When race determines who gets to vote

Lawsuit over agency that lets only Hawaii natives choose leaders couldecho across US.

To native Hawaiians, the Office of Hawaiian Affairs is a crucial part of the state's effort to right past wrongs. To at least one of Hawaii's other residents, it's creating new ones.

The Office of Hawaiian Affairs (OHA) manages more than $300 million of public money and administers a variety of social programs. But its trustees are elected in a vote open only to native Hawaiians.

Sixth-generation Hawaii resident Harold Rice says this practice is discriminatory and unconstitutional, so he's suing the state. After years of appeals, the United States Supreme Court recently agreed to hear the case.

If it sides with the disgruntled Big Island rancher when it takes up the case later this year, the ruling could have a profound impact on the rights of native groups both here and on the mainland.

"If the court reverses, it could raise fundamental questions about the ability of any native group to govern itself," says Jon Van Dyke, a University of Hawaii law professor who has represented OHA on the case.

For native Hawaiians, the case is a crucial step in their long road toward sovereignty. Their status with the federal government has been vague for decades.

Unlike other indigenous groups in the US, native Hawaiians have never had a claims court to address their grievances, and special provisions to set up reservations or include Hawaiians in Bureau of Indian Affairs (BIA) social programs were never made.

In addition, Hawaiians never entered into any treaties with the federal government - a legal platform that Indian groups have used to gain compensation or access to natural resources.

Many native Hawaiians say this case will help them redress some of these inequalities. "The No. 1 issue with this lawsuit is whether or not Hawaiians are considered to have political status," says OHA trustee Clayton Hee. If the court sides with OHA, "the next logical step is for the Hawaiians ... to establish their sovereign rights before the US Congress. Every facet that is enjoyed by other native peoples should be enjoyed by Hawaiians."

Such logic is only fair, OHA supporters add, because native Hawaiians - who make up as much as 20 percent of the state's population - share many of the same troubles as their mainland indigenous counterparts. High rates of poverty, mortality, drug abuse, and imprisonment make them the most troubled ethnic group in Hawaii.

OHA was set up in 1978 to help alleviate some of these problems. It was also intended to return some of the power stripped from native Hawaiians when the Kingdom of Hawaii was overthrown by a US-backed group of white merchants and missionaries in 1893.

During the past two decades, millions of dollars have poured into OHA coffers from the state general fund and from revenues on "ceded lands," lands held in trust by the state for the benefit native Hawaiians and the general public. Under state law, native Hawaiians are entitled to 20 percent of the revenues. Negotiations are currently under way to determine the extent of additional state obligations to OHA, which could range as high as $1 billion.

OHA'S access to this money is what has upset Mr. Rice. If OHA can spend state money, then everyone in the state should have a say in how it's spent, he says.

"Mr. Rice contends that he was denied the right to vote in an election held by the State of Hawaii to elect individuals who would make decisions concerning public resources in Hawaii, and he was denied the right to vote based on his race or national origin," says Theodore Olson, Rice's attorney. "The courts never said that the people who moved into Utah and settled Utah can deny equal rights and privileges to people who moved in afterwards."

Rice's attorney asserts that, unlike Indian tribes, native Hawaiians are not sovereign political entities, but ancestral residents. Thus, OHA elections that exclude Hawaii residents violate the 14th and 15th Amendments, which promise equal protection under the law and the right to vote regardless of race.

But the state and the native Hawaiians note that a 1974 United States Supreme Court ruling allows the BIA to give hiring preferences to native Americans because the BIA's job is to serve and improve the status of native Americans.

"Because the native people have their own resources and their own trust assets, they should be allowed to govern these assets themselves," says Professor Van Dyke.

The fact is, though, the Supreme Court has consistently ruled against indigenous groups during the 1990s.

Justices Clarence Thomas and Antonin Scalia are opponents of preferential treatment of virtually any type. And with the pendulum swinging against affirmative-action programs, there is a chance that the Supreme Court could revise its 1974 ruling, upending the legal bulwarks that have been used to build programs for native Americans.

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