WASHINGTON – More than 160 legislative enactments – including the Hawaiian Homes Commission Act of 1921, the Admission Act that made Hawaii a state in 1959, a Constitutional Convention of the state citizenry in 1978, and an Apology Resolution of Congress in 1993 – have carved out a special relationship between the United States and Native Hawaiians as an indigenous people.
But in 2000, in the case of Rice v. Cayetano, the U.S. Supreme Court ruled that preferences long-established in the state for constitution for Native Hawaiians, including Office of Hawaiian Affairs elections and governance as it administers trust revenues for the benefit of Native Hawaiians, were unconstitut-ional. In the words of Senate Report 109-68, issued by the Senate Committee on Indian Affairs, “The Court held that the provision of state law requiring those voting for the office of Trustee of the Office of Hawaiian Affairs to be Native Hawaiian violated the Fifteenth Amendment prohibition against abridging the right to vote on account of race.”
The court further rejected the state’s claim that excluding non-Native Hawaiians from the franchise in OHA elections was analogous to tribes excluding non-Indians from a vote in tribal elections. “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.”
A series of court challenges to Native Hawaiian preference laws in Hawaii has ensued. “If these challenges were to succeed,” the Senate Report relates, “those elements of the United States’ 1959 compact [the Admission Act] with the people of Hawaii intended to benefit Native Hawaiians may be lost.”
Another potential loss to the Cayetano court could be “the long-standing Congressional policy of protecting and advancing the interests of Native Hawaiians,” according to the Senate Report.
In short, Native Hawaiians stand to lose many of the state preferences that have helped their culture along since statehood, as well as elements of a federal relationship that has helped their ancestors survive since 1921, when Congress responded to findings that they were dying off from disease after being driven from the land into city tenements following the 1898 annexation of Hawaii as a territory of the United States.