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Wednesday, February 23, 2000

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OHA chairman
sees ‘silver lining’ in
landmark ruling

It could have turned out worse,
Hee says, while others praise
how more folks now will be
involved in OHA affairs

What happens with OHA trustees?

By Helen Altonn


Clayton Hee, chairman of the Office of Hawaiian Affairs, said today that he believes "many positives" have come out of the Supreme Court's decision striking down the Hawaiians-only vote for OHA leaders.

"Notwithstanding the change in electoral participation," he said, "the trust assets are not changed. The policies and programs established by OHA trustees remain intact.

"The programs that give preference to native Hawaiians such as Alu Like, the Kamehameha Schools admission policy, Queen Emmao Foundation, Queen Liliuokalani Childrens Center, Lunalilo Home, are not affected.

"So there is a silver lining, in my view, when one considers that the court could have chosen to take more latitude on the question of whether Hawaiians are entitled to certain privileges because of the trust obligation that the state of Hawaii and the United States of America have established by legislative action and congressional action to Hawaiians."

The court never reversed or commented on those questions, Hee noted, "and therefore the trust obligation to Hawaiians remains intact."

Hee said he thought even before the high court ruling that Harold "Freddy" Rice's question about who could vote for OHA trustees "was fundamental."

It is clear that the decision limited itself to the 15th amendment, he said.

Sen. Daniel Akaka said he was "disappointed but not surprised" by the ruling. He said it "does not negate the Office of Hawaiian Affairs or diminish the state's obligation to native Hawaiians.

"It does, however, require a reexamination of the approach established by Hawaii voters to address these longstanding issues," he said.

Akaka said the decision "underscores the importance of the reconciliation process under way between native Hawaiians and the federal government. It is imperative that we continue working on political status issues and self-determination."

A spokeswoman for U.S. Sen. Daniel Inouye said he wanted to study the decision before commenting on it.

Congresswoman Patsy Mink said the decision was anticipated. But, she said, "I concur with the dissenting opinions... that there was ample rationale to justify the restrictive voting scheme based on the special status and trust responsibility the State of Hawaii was required to assume upon Statehood.

"This special status has been recognized in numerous statutes enacted by Congress," Mink said.

National anti-racial preference organizations, many of which filed legal briefs with the Supreme Court supporting Rice's position, were elated by the decision.

"It's a good opinion," said Roger Clegg, general counsel for the Center for Equal Opportunity, a Washington-based think tank that opposes racial preferences.

"It continues the series of cases this Supreme Court has handed down in recent years that have rejected racial and ethnic classifications by governments," said Clegg.

The Rice decision, he added, "was particularly important because voting is the most fundamental and central right in a democracy. It is especially dangerous for governments to limit voting rights by skin color and ancestry," he said, adding that what Hawaii was doing was based on racial classification.

Washington attorney Shannen Coffin, who wrote a brief for the Campaign for a Color-Blind America, another Washington-based, anti-racial preference organization, hailed the decision as a big win for everyone.

"It's a reaffirmation of the principle of equal rights for all, regardless of whether they are a majority or a minority," he said.

Linda Lingle, Hawaii Republican Party chairwoman, said the decision can be used to Hawaii's advantage because it will focus public attention on decisions regarding Hawaiian claims.

Also, if all of Hawaii's voters have a chance to join in selecting OHA trustees, it will help, Lingle said.

"This will include all of us in the board and will get people to understand the needs of the Hawaiian people."

Arnold Lum, attorney with the Native Hawaiian Legal Corp., watched the oral arguments before the high court. He said the justices "were able to satisfy themselves that Hawaii's voting scheme did not pass constitutional muster under the voting rights amendment" without getting into the issue of whether racial classifications of the kind challenged violate equal protection.

"I think the damage, if any, is limited. The court did not disturb the statutory or constitutional authority under which OHA was created," he said.

Lum said, "It would not be difficult to simply fold into the upcoming election an election for a new (OHA) board of directors.

"It is going to be an interesting exercise in human relations because we have the general populace voting to elect people to act as fiduciaries for a limited population."

But that is already done for the state Board of Education, with everyone voting for the members, even if they have no children or they attend private schools, Lum said.

"Society does not crumble as a result."

Kekuni Blaisdell of the Kanaka Maoli Coalition said, however, the ruling "clearly indicates that the seven justices -- maybe all of them -- don't fully understand that we are kanaka maoli people, not "native Hawaiians.'"

He said that's a colonial or congressional term "and every time people use it they are promoting colonialism -- the domination and exploitation and subjugation of us kanaka maoli."

Kanaka, he said, means human being, a person; maoli means true, real or genuine, coming from the land.

"So that's who we are."

He said the Supreme Court decision is another step toward "taking away from us our right to self-determination in our homeland ..."

Attorney John Goemans, who represented Rice at the lower court in Hawaii, said "the victory will redefine the meaning of 'native Hawaiian' as a classification for public policies. Going forward, one's race will not be a factor in how the State of Hawaii treats their citizens."

But attorneys for the National Congress of American Indians, who filed a legal brief opposing Rice, were less than pleased.

"We're very disappointed,'' said John Echohawk, who co-wrote the brief. "We think the decision is wrong.''

Kim Gottschalk, who also worked on the brief, said the two dissenting judges "got it right" when they ruled that Hawaii was not using a racial classification in limiting votes but basing it on the legal rights of indigenous people.

"The 15th Amendment doesn't apply in this case,'' he said.

Former OHA chairwoman Rowena Akana said while it was hoped the ruling would be narrow, "It is not something to jump up and down about in our favor. It could have all kinds of ramifications."

Until a special election is held for trustees, she said, "The governor could seize the assets. He's been very vocal about taking our assets and holding them in trust."

She said Gov. Cayetano also has sought power to appoint trustees until there is a solution, which is "a scary thing. This governor, this administration has not been kind to Hawaiians."

Reporters Pete Pichaske, Christine Donnelly and Pat Omandan contributed to this story.

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What happens
with OHA trustees?

Five of the nine board members
were to be selected in a
special Nov. 7 election

By Pat Omandam and
Gregg K. Kakesako


There is no reason to believe today's U.S. Supreme Court decision nullifies the seats of the nine trustees of the Office of Hawaiian Affairs, an attorney involved in the Rice vs. Cayetano case said today.

While the justices, by a 7-2 vote, struck down the state's Hawaiians-only OHA election process, they did not cast doubt on any of the decisions or activities trustees have made so far, said University of Hawaii law professor Jon Van Dyke, who was a consultant to OHA on the case.

Rather, Van Dyke likened it to previous rulings on reapportioning state legislatures. Such rulings did not nullify the work of the previous legislatures, he said.

"So, I think it would be proper and responsible for the trustees to continue to sit and to work with the bodies to decide what direction to go on this," he said.

However, he said it is unclear whether all nine trustees will have to run for their seats this fall. It will be something the state administration and Legislature will need to address, he said.

Foremost for lawmakers now is determining the type of mechanism needed to retain OHA's composition of nine elected trustees.

Senate President Norman Mizuguchi (D, Aiea) said today he has asked the Senate Hawaiian Affairs Committee to hold statewide hearings, starting Saturday, to explain the ruling and to get input from both the Hawaiian community and the general public on what process they would like to see replace OHA elections.

He has invited House members to participate.

The good news, Mizuguchi said, is that the ruling came early in the legislative session. There are bills alive that can be amended to comply with the Supreme Court's ruling, he said.

Mizuguchi said he hopes to have some sort of amendment in place by March 3, the legislative deadline by which all bills must be ready to be sent to the opposite chamber for discussion.

He believes lawmakers can resolve this issue during the regular session.

Four of OHA's nine members were to be selected at a special OHA election on Nov. 7, in conjunction with the general election and open only to voters of Hawaiian ancestry.

House Majority Leader Ed Case (D, Manoa) said he does not know if today's ruling affects the five OHA trustees who were elected two years ago or whether the current makeup of the board has to be changed.

The options, Case said, include setting up an interim trustee selection process.

"Then, at least, we will have time to evaluate whether the U.S. Supreme Court ruling requires us to go any further in changing how OHA operates," he said.

Options available to the Legislature, he added, are:

(PI) Continue electing the nine trustees, but open up the election to every citizen who chooses to vote.

(PI) Give the governor authority to appoint the trustees in the same manner commissioners to the Hawaiian Homes Commission are selected.

State Rep. Michael Kahikina (D, Nanakuli), a Hawaiian lawmaker long involved in homestead issues, has introduced legislation this year that would transfer all OHA assets to the Department of Hawaiian Home Lands.

The Department of Hawaiian Home Lands, unlike OHA, was established by Congress.

"Congress has already created a special relationship through the Hawaiian Home Lands Act," said Kahikina, who has lived on Nanakuli homestead land.

Kahikina said lawmakers also have the option of giving OHA the authority to conduct its own election if it pays for the election and no longer draws any state funds. He believes Gov. Ben Cayetano may have the power, under today's ruling, to appoint interim trustees until the Legislature clears up the situation.

Cayetano said last week that he had asked the attorney general's office to prepare contingency plans in the event the state lost the case.

Meanwhile, Van Dyke said the ruling showed a lack of understanding of the role OHA has played in Hawaii. Justices also failed to recognize the important responsibility the state and federal governments have to promote Hawaiian self-determination and self-governance for its native people. International law requires countries to play that facilitative role, he said.

"The court seems narrowly blinded by its approach toward that issue, and failed to see the larger picture," Van Dyke said.

Office of Hawaiian Affairs
Bullet Feb. 23, 2000: The U.S. Supreme Court strikes down OHA elections.

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