Posted by Uncle Charlie on May 07, 1999 at 04:36:35:
Rice case in Supreme Court will impact Hawaii, nation
The Maui News
May 6, 1999
By HARRY EAGAR
Staff Writer
KAHULUI -- When Hawaii residents argue Office of Hawaiian Affairs voting
before the U.S. Supreme Court later this year, people in other states will
be watching closely, because the case of Rice vs. Cayetano could have
``monumental consequences'' beyond the islands.
Even in Hawaii, according to University of Hawaii law professor Jon Van
Dyke, the implications go beyond OHA to the continued existence of the
Hawaiian Homes Commission and even of Bishop Estate and Kamehameha Schools.
Van Dyke, familiar on Maui because of his representation of the Maui
Planning Commission in the North Beach (Kekaa) applications and other
cases, is part of a passel of lawyers arguing against Big Island rancher
Harold ``Freddy'' Rice.
Rice argues that under the 14th and 15th Amendments to the U.S.
Constitution, no one can be denied the right to vote because of ethnic
background.
OHA commissioners are elected by a vote restricted to Native Hawaiians of
at least 50 percent Hawaiian ancestry.
Council Member J. Kalani English, who attended Van Dyke's address Wednesday
to the Young Lawyers and the Maui County Bar Association, asked why this
voting case would affect private trusts (like Bishop Estate). Bishop Estate,
he noted, was established in the 1870s, a generation before the U.S.
Constitution was imposed in the islands.
The national government is already interfering ``aggressively'' in Bishop
Estate affairs, said Van Dyke. For example, the Internal Revenue Service
may revoke the estate's tax-exempt status unless the trustees abdicate.
So far, Rice has lost his argument to U.S. District Judge David Ezra in
Honolulu and to the 9th Circuit Court of Appeals. But Van Dyke says the
outcome before the Supreme Court is in doubt.
He believes conservatives have seized the Rice case ``to promote a
color-blind America.'' That is, the Rice case, to Mainlanders at least, is
another version of the anti-affirmative action position.
The anti-Rice group expects many amicus (friendly support) briefs from
Native Americans and affirmative action advocates to be submitted to the
Supreme Court.
At least four justices signed a writ of certiorari, meaning they judged the
case fit to bring to the highest bench. Three of the signers were Chief
Justice William Rehnquist and associate justices Antonin Scalia and
Clarence Thomas.
(According to Van Dyke; the names in certiorari actions are not revealed.)
He does not expect those three to be friendly to affirmative action or
legally sanctioned exception arguments.
``It's hard to know the outcome,'' he told about 100 people marking Law
Week at a luncheon at the Maui Beach Hotel.
The OHA lawyers, who represent a number of interests and legal
philosophical viewpoints, have a simple theory of the case: ``It's up to
Congress.''
The thread of the argument goes like this: In the Constitution, ``Indians''
were originally not allowed to be U.S. citizens and were treated as
``nations.''
Under this notion, the commerce clause (Article 1) applies to relations
between the United States and ``Indian'' nations, because Article 1 gives
Congress the power to regulate relations with foreign states.
However, Rice and his lawyers have argued that Native Hawaiians are not
``Indians'' as meant in the Constitution.
(Even the definition of Native Hawaiian is a matter of opinion. For
purposes of his analysis, Van Dyke said, anyone claiming an ancestor who
was in the islands before James Cook, in 1778, is a Hawaiian.
``Ultimately,'' he said, Hawaiians will have to decide who qualifies.)
Van Dyke has many arguments to show that Native Hawaiians should be classed
among ``Indians,'' even if no formal treaty ever established Hawaiians the
way the Washington government established itself in relation to the Navajo
or Iroquois.
First, the term Indian in the 1789 document was general. The terms ``Native
American'' or ``indigene'' were not thought of. Thus, said Van Dyke, it
should be interpreted to include any aboriginal inhabitants.
Second, the commerce clause has been used to establish relations with
Inuits in Alaska, who are not Indians.
Third, a number of congressional actions, including the 1921 Hawaiian Homes
Commission Act and the 1993 apology for the 1893 overthrow of the monarchy,
indicate that Congress has treated Native Hawaiians as ``a separate
dependent nation,'' to use the words of 19th century Chief Justice John
Marshall.
More generally, the pro-OHA argument depends on a notion of doing justice
that asserts that Native Hawaiians ``have been mistreated'' by the national
government, which is obligated to make amends.
Van Dyke bases this on the apology's call for ``reconciliation.'' The word
may sound wishy-washy, he said, but it must mean something. That something
implies the transfer of land, authority and responsibility into the hands
of Native Hawaiians.
That further implies, going back to a state court decision, that the State
of Hawaii has a compelling interest in having Native Hawaiian input on any
proposed changes.
OHA was set up in the second State Constitution to provide that input.
Therefore, the argument goes, it is proper to limit voting to Hawaiians.