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Native Hawaiian rights and entitlements have faced increasing court challenges over recent years, with a major turning point being reached with the February 2000 U.S. Supreme Court ruling in Rice v. Cayetano. That decision overturned the Hawaiian-only requirement for voting in trustee elections of the Office of Hawaiian Affairs (OHA), which manages trust assets for Native Hawaiians. Although narrowly tailored to address state voting practices, the Rice v. Cayetano decision nonetheless set the pivotal precedent of categorizing Native Hawaiians as a race rather than an indigenous people. Rice v. Cayetano has sparked other lawsuits targeting OHA, the Department of Hawaiian Homelands, and Kamehameha Schools, institutions established to serve the needs of Native Hawaiians. Opponents claim such policies constitute racial discrimination, while supporters say these programs are central to indigenous rights. Accompanying lawsuits include Carroll v. Nakatani (consolidates Barrett v. Cayetano), which was dismissed for lack of standing, Arakaki v. Lingle, which targets OHA, and DOE v. Kamehameha Schools, which challenges the Schools' admission policy that gives preference to Hawaiians. These lawsuits collectively challenge sovereign status for Hawaiians while placing into dispute the control of 1.8 million acres of ceded lands and 200,000 acres of Hawaiian Homelands. According to the Council for Native Hawaiian Advancement, the suits also jeopardize more than $147 million a year in federal funds and residual benefits to Native Hawaiians and non-Hawaiians. 1 1 Sing, Terrence, "Native Hawaiian issues will impact business," Pacific Business News, August 4, 2003. Viotti, Vicki, “Hawaiian court cases to be heard this week.” Honolulu Advertiser, October 31, 2004. http://the.honoluluadvertiser.com/article/2004/Oct/31/ln/ln20p.html/?print=on http://www.moolelo.com/hawaiian-court-cases.html Viotti, Vicki, “ ‘Living Nation’ events begin Friday at palace.” Honolulu Advertiser, January 12, 2004. (must purchase link at Honolulu Advertiser archives: http://nl.newsbank.com/nl-search/we/Archives) Dayton, Kevin, “Ruling suspends luxury project on the Big Island.” Honolulu Advertiser, Septmeber 10, 2003. http://the.honoluluadvertiser.com/article/2003/Sep/10/ln/ln01a.html Matsuoka, Alan, “The ceded lands ruling: the stage is set for resolution.” Honolulu Star-Bulletin, January 15, 1997. http://starbulletin.com/97/01/15/news/story2.htmlMatsuoka, Alan, “The ceded lands ruling: worst case?” Honolulu Star-Bulletin, January 14, 1997. http://starbulletin.com/97/01/14/news/story1.html Matsuoka, Alan, “The ceded lands ruling: will it break the bank?” Honolulu Star-Bulletin, January 13, 1997. http://starbulletin.com/97/01/13/news/story1.html On April 25, 1996, Big Island rancher Harold "Freddy" Rice filed suit in U.S. District Court in Hawai`i, challenging the Hawaiian-only voting policy for trustee elections to the Office of Hawaiian Affairs (OHA). OHA was established in 1978 by Hawai`i State Constitutional amendment to administer trust assets to benefit Native Hawaiians, and its elections are run by the Hawai`i state government. Rice, who is Caucasian and traces his family history in Hawai`i to the mid-1800s, filed his claim under the 14 th amendment of the U.S. Constitution, which provides for equal protection of all citizens under the law; and the 15th amendment, which prevents discrimination in state voting due to race, among other things. In May 1997, U.S. District Court Judge David Ezra upheld OHA's Hawaiian-only voting policy. Ezra based his ruling on the unique status of the Hawaiian people and on the fact that Hawaiians are OHA's only direct beneficiaries. His opinion was upheld by the U.S. Ninth Circuit Court of Appeals the following year. In March 1999, the U.S. Supreme Court agreed to hear the case, and oral arguments were held on October 6, 1999. Attorneys for Mr. Rice included Theodore Olson, the current U.S. Solicitor General under President Bush. On February 23, 2000, the U.S. Supreme Court ruled in a 7 to 2 decision that OHA's voting restriction was unconstitutional. Writing for the majority, Justice Anthony Kennedy stated that, "A state may not deny or abridge the right to vote on account of race, and this law does so."1 Justices William H. Rehnquist, Sandra Day O'Connor, Antonin Scalia, David H. Souter, Clarence Thomas and Stephen Breyer concurred in the opinion. Justices John Paul Stevens and Ruth Bader Ginsburg wrote dissents. On November 7, 2000, the state allowed non-Hawaiians to elect trustees to the Office of Hawaiian Affairs. Although the U.S. Supreme Court decision was narrowly tailored to state voting rights and did not address wider issues around Hawaiian rights, Rice v. Cayetano played a pivotal role in opening the door to significant legal challenges in that arena. U.S. Commission on Civil Rights: To investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices; to submit reports, findings, and recommendations to the President and Congress. “Reconciliation at a crossroads: the implications of the Apology Resolution and Rice v. Cayetano for Federal and State programs benefiting Native Hawaiians.” Hawaii Advisory Committee to the U.S. Commission on Civil Rights, Summary Report, 2001. http://www.usccr.gov/pubs/sac/hi0601/main.htm Donnelly, Christine, “Rice: It’s about protecting the Constitution, not ‘racist.’ ” “A look at the lawyers who argued the case.” Honolulu Star-Bulletin, February 23, 2000. http://starbulletin.com/2000/02/23/news/story3.html 1 Rice v. Cayetano, 528 U.S. 495 (2000). View
U.S. Supreme Court Ruling on Rice v. Cayetano ( U.S. Supreme Court Ruling ( February 23, 2000 ) Articles on Rice v. Cayetano Sodetani, Naomi, “Rice on Rice.” Hawaii Island Journal, August 2003. http://www.hawaiiislandjournal.com/stories/10b03b.html Iijima, Chris K., “New Rice recipes: The legitimization of continued overthrow.” Asian- Pacific Law and Policy Journal, Summer 2002. http://www.hawaii.edu/aplpj/pdfs/v3-17-Iijima.pdf Rees, Robert M., “Race Matters,” Honolulu Weekly, April 28, 1999. Altonn, Helen and Christine Donnelly, "Top court backs Rice in OHA vote challenge: Hawaii 's law restricting OHA trustee selection to Hawaiian is struck down," Honolulu Star-Bulletin, February 23, 2002. Pischaske, Pete, "Attorneys spar in OHA case," and "Hawaiians say hearing went badly," and Pat Ornandam, Honolulu Star-Bulletin, October 6, 1999. Carroll v. Nakatani (Barrett v. State of Hawai`i) On October 2, 2000, John Carroll, Republican candidate for the U.S. Senate, filed suit in U.S. District Court in Hawai`i claiming that state payments of ceded-land revenues to OHA and their restricted allocation to Native Hawaiian beneficiaries constituted racial discrimination and should be halted. The following day on October 3, 2000, Patrick Barrett filed a lawsuit in U.S. District Court in Hawai`i seeking to bar the state from operating OHA and the Hawaiian Homes program on the basis of racial discrimination. In addition, Barrett's lawsuit challenged state laws governing native gathering rights as ".an exercise of police power on private property without a compelling government purpose or compensation to landowners." 1 U.S. Chief District Judge David Ezra dismissed Barrett v. State of Hawai`i in 2001 and Carroll v. Nakatani in 2002 for lack of standing. The two lawsuits were subsequently consolidated and appealed as Carroll v. Nakatani to the U.S. Court of Appeals of the Ninth Circuit. On September 3, 2003, the Ninth Circuit affirmed Judge Ezra's ruling on the consolidated case of Carroll v. Nakatani. The Court's opinion noted that challenges to programs for Native Hawaiians under the state constitution also challenged the Hawai`i Statehood Admissions Act, which was enacted by Congress in 1959. 1 Omandam, Pat, "Moiliili man files suit against programs, funding for Hawaiians, Honolulu Star-Bulletin, October 4, 2000. View Ninth Circuit Court of Appeals Ruling
(September 1, 2003) ( Articles on Carroll v. Nakatani Viotti, Vicki, "Dismissal of Hawaiian-only challenges upheld," Honolulu Advertiser, September 3, 2003. Omandam, Pat, "Judge rejects suit against OHA," Honolulu Star-Bulletin, February 20, 2002. Omandam, Pat, "Ezra dismisses Carroll lawsuit against OHA," Honolulu Star-Bulletin, February 19, 2002. Omandam, Pat, "Barrett loses OHA lawsuit," Honolulu Star-Bulletin, July 13, 2001. Omandam, Pat, "Moilili man files suit against programs, funding for Hawaiians," Honolulu Star-Bulletin, October 4, 2000. Omandam, Pat, "GOP candidate challenges OHA spending," Honolulu Star-Bulletin, October 3, 2000. On July 25, 2000, attorney H. William Burgess, on behalf of 13 plaintiffs, filed suit in U.S. District Court in Hawai`i challenging OHA's requirement that trustees for elections be Hawaiian. The suit claims the restriction violates the equal protection clause of the Fourteenth amendment, the Fifteenth amendment, and the Voting Rights Act. In August 2000, U.S. District Judge Helen Gillmor issued a judgment that cleared the way for non-Hawaiians to run for OHA trustee. Plaintiff Kenneth Conklin, a non-Hawaiian, ran unsuccessfully for OHA office in November 2000. On December 31, 2002, the U.S. Ninth Circuit Court of Appeals upheld Gillmor's opinion in part but did not rule on the basis of the 14 th amendment, which would have created a precedent for challenges to entitlements. Arakaki v. Lingle (formerly Arakaki v. Cayetano) On March 4, 2002, attorneys H. William Burgess and Patrick W. Hanifin, on behalf of 16 plaintiffs, filed a lawsuit in U.S. District Court in Hawai`i challenging the constitutionality of OHA and the Hawaiian Homes Commission Act, claiming the agency and Act violate the equal protection clause of the 14 th Constitutional amendment and should be dismantled. On May 8, 2002, U.S. District Judge Susan Oki Mollway ruled that the plaintiffs have standing as taxpayers to challenge income tax payments by the state Legislature to OHA. In the wake of the September 2, 2003 opinion by the U.S. Ninth Circuit Court of Appeals in Carroll v. Nakatani, Judge Mollway decided to schedule oral arguments on reinstating the federal government as a party in the lawsuit on November 17, 2003, and a hearing on the motions on January 12, 2003. After hearing oral arguments on November 17, 2003, Judge Mollway issued an opinion on November 21, 2003 that removed the Department of Hawaiian Homelands, Hawaiian Homes Commission, State Homesteaders’ Association, the federal government and other intervening parties from the suit. On January 14, 2004, Judge Mollway dismissed the lawsuit against OHA, stating that the issue was a political question that should be decided by the U.S. Congress and not the courts. Attorneys for the plaintiffs plan to appeal the ruling to the Ninth Circuit Court of Appeals. Viotti, Vicki, “Federal judge dismisses lawsuit against OHA,” The Honolulu Advertiser, January 15, 2004. Barayuga, Debra, “Judge dismisses last OHA challenge, Honolulu Star-Bulletin, January 15, 2004. Viotti, Vicki, “OHA position on status of Hawaiians may be swaying judge, The Honolulu Advertiser, January 12, 2004 View U.S. Ninth Circuit Court of Appeals Ruling (December
31, 2002) Articles on Arakaki v. Lingle Editorial Opinion, Apoliona, Haunani, “Chairperson Apoliona's remarks on Arakaki suit dismissal.” Ka Wai Ola o Oha, January 15, 2005. http://www.oha.org/cat_content.asp?contentid=170&catid=1 Ferrar, Derek, “Arakaki suit dismissed.” Ka Wai Ola o Oha, January 15, 2004.http://www.oha.org/content.asp?contentid=171 Editorial Opinion, Klein, Robert, “Loss of OHA, Hawaiian Homes would devastate Hawaii.” Honolulu Star-Bulletin, October 31, 2004. http://starbulletin.com/2004/10/31/editorial/commentary2.htmlWaite, David, “Legal challenge can’t close OHA, DHHL judge says,” The Honolulu Advertiser, November 22, 2003. Viotti, Vicki, “Judge lends hope to Hawaiians,” The Honolulu Advertiser, November 18, 2003. Barayuga, Debra, “Judge in lawsuit challenging entitlements will likely drop all defendants except OHA,” Honolulu Star-Bulletin, November 18, 2003. Editorial Opinion. Arakaki, Earl, “Purpose of Arakaki case is to eliminate discrimination,” Honolulu Advertiser, September 28, 2003. Bernardo, Rosemarie, "Hawaiian program suit delayed again," Honolulu Star-Bulletin, September 9, 2003. Viotti, Vicki, "Hawaiian programs challenge delayed," Honolulu Advertiser, September 9, 2003. Viotti, Vicki, "Hawaiian programs may be left intact," Honolulu Advertiser, January 1, 2003. Omandam, Pat, "Court upholds taxpayer challenge to OHA," Honolulu Star-Bulletin, May 10, 2002. Omandam, Pat, "Suit alleges OHA discrimination," Honolulu Star-Bulletin, March 5, 2002. DOE v. Kamehameha Schools
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