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State wrong vehicleTo the Forum:

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

respect, misdirected.

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

guardian-ward arguments.

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


Walter Lewis



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