkaka090600.html
and his article of January 17, 2001 is at
https://www.angelfire.com/hi2/hawaiiansovereignty/ReesAkaka011701.html
On September 26, 2000 Representative Neil Abercrombie's stealth strategy succeeded in getting the Akaka bill to pass the House of Representatives on a voice vote by unanimous consent in the middle of a series of non-controversial bills at the dinner hour when only a handful of Congressmen were present. During the last week the Senate was in session in December 2000 Senator Inouye hid the Akaka bill in the form of a single sentence as a last-minute earmark deep inside a massive appropriations bill, which actually got passed by the Senate until an emergency resolution was passed to cut that sentence out of the appropriations bill because Senate rules do not allow policy legislation to be inserted as an earmark in an appropriations bill (a fact which Inouye was well aware of). For details of the stealth maneuvers in the House and Senate during 2000 see
https://www.angelfire.com/hi2/hawaiiansovereignty/StealthDeception.html
On September 28 and 29, 2000 a public forum was held at Hilton Hawaiian Village in Honolulu "to collect information on concerns of Native Hawaiians and others on the impact of the U.S. Supreme Court decision in Rice v. Cayetano on Native Hawaiians." The forum was under the auspices of the same heavily stacked Hawaii Advisory Committee to the U.S. Commission on Civil Rights that had previously held a public forum in 1998 regarding implementation of the apology resolution; but this time three of the leftist national Commissioners joined the local members of the advisory committee in hearing testimony and badgering those few witnesses who dared to speak out against racial entitlements and the Akaka bill. This public forum had been scheduled long before the Akaka bill passed the House, but forum organizers still sought to influence both action in the Senate and public opinion in Hawaii.
-------------
4. WHAT POLITICAL TURMOIL HAPPENED LOCALLY IN HAWAII IMMEDIATELY AFTER THE RICE DECISION, IN AN EFFORT TO EVADE OR CIRCUMVENT IT, ASIDE FROM THE AKAKA BILL? (Politicians proposed that if OHA paid for its own elections, or if OHA trustees were appointed by the Governor, the Rice decision could be ignored; legislation was proposed to transfer $400 Million of OHA assets to DHHL to put them out of reach of a desegregated OHA, and legislation was proposed to privatize both OHA and DHHL by setting up a racially exclusionary trust fund to hold all their assets; a prominent legislator suggested complying with Rice by letting all voters register for OHA ballots but giving OHA ballots only to those who actually took the time to register specifically for OHA; there were suggestions to continue printing OHA ballots separately and to color-code them so non-ethnic-Hawaiians would be embarrassed to request them; Governor Cayetano succeeded in ousting all 9 OHA trustees and appointing temporary replacements for them pending the November elections; the Arakaki#1 lawsuit made it possible for people with no native blood to run for OHA trustee, and there were 96 candidates on the November ballot for the 9 seats on the OHA board including at least a dozen who had no native blood, including one who got elected)
The Rice decision hit the Hawaii political establishment like a bomb. The Governor, Attorney General, and Legislature all scrambled to figure out how the decision might be circumvented until such time as the Akaka bill could be enacted into law.
The first idea seriously proposed, even before the decision came down, was that if OHA would pay for its own elections, then the elections could continue to exclude non-Hawaiians. But the decision doesn't focus on who pays for the election. The Rice decision focuses on the fact that OHA is a branch of state government that affects all citizens of Hawaii and therefore the election of trustees cannot continue to be racially segregated, no matter who pays for it.
Another idea was to make the trustees be appointed by the governor rather than elected -- that way, the elections wouldn't have to be desegregated because there wouldn't be any elections at all! But then after the decision came down, when the non-Hawaiian Governor Cayetano actually tried to declare the illegally-elected trustee positions vacant and fill them with his own appointees, there was a great outcry from the Hawaiian community that this was another overthrow of the Hawaiians by a non-Hawaiian. So the issue whether there are vacancies on the Board in light of the Rice decision, and how to fill such vacancies, was sent to the Hawaii Supreme Court for an advisory opinion. Meanwhile, the illegally elected trustees remained in office, half of them with more than two years remaining in their terms. And while they illegally remained in office, there was concern that the trustees might try to spend or encumber large amounts of money, or transfer funds to other agencies not yet affected by the Rice decision.
There was also a bill in the legislature to transfer the more than $400 million assets of OHA, and its administrative structure, to DHHL, thereby "protecting" everything against evil non-Hawaiians and keeping it all nicely segregated. That idea was sort of like what a wealthy man might do when he thinks his wife might file for divorce, and he sends most of his money to the Cayman Islands or a secret numbered Swiss bank account to keep his assets beyond her awareness or reach. But the bill died in committee.
There were also efforts to privatize OHA, including a bill in the legislature. The idea was to somehow take the $400 million in OHA's treasure chest and transfer it to a private agency that could be owned and operated by racially-defined Hawaiians for the exclusive benefit of racially defined Hawaiians. This is similar to the attitude of the Southern governors and legislators after the 1954 Brown v. Board of Education school desegregation decision. Governor George Wallace of Alabama stood in the schoolhouse door to prevent "Negro" children from attending school. Governor Orval Faubus of Arkansas called out Arkansas National Guard to keep "Negro" kids out of the schools, until President Eisenhower federalized the Arkansas National Guard, placing them under his direct command, and additionally sent in U.S. paratroopers. Several states tried to convert their public schools into private academies so segregation could continue, much as the Hawaii political establishment wanted to convert OHA into a private entity for the same reason.
Other clever ideas were put forward to prevent any significant number of non-ethnic-Hawaiians from voting in the OHA elections. For example: even though all voters can vote in OHA, will voters still have to register separately for OHA, as previously, with OHA ballots going only to OHA-registered voters? State Representative Sol Kaho'ohalahala publicly stated on April 21, 2000 (quietly and evasively, but clearly enough for people sensitive to the issue) that this separate registration requirement is in force currently and will remain that way. When people register to vote, they get to vote in every election except OHA, for which they must register separately. Ethnic Hawaiians currently registered specifically for OHA would automatically get OHA ballots, as always. But the 80% of the population not registered for OHA because they were previously prohibited from doing so because of race, would now have to go out of their way to register just for OHA, even though they are already registered for all other elections. Thus very few non-ethnic-Hawaiians would actually end up voting for OHA trustees.
There were additional technical issues on which the State Elections Board asked for administrative decision. Should OHA ballots continue to be printed separately from other ballots, and perhaps have a separate color, and have to be requested separately at the ballot-issuing station, and perhaps be cast in a separate receptacle? Even one such technique might shame or discourage non-ethnic-Hawaiians from exercising their right to vote in OHA, thereby minimizing the effects of the Rice decision.
Eventually a ruling from the state Supreme Court allowed the Governor to succeed in ousting all nine OHA trustees and replacing them temporarily with his own appointees until the November election. One of his appointees was Charles Ota, to fill the seat reserved for a resident of Maui. Mr. Ota was an ethnic Japanese with no Hawaiian native blood. In November he ran for election and won his seat on the OHA board with more than 100,000 votes.
At the time Governor Cayetano appointed Charles Ota to be an OHA trustee, it was still illegal for Cayetano and Ota to do that. That's because the Rice decision technically affected only who could VOTE for OHA trustee, but did not affect who could be appointed, or RUN as a candidate, for OHA trustee. That issue still needed to be litigated. The Hawaiian race-based institutions, and the state bureaucracy, had decided to stonewall and not to go any further than the courts actually forced them to go in desegregating OHA.
During July through September 2000 another lawsuit (Arakaki#1) was filed and decided, allowing all registered voters regardless of race to run for and serve as OHA trustees. That lawsuit is described later in this essay, in a section on the progeny of Rice v. Cayetano.
-----------------
5. WHAT HAS HAPPENED FROM 2001 THROUGH FEBRUARY 2010 REGARDING THE RICE DECISION AS RELATED TO THE AKAKA BILL? (Akaka bill started over again in January 2001; propaganda booklet published June 2001 entitled "Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians" supported both the Akaka bill and the "right" of ethnic Hawaiians to force the entire State of Hawaii to secede from the United States; in May 2006 the U.S. Commission on Civil Rights publicly opposed the Akaka bill, and in June the bill was killed in the Senate after President Bush said he would veto it; the USCCR again publicly opposed the bill in August 2009; links are provided to compilations of hundreds of pages of news reports and commentaries about the Akaka bill, and full text of all versions of the bill, from throughout the decade of 2000 - 2010)
As discussed previously, the Akaka bill passed the U.S. House of Representatives in 2000 on a stealth maneuver. But it failed in the Senate where a different stealth maneuver was uncovered and the bill's very brief status of having passed was vitiated on the last day of the 106th Congress (December 15, 2000).
So in 2001 the Akaka bill started all over again in the 107th Congress. That's when the previous political work to overcome the Rice decision was recycled anew. The Hawaii Advisory Committee to the U.S. Commission on Civil Rights, along with the U.S. Department of Justice and Department of the Interior, had held several public forums on the apology resolution and the effects of the Rice decision.
"Reconciliation at a Crossroads: The Implications of the Apology Resolution and Rice v. Cayetano for Federal and State Programs Benefiting Native Hawaiians." The booklet says it is "a report from the Hawaii Advisory Committee based upon a community forum held August 22, 1998, to collect information on the impact of the 1993 Apology Resolution enacted to recognize the 1893 overthrow of the Hawaiian monarchy, and subsequent meetings with Nā Kūpuna held September 28, 2000, and a community forum convened September 29, 2000, to collect information on concerns of Native Hawaiians and others on the impact of the U.S. Supreme Court decision in Rice v. Cayetano on Native Hawaiians."
In January 2001 the new 107th Congress convened. The Akaka bill was introduced once again. So in June 2001 the Hawaiian racial establishment felt a need to renew their push for the Akaka bill. "Reconciliation at a Crossroads" (The Summary Report of the August 1998 and September 2000 Community Forums in Honolulu, Hawai‘i) was published in June 2001 and is available at
https://www.angelfire.com/hi5/bigfiles/usccrhac0601.pdf
"Reconciliation at a Crossroads" was written by the entirely one-sided Hawaii Advisory Committee to the U.S. Commission on Civil Rights. All members of HAC were left-leaning liberals aligned with longtime "Hawaiian rights" activist Charles Kauluwehi Maxwell in supporting "social justice", affirmative action, minority rights, and racial entitlement programs. Their report ended with radical conclusions stated in shocking language, supporting both the Akaka bill and the "right" of ethnic Hawaiians to force the entire State of Hawaii to become an independent nation regardless whether the 80% of its population lacking native blood opposed such a plan.
The report can be found at
https://www.angelfire.com/hi5/bigfiles/usccrhac0601.pdf
Secession? Did the Hawaii Advisory Council, and by implication the U.S. Commission on Civil Rights, actually support the "right" of a racial group to force Hawaii to become independent, thereby grossly violating the civil rights of the vast majority of Hawaii citizens? Here's the evidence. About halfway down the lengthy report is the section called "Conclusions and Recommendations" (followed by footnotes that occupy the entire second half of the report). The conclusions clearly support the Akaka bill as a way to overturn the Supreme Court decision; and they also support the right of ethnic Hawaiians to force the secession of Hawaii from the United States.
Following are quotes from conclusions #1 and #4:
"1. The federal government should accelerate efforts to formalize the political relationship between Native Hawaiians and the United States. This recommendation can be accomplished through the formal and direct recognition by Congress of the United States' responsibilities toward Native Hawaiians, by virtue of the unique political history between the United States and the former Kingdom of Hawaii....[T]he Advisory Committee requests that the U.S. Commission on Civil Rights urge Congress to pass legislation formally recognizing the political status of Native Hawaiians." ...
"4. International solutions should be explored as alternatives to the recognition of a Native Hawaiian governing entity.
"The Hawaii Advisory Committee recognizes that the sentiment for an international resolution to restore a sovereign Hawaiian entity is beyond the immediate scope and power of the U.S. Commission on Civil Rights. Nevertheless, that limitation does not preclude the United States from exploring such alternatives as a part of the reconciliation process that the United States committed to pursue in the 1993 Apology Resolution. ... Accordingly, the United States should give due consideration to re-inscribing Hawai‘i on the United Nations' list of non-self-governing territories, among other possibilities. ...
"The Hawaii Advisory Committee is fully cognizant of the concern expressed by some that international resolution would necessarily involve secession, a drastic endeavor over which this nation purportedly fought a civil war. However, this view ignores the troubled and racist roots of our nation's history. The Civil War was at its core a conflict over the issue of slavery. Moreover, the Civil War Amendments and Civil Rights Acts, upon which the plaintiff in Rice based his claims, were supposed to effect a reconstruction of American society through equality for African Americans.
"The principle of self-determination necessarily contemplates the potential choice of forms of governance that may not be authorized by existing domestic law.[420] Whether such a structure is politically or legally possible under the law is secondary, however, to the expression of one's desire for self-determination. The important proposition is that those who would choose to swear their allegiance to a restored sovereign Hawaiian entity be given that choice after a full and free debate with those who might prefer some form of association with the United States (including, perhaps, the status quo)....
"Those supervising the reconciliation process should provide for an open, free, and democratic plebiscite on all potential options by which Native Hawaiians might express their inherent right to self-determination. The process should allow for international oversight by nonaligned observers of international repute. After a period for organization of that government, the federal government should engage in negotiations with the sovereign Hawaiian entity.
"The Hawaii Advisory Committee believes that these deliberations should take into consideration and protect, or otherwise accommodate, the rights of non-Native Hawaiians. Thereafter, the federal government should provide financial assistance for the educational effort that may be necessary to reconcile conflicts raised by the choices made by Native Hawaiians. If necessary, the United States should engage in continuing negotiations to seek resolution of any outstanding issues with the sovereign Hawaiian entity."
The Commissioners on the U.S. Commission on Civil Rights have fixed terms of office whose expiration dates are staggered. Some seats are filled by appointment by the President, and others are filled by appointment by Congress. By 2006 the Republican President and Republican Congress had been in office long enough that the majority of Commissioners were no longer the leftwing radicals who had dominated previously. The new national Commissioners then began to restructure the fifty state advisory committees. In Hawaii the replacement of the heavily leftwing old advisory committee by a more fair and balanced committee produced great controversy over whether the committee should revisit the Akaka bill. See:
"Hawaii Advisory Committee to U.S. Commission on Civil Rights -- New members appointed July 13, 2007; Its history of supporting racial supremacy 1996-2006."
https://www.angelfire.com/planet/big60/USCCRHAC.html
In May 2006 the USCCR held hearings on the Akaka bill and produced a report for the consideration of Congress before the Senate was expected to consider the bill. The 47-page draft report has been saved at
https://www.angelfire.com/hi5/bigfiles3/USCCRdraftrepthrng012006.pdf
On May 4, 2006 the draft report was approved by a 5-2 vote but was amended during the meeting solely to delete the "findings" section (pp. 16-18 of the draft) as an act of conciliation to the begging and pleading of Akaka bill supporters. (read the findings in the draft report to see the true sentiments of the Commissioners.) The final report is at
http://www.usccr.gov/pubs/060504NatHawBriefReport.pdf
The final, official recommendation of the USCCR is:
"The Commission recommends against passage of the Native Hawaiian Government Reorganization Act of 2005, or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege."
On August 28, 2009 the U.S. Commission on Civil Rights once again stood up against the Akaka bill, in a strongly worded letter to Congress. See
www.angelfire.com/big09a/AkakaUSCCR082809.pdf
Since 2001 the Akaka bill has developed a life of its own, with numerous publications pro and con. The main motive for the Akaka bill has always been to overturn the Supreme Court's decision in Rice v. Cayetano; but all the important arguments related to the Akaka bill flowing from the Rice decision had already been made by 2001. Readers who wish to follow what happened with the Akaka bill can do so in the following webpages:
The history of the Akaka bill in the 106th, 107th, 108th, 109th, and 110th Congresses (from February 2000 through December 2008) is covered in thousands of pages of detail, including all versions of the bill and all news reports and commentaries, through several links for various time periods which can be found at
https://www.angelfire.com/hi2/hawaiiansovereignty/Akakahistory.html
The ongoing history of the Akaka bill in the 111th Congress (January 2009 through December 2010) is being tracked with that same detail at
https://www.angelfire.com/big09a/AkakaHist111thCong.html
This essay will now turn attention to the further expansion of the Rice decision which took place after 2001, apart from the Akaka bill.
------------------
6. HAWAII-BASED LAWSUITS EXTENDING THE RICE V. CAYETANO DECISION, AND LEGAL COMMENTARIES. (The progeny of Rice v. Cayetano include a detailed analysis of the successful Arakaki#1 to desegregate candidacy for OHA trustee; plus descriptions of the unsuccessful Carroll and Barrett cases; plus links to news reports and commentaries and all legal briefs from the five year long unsuccessful Arakaki#2; a propaganda forum was held at the University of Hawaii law school in July 2002 to deplore the progeny lawsuits but resulted in publication of an edition of the Asian-Pacific Law and Policy Journal which included two well-documented major analyses by attorneys Patrick W. Hanifin and Paul M. Sullivan; several lawsuits against the racially exclusionary admissions policy of Kamehameha Schools were neutralized through settlements; Attorney H. William Burgess filed a short-lived federal lawsuit "Kuroiwa v. Lingle" which was dismissed on grounds that Arakaki#2 had already decided the issues; additional lawsuits have been filed in state courts to challenge each county's policy of granting waivers of property tax to ethnic Hawaiian owners of houses on property leased from the Department of Hawaiian Homelands)
On the national level the Rice decision seemed relatively unimportant. But in Hawaii it was a landmark decision with far-reaching legal consequences and political upheaval. Lawsuits were filed in an effort to use the powerful language in the Rice decision to begin demolishing Hawaii's Evil Empire of race-based institutions. Scholarly commentaries were published by legal analysts. To understand why the Evil Empire is evil and why it is an empire, see a large webpage with many subpages: "Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for the "nation", considering purchase of a TV station, etc.)" at
https://www.angelfire.com/planet/bigfiles40/EvilEmpireOHA.html
Here's a metaphor about the progeny of Rice v. Cayetano (parents, hide the children because the metaphor is "R" rated). Suppose we think of the Rice decision as the patriarch of a family of lawsuits. The firstborn son of Rice (Arakaki#1) grew to maturity very rapidly and had great success in his life's work. Unfortunately he was born with cancer of the penis which resulted in that organ being amputated; so he never gave Rice any grandchildren. Another child of Rice (Arakaki#2) endured torture for five years as a sadistic judge sliced off body parts one after another while delaying new decisions and revisiting old ones, until finally an outsider with no connection to the case (Daimler-Chrysler) stepped in and administered a mercy killing. Several children of Rice were stillborn (Barrett, Carroll, Kuroiwa), although it took a while to declare them dead. There's hope that Rice can still produce children who might grow up to be even more successful than the firstborn, although supporters of the Akaka bill think its enactment will constitute a vasectomy making Rice sterile.
The first major followup to the Rice decision was the successful lawsuit informally known as Arakaki#1, in Summer/Fall of 2000, to make it possible for any registered voter in Hawaii to run as a candidate for OHA trustee in the same way he could run for any other statewide office.
On June 1, 2000 Ken Conklin went to the State of Hawaii Office of Elections to take out nominating papers to run for trustee of the Office of Hawaiian Affairs. State officials refused to give him nominating papers, for no reason other than the fact that he has no Hawaiian native blood. When elections officials refused to let Conklin run for OHA trustee, Conklin spoke to them the magic words "Rice v. Cayetano!" But they replied "That only says who can VOTE for OHA trustee, not who can RUN for OHA trustee."
On July 25, a complaint was filed by a multiracial group of 13 plaintiffs (including two ethnic Hawaiians) in U.S. District Court in Honolulu, seeking a temporary restraining order to probibit the State of Hawaii, the Governor, and officials of the State Elections Office from enforcing the racial restriction on candidacy for OHA. This case came to be known as the Arakaki case, because the lead plaintiff (alphabetical order) was Mr. Earl Arakaki, a retired police sergeant of Okinawan ancestry. The attorney, representing the plaintiffs pro bono (free of charge, for the public good), was H. William Burgess. Later Mr. Burgess was joined by attorney Patrick Hanifin (now deceased) who helped with the 9th Circuit Court appeal. Mr. Burgess and his wife were featured in a biographical sketch published in "Midweek" newspaper on January 2, 2002. They work together as a team on civil rights issues, and received (jointly) the George Washington Award of the Grassroot Institute on November 4, 2005. A biographical sketch of Mr. and Mrs. Burgess, published in Midweek newspaper, can be read at
https://www.angelfire.com/hi2/hawaiiansovereignty/burgessmidweek010202.html
Patrick Hanifin, a Harvard graduate, was partner in the law firm of Im, Hanifin and Parsons, and an adjunct professor in the William S. Richardson School of Law at University of Hawaii. He died at age 48 from an aortic aneurism that ballooned while he was working in his office on the Arakaki#2 civil rights lawsuit late at night. A large webpage tribute to Mr. Hanifin, tracing his civil rights work, his scholarly essays, and his opposition to the Akaka bill, is at
https://www.angelfire.com/hi2/hawaiiansovereignty/HanifinTribute.html
On August 15, 2000 Judge Helen Gillmor issued the temporary restraining order. On August 16 Ken Conklin successfully took out nominating papers, and subsequently over a dozen other non-ethnic-Hawaiians also filed nominating papers and had their names placed on the ballot in a field of 96 candidates for the 9 seats on the OHA board. On September 19, Judge Gillmor made the injunction permanent. She made it explicitly clear that her decision in the Arakaki case was based on three laws: the 15th Amendment to the U.S. Constitution, the 14th Amendment, and the Voting Rights Act of 1964.
Recognizing the drastic consequences for Hawaii's massive establishment of race-based institutions if the 14th Amendment equal protection clause were allowed to remain as a reason for the Arakaki ruling, the State of Hawaii appealed to the 9th Circuit Court. In their appeal brief the state pleaded with the three judge panel that even if the judges felt compelled to rule in favor of the Arakaki plaintiffs on the basis of the 15th Amendment and the Voting Rights Act, PLEASE REMOVE THE 14TH AMENDMENT as a basis for the decision. And that's what the judges did. They upheld Judge Gillmor's decision to impose a permanent injunction prohibiting the state from denying people the right to run on the basis of race, but the judges removed the 14th Amendment on the grounds that the 15th Amendment (along with the Voting Rights Act) was sufficient to reach that decision.
In hindsight the case could probably have kept the 14th Amendment as a basis for the decision if Ken Conklin had been the only plaintiff. Here's why. It was politically and emotionally good to have a group of plaintiffs with a wide variety of racial backgrounds. However, all the plaintiffs except Conklin had as their primary argument the fact that the racial restriction on (someone else's) candidacy was an abridgment of their right to vote (15th Amendment) because it restricted the range of candidates from whom they could choose. That argument allowed the court to rule on the basis of the 15th Amendment and the Voting Rights Act, without needing to reach the 14th Amendment.
But if Conklin, desiring to be a candidate, had been the only plaintiff, then the plaintiff and his attorney could have chosen to cite only the 14th Amendment in the legal briefs and the court could make its ruling solely on the 14th Amendment that every person regardless of race should have a right to the equal protection of the laws to be a candidate -- not because it violates his right to have a wide range of candidates from which to choose, but only because every person should have the same right to run for public office as every other person regardless of race. Since 2000 there have been several lawsuits which tried to demolish OHA on the basis of the 14th Amendment, but all have failed because of problems with "standing" and the "political question" doctrine. In the case of the lawsuit to win the right to run for public office, there was no difficulty with standing or political question; but the appeals court took the easy way of limiting its ruling to the 15th Amendment because that was sufficient to make the decision on behalf of all the other plaintiffs except Conklin without invoking the 14th Amendment.
For more information about the Arakaki #1 lawsuit (right to run), see
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki.html
For information about Ken Conklin's campaign platform, some of the news coverage of the candidacy, and the election results, see
https://www.angelfire.com/hi2/hawaiiansovereignty/runforoha.html
The Arakaki#1 federal lawsuit had required only the three months of July, August, and September 2000 to move from the filing of the initial complaint, through the temporary injunction, to the final, permanent injunction. Civil rights activists felt they were "on a roll" because of that rapid and decisive victory. The Rice and Arakaki#1 decisions made the score 2-0. Expecting more victories, two more lawsuits based on Rice v. Cayetano were filed in October.
Remember that the Office of Hawaiian Affairs was founded on three pillars of racial segregation. (1) Only ethnic Hwaiians could vote for OHA trustees. That pillar was demolished by the Rice decision. (2) Only ethnic Hawaiians could run for and serve as OHA trustees. That pillar was demolished by the Arakaki#1 decision. (3) OHA was authorized to distribute benefits to ethnic Hawaiians on a racially exclusionary basis. That pillar remained standing. It still remains standing today, despite repeated efforts to knock it down during the ensuing nine years.
There has never been another civil rights legal victory against the Evil Empire in Hawaii since Arakaki#1. However, none of the Rice-based lawsuits has ever been decided "on the merits" because all have sooner or later been dismissed for technical reasons involving "standing" and/or the "political question" theory. Both of those reasons are based on vague, nebulous, pliable interpretations of Constitutional law, statutes, and case law. Regarding standing: In any particular case, have plaintiffs suffered an actual injury which is within the power of a court to remedy? Regarding political question: In any particular case, are the courts obligated to defer to the legislative branch of government because of the Constitutionally mandated separation of powers among the legislative, executive, and judicial branches of government? All of the ensuing cases were dismissed for technical reasons and not on the merits. Therefore the same issues can (and will!) continue to be litigated until there is a decision on the merits. A series of lawsuits to desegregate Kamehameha Schools were settled before any decision on the merits. The Kamehameha lawsuits should probably not be classified as progeny of Rice for a variety of reasons; but in any event the absence of a final decision on the merits makes it possible for additional lawsuits to be filed. A series of webpages about Kamehameha Schools and the desegregation lawsuits (including legal documents, news reports and commentaries from 2000 through 2009) begins at
https://www.angelfire.com/hi2/hawaiiansovereignty/kamschool.html
On October 2, 2000, attorney John Carroll, Republican candidate for the U.S. Senate and former chairman of the Hawaii Republican Party, filed suit in the U.S. District Court in Honolulu claiming that state payments of ceded lands revenues to OHA, coupled with OHA's racial exclusion of non-ethnic Hawaiians from receiving benefits from OHA, was contrary to the 14th Amendment equal protection clause.
The following day on October 3, 2000, Patrick Barrett filed suit in the U.S. District Court in Honolulu asking for an injunction to prohibit the state from engaging in racial discrimination in the way OHA and the Hawaiian Homes program operate. Barrett's lawsuit also challenged state laws governing ethnic Hawaiian gathering rights on the grounds they are racially discriminatory and violate the rights of property owners.
U.S. Chief District Judge David Ezra dismissed Barrett v. State of Hawaii in 2001, and Carroll v. Nakatani in 2002, on technical grounds (that the plaintiffs lacked "standing"). The Barrett and Carroll lawsuits were consolidated and appealed to the Ninth Circuit Court of Appeals under the name of Carroll v. Nakatani.
On September 3, 2003, the Ninth Circuit affirmed Judge Ezra's ruling on the consolidated case. In addition to lack of "standing", a major reason for the ruling was that plaintiffs had failed to name the United States as a defendant, and should have done so because their lawsuits were attacking a provision in the Hawaii Statehood Admissions Act of 1959.
The original complaint by Barrett can be seen at
http://www.moolelo.com/kue-barrett.html
Full text of the 9th Circuit Court's ruling in the consolidated case Carroll v. Nakatani is at
http://openjurist.org/342/f3d/934/carroll-v-nakatani-e-and-j
On March 4, 2002 a new lawsuit informally known as Arakaki#2 was filed by a multiracial group of 16 plaintiffs in U.S. District Court in Honolulu. For five years the battle was waged at the District Court, the Ninth Circuit Court of Appeals, and the U.S. Supreme Court. In the meantime the U.S. Supreme Court issued a ruling regarding the criteria for "standing" in a completely different case called Daimler-Chrysler. The Court ruled that taxpayers in Ohio do not have standing to complain about their taxes being higher than otherwise due to passage of a law giving tax breaks to a corporation as an inducement to build a factory. The Court ruled that it is a political question for the legislative branch of government to decide how to allocate tax burdens, and taxpayers do not have standing in court to complain about such political decisions. Based on that decision, the U.S. Supreme Court then vacated a Ninth Circuit Court decision which had ruled that the Arakaki plaintiffs do have standing as taxpayers, and which had overturned the District Court's decision that they do not. The U.S. Supreme Court remanded the Arakaki case back to the Ninth Circuit, which remanded back to the District Court, which ruled that in view of Daimler-Chryster and in view of the facts of the Arakaki #2 case, plaintiffs lack standing. On April 30, 2007 the Arakaki plaintiffs' motion to amend their complaint was denied, and the case died although the district judge never issued a final ruling and thereby made it impossible for plaintiffs to appeal. A complete record of this 5-year lawsuit is available including all briefs filed by plaintiffs and all five defendants at all levels of the court system, plus news reports and commentaries. See
https://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html
On April 18, 2002, shortly after the complaint had been filed in Arakaki#2, the William H. Richardson School of Law at the University of Hawaii sponsored a public forum "Rice and Its Progeny." Why did they sponsor this forum, who was invited to speak, and what published articles came forth from the forum?
The University of Hawaii has an overwhelming bias toward the left of the political spectrum. This bias is especially virulent regarding the issue of Hawaiian sovereignty and Hawaiian racial entitlement programs. Since its founding, the Center for Hawaiian Studies has served as a propaganda factory, churning out hundreds of ethnic Hawaiians, and a few non-Hawaiians, uniformly rabid in their pro-sovereignty political activism. CHS sponsors workshops, lectures, performances, TV programs, etc. designed to stir up emotions. The curriculum includes nothing from an opposing viewpoint, except an occasional snippet selected for ridicule.
Other departments at UH have professors heavily dependent upon the Center for Hawaiian Studies to provide student enrollment in specialized courses and validation for research contracts, collaborative projects, and student internships, including the departments of history, political science, sociology, anthropology, ethnic studies, and urban and regional planning; and the law school and medical school. Large federal and state grants and contracts bring in money earmarked for Native Hawaiian projects and sometimes racially earmarked for Native Hawaiian students.
Nobody who disagrees with the party line can possibly receive a faculty appointment in any of these departments. And nobody who disagrees with the party line has ever even been invited to speak in any class lecture or panel discussion in the Center for Hawaiian Studies or in any of its collaborative departments. Such opponents are available who have advanced academic and law degrees, have published both polemical and scholarly articles; and one has published a significant book on Hawaiian history and is a great-grandson of an early missionary to Hawai'i and a grandson of a leader of the overthrow of the monarchy.
It is true that two attorneys mentioned below (Patrick W. Hanifin and Paul M. Sullivan), who oppose racial separatism and the Akaka bill, occasionally taught courses at UH Law School; but the focus of their courses was on other legal issues where a professor's lectures would not be expected to challenge the core doctrines of the sovereignty activists. Courses directly related to those core issues taught in other departments (history, anthropology, political science, law, etc). are all taught by professors who stick to the party line in their selection and interpretation of course content, and who are then rewarded by having their class enrollment (and job security) significantly boosted by students majoring in Hawaiian Studies. For an analysis of the racial bias at UH and the violation of academic freedom on issues of Hawaiian sovereignty, see "University of Hawai'i and Hawaiian Sovereignty -- A Case Study in Political Correctness Run Amok" at
https://www.angelfire.com/hi2/hawaiiansovereignty/uhacafree.html
The panel discussion on Rice and Its Progeny at UH Law School was yet another example of political propaganda rather than balanced scholarly inquiry. All three panelists were outspokenly hostile to the Supreme Court's decision in Rice v. Cayetano. All three panelists viciously attacked the four Rice progeny cases as being part of a racist conspiracy to undermine the civil rights or "indigenous rights" of Native Hawaiians. Although the panel was held at the UH Law School, its three speakers included only one then-junior member of the Law School faculty (Danielle Conway-Jones, whose African-American heritage was regarded as a plus on the panel), one ethnic Hawaiian attorney (Mililani Trask) who is a rabid political activist and recent OHA trustee, and one attorney from Idaho (Jeanette Wolfley) who was active in litigation on behalf of Indian tribes. The panel presentation, like so many other sovereignty rallies disguised as panel discussions at UH, was videotaped for future use in UH courses.
Conspicuously missing from the panel, but sitting in the audience, was Mr. Patrick W. Hanifin. He was specifically not invited to serve on the panel, even though he was a graduate of Harvard Law School with a masters degree in public policy, lived in Honolulu, was a partner in his law firm, had published scholarly articles in legal journals over a period of 20 years, and served as an attorney of record in three of the four Rice progeny cases (Arakaki #1, Barrett, and Arakaki #2). Someone at the Law School had informed him about the panel discussion, suggested he attend, and asked him to contribute a paper responding to the panelists in order to provide just a bit of balance to the published collection of articles. Another distinguished Honolulu attorney, Paul M. Sullivan, who opposed the Native Hawaiian recognition bill (also known as the Akaka bill), was also invited to write an article for balance.
Then, perhaps fearful of too much balance, an Associate Professor at the UH Law School was asked to write an article to balance the balancers. Professor Chris Ijima's published articles include such balanced titles as "Race over Rice ... Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano", and "The Colonizer's Story: The Supreme Court Violates Native Hawaiian Sovereignty -- Again" published in the (un)distinguished "Colorlines" magazine. Although Professor Ijima was the most senior faculty member represented in the series of articles, he made a stunningly ignorant and incorrect statement falsely describing plaintiff Patricia Carroll in the Arakaki lawsuits as the wife of John Carroll of the Carroll lawsuit (the two Carrolls are unrelated except for the fact that both are Caucasians).
The Asian-Pacific Law and Policy Journal, published by the University of Hawai'i Press, subsequently included a collection of six articles on Rice and Its Progeny, in Volume 3, Issue 2, Summer, 2002. Anyone who reads the articles in the Asian-Pacific Law and Policy Journal will easily recognize the superior scholarship and legal analysis of Patrick W. Hanifin and Paul M. Sullivan; especially when their work is held up for comparison against the polemical diatribes of the two UH Law School professors, the former OHA trustee, and the Indian lawyer from Idaho.
Here is Patrick W. Hanifin's article:
https://www.angelfire.com/hi2/hawaiiansovereignty/hanifinaplpj070102.pdf
Here is Paul M. Sullivan's article:
https://www.angelfire.com/hi2/hawaiiansovereignty/sullivanaplpj070102.pdf
The entire collection of six articles, including Trask, Wolfley, Conway-Jones, and Ijima, has occasionally changed its URL during the past few years but is currently available at
http://www.hawaii.edu/aplpj/index.html?03,2
On April 3, 2008 a lawsuit "Kuroiwa v. Lingle" was filed in U.S. District Court in Honolulu, seeking to dismantle the Office of Hawaiian Affairs. The lawsuit was dismissed by Judge Seabright on July 2, 2008, on grounds that the issues raised were the same as in Arakaki#2. Here is a document combining both the 32-page complaint and the 4-page motion for TRO and preliminary injunction.
http://bigfiles90.angelfire.com/KuroiwaComplaintAndTROmotion040308.pdf
Attorney H. William Burgess was the attorney in Kuroiwa. He is also the attorney in several more civil rights lawsuits against racial entitlements, including some against the four counties of the State of Hawaii regarding their discriminatory property tax rates whereby houses owned by ethnic Hawaiians on land leased from the Department of Hawaiian Homelands pay small or zero tax while neighbors across the street who are not on Hawaiian homelands pay thousands of dollars. Mr. Burgess' Aloha For All website formerly contained dozens of legal briefs for these lawsuits and the Kuroiwa lawsuit, but that website was destroyed by hackers and is now under reconstruction. Plaintiffs' legal documents in Kuroiwa, and the property tax cases, are being made available on the reconstructed website. See
http://aloha4all.org
and especially
http://aloha4all.org/wordpress/legal-issues/pleadings-in-court-cases/
All of the lawsuits to demolish OHA (and DHHL) on grounds that they distribute benefits on a racially discriminatory basis draw heavily upon language in the Supreme Court's Rice v. Cayetano decision that identifies "Native Hawaiians" as a racial group. But there was a different kind of lawsuit against OHA not derived primarily from Rice. Day v. Apoliona complained that OHA is spending money on ethnic Hawaiians with low blood quantum when the Admissions Act of 1959, together with the Hawaii Constitutional amendment of 1978 that created OHA, require that nearly all of OHA's money should be spent for the benefit of native Hawaiians of 50% or greater native blood quantum. Thus, although Day v. Apoliona is all about race, it is in favor of government racial entitlement programs and should not be regarded as a child of Rice. For information about Day v. Apoliona see
https://www.angelfire.com/planet/big60/HighQuantumvOHA.html
There were also several lawsuits filed against Kamehameha Schools' policy of granting admission only to students who have at least one drop of Hawaiian native blood. Those lawsuits might have been inspired by the success of Rice v. Cayetano. They rely on different legal theories and focus on a private institution rather than a government institution; so they probably should not be regarded as children of Rice, except perhaps in the sense of being "hanai" (adopted). For detailed information about the Kamehameha Schools cases throughout the decade of the 2000s, including legal briefs, court decisions, news reports and commentaries, see a series of webpages beginning at
https://www.angelfire.com/hi2/hawaiiansovereignty/kamschool.html
-------------------
7. WHAT MIGHT HAPPEN TO RACIAL ENTITLEMENTS AND HAWAIIAN SOVEREIGNTY IN THE FUTURE? (Why do many citizens and nearly all Hawaii politicians support race-based entitlements and sovereignty? What are sovereignty zealots doing to recruit the majority of Hawaii's people, who are ethnically Asian? How are civil rights activists fighting back against racial separatism and ethnic nationalism? What will the Supreme Court probably do with the Akaka bill if it passes?)
The Evil Empire of race-based institutions has a strangle-hold on Hawaii's political establishment. Many politicians support it for two reasons: fear and love. Politicians fear that failure to support racial entitlements would result in losing the next election, because ethnic Hawaiians are regarded as a monolithic 20% swing-vote. In addition, politicians know that many citizens of Hawaii regard ethnic Hawaiians as their favorite race, sort of like a mascot, state flower, state bird, or beloved pet. See: "Native Hawaiians as the State Pet or Mascot: A Psychological Analysis of Why the People of Hawaii Tolerate and Irrationally Support Racial Separatism and Ethnic Nationalism" at
https://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html
The Hawaiian grievance industry has spent years pushing propaganda portraying ethnic Hawaiians as a poor, downtrodden endangered species in need of special rights and government handouts. See "Native Hawaiian Victimhood Claims -- What Are They? Why Are They Being Asserted? How Can the Bad Statistics Be Explained?" at
https://www.angelfire.com/hi5/bigfiles3/victimhoodclaims.html
See also "The Hawaiian Grievance Industry -- Panhandling for Race-Based Handouts and Political Power" at
https://www.angelfire.com/hi5/bigfiles3/grievanceindustry.html
More recently there has been an effort to recruit Hawaii citizens of Asian ancestry to support "Hawaiian rights" on the theory that Japanese, Chinese, Filipino, and other groups are immigrants to Hawaii who owe allegiance to the indigenous Hawaiians in the struggle against oppression by Caucasians and against a 117-year belligerent military occupation of Hawaii by the United States. See a detailed book review of "Asian Settler Colonialism: From Local Governance to the Habits of Everyday Life in Hawai'i" at
https://www.angelfire.com/big09a/AsianSettlerColonialism.html
For ten years a multimillion dollar propaganda and lobbying campaign has been trying to influence both public opinion in Hawaii and politicians in Washington D.C. to pass the Akaka bill. And in case the Akaka bill fails to pass, then the State of Hawaii Office of Hawaiian Affairs has developed "Plan B" to establish a state-recognized Native Hawaiian tribe which would then be handed all the same land, money, and jurisdictional authority as though the Akaka bill had passed. See "Klub Kanaka -- Office of Hawaiian Affairs confidential memo of June 2006 outlining OHA plans for setting up a Hawaiian apartheid regime following failure of the Akaka bill" at
https://www.angelfire.com/planet/bigfiles40/OHAplanBmemojune2006.html
To see some elements of OHA's empire and to understand why it is evil, see "Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for the "nation", considering purchase of a TV station, etc.)" at
https://www.angelfire.com/planet/bigfiles40/EvilEmpireOHA.html
"Negro" civil rights activists (they used the word "Negro" to describe themselves back then) made great strides during the 1950s and 1960s by following two strategies: speak truth to power through the media and public demonstrations; and use the courts to enforce Constitutional and statute laws that guarantee equality. At crucial moments outside intervention was necessary, as happened when the federal government intervened in Arkansas, Mississippi, and Alabama to enforce the Supreme Court school desegregation decision in 1954, the Civil Rights Act of 1964, and the Voting Rights Act of 1965.
In Hawaii the Rice v. Cayetano Supreme Court decision of 2000 was the first major federal intervention to protect civil rights and begin breaking up the Evil Empire. In 2009 a unanimous U.S. Supreme Court decision in the ceded lands case overturned a previous unanimous decision by the Hawaii state Supreme Court, which had ruled that the state government was powerless to sell any of the former Kingdom's government or crown lands without the permission of ethnic Hawaiians. The U.S. Supreme Court firmly declared that the ceded lands belong to all the people of Hawaii in fee simple absolute and that the federal apology resolution of 1993 does not in any way affect the state's ownership of the land or impose any racial veto on selling it. For a large webpage containing all the principal and amicus briefs in the ceded lands lawsuit, plus news reports and commentaries, see
http://bigfiles90.angelfire.com/CededNoSell.html
In Hawaii, civil rights activists have been successful in speaking truth to power and influencing public opinion to oppose the Akaka bill. A Zogby poll released December 15, 2009 shows that most Hawaii residents oppose the Akaka bill, and an even larger majority want a referendum on the ballot before the bill can be passed. See details of the Zogby poll results at
http://big09a.angelfire.com/AkakaZogbyReleased121509.pdf
Throughout recent years there has been strong, repeated evidence that Hawaii's people oppose the Akaka bill. See "Akaka Bill -- Roundup of Evidence Showing Most Hawaii People and Most Ethnic Hawaiians Oppose It" at
https://www.angelfire.com/hi5/bigfiles3/AkakaEvidncPublicOppos.html
Would President Obama sign the Akaka bill? He has repeatedly promised to do so, both during his campaign and after his election. He has a close relationship with Representative Neil Abercrombie, chief sponsor of the bill in the House of Representatives for ten years and the leading candidate for Governor. However, America has seen that Obama often does not fulfill campaign promises. Some of the ideals he espoused during important campaign speeches regarding the evils of racialism and tribalism are clearly contrary to the Akaka bill. Perhaps he could be persuaded to oppose the bill. See "Open letter to President Obama regarding the Akaka bill" at
https://www.angelfire.com/big09a/AkakaObamaOpenLetter.html
But if the Akaka bill passes and is signed into law by President Obama, then the federal courts will once again have to rescue Hawaii from racism by declaring the bill unconstitutional. It's interesting to speculate how the Supreme Court, with its nine currently-sitting Justices, would rule on the Akaka bill. The Rice decision focused on voting rights and the 15th Amendment, while challenges to the Akaka bill will focus on the 14th Amendment equal protection clause, the Indian commerce clause, and other topics that were not part of the Rice decision. Nevertheless, each Justice has a general legal philosophy which remains relatively consistent among different cases. It would be very hard for any Justice who endorsed the powerful language in Rice to support establishing a race-based government.
The main opinion in Rice v. Cayetano was written by Justice Anthony Kennedy on behalf of himself, Justices Sandra Day O'Connor, Antonin Scalia, Clarence Thomas, and Chief Justice William Rehnquist. A concurring opinion was written by Justice Stephen Breyer on behalf of himself and Justice David Souter. Dissenting opinions were written by Justices John P. Stevens and Ruth Bader Ginsburg. Three of the nine Justices who participated in the decision have since left the Court: Chief Justice William Rehnquist has been replaced by Chief Justice John Roberts; Justice Sandra Day O'Connor has been replaced by Justice Samuel A. Alito; and Justice David Souter has been replaced by Justice Sonia Sotomayor.
If the six Justices from Rice who remain on the Court were to vote the "same" way, four of the six would vote to overturn Akaka. The new Chief Justice John Roberts actually represented the losing side of the Rice case in oral argument before the Court in 1999, and supporters of the Akaka bill like to cite that as evidence he would support Akaka; however, his conservative views make it unlikely that the work he did as a hired gun in 1999 would determine his vote on Akaka. Justice Alito, politically conservative, would probably vote against Akaka. Justice Sotomayor has a reputation as a liberal on affirmative action issues, as was widely discussed during her confirmation hearings (her "wise Latina" comment asserting that ethnic minorities have insights superior to Caucasians, and her summary dismissal of the Caucasian firefighters' reverse discrimination claim); so it seems likely she would vote to uphold Akaka. Thus, based on nothing more than general impressions of their views on affirmative action and other social issues, the likely vote would be 6-3 against Akaka. There are rumors that Justice Stevens will retire in 2011; but he was a dissenter in Rice, so even if he is replaced by a far-left liberal there would be no impact on how the Court would rule on the Akaka bill.
But even if the Supreme Court rules against the Akaka bill, the trouble is that the Akaka tribe would already be well-established during the period of perhaps five years that might be needed for a lawsuit against the Akaka bill to work its way to a Supreme Court decision. The division of land and jurisdiction between the State of Hawaii and the Akaka tribe would be very hard to undo, just as Humpty Dumpty would be very hard to put back together after his great fall off the wall.
==============
Send comments or questions to:
Ken_Conklin@yahoo.com
You may now
GO BACK TO OTHER TOPICS ON THIS WEBSITE
(c) Copyright February 22, 2010 Kenneth R. Conklin, Ph.D. All rights reserved
