(c) Copyright 2000 Kenneth R. Conklin, Ph.D. All rights reserved
What follows on this webpage is a short summary of the Rice v. Cayetano case decided by the U.S. Supreme Court. This is case number 98-818, with oral arguments on October 6, 1999 and decision on February 23, 2000.
Ken Conklin, the author of this website, wrote this summary by going through the full decision from start to finish and selecting excerpts that seem especially relevant to issues concerning Hawaiian sovereignty. Conklin's summary is in capital letters, with actual pieces of the court's own language following each summary statement
The complete decision, including numerous hot-links to precedent decisions and cited authorities, can be found at the following place:
http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=98-818
At the end of the summary is a letter to the editor submitted by Ken Conklin to the Honolulu newspapers on February 23, 2000.
Following the letter there is a description of some of the ways the State of Hawai'i is trying to circumvent and evade the Rice decision. Outrageous political chicanery will prevent most people from actually exercising their new-found right to vote in OHA elections, and segregation of the OHA board will still be preserved because, even though all citizens now theoretically get to VOTE for OHA trustees, the State of Hawai'i plans to allow only the race of kanaka maoli to actually RUN FOR OFFICE TO BE an OHA trustee.
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Justice Kennedy wrote and delivered the majority opinion, with full agreement by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas. Justice Breyer also agreed with the decision but for special reasons, and he wrote a separate concurring opinion with full agreement by Justice Souter. Justice Stevens disagreed with the majority and wrote a dissenting opinion. Justice Ginsburg also disagreed with the majority, concurring with part of Justice Steven's dissent and writing her own further dissenting opinion. The final decision was 7-2 in favor of Mr. Rice.
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SUMMARY OF THE ISSUE TO BE DECIDED (in the Court's own language)
The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The
trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs,
or OHA. The agency administers programs designed for the benefit of two subclasses of Hawaiian
citizenry, "Hawaiians" and "native Hawaiians." State law defines "native Hawaiians" as descendants of
not less than one-half part of the races inhabiting the Islands before 1778, and "Hawaiians"--a larger
class that includes "native Hawaiians"--as descendants of the peoples inhabiting the Hawaiian Islands in
1778. The trustees are chosen in a statewide election in which only "Hawaiians" may vote. Petitioner
Rice, a Hawaiian citizen without the requisite ancestry to be a "Hawaiian" under state law, applied to
vote in OHA trustee elections. When his application was denied, he sued respondent Governor
(hereinafter State), claiming, inter alia, that the voting exclusion was invalid under the Fourteenth
and Fifteenth Amendments.
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THE COURT'S DECISION (In its own language)
The issue presented by this case is
whether Rice may be so barred. Rejecting the State's arguments that the classification in question is not
racial or that, if it is, it is nevertheless valid for other reasons, we hold Hawaii's denial of petitioner's
right to vote to be a clear violation of the Fifteenth Amendment.
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The Court's decision at this point includes a lengthy summary of the history of Hawai'i and of its population, the history of the founding of the Office of Hawaiian Affairs (OHA), the history of the ceded lands, and the reason why the State of Hawai'i decided in 1978 in a Constitutional Convention to give OHA 20% of ceded land revenues.
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CIRCUMSTANCES UNDER WHICH MR. RICE WAS DENIED THE RIGHT TO VOTE (Court's own language follows)
Petitioner Harold Rice is a citizen of Hawaii and a descendant of pre-annexation residents of the
islands. He is not, as we have noted, a descendant of pre-1778 natives, and so he is neither "native
Hawaiian" nor "Hawaiian" as defined by the statute. Rice applied in March 1996 to vote in the elections
for OHA trustees. To register to vote for the office of trustee he was required to attest: "I am also
Hawaiian and desire to register to vote in OHA elections." Affidavit on Application for Voter
Registration, Lodging by Petitioner, Tab 2. Rice marked through the words "am also Hawaiian and,"
then checked the form "yes." The State denied his application.
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COURT OF APPEALS HAD RULED TO PERMIT THE OHA VOTING SCHEME EVEN WHILE NOTING THAT RICE HAD NOT CHALLENGED THE RACIAL ENTITLEMENT PROGRAMS OF OHA, AND EVEN WHILE IT SPECIFICALLY RECOGNIZED THAT THE HAWAII CONSTITUTION AND ITS OHA STATUTES CONTAIN A RACIAL CLASSIFICATION (Following is the language of the U.S. Supreme Court)
The Court of Appeals affirmed. 146 F. 3d 1075 (CA9 1998). The court noted that Rice had not
challenged the constitutionality of the underlying programs or of OHA itself. Id., at 1079.
Considering itself bound to "accept the trusts and their administrative structure as [it found] them, and
assume that both are lawful," the court held that Hawaii "may rationally conclude that Hawaiians,
being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty,
should be the group to decide who the trustees ought to be." Ibid. The court so held notwithstanding
its clear holding that the Hawaii Constitution and implementing statutes "contain a racial classification
on their face." Ibid.
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FIFTEENTH AMENDMENT PROHIBITS ANY STATE FROM DENYING OR ABRIDGING THE RIGHT TO VOTE ON ACCOUNT OF RACE (Court's own language follows)
The purpose and command of the Fifteenth Amendment are set forth in language both explicit and
comprehensive. The National Government and the States may not violate a fundamental principle:
They may not deny or abridge the right to vote on account of race. Color and previous condition of
servitude, too, are forbidden criteria or classifications, though it is unnecessary to consider them in the
present case.
Enacted in the wake of the Civil War, the immediate concern of the Amendment was to guarantee
to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect
their new freedom. Vital as its objective remains, the Amendment goes beyond it. Consistent with the
design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the
particular controversy which was the immediate impetus for its enactment. The Amendment grants
protection to all persons, not just members of a particular race.
The design of the Amendment is to reaffirm the equality of races at the most basic level of the
democratic process, the exercise of the voting franchise. A resolve so absolute required language as
simple in command as it was comprehensive in reach. Fundamental in purpose and effect and
self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting
franchise of any citizen or class of citizens on the basis of race.
........
The Court has
acknowledged the Amendment's mandate of neutrality in straightforward terms: "If citizens of one
race having certain qualifications are permitted by law to vote, those of another having the same
qualifications must be. Previous to this amendment, there was no constitutional guaranty against this
discrimination: now there is."
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ANCESTRY FROM INHABITANTS OF HAWAII PRIOR TO 1778 IS USED BY THE STATE OF HAWAII AS A RACIAL DEFINITION AND FOR A RACIAL PURPOSE (Court's own language follows)
Unlike the cited cases, the voting structure now before us is neither subtle nor indirect. It is
specific in granting the vote to persons of defined ancestry and to no others. The State maintains this is
not a racial category at all but instead a classification limited to those whose ancestors were in Hawaii
at a particular time, regardless of their race. Brief for Respondent 38-40. The State points to theories
of certain scholars concluding that some inhabitants of Hawaii as of 1778 may have migrated from the
Marquesas Islands and the Pacific Northwest, as well as from Tahiti. Id., at 38-39, and n. 15.
Furthermore, the State argues, the restriction in its operation excludes a person whose traceable
ancestors were exclusively Polynesian if none of those ancestors resided in Hawaii in 1778; and, on the
other hand, the vote would be granted to a person who could trace, say, one sixty-fourth of his or her
ancestry to a Hawaiian inhabitant on the pivotal date. Ibid. These factors, it is said, mean the
restriction is not a racial classification. We reject this line of argument.
Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had
been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring
their descendants would not be a race-based qualification. But that is not this case. ....... The State, in enacting the legislation before us, has used ancestry as
a racial definition and for a racial purpose.
................
As for the further argument that the restriction differentiates even among Polynesian people and is
based simply on the date of an ancestor's residence in Hawaii, this too is insufficient to prove the
classification is nonracial in purpose and operation. Simply because a class defined by ancestry does
not include all members of the race does not suffice to make the classification race neutral. Here, the
State's argument is undermined by its express racial purpose and by its actual effects.
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ANCESTRAL INQUIRIES AND RACIAL CLASSIFICATIONS BY GOVERNMENT TO DETERMINE ELIGIBILITY FOR VOTING ARE FORBIDDEN BY THE 15TH AMENDMENT. SUCH ACTIVITY BY THE STATE DEMEANS THE DIGNITY AND WORTH OF A PERSON TO BE JUDGED BY ANCESTRY INSTEAD OF BY MERIT AND IS CORRUPTIVE OF THE WHOLE LEGAL ORDER DEMOCRATIC ELECTIONS SEEK TO PRESERVE. THE LAW ITSELF MAY NOT BECOME THE INSTRUMENT FOR GENERATING PREJUDICE AND HOSTILITY. SUCH DISTINCTIONS ARE ODIOUS TO A FREE PEOPLE WHOSE INSTITUTIONS ARE FOUNDED ON THE DOCTRINE OF EQUALITY (Court's own language follows)
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 ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the
further reason that 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." Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Ancestral tracing of this sort
achieves its purpose by creating a legal category which employs the same mechanisms, and causes the
same injuries, as laws or statutes that use race by name. The State's electoral restriction enacts a
race-based voting qualification.
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CONGRESS PROBABLY CANNOT TREAT HAWAIIANS LIKE THE INDIAN TRIBES BECAUSE THE DIFFERENCES ARE TOO GREAT, BUT EVEN IF CONGRESS COULD DO THAT, CONGRESS STILL CANNOT AUTHORIZE A STATE TO CREATE AN UNCONSTITUTIONAL VOTING SCHEME (Court's own language follows)
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. Among other postulates, it would be necessary
to conclude that Congress, in reciting the purposes for the transfer of lands to the State--and in other
enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993--has
determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may,
and has, delegated to the State a broad authority to preserve that status. 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. Compare Van Dyke, The Political
Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998), with Benjamin, Equal Protection
and the Special Relationship: The Case of Native Hawaiians, 106 Yale L. J. 537 (1996). We can stay
far off that difficult terrain, however.
The State's argument fails for a more basic reason. Even were we to take the substantial step of
finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as tribes,
Congress may not authorize a State to create a voting scheme of this sort.
..........
Although it is apparent that OHA has a unique position under state law, it is just as apparent that it
remains an arm of the State.
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SUPREME COURT RENDERS NO OPINION ON THE LEGALITY OF OHA ITSELF, BECAUSE THAT ISSUE WAS NOT RAISED. BUT EVEN IF OHA AND ITS RACIAL ENTITLEMENT PROGRAMS ARE CONSTITUTIONALLY PERMISSIBLE, THE RACIAL RESTRICTION ON VOTING IS NOT. (Court's own language follows)
The validity of the voting restriction is the only question before us. As the court of appeals did, we
assume the validity of the underlying administrative structure and trusts, without intimating any
opinion on that point. Nonetheless, the elections for OHA trustee are elections of the State, not of a
separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. To extend
Mancari to this context would be to permit a State, by racial classification, to fence out whole classes
of its citizens from decisionmaking in critical state affairs. The Fifteenth Amendment forbids this
result.
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EVEN IF IT IS CONSTITUTIONAL TO LIMIT VOTING FOR TRUSTEES TO THE BENEFICIARIES OF THE TRUST, IT IS NOT CONSTITUTIONAL TO LIMIT VOTING ON ACCOUNT OF RACE. RACE CANNOT QUALIFY SOME AND DISQUALIFY OTHERS FROM FULL PARTICIPATION IN OUR DEMOCRACY. ALL CITIZENS, REGARDLESS OF RACE, HAVE AN INTEREST IN SELECTING OFFICIALS WHO MAKE POLICIES ON THEIR BEHALF, EVEN IF THOSE POLICIES WILL AFFECT SOME GROUPS MORE THAN OTHERS. (Court's own language follows)
The question before us is not the
one-person, one-vote requirement of the Fourteenth Amendment, but the race neutrality command of
the Fifteenth Amendment. Our special purpose district cases have not suggested that compliance with
the one-person, one-vote rule of the Fourteenth Amendment somehow excuses compliance with the
Fifteenth Amendment. We reject that argument here. We held four decades ago that state authority
over the boundaries of political subdivisions, "extensive though it is, is met and overcome by the
Fifteenth Amendment to the Constitution." Gomillion, 364 U. S., at 345. The Fifteenth Amendment
has independent meaning and force. A State may not deny or abridge the right to vote on account of
race, and this law does so.
........................
Hawaii's final argument is that the voting restriction does no more than ensure an alignment of
interests between the fiduciaries and the beneficiaries of a trust. Thus, the contention goes, the
restriction is based on beneficiary status rather than race.
As an initial matter, the contention founders on its own terms, for it is not clear that the voting
classification is symmetric with the beneficiaries of the programs OHA administers. Although the bulk
of the funds for which OHA is responsible appears to be earmarked for the benefit of "native
Hawaiians," the State permits both "native Hawaiians" and "Hawaiians" to vote for the office of trustee.
The classification thus appears to create, not eliminate, a differential alignment between the identity of
OHA trustees and what the State calls beneficiaries.
Hawaii's argument fails on more essential grounds. The State's position rests, in the end, on the
demeaning premise that citizens of a particular race are somehow more qualified than others to vote
on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment. The
Amendment applies to "any election in which public issues are decided or public officials selected."
Terry, 345 U. S., at 468. There is no room under the Amendment for the concept that the right to
vote in a particular election can be allocated based on race. Race cannot qualify some and disqualify
others from full participation in our democracy. All citizens, regardless of race, have an interest in
selecting officials who make policies on their behalf, even if those policies will affect some groups
more than others. Under the Fifteenth Amendment voters are treated not as members of a distinct race
but as members of the whole citizenry. Hawaii may not assume, based on race, that petitioner or any
other of its citizens will not cast a principled vote. To accept the position advanced by the State would
give rise to the same indignities, and the same resulting tensions and animosities, the Amendment was
designed to eliminate. The voting restriction under review is prohibited by the Fifteenth Amendment.
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THE SENSE OF LOSS FELT BY NATIVE HAWAIIANS WHO WERE ENGULFED BY HISTORY CAN BEST BE ADDRESSED BY SEEKING A POLITICAL CONSENSUS THAT BEGINS WITH A SENSE OF SHARED PURPOSE. IT IS A NECESSARY BEGINNING POINT THAT THE CONSTITUTION OF THE UNITED STATES HAS BECOME THE HERITAGE OF ALL THE CITIZENS OF HAWAII. (Court's own language follows)
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.
In this case the Fifteenth Amendment invalidates the electoral qualification based on ancestry. The
judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
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JUSTICES BREYER AND SOUTER CONCUR IN THE MAJORITY OPINION OF FIVE OTHER JUSTICES, BUT FOR DIFFERENT REASONS. IT IS FALSE TO CLAIM THAT THE CEDED LANDS ARE A TRUST FOR NATIVE HAWAIIANS. IT IS FALSE TO CLAIM THAT NATIVE HAWAIIANS ARE COMPARABLE TO AN INDIAN TRIBE, BECAUSE THE ONE-DROP BLOOD QUANTUM (USED FOR OHA VOTER ELIGIBILITY) IS UNPRECEDENTED AMONG RECOGNIZED INDIAN TRIBES AND WOULD BE UNREASONABLY BROAD (Justice Breyer's own language follows)
Justice Breyer, with whom Justice Souter joins, concurring in the result.
I see no need, however, to decide this case on the basis of so vague a concept as "quasi-sovereign,"
and I do not subscribe to the Court's consequently sweeping prohibition. Rather, in my view, we
should reject Hawaii's effort to justify its rules through analogy to a trust for an Indian tribe because
the record makes clear that (1) there is no "trust" for native Hawaiians here, and (2) OHA's electorate,
as defined in the statute, does not sufficiently resemble an Indian tribe.
The majority seems to agree, though it does not decide, that the OHA bears little resemblance to a
trust for native Hawaiians. It notes that the Hawaii Constitution uses the word "trust" when referring
to the 1.2 million acres of land granted in the Admission Act. Ante, at 10, 12. But the Admission Act
itself makes clear that the 1.2 million acres is to benefit all the people of Hawaii. The Act specifies
that the land is to be used for the education of, the developments of homes and farms for, the making
of public improvements for, and public use by, all of Hawaii's citizens, as well as for the betterment
of those who are "native." Admission Act §5(f).
Moreover, OHA funding comes from several different sources. See, e.g., OHA Fiscal 1998
Annual Report 38 (hereinafter Annual Report) ($15 million from the 1.2 million acres of public lands;
$11 million from "[d]ividend and interest income"; $3 million from legislative appropriations;
$400,000 from federal and other grants). All of OHA's funding is authorized by ordinary state
statutes. See, e.g., Haw. Rev. Stat. §§10-4, 10-6, 10-13.5 (1993); see also Annual Report 11 ("OHA's
fiscal 1998-99 legislative budget was passed as Acts 240 and 115 by the 1997 legislature"). The
amounts of funding and funding sources are thus subject to change by ordinary legislation. OHA
spends most, but not all, of its money to benefit native Hawaiians in many different ways. See Annual
Report (OHA projects support education, housing, health, culture, economic development, and
nonprofit organizations). As the majority makes clear, OHA is simply a special purpose department of
Hawaii's state government. Ante, at 24-25.
As importantly, the statute defines the electorate in a way that is not analogous to membership in an
Indian tribe. Native Hawaiians, considered as a group, may be analogous to tribes of other Native
Americans. But the statute does not limit the electorate to native Hawaiians. Rather it adds to
approximately 80,000 native Hawaiians about 130,000 additional "Hawaiians," defined as including
anyone with one ancestor who lived in Hawaii prior to 1778, thereby including individuals who are
less than one five-hundredth original Hawaiian (assuming nine generations between 1778 and the
present). See Native Hawaiian Data Book 39 (1998). Approximately 10% to 15% of OHA's funds are
spent specifically to benefit this latter group, see Annual Report 38, which now comprises about 60%
of the OHA electorate.
I have been unable to find any Native American tribal definition that is so broad.
Of course, a Native American tribe has broad authority to define its membership. See Santa Clara
Pueblo v. Martinez, 436 U. S. 49, 72, n. 32 (1978). There must, however, be some limit on what is
reasonable, at the least when a State (which is not itself a tribe) creates the definition. And to define
that membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable
body of potential members--leaving some combination of luck and interest to determine which
potential members become actual voters--goes well beyond any reasonable limit. It was not a tribe, but
rather the State of Hawaii, that created this definition; and, as I have pointed out, 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. This is not to say that Hawaii's definitions themselves independently violate
the Constitution, cf. post at 9-10 (Justice Stevens, dissenting); it is only to say that the analogies they
here offer are too distant to save a race-based voting definition that in their absence would clearly
violate the Fifteenth Amendment. For that reason I agree with the majority's ultimate conclusion.
==================
Letter to the editors of the Honolulu newspapers from Ken Conklin, submitted on February 23, 2000
RICE DECISION CAN HELP RESTORE THE ALOHA SPIRIT
The decision in Rice v. Cayetano is a victory for common sense and for the Aloha Spirit. The 15th Amendment to the U.S. Constitution says that the right to vote cannot be denied or abridged on account of race. That Amendment was passed after the Civil War, to ensure that former slaves would be able to vote.
OHA has $380 million in its treasure chest, taken from all the people of Hawai'i to provide benefits exclusively to a minority of Hawai'i's people identified by race. OHA has additional revenue of $30 million per year for many years to come, from a previous lawsuit, and is currently suing the State of Hawai'i for unspecified hundreds of millions more. In effect, all of Hawai'i's people are slaves, forced to produce revenue for one racial group, the hereditary elite of modern ali'i. So it is quite proper that the Rice decision is based on the 15th Amendment giving voting rights to emancipated slaves.
The Rice decision directly concerns only the right to vote in elections for OHA trustees, because that was the only issue raised by Freddy Rice. But careful reading of the decision reveals that racial entitlement programs and OHA itself are likely to be found unconstitutional as soon as they are challenged. All the twisted arguments presented to the Court concerning Indian tribes, special trust relationships, and Hawaiian history were carefully reviewed by the Court and rejected, 7-2. Will we now hang onto them as they drop into the dustbin of history?
In the interest of strengthening the Aloha Spirit, it is time for the people and government of the State of Hawai'i to embrace the concepts of equal voting rights, equal property rights, and equal protection of the laws for all people regardless of race. If people are needy, give them government assistance based on need rather than an automatic racial entitlement. I hope we do not try to evade the Rice decision by transferring OHA's assets to DHHL, making the OHA trustees appointive, letting OHA pay for a private election, etc. Let us move into the 21st Century as people of many proud heritages, united in equality and aloha for all.
ATTEMPTS TO CIRCUMVENT OR EVADE THE RICE DECISION MAKE HAWAI'I LOOK LIKE MISSISSIPPI, ALABAMA, AND ARKANSAS WHEN THEY TRIED TO CIRCUMVENT THE BROWN V. BOARD OF EDUCATION SCHOOL DESEGREGATION DECISION OF 1954 AND THE VOTING RIGHTS AND CIVIL RIGHTS ACTS OF THE MID-1960'S
The U.S. Supreme Court handed down its decision in the Rice v. Cayetano case on February 23, 2000. The Justices ruled 7-2 that all citizens of Hawai'i are eligible to vote for OHA trustee without racial restrictions. Panic set in.
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 it seems clear now to everyone that the decision doesn't focus on who pays for the election, but focuses on the fact that they are statewide elections for a branch of State government that affects all citizens of Hawai'i and therefore the elections cannot continue to be racially segregated, no matter who pays for them.
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 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 and how to fill them was sent to the Hawai'i Supreme Court for an advisory opinion. But of course the State of Hawai’i Supreme Court cannot rule on elections where federal civil rights violations have occurred and where the federal courts and U.S. Supreme Court have already asserted jurisdiction. Meanwhile, the illegally elected trustees remain in office, half of them for an additional two years remaining in their terms. And while they illegally remain in office, they 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 are also efforts to privatize OHA. The idea is 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 the race of kanaka maoli for the exclusive benefit of kanaka maoli. This is similar to the attitude of the Southern governors and legislators after the 1954 Brown v. Board of Education school desegregation decision. George Wallace of Alabama stood in the schoolhouse door to prevent black children from attending school. Orval Faubus of Arkansas called out troops to keep black kids out of the schools, until President Eisenhower sent in the U.S. paratroopers. Several states tried to convert their public schools into private academies so segregation could continue, much as the Hawaiian supremacists want to convert OHA into a private entity for the same reason.
Other clever attempts are being made to prevent any significant number of non-kanaka maoli 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 at present, with OHA ballots going only to OHA-registered voters? What a cute evasion that would be! 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. Kanaka maoli currently registered specifically for OHA will 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, will now have to go out of their way to register just for OHA, even though they are already registered for all other elections. This is a very clever way to minimize the number of non-kanaka maoli who will vote in OHA elections. Voters will show up on election day having heard about the Rice decision and assuming they can vote for OHA, only to discover they must register separately to do so. And so OHA will be safe from all but a few extremely alert non-kanaka voters for at least two more years; until there is time for voting-rights lawsuits to force a single registration to be valid for all elections, or for outraged people prevented from voting to send in new voter registration forms. I encourage all citizens not currently registered for OHA to look in your yellow page phone book, take out the wikiwiki registration form, fill out both the top and bottom portions (cross out the illegal sentence that affirms your racial heritage), and send it to the address printed there to make sure you are properly registered to vote for OHA.
But there are additional technical issues on which the State Elections Board has 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-Hawaiians from exercising their right to vote in OHA, thereby minimizing the effects of the Rice decision.
Then there is a question whether non-Hawaiians can run for office and BE OHA trustees. The Hawaiian Supremacist defenders of OHA think that just because the Supreme Court ruled that all citizens must be allowed to VOTE for OHA without racial restriction does not mean that all citizens must be allowed to RUN for the office of OHA trustee. Does anyone seriously believe the Supreme Court would actually allow racial restrictions on who can hold office in a State government institution where the Court has just ruled that there cannot be racial restrictions on voting? Imagine that after the Civil Rights and Voting Rights Acts of the mid-1960s, some Southern governor had the nerve to stand up and say, "Well, the feds say we gotta let blacks vote, but that sure as hell don't mean we gotta let 'em run for office!" No Southern governors had such gall, but that is exactly what many politicians in Hawai’i are saying. The Rice decision may be the law of the land, but the stonewalling and evasion continue, and Hawai'i seems determined to maintain "segregation forever" without even a pretense of moving toward integration "with all deliberate speed."
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The following is a letter to the editor regarding the OHA election shibai, and what the citizens of Hawai'i might try doing about it.
The U.S. Supreme Court has ruled racially exclusionary OHA elections are unconstitutional. BUT Hawai'i politicians are busily working to circumvent desegregation, just like George Wallace (Alabama) and Orval Faubus (Arkansas) did in the 50s and 60s. Heh heh.
1. Just because the Court says everybody can VOTE for OHA doesn't mean everybody can RUN for OHA. Heh heh. Solution: Take out nomination papers anyway and challenge the system.
2. Voter registration forms require separate additional registration to vote in OHA. Currently-registered OHA voters (only kanaka maoli) are all set. But currently-registered non-kanaka maoli will have to reregister specifically for OHA, and current forms still have the racial affidavit. So most non-kanaka maoli won't be voting in OHA this Fall. Heh heh. Solution: Half a million voters should please rip the wikiwiki voter registration form out of the yellow pages phone book, fill out both top and bottom, cross out the illegal racial junk, and mail it in. Quick! And tell ten more folks to do the same.
3. OHA ballots will still be printed separately, possibly on paper uniquely colored, and must be specifically requested at the polling place. Many people might feel embarrassed to exercise their right to vote in OHA. Heh heh. Solution: Hold hands with someone and demand your rights! Loudly! Go to the voter assistance station at the polling place; demand to register for OHA on the spot; demand your OHA ballot. Lie down on the floor and sing the Star-Spangled Banner!
4. Trustees illegally elected through racially restricted voting might be allowed to remain in office until their terms expire. Half of them will still be there two years from now. Heh heh. Solution: File a lawsuit for an injunction to prohibit the OHA board from making any decisions or spending any money; file a writ of mandamus to compel the governor to dismiss them all; and sue the trustees and governor personally for financial damages resulting from decisions the trustees make while illegally remaining in office.
5. The whole political establishment seems determined to ask the feds to recognize a phony Wannabe Indian Tribe. That way, BIA can take over for OHA, and kanaka maoli can still be exclusionary. Sure, we'll have to rip apart the State to create sovereign tribal areas where State laws won't apply and casinos can flourish, but big wampum (bucks) will flow in from the feds, and the natives won't be so restless. Heh heh. Solution: Protest. And throw the bums out of office this Fall. All of them.
(c) Copyright 2000 Kenneth R. Conklin, Ph.D. All rights reserved
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