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OHA restraints aid
autonomy, state says

The state is appealing an order
to open OHA elections to all races

By Pat Omandam

The state should be allowed to restrict Office of Hawaiian Affairs elections to Hawaiian candidates so it can restore some sense of self-governance to Hawaiians, state attorneys said.

It was among the arguments state Deputy Attorney General Girard Lau used yesterday in the state's appeal of a September 2000 decision by U.S. District Judge Helen Gillmor that opened OHA elections to candidates of any ethnicity.

The ruling followed the Feb. 23, 2000, landmark decision by the U.S. Supreme Court in the appeal of Rice vs. Cayetano, which struck down the Hawaiian-only voting restrictions for OHA elections.

A three-judge panel from the 9th U.S. Circuit Court of Appeals heard brief oral arguments on the case in Honolulu yesterday. It was among more than two dozen local court decisions under review this week by appeals judges J. Clifford Wallace, A. Wallace Tashima and Richard Tallman.

The judges seemed to seek information from both sides on how they should apply the equal rights and voting rights amendments of the U.S. Constitution, as well as the Voting Rights Act of 1965, to the case.

Wallace told Lau that while native Hawaiians receive some of the same federal benefits as native Americans, they are not recognized by Congress as indigenous tribes. He suggested case laws that may protect tribal elections may not apply to OHA elections.

Tallman said an issue is whether these federal benefits have triggered formal recognition of native Hawaiians as native Americans. Tallman said federal recognition of indigenous people is usually done through the U.S. Department of the Interior, a process Hawaiians have not undertaken.

"I don't think there's any question that Congress has the power," Tallman said. "I think the question is whether Congress has done it."

Tashima said OHA is a state-created agency and is not entitled to equal standing as the U.S. Department of the Interior.

The judges also questioned the definition of Hawaiian ancestry, saying anyone would could trace their ancestors back to the 1700s in Hawaii could claim to be Hawaiian.

"That's a very different situation from any other tribe that you can point to us, don't you think?" Tallman said.

Lau countered that Congress has granted recognition to native Hawaiians, not based on their race, but on their political status as the indigenous people of Hawaii. He said unless this recognition was extended arbitrarily, the courts should not be allowed to change this.

Plaintiff attorney Patrick Hanifin asked the panel to affirm Gillmor's decision and continue to allow people of any race to run for OHA.

Hanifin said the state's position on the appeal is inconsistent with Gov. Ben Cayetano's appointment of a non-Hawaiian trustee to the nine-member board in late September 2000, after all nine sitting trustees resigned to avoid legal action by the state to remove them.

Cayetano correctly read Gillmor's decision, Hanifin said. Moreover, he said, the non-Hawaiian trustee, Charles Ota, has since won election as a trustee.

Hanifin said the state is extremely reluctant to acknowledge the impact the Rice decision has had. That decision showed that native Hawaiians are a racial classification, that OHA is a state agency and that laws that apply to Indian tribes do not necessarily apply to Hawaiians, he said.

Tashima said the court will issue a decision later.

OHA Special

Rice vs. Cayetano arguments

Rice vs. Cayetano decision

Holo I Mua: Sovereignty Roundtable

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