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Wednesday, February 23, 2000

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Top court backs Rice in OHA vote challenge

Hawaii's law restricting
OHA trustee selection to
Hawaiians is struck down

Hee sees silver lining
Rice: Protecting Constitution

By Helen Altonn and
Christine Donnelly


The United States Supreme Court today struck down Hawaii's practice of letting only people with Hawaiian blood vote for Office of Hawaiian Affairs trustees.

The voting restriction allows unlawful racial discrimination, the justices ruled by a 7-2 vote.

"A state may not deny or abridge the right to vote on account of race, and this law does so," Justice Anthony M. Kennedy wrote for the court as it invalidated a Hawaii constitutional provision.

Harold "Freddy" Rice, a Big Island caucasian rancher, challenged the state's limits on who can vote for trustees of the Office of Hawaiian Affairs, which administers state funds and proceeds of public land to aid descendants of original Hawaiians.


These are points Harold "Freddy" Rice cited in his challenge:

He claims that allowing only Hawaiians to vote in Office of Hawaiian Affairs elections violates the 14th amendment of the U.S. Constitution, which provides equal protection for all citizens under the law, and the 15th amendment, which states:

"The right of the 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, color, or previous condition of servitude."


The Rice vs. Cayetano decision of the U.S. Supreme Court can be viewed online through the Legal Information Institute Web site. The Internet address is

"I'm very pleased that we've won," Rice said by telephone this morning from his ranch.

He said his lawsuit was "not about OHA --not at all. I was defending my rights to vote in any public election and I think it's a good thing for everybody in Hawaii.

"I think the whole case was a real education process, so much was written and talked about that people became aware of some things. I'd like to see this be the end of any racial preferences concerning public funds and facilities."

OHA Chairman Clayton Hee said, "My take on this is people like Freddy Rice, the court holds, should be allowed to participate in the election of Office of Hawaiian Affairs trustees."

Gov. Ben Cayetano, on a trip to Silicon Valley in California, said some time is needed to digest the Supreme Court decision, according to spokeswoman Kathleen Racuya-Markrich.

Cayetano planned to discuss the decision today with Attorney General Earl Anzai and look into implementing a contingency plan, she said.

Attorney John Roberts, with the Washington law firm Hogan & Hartson, who argued the state's case before the Supreme Court, said the decision "could have been a lot worse."

He said, "The good news is that the majority's opinion was very narrowly written and expressly did not call into question the Office of Hawaiian Affairs, the public trust for the benefit of Hawaiians and native Hawaiians, but only the particular voting mechanism by which the trustees are selected."

Since the opinion is limited to the voting aspect, he said it shouldn't encourage other challenges to Hawaiian benefit programs.

Star-Bulletin file photo
Harold "Freddy" Rice said he was very pleased by the decision today,
upholding his efforts to "vote in any public election."

The court said the state's argument for the voting restriction "rests on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters.

"There is no room under the (15th) Amendment for the concept that the right to vote in a particular election can be allocated based on race."

OHA, created in 1978, administers a $300 million trust that provides economic, social, health and education aid for about 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.

Hawaii was a kingdom until 1893, when the last queen was overthrown with U.S. help. In 1993, the Clinton administration acknowledged the action was illegal and apologized to Hawaiians for the U.S. involvement.

Hawaii was a U.S. territory until 1959, when it became the 50th state.

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

His lawyers argued that the voting restriction was racially discriminatory. He did not challenge the state's right to create a trust to benefit people with Hawaiian blood.

State officials, supported by the federal government, argued that the voting law was valid because Congress and the state have an obligation to native Hawaiians who lost their land, similar to the government's obligation to American Indians.

"When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations and their dismay may be shared by many members of the larger community," Kennedy said.

But he added that Hawaii's attempt "to address these realities" must keep in mind that the federal Constitution "has become the heritage of all citizens of Hawaii."

The court refused to treat Hawaii's practice as one similar to federal programs to aid Indian tribes.

Concurring with the opinion, delivered by Kennedy, were Justices William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia, David H. Souter, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented. Stevens said the decision "rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the state of Hawaii."

The decision is a rare one for modern times because it rests on the Constitution's 15th Amendment, a Civil War-era measure aimed at protecting the rights of former slaves.

The case is Rice vs. Cayetano, 98-818.

The Associated Press contributed to this report

Key dates in the case

Bullet 1978: The Office of Hawaiian Affairs is created to help improve the lives of Hawaiians, with state constitutional amendments stipulating that trustees be Hawaiians elected by Hawaiians. OHA is funded mainly by revenues from ceded lands -- 1.8 million acres taken by the U.S. government after annexation and later transferred to the state -- but also some taxpayer money.

Bullet 1980: The first biennial election of OHA trustees occurs. Hawaii's attorney general issues an opinion the same year that the "Hawaiians-only" voting rule is legal.

Bullet March 1996: Big Island rancher Harold "Freddy" Rice, who is white, applies for and is denied an OHA election ballot.

Bullet April 25, 1996: Rice files a lawsuit in U.S. District Court in Hawaii claiming his rejection violates the 14th and 15th amendments of the U.S. Constitution, which guarantee equal protection and voting rights regardless of race.

Bullet May 6, 1997: U.S. District Court Judge David Ezra rules against Rice, finding the voting restrictions valid because they are based "upon the unique status of native Hawaiians" and because Hawaiians are OHA's only direct beneficiaries. Rice later appeals to the 9th U.S. Circuit Court of Appeals.

Bullet June 22, 1998: The 9th Circuit upholds Ezra's ruling, finding OHA's voting restrictions are "not primarily racial, but legal and political" and "rooted in historical concern for the Hawaiian race." Rice later appeals to the U.S. Supreme Court.

Bullet March 22, 1999: The U.S. Supreme Court agrees to hear the case. Eleven "friend of the court" briefs are subsequently filed, eight supporting the state and three supporting Rice. Among those supporting OHA is the U.S. solicitor general -- commonly referred to as the "10th justice" -- representing the federal government.

Bullet Oct. 6, 1999: Supreme Court hearing. Rice's lawyer argues there is a clear violation of voting rights. State lawyers claim OHA's voting restrictions are allowed by Congress based on Hawaiians' special status with the federal government, similar to American Indians on the mainland who are allowed restricted tribal elections. Then-OHA Chairwoman Rowena Akana emerges from the hearing dismayed, saying the justices seemed to focus more on racism than on whether Hawaiians have special political status.

Bullet Feb. 23, 2000: The U.S. Supreme Court in a 7-2 vote strikes down the practice of allowing only native Hawaiians to vote in OHA elections.

Sources: Office of Hawaiian Affairs, U.S. Supreme Court, 9th U.S. Circuit Court of Appeals, Honolulu Star-Bulletin library.

Office of Hawaiian Affairs

January '97 OHA Ceded Lands Ruling

Rice vs. Cayetano

U.S. Public Law 103-150

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