The recent United States Supreme Court decision in Rice v. Cayetano has caused
considerable distress and consternation in the native Hawaiian community. Its
members have lashed out against the Supreme Court for its decision, against Mr.
Rice, and some have even vowed to march on Washington to present their
Their concern in understandable, but it is, in one major
Amendment XV to the United States Constitution has
existed sine 1870. In pertinent part it says “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.”
There is nothing arcane or complex
about these words.
State legislators should be aware that legislation
they adopt will be invalidated if it does not conform to provisions of the
State or the Federal constitution.
Yet when the Office of Hawaiian Affairs
legislation was drafted in 1978 it provided for election of 9 trustees who were
to be “Hawaiian”, and “elected by qualified voters who are
The law defined the racial standards to apply to qualify
a voter as Hawaiian. Freddie Rice was clearly denied the right to vote in a
state election on account of his race.
The legislature was either
arrogant in its assumptions or remiss in its oversight. The conflict between
the OHA law and the XVth amendment was certainly observable and the result
reached in the Rice case was predictable.
The legislature is responsible
for having derailed native Hawaiian expectations for over 20 years.
the Rice case was limited to the issues of voting for OHA trustees and does not
otherwise impact OHA, proceedings are pending in the Hawaiian Supreme Court
initiated by Messrs. Burgess and Scaff which challenge OHA on grounds of the
XIVth amendment to the United States Constitution “equal protection”
language. Interpretation of this term is not as transparent as the XV amendment
provision, but for the OHA to survive it must overcome its racial preference
effect which has been held elsewhere to deny equal protection of the laws.
For those who might be sanguine about the OHA’s chances, reflect for a moment
on whether it would likely prevail if OHA stood for Office of Haole Affairs.
The prospects for a defense of OHA against the Burgess-Scaff contentions
were dimmed by the closure of some of the relevant issues in the Rice
The Supreme Court opinion denied arguments that the
“Hawaiian” classification is not a racial one holding ancestry can be
a proxy for race; it rejected the contention that Hawaiians could be classed in
the category of Indian tribes; and it disapproved of the trustee and
It seems to me that the state Legislature would
be wise to defer tinkering with the OHA terms to cure the problems created by
the Rice case until it learns the disposition of the Burgess-Scaff attack.
And Native Hawaiians may well ponder whether they are well served to have a
state instrumentality as the vehicle to pursue their self-determination