SHAPIRO: Hawaii's race case

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By Ilya Shapiro

OP-ED:

While it may be good for the country that this Supreme Court term mainly involves technical statutory issues (at least they can't do more harm to the Constitution!), it's a bit of a let down for those of us who follow the machinations of One First Street. One such obscure case, however, merits watching for its ramifications on the constitutional principle that all citizens should be treated equally under the law. The central issue in Hawaii v. OHA - whether Hawaii can sell certain state lands without accommodating a racialist commission called the Office of Hawaiian Affairs (OHA) - is idiosyncratic, but the case threatens to set a terrible precedent for a state that has otherwise been a model of racial harmony.

In the 2000 case of Rice v. Cayetano, the Supreme Court held that a race-based scheme allowing only statutorily defined "Hawaiians" to vote for OHA's trustees was unconstitutional. Despite Rice, and despite Justice John Marshall Harlan's dissenting statement in Plessy v. Ferguson 112 years ago that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens," OHA continues to view Hawaiian citizens through racial lenses. This practice has spawned numerous lawsuits, including the present legal crisis in which the state's authority to manage its land for the good of all of its citizens has been replaced with a court-imposed duty to hold the land for the benefit of one racial class.

Specifically, after nearly 15 years of litigation, the Hawaii Supreme Court blocked the sale of 1.2 million acres of land (29 percent of the state's total area) based on a mistaken interpretation of a joint resolution that Congress passed in 1993 to apologize for the 1893 overthrow of the Kingdom of Hawaii. While the Apology Resolution was itself based on a slanted view of history - the propagation of which may yet lead to the creation of race-based state government (see the Akaka Bill, a subject for a different article) - the larger point is that the court rewrote the terms by which Hawaii became the 50th state.

But nothing in the Apology Resolution remotely supports the idea that somehow Congress impaired (retroactively!) the property rights in question; the Resolution does not address either Hawaii's sovereign powers or its title to state lands. Further, the Newlands Resolution of 1898 (the law annexing Hawaii to the United States), as well as the Admission Act of 1959 and subsequent federal legislation, foreclose the premise that "Native Hawaiians" may have valid claims that an injunction against land sales preserve.

That is, the United States obtained full sovereignty over the disputed lands when it annexed Hawaii, and the new state government assumed that sovereignty when Hawaii joined the Union. The Hawaii Supreme Court's decision, committed in the name of federal law, thus violates both state sovereignty and federal law! Moreover, the proposition that OHA gets a veto over the transfer of state lands merely because it purports to represent the interests of those who make race-based claims to those lands is an affront to the Equal Protection Clause of the Fourteenth Amendment.

Some argue that "Native Hawaiians" are a special class who, like Indian tribes, are allowed special treatment based on racial classification. But Hawaiians are not American Indians in the constitutional sense. The term "Indian tribes" has a fixed meaning, limited to "dependent nations" at the time of the Founding. Such tribes must have an independent existence and "community" apart from the rest of American society, and a separate government structure for at least the past century.

Hawaii, by contrast, is the most integrated and blended society in America. Only ten percent of "Native Hawaiians" have at least fifty percent Hawaiian blood - and only two of the nine OHA trustees have Hawaiian surnames. No, Indian law is a unique compromise with pre-constitutional realities - one based on political rather than racial classifications - that is inapplicable to Hawaii.

In short, the Apology Resolution neither amended nor rescinded the federal laws that gave Hawaii full control over the disputed lands. But even if it did, race-based claims to those lands should be dismissed as unconstitutional.

The Supreme Court announced in Rice the unwavering principle that "[t]he Constitution of the United States ... has become the heritage of all the citizens of Hawaii." Let's hope that it builds on that sentiment in Hawaii v. OHA. Hawaii should be allowed to transfer state lands for the benefit of all its citizens - thus eroding racial divisions and treating all Hawaiians with the legal equality to which they are entitled.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Cato recently joined the Pacific Legal Foundation and the Center for Equal Opportunity to file an amicus brief in Hawaii v. OHA, which is scheduled to be argued at the Supreme Court on Feb. 25.