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Court and Tribunal Decisions – United States of America
United States Supreme Court
(Rehnquist CJ, Kennedy, O’Connor, Scalia, Thomas, Breyer, Souter, Stevens JJ, Ginsberg J dissenting)
23 February 2000
No 98—818
Constitutional law — Native Hawaiian rights — nullified as unconstitutional state voting scheme which restricted voting rights to persons of ‘Hawaiian’ ancestry in statewide elections for governing board of state agency whose purpose is to advance interests of Native Hawaiians.
Harold Rice filed an application with the State of Hawaii to vote in a state-wide election for the governing board of a state agency, the Office of Hawaiian Affairs (OHA), an agency established to advance the interests of people of Hawaiian ancestry. The state rejected his application since Rice is not Hawaiian under the law. Under the Hawaiian Constitution and state statutes, ‘Hawaiians’, including ‘Native Hawaiians’, refers to descendants of aboriginal peoples residing and exercising sovereignty in the Hawaiian Islands in 1778 and who have thereafter continued to reside in Hawaii. Rice challenged the voting restrictions as violating the 14th and 15th Amendments to the US Constitution. The 14th Amendment states in relevant part, ‘nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’. The 15th Amendment states, ‘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.’
The lower federal district and appeals courts upheld the State’s voting scheme, albeit on different grounds. Rice then appealed to the United States Supreme Court. The two major opinions are those of Justice Anthony Kennedy, for the Court’s majority, and Justice John Paul Stevens, in dissent. Extracts of these opinions are reproduced here.[1]
1. The United States Supreme Court reversed the lower courts and held that the State’s voting scheme violated the 15th Amendment’s prohibition against race-based voting qualifications.
2. The Court rejected the State’s attempt to analogize the legal status of Native Hawaiians to that of Indian tribes in the continental US. Indian tribes, the Court noted, enjoy a unique position within American constitutional law which warrants exceptional legal treatment by Congress. But even accepting that Congress could lawfully treat Native Hawaiians as tribes, the Court found that 15th Amendment prohibited Congress from authorizing a state to create this type of voting scheme.
A citizen of Hawaii comes before us claiming that an explicit, race-based voting qualification has barred him from voting in a state-wide election. The 15th Amendment to the Constitution of the United States, binding on the National Government, the States, and their political subdivisions, controls the case.
The Hawaiian Constitution limits the right to vote for nine trustees chosen in a state-wide election. The trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs, or OHA.[2] The agency administers programs designed for the benefit of two subclasses of the Hawaiian citizenry. The smaller class comprises those designated as ‘native Hawaiians’, defined by statute, with certain supplementary language later set out in full, as descendants of not less than one-half part of the races inhabiting the Hawaiian Islands prior to 1778.[3] The second, larger class of persons benefited by OHA programs is ‘Hawaiians’, defined to be, with refinements contained in the statute we later quote, those persons who are descendants of people inhabiting the Hawaiian Islands in 1778.[4] The right to vote for trustees is limited to ‘Hawaiians’, the second, larger class of persons, which of course includes the smaller class of ‘native Hawaiians’.[5]
Petitioner Rice, a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term, does not have the requisite ancestry even for the larger class. He is not, then, a ‘Hawaiian’ in terms of the statute; so he may not vote in the trustee election. The issue presented by this case is whether Rice may be so barred. Rejecting the State’s arguments that the classification in question is not racial or that, if it is, it is nevertheless valid for other reasons, we hold Hawaii’s denial of petitioner’s right to vote to be a clear violation of the 15th Amendment.
When Congress and the State of Hawaii enacted the laws we are about to discuss and review, they made their own assessments of the events, which intertwine Hawaii’s history with the history of America itself. We will begin with a very brief account of that historical background. Historians and other scholars who write of Hawaii will have a different purpose and more latitude than do we. They may draw judgments either more laudatory or more harsh than the ones to which we refer. Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue. The litigants seem to agree that two works in particular are appropriate for our consideration, and we rely in part on those sources.[6] The origins of the first Hawaiian people and the date they reached the islands are not established with certainty, but the usual assumption is that they were Polynesians who voyaged from Tahiti and began to settle the islands around AD 750.[7] When England’s Captain Cook made landfall in Hawaii on his expedition in 1778, the Hawaiian people had developed, over the preceding 1000 years or so, a cultural and political structure of their own. They had well-established traditions and customs and practiced a polytheistic religion. Agriculture and fishing sustained the people, and, though population estimates vary, some modern historians conclude that the population in 1778 was about 200,000-300,000.[8] The accounts of Hawaiian life often remark upon the people’s capacity to find beauty and pleasure in their island existence, but life was not altogether idyllic. In Cook’s time the islands were ruled by four different kings, and intra-Hawaiian wars could inflict great loss and suffering. Kings or principal chieftains, as well as high priests, could order the death or sacrifice of any subject. The society was one, however, with its own identity, its own cohesive forces, its own history.
In the years after Cook’s voyage many expeditions would follow. A few members of the ships’ companies remained on the islands, some as authorized advisors, others as deserters. Their intermarriage with the inhabitants of Hawaii was not infrequent.
In 1810, the islands were united as one kingdom under the leadership of an admired figure in Hawaiian history, Kamehameha I. It is difficult to say how many settlers from Europe and America were in Hawaii when the King consolidated his power. One historian estimates there were no more than 60 or so settlers at that time.[9] An influx was soon to follow. Beginning about 1820, missionaries arrived, of whom Congregationalists from New England were dominant in the early years. They sought to teach Hawaiians to abandon religious beliefs and customs that were contrary to Christian teachings and practices.
The 1800s are a story of increasing involvement of Westerners in the economic and political affairs of the Kingdom. Rights to land became a principal concern, and there was unremitting pressure to allow non-Hawaiians to use and to own land and to be secure in their title. Westerners were not the only ones with pressing concerns, however, for the disposition and ownership of land came to be an unsettled matter among the Hawaiians themselves.
The status of Hawaiian lands has presented issues of complexity and controversy from at least the rule of Kamehameha I to the present day. We do not attempt to interpret that history, lest our comments be thought to bear upon issues not before us. It suffices to refer to various of the historical conclusions that appear to have been persuasive to Congress and to the State when they enacted the laws soon to be discussed.
When Kamehameha I came to power, he reasserted suzerainty over all lands and provided for control of parts of them by a system described in our own cases as ‘feudal’.[10]
...
Beginning in 1839 and through the next decade, a successive ruler, Kamehameha III, approved a series of decrees and laws designed to accommodate demands for ownership and security of title. In the words of the Hawaiian Supreme Court,
[t]he subject of rights in land was one of daily increasing importance to the newly formed Government, for it was obvious that the internal resources of the country could not be developed until the system of undivided and undefined ownership in land should be abolished. [11]
Arrangements were made to confer freehold title in some lands to certain chiefs and other individuals. The King retained vast lands for himself, and directed that other extensive lands be held by the government, which by 1840 had adopted the first Constitution of the islands. Thus was effected a fundamental and historic division, known as the Great Mahele. In 1850, foreigners, in turn, were given the right of land ownership.
The new policies did not result in wide dispersal of ownership. Though some provisions had been attempted by which tenants could claim lands, these proved ineffective in many instances, and ownership became concentrated. In 1920, the Congress of the United States, in a Report on the bill establishing the Hawaiian Homes Commission, made an assessment of Hawaiian land policy in the following terms:
Your committee thus finds that since the institution of private ownership of lands in Hawaii, the native Hawaiians, outside of the King and the chiefs, were granted and have held but a very small portion of the lands of the Islands. Under the homestead laws somewhat more than a majority of the lands were homesteaded to Hawaiians, but a great many of these lands have been lost through improvidence and inability to finance farming operations. Most frequently, however, the native Hawaiian, with no thought of the future, has obtained the land for a nominal sum, only to turn about and sell it to wealthy interests for a sum more nearly approaching its real value. The Hawaiians are not businessmen and have shown themselves unable to meet competitive conditions unaided. In the end the speculators are the real beneficiaries of the homestead laws. Thus the tax returns for 1919 show that only 6.23 per centum of the property of the Islands is held by native Hawaiians and this for the most part is lands in the possession of approximately a thousand wealthy Hawaiians, the descendents of the chiefs. [12]
While these developments were unfolding, the United States and European powers made constant efforts to protect their interests and to influence Hawaiian political and economic affairs in general. The first ‘articles of arrangement’ between the United States and the Kingdom of Hawaii were signed in 1826,[13] and additional treaties and conventions between the two countries were signed in 1849, 1875, and 1887.[14] The United States was not the only country interested in Hawaii and its affairs, but by the later part of the century the reality of American dominance in trade, settlement, economic expansion, and political influence became apparent.
Tensions intensified between an anti-Western, pro-native bloc in the government on the one hand and Western business interests and property owners on the other. The conflicts came to the fore in 1887. Westerners forced the resignation of the Prime Minister of the Kingdom of Hawaii and the adoption of a new Constitution, which, among other things, reduced the power of the monarchy and extended the right to vote to non-Hawaiians.[15]
Tensions continued through 1893, when they again peaked, this time in response to an attempt by the then Hawaiian monarch, Queen Liliuokalani, to promulgate a new constitution restoring monarchical control over the House of Nobles and limiting the franchise to Hawaiian subjects. A so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with United States armed forces, replaced the monarchy with a provisional government. That government sought annexation by the United States. On December 18 of the same year, President Cleveland, unimpressed and indeed offended by the actions of the American Minister, denounced the role of the American forces and called for restoration of the Hawaiian monarchy.[16] The Queen could not resume her former place, however, and, in 1894, the provisional government established the Republic of Hawaii. The Queen abdicated her throne a year later.
In 1898, President McKinley signed a Joint Resolution, sometimes called the Newlands Resolution, to annex the Hawaiian Islands as territory of the United States.[17] According to the Joint Resolution, the Republic of Hawaii ceded all former Crown, government, and public lands to the United States.[18] The resolution further provided that revenues from the public lands were to be ‘used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes’.[19] Two years later the Hawaiian Organic Act established the Territory of Hawaii, asserted United States control over the ceded lands, and put those lands ‘in the possession, use, and control of the government of the Territory of Hawaii ... until otherwise provided for by Congress’.[20]
In 1993, a century after the intervention by the Committee of Safety, the Congress of the United States reviewed this history, and in particular the role of Minister Stevens. Congress passed a Joint Resolution recounting the events in some detail and offering an apology to the native Hawaiian people.[21]
...
With this background we turn to the legislative enactments of direct relevance to the case before us.
Not long after the creation of the new Territory, Congress became concerned with the condition of the native Hawaiian people. Reciting its purpose to rehabilitate the native Hawaiian population, Congress enacted the Hawaiian Homes Commission Act, which set aside about 200,000 acres of the ceded public lands and created a program of loans and long term leases for the benefit of native Hawaiians.[22] The Act defined ‘native Hawaiian[s]’ to include ‘any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778’.[23]
Hawaii was admitted as the fiftieth State of the Union in 1959. With admission, the new State agreed to adopt the Hawaiian Homes Commission Act as part of its own Constitution.[24]
In addition, the United States granted Hawaii title to all public lands and public property within the boundaries of the State, save those which the Federal Government retained for its own use.[25] This grant included the 200,000 acres set aside under the Hawaiian Homes Commission Act and almost 1.2 million additional acres of land.[26] The legislation authorizing the grant recited that these lands, and the proceeds and income they generated, were to be held ‘as a public trust’ to be ‘managed and disposed of for one or more of’ five purposes:
(1) for the support of the public schools and other public educational institutions,
(2) for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended,
(3) for the development of farm and home ownership on as widespread a basis as possible,
(4) for the making of public improvements, and
(5) for the provision of lands for public use. [27]
In the first decades following admission, the State apparently continued to administer the lands that had been set aside under the Hawaiian Homes Commission Act for the benefit of native Hawaiians. The income from the balance of the public lands is said to have ‘by and large flowed to the department of education’.[28]
In 1978 Hawaii amended its Constitution to establish the Office of Hawaiian Affairs,[29] which has as its mission ‘[t]he betterment of conditions of native Hawaiians ... [and] Hawaiians’.[30]
...
Implementing statutes and their later amendments vested OHA with broad authority to administer two categories of funds: a 20 per cent share of the revenue from the 1.2 million acres of lands granted to the State pursuant to §5(b) of the Admission Act, which OHA is to administer ‘for the betterment of the conditions of native Hawaiians’,[31] and any state or federal appropriations or private donations that may be made for the benefit of ‘native Hawaiians’ and/or ‘Hawaiians’.[32] The Hawaiian Legislature has charged OHA with the mission of:
[s]erving as the principal public agency ... responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians, [a]ssessing the policies and practices of other agencies impacting on native Hawaiians and Hawaiians, conducting advocacy efforts for native Hawaiians and Hawaiians, [a]pplying for, receiving, and disbursing, grants and donations from all sources for native Hawaiian and Hawaiian programs and services, and [s]erving as a receptacle for reparations.[33]
OHA is overseen by a nine-member board of trustees, the members of which ‘shall be Hawaiians’ and — presenting the precise issue in this case — shall be ‘elected by qualified voters who are Hawaiians, as provided by law’.[34] The term ‘Hawaiian’ is defined by statute:
‘Hawaiian’ means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii.[35]
The statute defines ‘native Hawaiian’ as follows:
‘Native Hawaiian’ means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii.[36]
Petitioner Harold Rice is a citizen of Hawaii and a descendant of pre-annexation residents of the islands. He is not, as we have noted, a descendant of pre-1778 natives, and so he is neither ‘native Hawaiian’ nor ‘Hawaiian’ as defined by the statute. Rice applied in March 1996 to vote in the elections for OHA trustees. To register to vote for the office of trustee he was required to attest: ‘I am also Hawaiian and desire to register to vote in OHA elections’.[37] Rice marked through the words ‘am also Hawaiian and’, then checked the form ‘yes’. The State denied his application.
Rice sued Benjamin Cayetano, the Governor of Hawaii, in the United States District Court for the District of Hawaii. (The Governor was sued in his official capacity, and the Attorney General of Hawaii defends the challenged enactments. We refer to the respondent as ‘the State’.) Rice contested his exclusion from voting in elections for OHA trustees and from voting in a special election relating to native Hawaiian sovereignty, which was held in August 1996. After the District Court rejected the latter challenge,[38] the parties moved for summary judgment on the claim that the 14th and 15th Amendments to the United States Constitution invalidate the law excluding Rice from the OHA trustee elections.
...
We granted certiorari, 526 US 1016 (1999), and now reverse.
The purpose and command of the 15th Amendment are set forth in language both explicit and comprehensive. The National Government and the States may not violate a fundamental principle. They may not deny or abridge the right to vote on account of race. Color and previous condition of servitude, too, are forbidden criteria or classifications, though it is unnecessary to consider them in the present case.
Enacted in the wake of the Civil War, the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom. Vital as its objective remains, the Amendment goes beyond it. Consistent with the design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the particular controversy, which was the immediate impetus for its enactment. The Amendment grants protection to all persons, not just members of a particular race.
The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command, as it was comprehensive in reach, fundamental in purpose and effect, and self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race.
[B]y the inherent power of the Amendment the word ‘white’ disappeared from our voting laws, bringing those who had been excluded by reason of race within ‘the generic grant of suffrage made by the State’.[39]
The Court has acknowledged the Amendment’s mandate of neutrality in straightforward terms:
If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is.[40]
Though the commitment was clear, the reality remained far from the promise. Manipulative devices and practices were soon employed to deny the vote to blacks.
...
Important precedents did emerge, however, which give instruction in the case now before us. The 15th Amendment was quite sufficient to invalidate a scheme, which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise. In 1910, the State of Oklahoma enacted a literacy requirement for voting eligibility, but exempted from that requirement the:
‘lineal descendant[s]’ of persons who were ‘on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation’.[41]
Those persons whose ancestors were entitled to vote under the State’s previous, discriminatory voting laws were thus exempted from the eligibility test. Recognizing that the test served only to perpetuate those old laws and to effect a transparent racial exclusion, the Court invalidated it.[42]
...
Unlike the cited cases, the voting structure now before us is neither subtle nor indirect. It is specific in granting the vote to persons of defined ancestry and to no others. The State maintains this is not a racial category at all but instead a classification limited to those whose ancestors were in Hawaii at a particular time, regardless of their race.[43] The State points to theories of certain scholars concluding that some inhabitants of Hawaii as of 1778 may have migrated from the Marquesas Islands and the Pacific Northwest, as well as from Tahiti.[44] Furthermore, the State argues, the restriction in its operation excludes a person whose traceable ancestors were exclusively Polynesian if none of those ancestors resided in Hawaii in 1778; and, on the other hand, the vote would be granted to a person who could trace, say, one sixty fourth of his or her ancestry to a Hawaiian inhabitant on the pivotal date.[45] These factors, it is said, mean the restriction is not a racial classification. We reject this line of argument.
Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification. But that is not this case. For centuries Hawaii was isolated from migration.[46] The inhabitants shared common physical characteristics, and by 1778 they had a common culture. Indeed, the drafters of the statutory definition in question emphasized the ‘unique culture of the ancient Hawaiians’ in explaining their work.[47] The provisions before us reflect the State’s effort to preserve that commonality of people to the present day. In the interpretation of the Reconstruction era civil rights laws we have observed that ‘racial discrimination’ is that which singles out ‘identifiable classes of persons ... solely because of their ancestry or ethnic characteristics’.[48] The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.
...
As for the further argument that the restriction differentiates even among Polynesian people and is based simply on the date of an ancestor’s residence in Hawaii, this too is insufficient to prove the classification is non-racial in purpose and operation. Simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification race neutral. Here, the State’s argument is undermined by its express racial purpose and by its actual effects.
The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.
The ancestral inquiry mandated by the State is forbidden by the 15th Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.
Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.[49]
Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name. The State’s electoral restriction enacts a race-based voting qualification.
The State offers three principal defenses of its voting law, any of which, it contends, allows it to prevail even if the classification is a racial one under the 15th Amendment. We examine, and reject, each of these arguments.
The most far reaching of the State’s arguments is that exclusion of non-Hawaiians from voting is permitted under our cases allowing the differential treatment of certain members of Indian tribes. The decisions of this Court, interpreting the effect of treaties and congressional enactments on the subject, have held that various tribes retained some elements of quasi- sovereign authority, even after cession of their lands to the United States.[50] The retained tribal authority relates to self-governance.[51] In reliance on that theory the Court has sustained a federal provision giving employment preferences to persons of tribal ancestry.[52] The Mancari case, and the theory upon which it rests, are invoked by the State to defend its decision to restrict voting for the OHA trustees, who are charged so directly with protecting the interests of native Hawaiians.
If Hawaii’s restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State — and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993 — has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes.[53] We can stay far off that difficult terrain, however.
The State’s argument fails for a more basic reason. Even were we to take the substantial step of finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of this sort.
Of course, as we have established in a series of cases, Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs.
...
As we have observed, ‘every piece of legislation dealing with Indian tribes and reservations ... single[s] out for special treatment a constituency of tribal Indians’.[54] Mancari, upon which many of the above cases rely, presented the somewhat different issue of a preference in hiring and promoting at the federal Bureau of Indian Affairs (BIA), a preference which favored individuals who were ‘one-fourth or more degree Indian blood and ... member[s] of a Federally recognized tribe’.[55] Although the classification had a racial component, the Court found it important that the preference was ‘not directed towards a “racial” group consisting of “Indians”, but rather only to members of “federally recognized” tribes’.[56] ‘In this sense’, the Court held, ‘the preference [was] political rather than racial in nature.’[57] Because the BIA preference could be ‘tied rationally to the fulfillment of Congress’ unique obligation toward the Indians’, and was ‘reasonably and rationally designed to further Indian self-government’, the Court held that it did not offend the Constitution.[58] The opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as sui generis.[59] Hawaii would extend the limited exception of Mancari to a new and larger dimension. The State contends that ‘one of the very purposes of OHA — and the challenged voting provision — is to afford Hawaiians a measure of self-governance’, and so it fits the model of Mancari.[60] It does not follow from Mancari, however, that Congress may authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all non-Indian citizens.
The tribal elections established by the federal statutes the State cites illuminate its error.[61] If a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of Hawaii. OHA is a state agency, established by the State Constitution, responsible for the administration of state laws and obligations.[62] The Hawaiian Legislature has declared that OHA exists to serve ‘as the principal public agency in the State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians’.[63] Foremost among the obligations entrusted to this agency is the administration of a share of the revenues and proceeds from public lands, granted to Hawaii to ‘be held by said State as a public trust’.[64] The delegates to the 1978 Constitutional Convention explained the position of OHA in the state structure:
The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state agency. The chairman may be an ex officio member of the governor’s cabinet. The status of the Office of Hawaiian Affairs is to be unique and special ... The committee developed this office based on the model of the University of Hawaii. In particular, the committee desired to use this model so that the office could have maximum control over its budget, assets and personnel. The committee felt that it was important to arrange a method whereby the assets of Hawaiians could be kept separate from the rest of the state treasury. [65]
Although it is apparent that OHA has a unique position under state law, it is just as apparent that it remains an arm of the State.
The validity of the voting restriction is the only question before us. As the Court of Appeals did, we assume the validity of the underlying administrative structure and trusts, without intimating any opinion on that point. Nonetheless, the elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the 15th Amendment applies. To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decision-making in critical state affairs. The 15th Amendment forbids this result.
...
When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations, and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii.
In this case the 15th Amendment invalidates the electoral qualification based on ancestry. The judgment of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
The Court’s holding today rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the State of Hawaii. When that history is held up against the manifest purpose of the 14th and 15th Amendments, and against two centuries of this Court’s federal Indian law, it is clear to me that Hawaii’s election scheme should be upheld.
According to the terms of the federal Act by which Hawaii was admitted to the Union, and to the terms of that State’s Constitution and laws, the Office of Hawaiian Affairs (OHA) is charged with managing vast acres of land held in trust for the descendants of the Polynesians who occupied the Hawaiian Islands before the 1778 arrival of Captain Cook. In addition to administering the proceeds from these assets, OHA is responsible for programs providing special benefits for native Hawaiians. Established in 1978 by an amendment to the State Constitution, OHA was intended to advance multiple goals: to carry out the duties of the trust relationship between the Islands’ indigenous peoples and the Government of the United States; to compensate for past wrongs to the ancestors of these peoples; and to help preserve the distinct, indigenous culture that existed for centuries before Cook’s arrival. As explained by the senior Senator from Hawaii, Senator Inouye, who is not himself a native Hawaiian but rather (like [the] petitioner) is a member of the majority of Hawaiian voters who supported the 1978 amendments, the amendments reflect:
an honest and sincere attempt on the part of the people of Hawai’i to rectify the wrongs of the past, and to put into being the mandate of our Federal government — the betterment of the conditions of Native Hawaiians.
Today the Court concludes that Hawaii’s method of electing the trustees of OHA violates the 15th Amendment. In reaching that conclusion, the Court has assumed that the programs administered by OHA are valid. That assumption is surely correct. In my judgment, however, the reasons supporting the legitimacy of OHA and its programs in general undermine the basis for the Court’s decision holding its trustee election provision invalid. The OHA election provision violates neither the 14th Amendment nor the 15th.
That conclusion is in keeping with three overlapping principles. First, the Federal Government must be, and has been, afforded wide latitude in carrying out its obligations arising from the special relationship it has with the aboriginal peoples, a category that includes the native Hawaiians, whose lands are now a part of the territory of the United States. In addition, there exists in this case the State’s own fiduciary responsibility — arising from its establishment of a public trust — for administering assets granted it by the Federal Government in part for the benefit of native Hawaiians. Finally, even if one were to ignore the more than two centuries of Indian law precedent and practice on which this case follows, there is simply no invidious discrimination present in this effort to see that indigenous peoples are compensated for past wrongs, and to preserve a distinct and vibrant culture that is as much a part of this Nation’s heritage as any.
Throughout our Nation’s history, this Court has recognized both the plenary power of Congress over the affairs of native Americans and the fiduciary character of the special federal relationship with descendants of those once sovereign peoples. The source of the Federal Government’s responsibility toward the Nation’s native inhabitants, who were subject to European and then American military conquest, has been explained by this Court in the crudest terms, but they remain instructive nonetheless.
These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights ... From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive, and by Congress, and by this court, whenever the question has arisen.[66]
As our cases have consistently recognized, Congress’ plenary power over these peoples has been exercised time and again to implement a federal duty to provide native peoples with special ‘care and protection’. With respect to the Pueblos in New Mexico, for example, ‘public moneys have been expended in presenting them with farming implements and utensils, and in their civilization and instruction’.[67] Today, the Federal Bureau of Indian Affairs (BIA) administers countless modern programs responding to comparably pragmatic concerns, including health, education, housing, and impoverishment.[68] Federal regulation in this area is not limited to the strictly practical but has encompassed as well the protection of cultural values; for example, the desecration of Native American graves and other sacred sites led to the passage of the Native American Graves Protection and Repatriation Act.[69]
Critically, neither the extent of Congress’ sweeping power nor the character of the trust relationship with indigenous peoples has depended on the ancient racial origins of the people, the allotment of tribal lands, the coherence or existence of tribal self-government, or the varying definitions of ‘Indian’ Congress has chosen to adopt. Rather, when it comes to the exercise of Congress’ plenary power in Indian affairs, this Court has taken account of the ‘numerous occasions’ on which ‘legislation that singles out Indians for particular and special treatment’ has been upheld, and has concluded that as ‘long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation towards the Indians, such legislative judgments will not be disturbed’.[70]
As the history recited by the majority reveals, the grounds for recognizing the existence of federal trust power here are overwhelming. Shortly before its annexation in 1898, the Republic of Hawaii (installed by United States merchants in a revolution facilitated by the United States Government) expropriated some 1.8 million acres of land that it then ceded to the United States. In the Organic Act establishing the Territory of Hawaii, Congress provided that those lands should remain under the control of the territorial government ‘until otherwise provided for by Congress’.[71] By 1921, Congress recognized that the influx of foreign infectious diseases, mass immigration coupled with poor housing and sanitation, hunger, and malnutrition had taken their toll.[72] Confronted with the reality that the Hawaiian people had been ‘frozen out of their lands and driven into the cities’,[73] Congress decided that 27 specific tracts of the lands ceded in 1898, comprising about 203,500 acres, should be used to provide farms and residences for native Hawaiians.[74] Relying on the precedent of previous federal laws granting Indians special rights in public lands, Congress created the Hawaiian Homes Commission to implement its goal of rehabilitating the native people and culture. Hawaii was required to adopt this Act as a condition of statehood in the Hawaii Statehood Admissions Act (Admissions Act).[75] And in an effort to secure the Government’s duty to the indigenous peoples, §5 of the Act conveyed 1.2 million acres of land to the State to be held in trust ‘for the betterment of the conditions of native Hawaiians’ and certain other public purposes.[76]
The nature of and motivation for the special relationship between the indigenous peoples and the United States Government was articulated in explicit detail in 1993, when Congress adopted a Joint Resolution containing a formal ‘apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii’.[77] Among other acknowledgments, the resolution stated that the 1.8 million acres of ceded lands had been obtained ‘without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government’.[78]
In the end, however, one need not even rely on this official apology to discern a well-established federal trust relationship with the native Hawaiians. Among the many and varied laws passed by Congress in carrying out its duty to indigenous peoples, more than 150 today expressly include native Hawaiians as part of the class of Native Americans benefited. By classifying native Hawaiians as ‘Native Americans’ for purposes of these statutes, Congress has made clear that native Hawaiians enjoy many of ‘the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities’.[79]
While splendidly acknowledging this history — specifically including the series of agreements and enactments the history reveals — the majority fails to recognize its import. The descendants of the native Hawaiians share with the descendants of the Native Americans on the mainland or in the Aleutian Islands not only a history of subjugation at the hands of colonial forces, but also a purposefully created and specialized ‘guardian-ward’ relationship with the Government of the United States. It follows that legislation targeting the native Hawaiians must be evaluated according to the same understanding of equal protection that this Court has long applied to the Indians on the continental United States: that ‘special treatment ... be tied rationally to the fulfillment of Congress’ unique obligation’ toward the native peoples.
Declining to confront the rather simple logic of the foregoing, the majority would seemingly reject the OHA voting scheme for a pair of different reasons. First, Congress’ trust-based power is confined to dealings with tribes, not with individuals, and no tribe or indigenous sovereign entity is found among the native Hawaiians.[80] Second, the elections are ‘the affair of the State’, not of a tribe, and upholding this law would be ‘to permit a State, by racial classification, to fence out whole classes of citizens from decision making in critical state affairs’.[81]
In my view, neither of these reasons overcomes the otherwise compelling similarity, fully supported by our precedent, between the once subjugated, indigenous peoples of the continental United States and the peoples of the Hawaiian Islands whose historical sufferings and status parallel those of the continental Native Americans.
Membership in a tribe, the majority suggests, rather than membership in a race or class of descendants, has been the sine qua non of governmental power in the realm of Indian law; Mancari itself, the majority contends, makes this proposition clear.[82] But as scholars have often pointed out, tribal membership cannot be seen as the decisive factor in this Court’s opinion upholding the BIA preferences in Mancari; the hiring preference at issue in that case not only extended to non-tribal member Indians, it also required for eligibility that ethnic Native Americans possess a certain quantum of Indian blood. Indeed, the Federal Government simply has not been limited in its special dealings with the native peoples to laws affecting tribes or tribal Indians alone.[83] In light of this precedent, it is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government — a possibility of which history and the actions of this Nation have deprived them.
Of greater concern to the majority is the fact that we are confronted here with a state constitution and legislative enactment — passed by a majority of the entire population of Hawaii — rather than a law passed by Congress or a tribe itself.[84] But as our own precedent makes clear, this reality does not alter our analysis. As I have explained, OHA and its trustee elections can hardly be characterized simply as an ‘affair of the State’ alone; they are the instruments for implementing the Federal Government’s trust relationship with a once sovereign indigenous people. This Court has held more than once that the federal power to pass laws fulfilling its trust relationship with the Indians may be delegated to the States. Most significant is our opinion in Washington v Confederated Bands and Tribes of Yakima Nation,[85] in which we upheld against a 14th Amendment challenge a state law assuming jurisdiction over Indian tribes within a State. While we recognized that States generally do not have the same special relationship with Indians that the Federal Government has, we concluded that because the state law was enacted ‘in response to a federal measure’ intended to achieve the result accomplished by the challenged state law, the state law itself need only ‘rationally further the purpose identified by the State’.[86]
The state statutory and constitutional scheme here was without question intended to implement the express desires of the Federal Government. The Admissions Act in §4 mandated that the provisions of the Hawaiian Homes Commission Act ‘shall be adopted’, with its multiple provisions expressly benefiting native Hawaiians and not others.[87] More, the Act required that the proceeds from the lands granted to the State ‘shall be held by said State as a public trust for ... the betterment of the conditions of native Hawaiians’, and that those proceeds:
shall be managed and disposed of ... in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United.[88]
The terms of the trust were clear, as was the discretion granted to the State to administer the trust as the State’s laws ‘may provide’. And Congress continues to fund OHA on the understanding that it is thereby furthering the federal trust obligation.
The sole remaining question under Mancari and Yakima is thus whether the State’s scheme ‘rationally further[s] the purpose identified by the State’. Under this standard, as with the BIA preferences in Mancari, the OHA voting requirement is certainly reasonably designed to promote ‘self-government’ by the descendants of the indigenous Hawaiians, and to make OHA ‘more responsive to the needs of its constituent groups’.[89] The OHA statute provides that the agency is to be held ‘separate’ and ‘independent of the [State] executive branch’;[90] OHA executes a trust, which, by its very character, must be administered for the benefit of Hawaiians and native Hawaiians,[91] and OHA is to be governed by a board of trustees that will reflect the interests of the trust’s native Hawaiian beneficiaries.[92] In this respect among others, the requirement is ‘reasonably and directly related to a legitimate, non-racially based goal’.[93]
The foregoing reasons are to me more than sufficient to justify the OHA trust system and trustee election provision under the 14th Amendment.
Although the 15th Amendment tests the OHA scheme by a different measure, it is equally clear to me that the trustee election provision violates neither the letter nor the spirit of that Amendment. Section 1 of the 15th Amendment provides:
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.[94]
As the majority itself must tacitly admit,[95] the terms of the Amendment itself do not here apply. The OHA voter qualification speaks in terms of ancestry and current residence, not of race or color. OHA trustee voters must be ‘Hawaiian’, meaning:
any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples have continued to reside in Hawaii. [96]
The ability to vote is a function of the lineal descent of a modern-day resident of Hawaii, not the blood-based characteristics of that resident, or of the blood-based proximity of that resident to the ‘peoples’ from whom that descendant arises.
The distinction between ancestry and race is more than simply one of plain language. The ability to trace one’s ancestry to a particular progenitor at a single distant point in time may convey no information about one’s own apparent or acknowledged race today. Neither does it of necessity imply one’s own identification with a particular race, or the exclusion of any others ‘on account of race’. The terms manifestly carry distinct meanings, and ancestry was not included by the framers in the Amendment’s prohibitions.
Presumably recognizing this distinction, the majority relies on the fact that ‘[a]ncestry can be a proxy for race’.[97] That is, of course, true, but it by no means follows that ancestry is always a proxy for race. Cases in which ancestry served as such a proxy are dramatically different from this one. For example, the literacy requirement at issue in Guinn v United States[98] relied on such a proxy. As part of a series of blatant efforts to exclude blacks from voting, Oklahoma exempted from its literacy requirement people whose ancestors were entitled to vote prior to the enactment of the 15th Amendment. The Guinn scheme patently ‘served only to perpetuate ... old [racially discriminatory voting] laws and to effect a transparent racial exclusion’.[99] As in Guinn, the voting laws held invalid under the 15th Amendment in all of the cases cited by the majority were fairly and properly viewed through a specialized lens — a lens honed in specific detail to reveal the realities of time, place, and history behind the voting restrictions being tested.
That lens not only fails to clarify, it fully obscures the realities of this case, virtually the polar opposite of the 15th Amendment cases on which the Court relies. In Terry v Adams[100] for example, the Court held that the Amendment proscribed the Texas ‘Jaybird primaries’ that used neutral voting qualifications with a single proviso — ‘Negroes are excluded’.[101] Similarly, in Smith v Allwright[102] it was the blatant ‘discrimination against Negroes’ practiced by a political party that was held to be state action within the meaning of the Amendment. Cases such as these that ‘strike down these voting systems ... designed to exclude one racial class (at least) from voting’,[103] have no application to a system designed to empower politically the remaining members of a class of once sovereign, indigenous people.
Ancestry surely can be a proxy for race, or a pretext for invidious racial discrimination. But it is simply neither proxy nor pretext here. All of the persons who are eligible to vote for the trustees of OHA share two qualifications that no other person old enough to vote possesses: they are beneficiaries of the public trust created by the State and administered by OHA, and they have at least one ancestor who was a resident of Hawaii in 1778. A trust whose terms provide that the trustees shall be elected by a class including beneficiaries is hardly a novel concept.[104] The Committee that drafted the voting qualification explained that the trustees here should be elected by the beneficiaries because:
people to whom assets belong should have control over them .... The election of the board will enhance representative governance and decision-making accountability and, as a result, strengthen the fiduciary relationship between the board member, as trustee, and the native Hawaiian, as beneficiary.
The described purpose of this aspect of the classification thus exists wholly apart from race. It is directly focused on promoting both the delegated federal mandate, and the terms of the State’s own trustee responsibilities.
...
Even if one refuses to recognize the beneficiary status of OHA trustee voters entirely, it cannot be said that the ancestry-based voting qualification here simply stands in the shoes of a classification that would either privilege or penalize ‘on account of’ race. The OHA voting qualification — part of a statutory scheme put in place by democratic vote of a multiracial majority of all state citizens, including those non-Hawaiians who are not entitled to vote in OHA trustee elections — appropriately includes every resident of Hawaii having at least one ancestor who lived in the Islands in 1778. That is, among other things, the audience to whom the congressional apology was addressed. Unlike a class including only full-blooded Polynesians — as one would imagine were the class strictly defined in terms of race — the OHA election provision excludes all full-blooded Polynesians currently residing in Hawaii who are not descended from a 1778 resident of Hawaii. Conversely, unlike many of the old southern voting schemes in which any potential voter with a taint of non-Hawaiian blood would be excluded, the OHA scheme excludes no descendant of a 1778 resident because he or she is also part European, Asian, or African as a matter of race. The classification here is thus both too inclusive and not inclusive enough to fall strictly along racial lines.
At pains then to identify at work here a singularly ‘racial purpose’[105] — whatever that might mean, although one might assume the phrase a proxy for racial discrimination — the majority next posits that ‘[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities’.[106] That is, of course, true when ancestry is the basis for denying or abridging one’s right to vote or to share the blessings of freedom. But it is quite wrong to ignore the relevance of ancestry to claims of an interest in trust property, or to a shared interest in a proud heritage. There would be nothing demeaning in a law that established a trust to manage Monticello and provided that the descendants of Thomas Jefferson should elect the trustees. Such a law would be equally benign, regardless of whether those descendants happened to be members of the same race.
In this light, it is easy to understand why the classification here is not ‘demeaning’ at all,[107] for it is simply not based on the ‘premise that citizens of a particular race are somehow more qualified than others to vote on certain matters’.[108] It is based on the permissible assumption in this context that families with any ancestor who lived in Hawaii in 1778, and whose ancestors thereafter continued to live in Hawaii, have a claim to compensation and self-determination that others do not. For the multiracial majority of the citizens of the State of Hawaii to recognize that deep reality is not to demean their own interests but to honor those of others.
It thus becomes clear why the majority is likewise wrong to conclude that the OHA voting scheme is likely to:
become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions.[109]
The political and cultural concerns that motivated the non-native majority of Hawaiian voters to establish OHA reflected an interest in preserving through the self-determination of a particular people ancient traditions that they value. The fact that the voting qualification was established by the entire electorate in the State — the vast majority of which is not native Hawaiian — testifies to their judgment concerning the Court’s fear of ‘prejudice and hostility’ against the majority of state residents who are not ‘Hawaiian’, such as petitioner. Our traditional understanding of democracy and voting preferences makes it difficult to conceive that the majority of the State’s voting population would have enacted a measure that discriminates against, or in any way represents prejudice and hostility toward, that self-same majority. Indeed, the best insurance against that danger is that the electorate here retains the power to revise its laws.
The Court today ignores the overwhelming differences between the 15th Amendment case law on which it relies and the unique history of the State of Hawaii. The former recalls an age of abject discrimination against an insular minority in the old South; the latter at long last yielded the ‘political consensus’ the majority claims it seeks,[110] a consensus determined to recognize the special claim to self-determination of the indigenous peoples of Hawaii. This was the considered and correct view of the District Judge for the United States District Court for the District of Hawaii, as well as the three Circuit Judges on the Court of Appeals for the Ninth Circuit. As Judge Rymer explained:
The special election for trustees is not equivalent to a general election, and the vote is not for officials who will perform general governmental functions in either a representative or executive capacity ... [N]or does the limitation in these circumstances suggest that voting eligibility was designed to exclude persons who would otherwise be interested in OHA’s affairs ... [R]ather, it reflects the fact that the trustees’ fiduciary responsibilities run only to native Hawaiians and Hawaiians and ‘a board of trustees chosen from among those who are interested parties would be the best way to insure proper management and adherence to the needed fiduciary principles’. The challenged part of Hawaii law was not contrived to keep non-Hawaiians from voting in general, or in any respect pertinent to their legal interests. Therefore, we cannot say that [petitioner’s] right to vote has been denied or abridged in violation of the 15th Amendment.
...
In my judgment, her reasoning is far more persuasive than the wooden approach adopted by the Court today. Accordingly, I respectfully dissent.
[1] The full text of this decision is available at <www.supremecourtus.gov/opinions/99pdf/98-818.pdf>.
[2] Haw Const, Art XII, §5.
[3] Haw Rev Stat §10-2 (1993).
[4] As above.
[5] Haw Const, Art XII, §5.
[6] See L Fuchs, Hawaii Pono: An Ethnic and Political History (1961) (hereinafter Fuchs); 1-3 R Kuykendall, The Hawaiian Kingdom (1938); (1953); (1967) (hereinafter Kuykendall).
[7] Fuchs 4; 1 Kuykendall 3; see also G Daws, Shoal of Time: A History of the Hawaiian Islands xii-xiii (1968) (Marquesas Islands and Tahiti).
[8] See Fuchs 4; R. Schmitt, Historical Statistics of Hawaii 7 (1977) (hereinafter Schmitt).
[9] 1 Kuykendall 27.
[10] Hawaii Housing Authority v Midkiff [1984] USSC 115; 467 U S 229, 232 (1984); Kaiser Aetna v United States, [1979] USSC 179; 444 US 164, 166 (1979).
[11] 2 Haw, at 721.
[12] H R Rep No 839, 66th Cong, 2d Sess, 6 (1920).
[13] Department of State, Treaties and Other International Agreements of the United States of America 1776-1949, p 861 (C Bevans comp 1968).
[14] See Treaty with the Hawaiian Islands, 9 Stat 977 (1849) (friendship, commerce, and navigation); Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 19 Stat 625 (1875) (commercial reciprocity); Supplementary Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 25 Stat 1399 (1887) (same).
[15] 3 Kuykendall 344-372.
[16] Message of the President to the Senate and House of Representatives, reprinted in H R Rep No 243, 53d Cong, 2d Sess 3-15 (1893).
[17] 30 Stat 750.
[18] As above.
[19] As above.
[20] Act of Apr 30, 1900, ch 339, §91, 31 Stat 159.
[21] 107 Stat 1510.
[22] Act of July 9, 1921, ch 42, 42 Stat 108.
[23] As above.
[24] Pub L 86-3, §§4, 7, 73 Stat 5, 7 (Admission Act); see Haw Const, Art XII, §§1-3.
[25] Pub L 86-3, §§4, 7, 73 Stat 5, 7 (Admission Act); see Haw Const, Art XII, §§1-3.
[26] Brief for United States as Amicus Curiae 4.
[27] Admission Act §5(f), 73 Stat 6.
[28] Hawaii Senate Journal, Standing Committee Rep No 784, pp 1350, 1351 (1979).
[29] Haw Const, Art XII, §5.
[30] Haw Rev Stat §10-3 (1993).
[31] Haw Rev Stat §10-13.5.
[32] Haw Const, Art XII, §6. See generally Haw Rev Stat §§10-1 to 10-16. (The 200,000 acres set aside under the Hawaiian Homes Commission Act are administered by a separate agency. See Haw Rev Stat §26-17 (1993)).
[33] Haw Rev Stat §10-3.
[34] Haw Const, Art XII, §5; see Haw Rev Stat §§13D-1, 13D-3(b)(1) (1993).
[35] §10-2.
[36] As above.
[37] Affidavit on Application for Voter Registration, Lodging by Petitioner, Tab 2.
[38] See Rice v Cayetano, 941 F Supp 1529 (1996), a decision not before us.
[39] Guinn v United States, [1915] USSC 205; 238 US 347, 363 (1915); see also Neal v Delaware, [1880] USSC 128; 103 US 370, 389 (1881).
[40] United States v Reese, [1875] USSC 177; 92 US 214, 218 (1876).
[41] Guinn v US, [1915] USSC 205; 238 US 347, 357 (1915).
[42] 238 US at 364-365.
[43] Brief for Respondent 38-40.
[44] As above at 38-39, and above n 15.
[45] As above.
[46] 1 Kuykendall 3.
[47] Hawaii Senate Journal, Standing Committee Rep No 784, at 1354; (Modern scholarship also identified such race of people as culturally distinguishable from other Polynesian peoples).
[48] Saint Francis College v Al—Khazraji, [1987] USSC 131; 481 US 604, 613 (1987).
[49] Hirabayashi v United States, [1943] USSC 134; 320 US 81, 100 (1943).
[50] See Brendale v Confederated Tribes and Bands of Yakima Nation, 492 US 408, 425 (1989) (plurality opinion); Oliphant v Suquamish Tribe, [1978] USSC 34; 435 U S 191, 208 (1978).
[51] Brendale, as above, at 425 (plurality opinion).
[52] Morton v Mancari, [1974] USSC 132; 417 US 535, 553-555 (1974).
[53] Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L & Pol’y Rev 95 (1998), with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L J 537 (1996).
[54] Mancari, as above n 52, at 552.
[55] 417 US, at 553, n 24 (quoting 44 BIAM 335, 3.1 (1972)).
[56] 417 US, at 553, n 24.
[57] As above at 554 (‘The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion’).
[58] As above at 555.
[59] As above at 554.
[60] Brief for Respondent 34.
[61] See above at 22 (citing, e.g., the Menominee Restoration Act, 25 U S C §903b, and the Indian Reorganization Act, 25 U S C §476).
[62] See Haw Const, Art XII, §§5- 6.
[63] Haw Rev Stat §10-3(3)); see also Lodging by Petitioner, Tab 6, OHA Annual Report 1993-94, p. 5 (May 27, 1994) (admitting that ‘OHA is technically a part of the Hawai’i state government’, while asserting that ‘it operates as a semi-autonomous entity’).
[64] Admission Act §§5(b), (f), 73 Stat 5, 6; see Haw Const, Art XII, §4.
[65] Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep No 59, at 645.
[66] United States v Kagama, [1886] USSC 194; 118 US 375, 383-384 (1886).
[67] United States v Sandoval, [1913] USSC 247; 231 US 28, 40-41 (1913).
[68] See Office of the Federal Register, United States Government Manual 1999/2000, pp. 311-312.
[69] 25 USC §3001 et seq.
[70] Morton v Mancari, [1974] USSC 132; 417 U S 535, 554-555 (1974).
[71] Act of Apr 30, 1900, ch 339, §91, 31 Stat 159.
[72] See ante, at 9.
[73] H R Rep No 839, 66th Cong, 2d Sess, 4 (1920).
[74] Act of July 9, 1921, ch 42, 42 Stat 108.
[75] §4, 73 Stat 5.
[76] § 5(f), as above at 6.
[77] 107 Stat 1510.
[78] As above at 1512.
[79] 42 USC §11701(19). See also §11701(17) (‘The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of ... Hawaii’).
[80] As above at 23.
[81] As above at 24-25.
[82] As above at 23.
[83] Above n 6 and 7.
[84] See for example as above at 24-25.
[85] [1979] USSC 34; 439 US 463, 500-501 (1979).
[86] As above at 500 (quoting Massachusetts Bd. of Retirement v Murgia, [1976] USSC 141; 427 U S 307, 314 (1976) (per curiam)).
[87] 73 Stat 5.
[88] Stat §5, as above at 6.
[89] Mancari, 417 US at 554.
[90] Haw Rev Stat §10-4 (1993).
[91] §§10-2, 10-3(1), 10-13.5.
[92] Haw Const, Art XII, §5 (1993); Haw Rev Stat §13D-3(b) (1993). OHA is thus ‘directed to participation by the governed in the governing agency’. Mancari, 417 US at 554.
[93] As above.
[94] US Const, Amdt. 15.
[95] ante, at 17-18.
[96] Haw Rev Stat §10-2.
[97] ante, at 18.
[98] [1915] USSC 205; 238 US 347 (1915).
[99] ante, at 17.
[100] [1953] USSC 90; 345 US 461 (1953)
[101] As above at 469.
[102] [1944] USSC 108; 321 US 649, 664 (1944).
[103] ante, at 17.
[104] See A Scott & W Fratcher, Law of Trusts §108.3 (4th ed 1987).
[105] ante, at 18, 20.
[106] ante, at 20.
[107] ante, at 27.
[108] As above.
[109] ante, at 20.
[110] ante, at 27.
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