Not Because They Are Brown, but Because of Ea

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I. INTRODUCTION

During its 1999 Term the Supreme Court heard a case directly involving the status of Native Hawaiians for the first time in its history.(2) At issue was participation in the election of the board of trustees of the Office of Hawaiian Affairs (OHA), an agency that administers programs benefiting two subclasses of Hawaiian citizenry, "Hawaiians" and "Native Hawaiians."(3) The Hawaiian State Constitution limited the right to vote for the nine OHA trustees and the right to run in the statewide election for the position of OHA trustee to those two subclasses.(4) The Court held that because the definitions of these subclasses were racial rather than political in nature, the voting restrictions violated the Fifteenth Amendment.

At first glance it appears that the rights of yet another group of indigenous inhabitants of this nation were trampled upon. A closer inspection of the case reveals, however, that the Native Hawaiians were instead victims of a constitutionally faulty remedial infrastructure that was based on their race rather than their inherent sovereignty as indigenous people. The crux of the majority opinion was that the voting restrictions were both racially defined and imposed by the State, and thus were constitutionally impermissible.(5) Although the majority opinion does not elucidate acceptable alternatives, it implies that had the voting restrictions been based on membership in a Native Hawaiian political entity, and had that entity, rather than the State of Hawaii, been the administrator of the resources controlled by OHA, it is likely that the outcome would have been favorable to the Native Hawaiians. The constitutional defect identified by the majority was not an attempt to provide a measure of self-determination for Native Hawaiians but rather a faulty infrastructure that attempted to promote such self-determination as a function of race under the auspices of the State.

How this faulty infrastructure arose is in large part a function of history. Writing in dissent, Justice Stevens correctly admonished the majority that a proper decision required an understanding of the history of Native Hawaiians.(6) As Professor Frickey notes, "in federal Indian law, lawyerly analysis that is devoid of broader historical and theoretical perspectives leads to misleading conclusions about the determinacy and substance of what the law `is' [or `was'] at any given moment."(7) Part II of this Note therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law,(8) focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians.

II. CONTEXTUAL PERSPECTIVE ON RELEVANT HISTORY

Although Justice Kennedy allocates more than half of the majority opinion to the history of Hawaii,(9) he does not place that history in the broader context of the history of federal Indian law. Much of the argument from both sides centers on whether Native Hawaiians can legally be treated as Indians by way of the jurisprudence that identifies Indian status as a political rather than a racial classification,(10) It is thus necessary to understand the legal history of Indian policy. Numerous parallels exist between the treatment of Native Hawaiians on the islands and the treatment of Indians on the mainland. In several instances, however, the timing of major developments in Hawaiian history worked to the detriment of Native Hawaiians because of the character of Indian policy at the time. Like most renditions of the history of Indian law, this Part is organized according to the different eras of federal Indian law and policy. …