A Justice Department brief sides
with the state in the suit brought
by a Big Island rancher

By Pat Omandam
Star-Bulletin

The United States has filed a U.S. Supreme Court brief supporting the state of Hawaii in the Rice vs. Cayetano case.

U.S. Solicitor General Seth P. Waxman, the law officer of the U.S. Department of Justice who ranks next to U.S. Attorney General Janet Reno and who represents the U.S. in cases before the Supreme Court, filed a "friend of the court" brief yesterday asking the high court to affirm the lower court's decision and throw out the Rice appeal.

Harold "Freddy" Rice, a non-Hawaiian Big Island rancher, filed the lawsuit against Gov. Ben Cayetano two years after Rice claimed he was denied voting rights in OHA elections based on his race.

Since then, the lower courts have sided with the state's view that the Hawaiians-only OHA election is legal because it is based not on race, but on the special relationship the state has with the native people of Hawaii.

"The United States has concluded that it has a trust obligation to indigenous Hawaiians because it bears a responsibility for the destruction of their government and the unconsented and uncompensated taking of their lands," Waxman's 37-page brief stated.

"It would be extraordinarily ironic if the very reasons that the United States has a trust responsibility to the indigenous people of Hawaii served as an obstacle to the fulfillment of that responsibility," it said.

The Supreme Court is expected to hear the Rice appeal this fall.

The document added that indigenous Hawaiians, like numerous Indian tribes on the U.S. mainland, have both historical and current bonds, as well as unrelinquished sovereignty and territorial claims.

Office of Hawaiian Affairs Chairwoman Rowena Akana said today news of the U.S. support for the state and for OHA validates the agency's constitutionality.

"I'm almost speechless because when the United States comes in on the side of anyone, it has to mean a lot," she said. "And the solicitor general, according to his opinion, believes that the two lower courts that affirmed that the OHA elections is constitutional is also the opinion of the United States.

"And that has to weigh in very heavily."

Akana said the solicitor general's stand in the case is a long-awaited recognition by the United States about its relationship and responsibility to native Hawaiians.

"I think this helps us tremendously. It gives our people great hope that now they (federal government) will begin to look very seriously at some restitution and begin work in dialogue on the (1993) apology bill, which will be very helpful for our people," she said.

OHA, along with nearly a dozen Hawaiian groups, filed its "friend of the court" brief yesterday. Five other groups, including the Alaskan Native Federation, the National Congress of American Indians, and Kamehameha Schools/Bishop Estate have filed separate briefs also in support, said Akana.

Akana said the Rice case has drawn national attention with the U.S. Supreme Court's decision this past March to hear the appeal.

"Mr. Rice, in his brief, attacks the political status of indigenous people by playing the race card," Akana said.

"Time and again Congress has recognized that native Hawaiians are a "distinct and unique indigenous people' and that Hawaiians and OHA, specifically, have a special relationship with both the state and federal government," she said.

There are at least seven acts of Congress that expressly refer to OHA, while Congress has passed 40 pieces of legislation recognizing the political status of Hawaiians. Moreover, Akana pointed out, Congress apologized to Hawaiians for depriving their rights to self-determination in the Nov. 23, 1993 Joint Resolution.

Yesterday was the deadline for interested parties to join the state against the Rice appeal. OHA board attorney Sherry Broder expects oral arguments by the court in late fall.

Broder yesterday said the lower court's decision against Rice -- first by U.S. District Judge David Ezra in 1997 and by the 9th U.S. Circuit Court of Appeals in 1998 -- did recognize native Hawaiian people as being equivalent to native people on the mainland, with a special relationship with the federal and state governments.

"And based on that, the courts found that native Hawaiians-only vote for OHA trustees pasts constitutional muster and was "perfectly tailored' ... to meet the needs of the Hawaiian people," she said.

OHA Deputy Administrator Colin Kippen said the agency's all-out effort to help the state defend the case at the Supreme Court level -- it has hired a Washington, D.C., legal team, just as the state has done -- is justified because no one can foresee how the justices will rule.

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January '97
OHA Ceded Lands Ruling