Sherry Broder


Still Reeling From Rice vs. Cayetano

Thursday, February 22, 2001

One year after the landmark ruling, the battle still rages over race-based laws

IT forced the resignation of an elected board, spawned local and national protests, and created a new Hawaii political party.

It prompted the state Legislature and Hawaii's Congressional delegation to seek political solutions to protect Hawaiian programs and entitlements after the country's highest court did not.

And it all happened during the past year.

The landmark U.S. Supreme Court ruling on the Rice vs. Cayetano lawsuit is a year old tomorrow and continues to affect the 200,000-plus people who are of Hawaiian ancestry and the agencies which serve them. The justices, in their Feb. 23, 2000, decision, invalidated the state's racial restrictions in Office of Hawaiian Affairs elections because the Hawaiians-only rule violated the 15th Amendment of the U.S. Constitution.

Minutes after the opinion was released in Washington, D.C., word of the controversial decision swept through the islands like a fast-moving tropical storm, rattling the foundations upon which the state created programs to help the islands' native people.

It happened just as U.S. policy toward Hawaiians began making a slow, but dramatic, shift toward correcting the injustices inflicted upon the Hawaiian kingdom, OHA Chairwoman Haunani Apoliona said. Since 1993, there's been a groundswell of support by those in the Hawaiian community and the public at large who believe in justice for indigenous people, she said.

Now, it seems the Rice decision has begun unraveling institutions and programs through litigation, Apoliona said.

"It appears that legal and political elements are at work to redirect statutorily assured resources away from Hawaiian self-determination," she said.

"The institutions under fire must understand the areas of vulnerability, (and) plan and implement strategic actions for maximum success ... for the beneficiaries," Apoliona said.

OHA elections open to all

The Rice decision forced the resignation last September of all nine-members of the OHA board -- the last group of Hawaiians elected entirely by Hawaiians. Faced with legal action that would have removed them from office, the board acquiesced to Gov. Ben Cayetano's request to step down before last November's OHA elections.

The OHA elections were opened to all voters and, in subsequent court rulings, all candidates of any ethnicity.

Hawaii voters welcomed the unfamiliar OHA ballot, and sent a strong message to Hawaiian leaders by electing Maui resident Charles Ota as the first non-Hawaiian trustee in the 20-year history of the agency.

And there's more stormy weather brewing. There are now challenges to the constitutionality of the state law that created OHA, the state Hawaiian Homes Commission and native gathering rights. A hearing on plaintiff Patrick Barrett's federal court motion to stop these programs was postponed to May from March.

Some have dubbed the case as "Rice II."

OHA board attorney Sherry Broder said the Barrett case, which was combined with another case questioning ceded land payments to OHA, examines whether native Hawaiian people have a political status similar to other native people -- something the U.S. high court did not address in the Rice decision.

"These cases really attack the fabric of the society and the history of Hawaii," Broder said.

"These are all pearls on the same string."

Nevertheless, there are non-Hawaiian and Hawaiian residents who have quietly supported last year's high court ruling, which stemmed from the 1996 case involving Big Island rancher Harold "Freddy" Rice.

They view the Rice decision as a catalyst for the inevitable: constitutional scrutiny of Hawaii's race-based legislation.

Ewa Beach resident Earl Arakaki has read many books on sovereignty written from both perspectives. He said people today have no control over what occurred a 100 years ago, and those who did are long gone.

If not constitutionally challenged, Arakaki said, Hawaii's race-based laws will continue to allow some people to capitalize on the hard work of those who will not benefit from racial entitlements.

Government must see to equal rights for all, and special rights for none, he said.

"Personally, the Rice decision taught me that the best way to control racism is by avoiding race-based laws," said Arakaki, who was among those who successfully sued the state to open up the OHA elections to all candidates following the Rice decision.

One couple at the forefront of the tempestuous issue is retired attorney Bill Burgess and his wife, Sandra. Burgess said the ruling has a dramatic effect on the state because it said state government can no longer view those of Hawaiian ancestry any differently from the way it views other citizens.

He said he believes the Rice decision will help remove resentment by those who fear the sovereignty movement will lead to secession or inter-racial strife. And it will liberate Hawaiians from the stigma assigned to race-based programs, he said.

Sinking ship

Meanwhile, among the first to enter the fray as a non-Hawaiian OHA candidate was Kenneth Conklin, who describes the Rice decision as being "like the Titanic hitting the iceberg."

"The vast ship of racial entitlements was doomed, but continued forward for a while even as it began taking on water and listing to starboard ... Those who abandoned ship early were more likely to survive; but sadly, many clung fast to the railings or locked themselves in their rooms and went down with the ship," said the retired Boston public-school teacher.

Attorney Patrick W. Hanafin, who worked with Burgess on the federal case that opened the OHA elections to all candidates, believes OHA will fall in a few years and be replaced by programs that also help the needy but are open to everyone who needs it.

And he said he believes the Hawaiian culture will continue to thrive and be enjoyed by all.

"People of all ancestries will appreciate Hawaiian culture more when it is no longer claimed by groups that exclude their fellow citizens from equal rights," Hanafin said.

Some Hawaiian cultural leaders, however, said they'll personally take their case to Washington, D.C., if they need to. Kumu hula Vicky Holt Takamine said the Hawaiian people are what make these islands unique, and if government laws do not protect them and their native rights, then they'll persuade others to change those laws.

"People make the laws, and people have hearts," Takamine said.

"And if we can touch their hearts, then they can change the law."

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