- The Washington Times - Thursday, February 24, 2000

Hawaii set up unconstitutional racial barriers when it allowed only "native Hawaiians" to elect managers of a public fortune that aids descendants of the kingdom, the Supreme Court ruled yesterday.
The court acknowledged a noble purpose in preserving a heritage "all but engulfed by a history beyond their control," but it said it must start with this principle: "The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii."
"A state may not deny or abridge the right to vote on account of race, and this law does so," said the 7-2 opinion authored by Justice Anthony M. Kennedy.
It rejected arguments that the state election law respected ancestry, "fiduciary" responsibility and tribelike divisions but not "race," which the 15th Amendment forbids.
"Ancestry can be a proxy for race. It is that proxy here," said the opinion joined by Chief Justice William H. Rehnquist with Justices Sandra Day O'Connor, Antonin Scalia, David H. Souter, Clarence Thomas and Stephen G. Breyer.
Justices John Paul Stevens and Ruth Bader Ginsburg dissented, saying the majority invoked "glittering generalities" to give the white man who brought the case as well as Asians, blacks, and other island residents the benefit of a post-Civil War provision meant to ensure that freed male slaves could vote.
They said case law "recalls an age of abject discrimination against an insular minority in the old South" at the expense of "the special claim to self-determination of the indigenous peoples of Hawaii."
The justices bought the keynote argument of Theodore B. Olson, the Washington attorney who represented cattle rancher Harold F. Rice, a lifelong Hawaii resident whose relatives lived in the islands since 1831.
In 1996, Mr. Rice was turned away when he applied to vote for officials of the Office of Hawaiian Affairs. The OHA was created in 1978 to manage 200,000 acres of public lands ceded to native Hawaiians, administer a trust fund that has grown to $300 million and improve conditions for Hawaiians of native ancestry.
"This is a case of ballot-box racial discrimination, plain and simple," Mr. Olson said at the Oct. 6 hearing on the restriction. "Because he has the wrong ancestry, he is no longer Hawaiian and he may not vote."
"That is the theme I wanted the court to focus on," Mr. Olson said yesterday.
He speculated that the ruling could precipitate an attack on limiting OHA benefits to one race, a topic the court did not address.
One OHA program is restricted to persons with at least 50 percent of their ancestry traceable to residents living in Hawaii before white explorers arrived from Europe in 1778; the other program, and the voting restriction, require that a person have at least a slight percentage of ancestry from Hawaii residents before 1778.
"Many people will feel there should be a dismantling of any program by any state that discriminates on the basis of race," Mr. Olson said. "They now have to decide if they are going to continue doing something the Supreme Court has said is based strictly on race."
He said Mr. Rice is "just tickled to death" at his victory but plans only to vote and has no intention to pursue larger goals.
Hawaii Gov. Benjamin J. Cayetano was represented by John G. Roberts Jr., also of Washington, who believes the court opinion wouldn't justify action against programs favoring one racial group.
"The court recognized that was a difficult area and declined to sweep more broadly," said Mr. Roberts, who said indigenous Hawaiians are entitled to some benefits.
"The question of whether these are considered racial groups outside the voting context was not decided by the court," said Mr. Roberts, who doubted public sentiment would favor such action. "From the point of view of the state laws and the interests of the native communities, it could have been a lot worse."
Yesterday's decision traced Hawaii's history from settlement by Polynesian boat people around 750 A.D., until British Capt. James Cook arrived in 1778 to find an advanced culture of 200,000 to 300,000 people, through various Kamehameha regimes until 1878, when the native population was reduced by illness to about 47,500.
The last kingdom was overthrown in 1893, and five years later the islands were annexed by the United States. Hawaii became a state in 1959, and now some 200,000 people swear they are eligible descendants.
Yesterday's decision overturned a unanimous opinion by the 9th U.S. Circuit Court of Appeals, which accepted state contentions the rule was not a "racial category" but an ancestry classification open to all regardless of race.
The state also argued that its voting restrictions reasonably linked those who would manage the trust to its beneficiaries, who must be "native Hawaiians."
Attorneys for the state contended that the statutes therefore did not violate the 15th Amendment, ratified in 1870 as the last of three Civil War amendments.
The amendment says: "The right of citizens of the United States 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."

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