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Thursday, February 24, 2000

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Rice’s win will
mean more suits

Attorney Goemans says he'll
use the Supreme Court ruling to
attack native Hawaiian benefits

In Waianae, OHA ruling unpopular
Trustees may fight on interim board
Reappointing trustees a 'mockery' - Cayetano

By Christine Donnelly


The lawyer who spearheaded the case against Hawaiians-only elections says he'll use the Supreme Court win to mount broader attacks against other Hawaiian benefits.

"What the Supreme Court has done with this ruling, narrow as it may seem, is say (that) native Hawaiian is a racial characterization ... and that means that all government programs, state and federal, for native Hawaiians are race-based, presumptively unconstitutional and up for challenge," said lawyer John W. Goemans, who got Caucasian Big Island rancher Harold "Freddy" Rice to be the plaintiff in the lawsuit disputing the Office of Hawaiian Affair's right to bar non-Hawaiians from voting in OHA elections.

Now that the Supreme Court has found that practice illegal, Goemans said he and other lawyers will "undoubtedly" challenge other Hawaiian benefits.

But a deputy state attorney general, the chairman of the Office of Hawaiian Affairs and several Hawaiian activists all disputed Goemans' take on the impact of yesterday's ruling, saying the high court purposely restricted its decision to voting rights to avoid affecting Hawaiian programs.

"We would strongly disagree ... that any other programs giving preference to Hawaiians are ripe for attack," said Girard Lau, deputy attorney general and the state's lawyer of record in the case.

"No question we wish we would have won because that would have upheld (OHA's) elections and foreclosed future challenges," but the loss "was so narrow we don't think it gives him ammunition."

OHA Chairman Clayton Hee and Hawaiian nationalist Haunani-Kay Trask, a Hawaiian Studies professor at the University of Hawaii, agreed with Lau. They also said they were not surprised by Goemans' strategy and that it should be a wake-up call for Hawaiians to move quickly toward sovereignty.

"I think he's emboldened because he won this case," Trask said, adding that Hawaiians faced a "full-court press" by anti-affirmative action groups. "We knew if he won he would go after more. They don't want Hawaiians to get anything."

Trask said the solution was to push the U.S. Congress to give Hawaiians the same special status as Native Americans on the mainland, including self-rule that would preclude such legal challenges. "And that's going to be hard to get because ... the country has moved to the right, including the Congress and the Supreme Court."

Goemans countered that Hawaiians do not deserve sovereignty and should be held to the U.S. Constitution like any other residents of the state.

He does not yet have a new plaintiff, but said potential cases could include fighting anything from Hawaiian homesteading rights to housing grants to native gathering rights to health and education programs. Rice said he would not be a party to future suits because he was concerned only about protecting everyone's right to vote.

Goemans has been in Washington the past two years assisting the firm of Gibson, Dunn & Crutcher, which took charge of the case once it was accepted for hearing by the Supreme Court.

Theodore B. Olson, who made the winning argument before the high court, has previously said he expected future litigation if Rice won. Goemans said he would meet with Olson and other lawyers from the firm next week to strategize. "I would want to defer any specific comment to Ted, who is the lead attorney of the group, but I can say in general that we are planning to go ahead," said Goemans.

Olson did not return a phone call from the Star-Bulletin yesterday. But The New York Times today quoted him as saying Hawaii has many programs "that have now been characterized by a 7-2 decision of the Supreme Court as classifications based on race. If I were a legislator, I'd be thinking about whether they can be justified under strict scrutiny," the difficult-to-meet constitutional standard necessary to justify official racial distinctions under the 14th Amendment.

Court ruled on voting only

Big Island rancher Harold "Freddy" Rice cited two amendments of the U.S. Constitution in his claim that barring non-Hawaiians from Office of Hawaiian Affairs' elections was discriminatory.

Rice, who is Caucasian, cited the 14th amendment, which provides for equal protection under the law, and the 15th amendment, which states that the right 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 Supreme Court's majority ruling was based solely on the 15th amendment, meaning its immediate effects do not extend beyond voting. By not considering the case under the 14th amendment, the justices avoided much broader impacts, which could have required equal access to any government program.

But Rice's win, no matter how narrow, may spur additional challenges to Hawaii programs. It will be up to future courts to decide whether new claims are valid.


In Waianae, OHA ruling
unpopular with residents

By Harold Morse


At the Waianae Mall, near Hawaiian Homestead lands, the majority sentiment yesterday was clear: Hawaiians only should vote for trustees of the Office of Hawaiian Affairs.

"It's not fair," Robert Mossman said of the U.S. Supreme Court ruling throwing open the election to all Hawaii voters.

"Why should you vote in the Hawaiian affair when it doesn't concern you?" asked Mossman, 62, a retired firefighter and OHA voter. "It's maybe one of the privileges that Hawaiians have. They should keep it like that."

He said throwing open the election to all voters, no matter their ethnicity, is "going to be just like the presidency and Legislature and all that. It's not going to be any different. It's a toss-up for everybody."

Rae Tamarra, 42, of Nanakuli, a bartender and also a voter in OHA elections, agreed.

"I don't think it's fair that everybody gets the vote. It's very important that we can keep the vote."

Otherwise, Tamarra said, the election will involve "a lot of people who really don't care about what happens to Hawaiians." Rahna Moniz, 50, of Makaha, an outreach counselor, also criticized the high court's ruling. "The Hawaiians will lose everything. ... A few gotta stand up for something," she declared. "Now, if you're looking for support on the opposite side, you're not in the right place. This is Waianae -- all the Hawaiians (are) out here."

The younger generation interviewed didn't know much about the controversy, but also felt the OHA vote should be limited to Hawaiians only.

"Pretty much, yeah," said salesperson Kalena Chung, 17, of Waianae. "Yeah," said student Tom Jason, 14, of Makaha, who confessed he didn't know details or relevant background.

Thomas Data Jr., 29, a Waianae Star-Bulletin deliverer, said that because all the land once belonged to Hawaiians, "they should be giving back to the Hawaiians."

But even in Waianae, not everyone disagreed with the Supreme Court decision.

"Everybody should vote," said Dwight Borje, 51, a Nanakuli truck driver.

Merrian Bolt, 56, of Maili was ambivalent: "I guess it's all right," she said. "I don't even vote. (But) I think everyone should" have the opportunity, she said.

Misty Wilderman, 25, self-employed, of Waianae, said,"I think everybody should be able to vote. I think it's kind of real important because we all live here in Hawaii."

Bullet U.S. Public Law 103-150

Bullet OHA Ceded Lands Ruling

Bullet Rice vs. Cayetano

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.

Office of Hawaiian Affairs

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