Metropolitan News-Enterprise


Thursday, January 2, 2003


Page 1


Restricting Eligibility to Run for Board to Native Hawaiians Invalidated


By KENNETH OFGANG, Staff Writer/Appellate Courts


Provisions of Hawaii’s constitution and statutes that require elected trustees of the Office of Hawaiian Affairs to be of native ancestry violate the U.S. Constitution and the Voting Rights Act, the Ninth U.S. Circuit Court of Appeals ruled Tuesday.

The panel ruling comes nearly three years after the U.S. Supreme Court struck down the state’s law limiting voting in OHA elections to native Hawaiians, who are defined as being the descendants of the aboriginal people who occupied the islands in 1778. It upholds a summary judgment in favor of a multiethnic group of plaintiffs who sued following the February 2000 ruling in Rice v. Cayetano, 528 U.S. 495 (2000).

The Rice ruling led to the resignations of all nine board members and their replacement by members appointed by the governor. Gov. Ben Cayetano, whose spokesman said he anticipated that the prohibition against service by non-natives would be struck down as well, named the first non-native member of the board.

Public Trust

The OHA was created in 1978 to administer programs designed to benefit native Hawaiians. Its funding comes, in part, from the public land trust that Congress created in 1920 and turned over to the state upon its admission in 1959 to improve the conditions of native Hawaiians.

U.S. District Judge Helen Gillmor of the District of Hawaii agreed with the plaintiffs that the ban on election of non-Hawaiians to the board was unconstitutional. She also held that limiting appointments to fill vacancies to native Hawaiians violated the Equal Protection Clause of the Fourteenth Amendment.

Her preliminary injunction, which enabled non-Hawaiians to run beginning in 2000, was later made permanent and was upheld by Tuesday’s decision. One of the plaintiffs, Kenneth Conklin, a retired Boston teacher who moved to Hawaii in 1992, ran for a seat and finished fourth.

Not Like Indians

Judge A. Wallace Tashima, writing yesterday for the Ninth Circuit, agreed with the district judge that the Fifteenth Amendment and the Voting Rights Act prohibit racial discrimination in the establishment of requirements to run for office, as well as to vote. He also rejected the state’s reliance on Morton v. Mancari, 417 U.S. 535 (1974), which held that the unique status of Indian tribes permitted Congress to enact a law giving Native Americans preference in hiring by the Bureau of Indian Affairs.

Tashima adopted the reasoning of the Rice court, which declined to apply Morton to the determination of voting requirements for the OHA.

OHA is a policymaking body whose decisions affect all Hawaiians, the judge said. Thus, even though one group is affected more than the rest of the populace, OHA’s board must be elected in voting in which all citizens of the state are free to take part as voters and candidates, Tashima said.

The district judge went too far in one aspect of the ruling, however, Tashima went on to say. Gillmor, he explained, should not have ruled on the Fourteenth Amendment issue relating to appointed trustees because none of the plaintiffs were claiming to have sought appointment or been otherwise injured as a result of the appointment process.

Judge Richard C. Tallman concurred in the opinion. Senior Judge J. Clifford Wallace concurred separately, saying the case should have been decided solely on Voting Rights Act, rather than constitutional, grounds.

The case is Arakaki v. State of Hawaii, 00-17213.


Copyright 2003, Metropolitan News Company