Wednesday, October 6, 1999

Rice vs. Cayetano

Attorneys spar in OHA case
Bullet Rice: His attorney argues limiting OHA elections
to native Hawaiians is a clear violation of voting rights
Bullet Cayetano: The state says the voting is limited
by trust beneficiary membership, not by race

Hawaiians say hearing went badly

By Pete Pichaske
Phillips News Service


WASHINGTON -- Attorneys for Hawaii and for a Big Island rancher fenced with each other and with the nine Supreme Court Justices today as the nation's highest court heard a case alleging racial discrimination in Office of Hawaiian Affairs elections.

As prominent Hawaii leaders looked on, an attorney for rancher Harold Rice argued that limiting OHA elections to those with native Hawaiian ancestors is a clear OHA logoviolation of voting rights.

"This is a case of ballot-box discrimination plain and simple," said Theodore Olson. "There is no question what Hawaii is attempting to do here is discrimination on the basis of race."

Attorneys for the state, however, countered that the voting rules are based not on race but on the special relationship between the federal government and native Hawaiians -- similar to relationships given other native Americans -- and is allowed by Congress.

Rice "was not not permitted to vote on the basis of race," said John Roberts Jr. "The petitioner was not permitted to vote ... because he is not a beneficiary of the trust."

Typically, the justices peppered both sides with skeptical questions during the hour-long hearing.

Justice Stephen Breyer, for example, asked Olson if he would object to not allowing teen-agers to vote for a new director of a local senior citizens center.

And Justice Ruth Bader Ginsburg pointed out the similarities between the histories of native Americans, who are granted special privileges by the government, and native Hawaiians.

"The analogy seems to me quite strong," she said.

Justice Anthony Kennedy, meanwhile, attacked the state's argument that race is not an issue. "You say this is not about race, but (about) a trust ... but of course it has to do with Hawaiian ethnicity," he told Roberts.

Associated Press
Harold "Freddy" Rice leaves the Supreme Court today after
listening to arguments in his suit challenging a state law
giving Hawaiians special voting privileges.

And Justice Sandra Day O'Connor agreed that states can make special rules dealing with special populations, but argued that those rules cannot violate the Constitution.

Justice Department lawyer Edwin S. Kneedler said the Hawaiian descendants are a "distinct people determined to maintain their culture."

Justice Antonin Scalia responded, "A lot of groups in this country are like that."

Both sides, meanwhile, agreed that overturning OHA's limits would likely lead to a flood of litigation alleging discrimination.

At issue is who can vote for trustees of OHA, which administers state funds and proceeds of public land to aid people descended from original Hawaiians. The office administers a $300 million trust that provides economic, social, health and education aid for an estimated 200,000 residents of Hawaiian blood.

The state constitution limits voting for the trustees to people descended from the original Hawaiians on the islands in 1778, date of the first known arrival by Europeans.

Rice has no Hawaiian blood, although his family has lived on the islands since the mid-1800s.

Among the Hawaii leaders watching today's proceeding were Sen. Daniel Akaka, Lt. Gov. Mazie Hirono, former Gov. John Waihee, Attorney General Earl Anzai and several OHA trustees.

Akaka said after the hearing that Rice's arguments would negate Hawaii's position that native Hawaiians have a unique political status and economic needs.

"Legislation that fulfills America's trust responsibility to native Hawaiians is not race-based discrimination," said Akaka in a statement. "I expect the court to affirm this interpretation.

"It is unfortunate that those who lack understanding of the history of native Hawaiians have confused this trust responsibility to Hawaiians with racial preferences."

The Rice case was one of the first heard by the Supreme Court this year.

The justices surprised many legal observers when they agreed to hear the case, which since has attracted an extraordinary amount of attention.

Eleven "friend-of-the-court" briefs were filed before today's arguments (three support Rice, the others support the state), and legal heavyweights, concerned about such issues as reverse discrimination and racial preferences, have weighed in from both sides.

Both Olson and Roberts are among the most experienced high court attorneys in the nation. Moreover, Kneedler also argued for the state before the Supreme Court.

Jon M. Van Dyke, a law professor at the University of Hawaii at Manoa, noted in a recent article that legal observers have called the case "the best-briefed case of the current term." The Supreme Court justices gave no indication when they will issue their ruling on the case, but decisions typically are not issued for months.

Hawaiians say
hearing went badly

By Pat Omandam


Advocates of an independent Hawaiian nation were stung by questioning today by U.S. Supreme Court justices in the Rice vs. Cayetano hearing.

OHA Chairwoman Rowena Akana said the hearing did not go well for those who support a Hawaiians-only election. She said most questions posed by justices focused on racism issues, and not whether Hawaiians have political status as a native people.

Akana said the justices took a narrow view, repeatedly asking about racism aspects of voting in elections for the Office of Hawaiian Affairs. For instance, Justice Sandra Day O'Connor asked what would happen to OHA and its $300 million trust fund if the elections were opened up to everyone in the community, Akana said.

The responses given by state and OHA lawyers were inadequate, she said. "Clearly, what it would do is destroy the trust because other people other than Hawaiians, again, will be controlling our trust assets," Akana said.

"For me it was a very, very sad event because I think the justices, at least some of them, appear to be very ignorant about who we were as a people and were looking very narrowly in this case as a 15th-amendment issue that everyone should be allowed to vote."

The amendment says a citizen's right to vote shall not be abridged "on account of race, color or previous condition of servitude."

Akana said Hawaiians, now more than ever, must band together to show the Supreme Court that they will not allow it to ignore their right to self-determination and to their culture and heritage as a native people.

"No matter what it takes, I think all of us now, whether we had differences of opinions in the past of what the process might be to move toward sovereignty, I think we just got to collect ourselves together.

"And perhaps the idea would be to separate ourselves from the state immediately and declare ourselves a nation."

Trustee Mililani Trask agreed. Trask, who has been in federal court arguing for native issues for more than 10 years, said today's hearing was rough for Hawaiians because justices focused on the voting issue.

Trask said the hearing was a "green light" that Hawaiians should move toward sovereignty quickly because that is the only way the Supreme Court will recognize Hawaiians. "The U.S. Supreme Court will not honor anything other than a native nation."

Gov. Ben Cayetano yesterday said he was prepared to live with whatever the court decides, but there are options left for the state to save the Hawaiians-only OHA elections.

"I think that if the court makes a decision that is adverse to us, there is an avenue that we can seek, and that's basically to go to the U.S. Congress and, for example, establish or pass a law that basically says that Hawaiians are native Americans."

Edward Blum, chairman of Campaign for a Colorblind America, said the group is appalled that African Americans and Hispanics in Hawaii are being turned away from the OHA voting polls because of their skin color. The goal of the nonprofit group is to challenge race-based public policies and educate the public about the injustices of racial preferences.

"We are very confident that the Supreme Court will overturn this racially discriminatory denial of the right to vote on many grounds, as it clearly violates the 14th and 15th amendments of the Constitution, as well as the federal Voting Rights Act," Blum said yesterday.

January '97 OHA Ceded Lands Ruling

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