[ OUR OPINION ]
RACIAL discrimination has been eliminated from the democratic process of electing trustees of the Office of Hawaiian Affairs, but a federal appeals court left a small bit of housekeeping for the state Legislature. The court affirmed the right of non-Hawaiians to run for trustee, but lawmakers should extend that principle to those appointed by the governor to vacancies on the OHA board. Akaka bill would end
voting-rights lawsuits
THE ISSUE A federal appeals court has upheld a ruling that candidacies for Office of Hawaiian Affairs trustee must be open to all races.
The voting-rights and right-to-run lawsuits have been valid because OHA is a state agency, unlike Native American tribes that have been recognized as "domestic dependent nations" since 1831. The best way to avoid further litigation is enactment of the bill sponsored by Senator Akaka that would lead to a sovereign Hawaiian entity with a relationship to the federal government comparable to that of Indian tribes.
Federal District Judge Helen Gillmor ruled in September 2000 that the state's restriction on OHA candidacies or appointments to Hawaiians was unconstitutional. Her ruling followed by seven months the landmark U.S. Supreme Court decision in Rice vs. Cayetano that struck down the state constitutional provision allowing only Hawaiians to vote in OHA elections. The state could have saved the cost of further litigation by opening OHA trusteeships to all races promptly after the Rice ruling.
Predictably, the 9th U.S. Circuit Court of Appeals ruled this week that Gillmor was right in assuring non-Hawaiians that they could run for OHA seats. It declined to rule on whether the state was unconstitutionally discriminatory in appointments to trusteeships essentially because no evidence that it had discriminated was presented. Plaintiff Kenneth R. Conklin could legitimately claim he had been denied the right to run for trustee, but the plaintiffs could provide no evidence that they had been passed over in appointments.
The state Constitution says that only Hawaiians may be "eligible for election or appointment to the board." The Legislature should clear up the confusion by removing all racial restrictions in elections or appointments. Otherwise, a non-Hawaiian person seeking a gubernatorial appointment to fill a vacancy could claim discrimination if a Hawaiian were appointed, regardless of their qualifications.
These court decisions are consistent with Justice Anthony Kennedy's statement in the Rice ruling that "race cannot qualify some and disqualify others from full participation in our democracy."
The appeals court is scheduled later this month to hear arguments in a pair of lawsuits that challenge OHA expenditures that benefit only people of Hawaiian ancestry. Numerous government programs at all levels of government have been designed to benefit certain minorities, and OHA seems to be such a program.
"This is not a voting-rights case," District Judge David Ezra ruled last year in rejecting the claim as a political grievance. "This is the other shoe, and it is a very different brand and nature."
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